The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution

by James Oakes

IN 1860 Abraham Lincoln ran for president on a Republican Party platform that proved Hale’s point by repeatedly invoking a Constitution that favored freedom over slavery. It proclaimed freedom to be the “normal condition of all the territory of the United States.” The Republicans did not directly call on Congress to pass a law banning slavery from the territories. What they actually said was that Congress had no authority “to give legal existence to slavery in any territory of the United States.” It wasn’t that Congress lacked the power to ban slavery, it was that Congress had no constitutional power to allow slavery into the territories. Natural law decreed that all human beings were born free, and the Constitution affirmed that principle. Its Preamble secured “the promise of liberty to ourselves and our posterity.” The Fifth Amendment decreed that no person could be deprived of liberty without due process of law. Congress could, if need be, pass laws protecting the freedoms of all those residing in the territories, but it could not pass a law establishing slavery nor could it allow a territorial legislature to do so. So freedom was more than the normal condition of the territories, it was the constitutionally protected condition of the territories. That’s because the Constitution—the Constitution as Lincoln and the Republicans understood it—was an antislavery document. To be sure, the founders had made compromises with slavery in order to create the Union, but those pros...

Oakes’ thesis