The Two Constitutions

Historians can and do change their minds about interpretations of events and the uses of evidence. We may be dead certain, or even mildly sure, about facts and the stories we tell about them, but our craft requires us to remain open to new persuasions, new truths. James Oakes used to believe that the United States Constitution was essentially proslavery in its foundations, and that any attempt to breathe antislavery meaning into it was strained or rhetorical and not textually supported. But no more. In his remarkable and challenging book The Crooked Path to Abolition, he makes the case that there were effectively two constitutions written in Philadelphia that summer of 1787, one proslavery and one antislavery, which would be in conflict with each other for more than the next fourscore years.

Oakes, a distinguished professor of history at the CUNY Graduate Center, is not the only historian to have changed his view on this matter. In my first book, in 1989, I treated Frederick Douglass’s development of an antislavery interpretation of the Constitution as a slowly evolving perspective on his road to becoming a pragmatic political abolitionist and as a form of wish fulfillment in the absence of alternatives. I called his antislavery constitutionalism “dubious”—a search for political and moral ground on which he could stand to avoid embracing violent revolution by the 1850s. But I have come to see him as a deeply committed political thinker who argued his way, through what he called “careful study,” using legal and moral logic, to a vision of an antislavery Constitution. Guided by the natural rights tradition, Douglass found the core meaning of the American crisis. “Liberty and Slavery—opposite as Heaven and Hell,” he wrote in 1850, “are both in the Constitution.” What divided the nation was a Constitution “at war with itself.”¹

It has long been understood that without the compromises that were struck to bolster the interests of the slave states, there might have been no constitution achieved in 1787, and the thirteen original states might have careened off into regional coalitions at best. With the publication in 1840 of James Madison’s notes from the Constitutional Convention, more information emerged about pivotal crises and compromises in those famous debates. The notes fueled the endless arguments over the meaning and intent of the “founders,” a term that defies any unified definition, as Oakes argues. For instance, the notes record a dispute over a proposed tax on future slave imports, to which Roger Sherman of Connecticut fiercely objected “because it implied that they [slaves] were property.” Madison agreed and, in what may seem rather startling language for a Virginia slaveholder, declared it “wrong to admit in the Constitution the idea that there could be property in men.”

The original Constitution reeked of complicity with the peculiar institution. It contained prominent proslavery features: a fugitive slave clause requiring retrieval of escaped bondspeople (although ambiguous about adjudication), the provision that the end of the foreign slave trade would be postponed until at least 1808 (both sides claimed victory in this matter), and the numerous elements that embedded federalism deeply into the document, enabling the doctrine of states’ rights to flourish. Above all, the three-fifths clause counting enslaved people in such a robust fraction for the purpose of representation in Congress and the Electoral College, which enhanced significantly the slave states’ power in the legislative branch and presidential elections, explicitly gave the United States, it seemed, a permanent proslavery future.

Proslavery advocates made the Fifth Amendment’s guaranteed protection of property ownership their “linchpin,” Oakes shows, in one crisis after another in the antebellum era, including the dangerous controversy around the admission of Missouri as a state in 1820. The Fugitive Slave Act of 1850 drew its power, at least slaveholding southerners believed, from original, if vague, constitutional guarantees of the return of escapees. But so did the passionate resistance to that hated provision in the North because of the Constitution’s equally explicit guarantee in the Fifth Amendment of due process to “all persons.”

Southerners would, of course, claim that the Constitution permitted their secession in 1861, following the argument of John C. Calhoun of South Carolina, who maintained that the United States had been from its inception a contractual arrangement balanced between slave- and free-state interests. And they confidently held that, according to the Tenth Amendment, all powers not delegated to the federal government were reserved to the states. The proslavery Constitution had previously sustained slaveholders’ faith in their power within the Union, and in “King Cotton” as economic leverage, down to the late 1850s, despite their increasing minority status.

On the other hand, Oakes identifies several parts of the Constitution as inherently antislavery. The preamble’s call for a “more perfect union” inspired abolitionists, who also pointed to section 4 of article 4 and its “guarantee to every state in this Union a republican form of government.” Section 2 of article 4 buttressed a growing antebellum claim of Black citizenship, rooted in the privileges and immunities clause.² Antislavery constitutionalists also found support for their principles in the Fourth Amendment: the rights of Americans to be “secure in their persons…against unreasonable searches and seizures” offered language to protect fugitive slaves and promote human rights.

The Fifth Amendment served both sides, but abolitionists drew increasingly on its stricture that no “person” shall be “deprived of life, liberty…without due process of law.” They avoided the word “property,” which followed “liberty” in the text, not just out of convenience but because of their long-standing legal and moral rejection of the idea of “property in man.” Antislavery activists further employed the war powers provisions for both Congress and the president to forge a potent theory of “forfeiture of rights”: if states engaged in domestic insurrection or secession, they immediately lost their rights in property, especially human chattel, as the federal government was duty-bound to crush such rebellion. And finally, the entirety of the Bill of Rights was a shining antislavery star for those seeking an egalitarian spirit in the Constitution.

The combination of all these clauses and principles allowed some abolitionists to declare the Constitution a bulwark for human equality and not merely, as Oakes says, a “hypocritical fantasy” crushed by white supremacy and a larger history. Some modern readers who are now conditioned to see the United States only as a progenitor of racial inequality may, misguidedly, find this claim on behalf of abolitionists a bridge too far.

The Crooked Path to Abolition is deeply researched in the Abraham Lincoln archive and is as much about Lincoln’s political skill and his intellectual road to emancipation as it is about antislavery constitutionalism. But it ultimately seeks to persuade readers that from the founding, two very different readings of the 1787 charter put the country on a course of all but inevitable conflict. The book’s importance rests in its case for an antislavery Constitution more than its likelihood of settling any battles in Lincoln scholarship, despite the author’s intensity in defending the prairie lawyer’s antislavery credentials.

Oakes demonstrates that antislavery thinkers such as Alvan Stewart, William Goodell, and Lysander Spooner developed a multilayered, coherent theory that the Constitution could be used to destroy slavery as early as the 1830s and 1840s, and traces their quest back to the founding. He draws upon and extends Sean Wilentz’s provocative book No Property in Man: Slavery and Antislavery at the Nation’s Founding,³ which also showed how antislavery constitutionalism eventually became, in Oakes’s words, “conventional wisdom among millions of northerners” and reached the highest ranks of the Republican Party by the mid-1850s, setting the stage for the tragic struggle soon to arrive.

The alternative was the influential vision of William Lloyd Garrison and his many followers. Garrison proclaimed the Constitution a “covenant with death” and an “agreement with hell,” and famously burned a copy at a rally in 1854. So devoid of antislavery features was the Constitution, Garrisonians believed, that abolitionists had no future using the document or even participating in the government it created.

To oppose these formidable, even anarchic, arguments, Goodell crafted the theory that the Constitution must be read in its “original organic structure,” meaning its overall purpose as well as its actual words. Goodell was a New York–based temperance advocate, radical abolitionist, journalist, and writer on religion; in 1852 he was the Liberty Party’s candidate for president. His reading of the Constitution, he insisted, did not necessarily explain how “the successive administrations of the National Government” advanced either freedom or slavery, but it deciphered the document’s true meaning and ultimate use against slavery. He contended that the Constitution, as an assertion of natural rights for all, fully empowered the federal government to end slavery everywhere, thus giving abolitionists a formidable weapon.

Salmon Chase of Ohio, an antislavery lawyer, defender of fugitive slaves, and eventual senator and member of Lincoln’s cabinet, offered yet another position, seemingly more moderate but no less potent. Chase and the emerging Republican Party upheld what was called the “federal consensus,” the idea that the national government could not eliminate slavery in states where it was protected by law but could end it anywhere else Washington held jurisdiction, including the territories and the District of Columbia. This bred one of the core ideas of antislavery politics in the 1850s: that slavery was local and sectional, and freedom was national.

A particularly powerful example of antislavery constitutionalists’ fervor emerged in their resistance to the Dred Scott case of 1857, in which the Supreme Court ruled resoundingly, 7–2, in favor of proslavery constitutionalism. Oakes aptly reminds us that Lincoln himself became an active conspiracy theorist after Dred Scott, embracing the idea of a cabal of proslavery southerners controlling the branches and levers of federal power.

In his announcement of his campaign for the US Senate in 1858, after the opening prose poetry about a “house divided against itself…half slave and half free,” as well as the telling pledge that slavery must be put on a “course of ultimate extinction,” Lincoln spent several pages condemning Chief Justice Roger Taney’s majority opinion in Dred Scott, which infamously declared that Black people had “no rights” under American law. Oakes stresses that Taney’s foreclosure of Blacks’ future in the American polity is rarely balanced with the two dissenting opinions, by Justices John McLean and Benjamin Curtis. Curtis denied the racial ideology on which the Dred Scott decision relied, and McLean declared citizenship the birthright of all free Blacks. Taney had forced American law to accept slaves as chattel property in perpetuity; Lincoln represented his party’s position that there could never be “property in man.”

By 1860 Douglass had explicitly enlisted Madison on the antislavery side of the Constitution, taking dead aim at the “property in man” argument. He saved his most poignant eloquence, though, for a broader claim. The “language” of the preamble, Douglass pointed out in a speech in Glasgow, Scotland, is

“we the people”; not we the white people, not even we the citizens, not we the privileged class, not we the high, not we the low, but we the people; not we the horses, sheep, and swine, and wheel-barrows, but…we the human inhabitants; and if Negroes are people, they are included in the benefits for which the Constitution of America was ordained and established.

These, then, were the positions in the constitutional battle on the eve of the Civil War: one Constitution birthed secession and rebellion, and the other a political coalition determined to surround slavery and destroy it. Both Constitutions had grown in tandem in an age of great expansion westward and of tremendous growth in the world’s most powerful slave society. Both sides of this struggle, writes Oakes perceptively, tried to “colonize” the Constitution for their own aims. Each side appropriated important clauses as justification to give slavery legal permanence, in one view, and put it on a course of “ultimate extinction,” in the other. The Constitution contained sufficient ambiguity, even warring logics, to give this story a drama like few others in our political past.

Abraham Lincoln’s thinking on slavery and the Constitution began with the federal consensus. For seventy years of bitter debates and controversial compromises, it had held, and in Oakes’s telling, Lincoln had joined the antislavery constitutionalists’ position: “Freedom was the rule, slavery the exception.” Wherever the federal government had jurisdiction, they argued, it could and was required to thwart and eliminate enslavement. Proslavery advocates, of course, maintained their right under the Fifth Amendment to carry their slaves as property anywhere they wished. Whether the US would have a slave-labor or a free-labor future was at stake in the 1860 presidential election, which Lincoln won with far less than half the popular vote.

Lincoln scholars and constitutional historians may quarrel with parts of the analysis in this book; Oakes enjoys a good historiographical rumble, and he is likely to find one. His larger scholarly purpose is to demonstrate the antislavery bona fides of the nineteenth-century Republican Party, especially against a popular perception of its present racist underside. Here he confines his criticisms of other scholars mostly to the endnotes; as a historian Oakes is primarily a careful prosecutor showing us what we have missed, not a polemicist. He is indignant at his colleagues’ and the larger culture’s needs, as he sees it, to wallow in the country’s persistent racism, especially in judging Lincoln. So much ambiguity abounds in Lincoln’s racial thought that one can generally find what one seeks. Too many people like their Lincoln pure—as racist or as emancipator.

“It is sometimes said,” Oakes writes, “that Lincoln’s commitment to emancipation was held in check by his racial prejudice, but the evidence suggests something like the opposite.” Many writers on Lincoln fall into using words like “sometimes” and “something” for good reason; their subject is elusive. “As his immersion in antislavery politics deepened,” says Oakes,

and his commitment to antislavery constitutionalism intensified, it became harder for Lincoln to distinguish his opposition to slavery from his baseline commitment to fundamental equality for whites and Blacks.

But Oakes might have reconsidered the statement that Lincoln, “though relatively untouched by racial prejudice, was nevertheless surrounded by it” in Illinois, where the culture “bred” in him “a profound pessimism about the future of African Americans in the United States.” Oakes too easily uses that to explain away Lincoln’s advocacy of the removal of willing Blacks by colonization.

This book needs to be read, though, for its uses of contradiction. Oakes places Lincoln squarely in the vanguard of what he calls the “antislavery project” of the Republican Party, and not as a reluctant late arrival. While Eric Foner analyzed Lincoln’s evolution toward the pivotal decisions for abolition in the midst of the Civil War, Oakes sees the sixteenth president as a full believer progressing pragmatically toward ever more radical views. These are really two complementary variations on the story of Lincoln’s growth on race and slavery.⁴

Once in a while Oakes breaks from the meticulous treatment of Lincoln’s balancing act on emancipation. Lincoln did engage in “periodic bowings and scrapings before the racist peanut gallery,” as in one or more of the debates with Illinois senator Stephen Douglas in 1858. Occasionally Oakes finds Lincoln “running for cover” on questions of racial prejudice. But in his first inaugural address, in March 1861, he endorsed citizenship rights for free Blacks, specifically citing the privileges and immunities clause of the Constitution. If the new president had turned around to Chief Justice Taney and Senator Douglas, sitting immediately behind him, and “slapped both men in their faces,” Oakes writes, “his repudiation could not have been more stunning.” The book could have benefited from more dramatic writing like that.

Oakes shows that, along with most antislavery voices, Lincoln believed that only states could abolish slavery, until the Civil War changed all imperatives. With other Republicans, he believed that his party should legally build a “restrictive fence,” a “cordon” around the slave states, eventually leading them to the economic necessity, if not the wisdom, of ending slavery on their own. Hence Lincoln was by instinct and constitutional principle a gradualist. He hated slavery but preferred its demise to come with compensation to slaveholders, and with at least a degree of voluntary emigration by Blacks.

Lincoln deferred to the racist “prejudices of the majority,” Oakes acknowledges, while holding firm to Republican Party positions. He charts the contingencies that shaped the president’s response to fugitive slaves entering Union lines. The distinction the administration and the army tried to make between escaped slaves of “loyal” and “disloyal” owners was confounding, even confusing, in 1861, and it is even to some extent in this book. Oakes helps us grasp, though, the harrowing challenges Lincoln faced in trying to fashion a military emancipation policy in a country at war that he did not believe would ever adopt real racial equality. Lincoln had no faith that racial prejudice could be sufficiently defeated.

The repeated efforts of Lincoln’s administration to plan, recruit, and provide finances to induce African Americans to renounce their birthright and leave for foreign lands needs more explanation than Oakes provides. Lincoln did indeed include Blacks in the natural rights of the Declaration of Independence; he used his war powers and an increasingly bold vision of the Constitution to make Black freedom possible. But to call Lincoln’s repeated endorsements of colonization “odd” seems off the mark; he remained a colonizationist down to the end of 1862, and his position was more consistent than odd. Nor does it feel accurate to use a modern term like “antiracist” to describe Lincoln’s inclusion of Blacks within the moral imperative of natural rights. He was the first president to do so, and for that he deserves honor. Yet we might want to be as careful in making him a modern progressive as we are in resisting the ahistorical label of “racist” for this most mythic and real of American leaders.

“Anyone,” writes Oakes,

could have anticipated that when the war came Lincoln and the Republicans would respond to the myriad eventualities in ways that reflected their long-standing commitment to the principles of antislavery constitutionalism.

Well, not anyone. Douglass and other radicals did not trust Lincoln and his administration to wage an antislavery war during its first year. Like all Black abolitionists, Douglass was not yet an insider in Republican circles, nor did he adhere to the federal consensus once a sanctioned war commenced. Black leaders felt insulted and outraged by the colonization schemes, which Lincoln did not fully abandon until the Emancipation Proclamation, in January 1863. Douglass’s estimation of the president changed markedly between 1863 and 1865; his sense of Lincoln’s growth on the emancipation question by the end of the war is a moving story of mutual transformation.

Oakes, however, has made a strong case for his essential thesis. Antislavery constitutionalism, he argues, had firmly conditioned Republicans like Lincoln to wield federal power to destroy slavery well before the Battle of Antietam, in 1862, which prompted the Preliminary Emancipation Proclamation. Oakes puts it adroitly:

Historians sometimes tell us that the destruction of slavery was the incidental by-product of the war, that the war “changed everything.” It would be more accurate to say that slavery was abolished because the Civil War radically accelerated the decades-long shift in the balance of power between slave and free states.

Such an acceleration happened, Oakes shows, because of secession, but the instruments used by antislavery Republicans in wartime had long been tuned and rehearsed. Their interpretation prepared them for what Oakes calls the “single most revolutionary moment in the political history of the United States: the liberation of four million enslaved Americans.”

We still have two Constitutions on many issues: the nature of federalism, voting rights, election laws, the right to bear arms, and much more. We have a majority on the Supreme Court determined to return every power possible to the states, reverting the “Union” to many decades ago when it was a collection of battling legal sovereigns with common borders. The historical template for these and other future debates may always be the profound failures and triumphs of antislavery constitutionalism’s struggle against proslavery constitutionalism in the 1850s and 1860s. The heat in our public history wars today needs the light of this kind of scholarship, however difficult it is to sustain faith in truth, persuasion, and historical consciousness itself.