One of the longest-running debates in US history concerns the role of the Constitution in enabling or limiting social change. Was the 1787 charter, as averred by its framers, successive waves of establishment and insurgent politicians, and best-selling historians, the glorious and indispensable guarantor of self-government? Or was it, as Anti-Federalists, abolitionists, and radical historians have argued, a tool for the propertied and powerful to hold on to their privileges and to sustain an ongoing counterrevolutionary coup? Underneath these questions are even larger ones: Is US history a story of progress, of slow but steady emancipation? Or is it a more difficult, often depressing one of limited victories followed by resurgent exploitation?
In recent years, this debate has often circled around the question of whether the Constitution was for or against slavery. Did it perpetuate bondage or offer tools for its abolition? In 2015, David Waldstreicher and Sean Wilentz, representing those respective positions, tangled over the matter in The Atlantic and The New York Times. Wilentz’s 2018 book, No Property in Man, attempted to close the debate, without much success. In The New York Review of Books, Nicholas Guyatt critiqued his former teacher Wilentz for using history to pursue presentist political grudges against the left. Wilentz fired back, as Wilentz tends to do. The debate continued, further prompted by The New York Times’ 1619 Project, which among other things distilled and popularized the argument that the Constitution—and, indeed, the founding of the nation itself—had been pro-slavery. Wilentz and four other eminent historians (all of them white, incidentally or not) sent a letter to the Times taking issue with the project’s “displacement of historical understanding by ideology.”
Among the letter’s signees was James Oakes, a distinguished professor at the CUNY Graduate Center and a celebrated scholar of the history of emancipation. Oakes has spent much of his career analyzing how slavery was central to antebellum political and economic life. But he has also spent the last decade attempting to show how an antislavery interpretation of the Constitution helped put an end to human bondage in the United States. He began developing this argument in 2013 with his landmark Freedom National. In it, Oakes sought to refute the long-held contention in Civil War studies that what began as a war to save the Union only later, by sheer necessity, became a war to end slavery. Lincoln and the Republicans, Oakes argued, had entered office in 1861 with a concrete plan for abolition and acted on it within weeks of the firing on Fort Sumter. By using powers they discerned in certain clauses of the Constitution (such as the insurrections clause), the Republicans, he claimed, hoped to restrict slavery to states where it already existed, a first step, in their minds, to snuffing it out for good. Two years later, in a slimmer follow-up titled The Scorpion’s Sting, Oakes filled in some details on how the Republicans had come to believe that by closing slavery in with a “cordon of freedom,” they would be able to achieve its ultimate demise. Like a scorpion surrounded by fire, slavery would sting itself to death.
Now, with his newest book, The Crooked Path to Abolition, Oakes brings his trilogy to a close. If Freedom National focused on the actions Republicans took to end slavery and Scorpion’s Sting explained how they expected those actions would accomplish their goal, The Crooked Path explores the legal and political justification behind the antislavery program—namely, that the Constitution was in fact an antislavery document, contrary to the claims of both slavery’s defenders and the noisiest faction of its radical critics. Even if it deprived the federal government of any power to abolish slavery within the Southern states, the Constitution provided a number of powerful tools for limiting slavery’s spread. While some of this argument is familiar from the earlier books, in The Crooked Path we get a more detailed and focused emphasis on the Constitution itself.
Nowhere does Oakes explicitly draw out the connections between his new book and the larger arguments over how to interpret the trajectory of US history. That’s not his way. But they are unmistakably there. Insisting that the Constitution became a vital tool for both abolitionist radicals like Frederick Douglass and mainstream Republicans like Lincoln—he contrasted the pair in a 2007 dual biography, but now sees their mutual embrace of the antislavery Constitution as signaling a more fundamental accordance—Oakes disputes those abolitionists and later historians who depicted the Constitution as primarily a reactionary document. Above all else, Oakes seeks to combat what he vaguely derides in an endnote (citing Wilentz’s 2016 work The Politicians and the Egalitarians) as “the pervasive impact of antipolitical sentiment on recent scholarship in American history.” Complaining about overly pessimistic revisionist accounts, Oakes observed several years ago: “There was no American Revolution. Emancipation was a humanitarian disaster. The populists were irrelevant. The New Deal was irredeemably racist. And the Civil Rights movement didn’t change much. What sort of progressive politics can you get to from that kind of history?” In his exhumation of antislavery constitutionalism, Oakes unapologetically seeks to recover some kind of usable past. One reviewer has praised the “implicit civics lesson” of his new book. But what, in the end, does it teach?
Oakes begins The Crooked Path to Abolition with a sketch of the rise of the antislavery interpretation of the Constitution. In a sense, he argues, it began with the drafting and ratification of the document itself, as framers and ordinary citizens alike quarreled over how much protection it offered to slavery. However, he insists, antislavery constitutionalism as a full-fledged theory emerged first during the Missouri Crisis of 1819–21, the first of a series of battles over whether slavery would spread into newly acquired Western territories.
The theory that the Constitution anticipated eventual abolition faced a formidable obstacle, Oakes concedes, in what historians have termed the “federal consensus”—the widespread belief, shared by friends and foes of bondage, that Congress couldn’t abolish or even regulate slavery in the states where it already existed. That agreement shaped the politics of slavery from the ratification of the Constitution through the Civil War. Yet, Oakes argues, antislavery politicians worked skillfully and methodically over decades to get around this hindrance in order to push for the abolition of slavery in the United States. More than that, he suggests, antislavery advocates even found ways to appropriate that apparent limitation for their own purposes.
This theory of the Constitution shaped the development and execution of what Oakes terms the “Antislavery Project,” a decades-long plan to constrict the expansion of slavery, deprive it of oxygen, and ultimately place it on what Lincoln called “a course of ultimate extinction.” By denying slavery the outright protection of the federal government—banning it not only from the territories but also from the high seas, military installations, and Washington, D.C.—the antislavery movement could ultimately fulfill what its advocates claimed had been the founders’ long-delayed aspiration: ending slavery in America entirely.
By 1860, after a relentless succession of public crises and controversies forced the issue to the forefront of national politics, this project had managed to come within striking distance, if not of that final, hoped-for goal, then of the beginning of the path to get there. With an outspoken opponent of slavery in the White House for the first time, the levers of federal power could be wielded not to buttress the South’s peculiar institution but to undermine it. Eventually, compelled by some irresistible combination of carrots and sticks, the slave states would have no choice but to adopt abolition statutes. Lincoln’s election, Republicans and Confederates agreed, was but the first step to bringing slavery down.
Oakes acknowledges that it may be difficult for Americans today to glimpse what Lincoln and his allies saw in the founding charter: “Parse every clause of the Constitution, peer into the minds of its authors, and you may never find the antislavery document revered by so many ordinary men and women, Black and white, all across the North.” It took a lot of work to divine this hidden antislavery Constitution, including, as Oakes puts it, “coloniz[ing] various clauses” and even using them for purposes nearly the opposite of those they had once been thought to serve. The litany became something like antislavery scripture: Noting that the Constitution gave the federal government the power to “exercise exclusive Legislation” over Washington, D.C., activists insisted that it empowered Congress to ban slavery in the capital. Relying on the Fifth Amendment, they argued that Northern states could grant due process rights to accused runaways, making it harder for masters to reclaim their “self-stolen” property. And, most notably, they insisted that the Constitution empowered Congress to ban slavery in all federal territories.
This explication of the antislavery reading of the Constitution represents Oakes at his best, showing how clauses that seemed to protect slavery also opened, for a growing number of antislavery politicians, doors to its potential abolition. The Constitution was a mess of contradictions; it limited the possibilities of antislavery politics, but offered opportunities too. Competing interpretations of the Constitution “emerged in reaction to each other,” Oakes writes, adapting to new issues and claims by the other, each invoking the founders to support its view. The South’s increasingly aggressive twisting of the Constitution and demands for slavery’s protection developed as much in response to growing antislavery assertiveness as the other way around.
A closer look at complications that Oakes glides over leads one to wonder how consensual the federal consensus really was. Given his objections to how some scholars collapse important distinctions and suggest unanimities that never really existed, it’s striking that he sometimes does the same thing, downplaying disagreements within the antislavery movement over what policies the federal consensus allowed and what the Antislavery Project could therefore do. By the mid-1850s, for example, Frederick Douglass contended that Congress could indeed abolish slavery in the Southern states. Others, invoking the commerce clause, wanted to ban the sale of human beings across state lines. Shrinking the distance between the often moderate Lincoln and other more radical Republicans (a criticism also leveled at Freedom National), Oakes doesn’t ask what it means for his claims about the widespread popularity of antislavery constitutionalism that Lincoln felt compelled to reject many of the more aggressive proposals made by peers within his party.
In his Pulitzer Prize–winning The Fiery Trial, Eric Foner has mapped this evolution of Lincoln. Instead of a figure who always had a crisp, clear plan through which slavery would be put on the path to extinction, Lincoln was a man whose views changed with his tumultuous times. “At the time of his death,” Foner observed, “he occupied a very different position with regard to slavery and the place of blacks in American society than earlier in his life.” Oakes’s Lincoln is made to seem far more consistent, advocating antislavery policies, such as abolition in Washington, D.C., as early as the 1830s, when Lincoln was still serving as a state legislator in Illinois. He regularly denounced the Southern argument that the Constitution guaranteed property in slaves and insisted that the affirmation of human equality in the Declaration of Independence had been incorporated in the Constitution itself. “The antislavery Constitution shaped his antislavery politics,” Oakes writes.
That antislavery constitution, Oakes argues, offered three distinct strategies for eroding and ultimately ending slavery during the Civil War. The first was the “cordon of freedom” plan that long predated the conflict, in which the federal government would restrict slavery to the states where it already existed and push the slave economy to the brink of collapse. The second was military emancipation: With secession, the federal government could liberate enslaved persons as a military necessity and also protect and arm those who had already liberated themselves. Finally, in the wake of the war, a new amendment to the Constitution could be put in place that would end slavery everywhere and at once.
Initially, Lincoln had placed much of his faith in the “cordon of freedom” approach. Banning slavery in the territories would prevent new slave states from being created and weaken slavery in the existing states, which would, as Oakes writes, “succumb to increasing economic pressure to abolish slavery on their own.” In the secession crisis of early 1861, this was effectively the Republicans’ peace proposal—it was intended, as Oakes wrote in Scorpion’s Sting, “to accomplish the abolition of slavery without violence and without war.”
As politically useful as this vision may have been, however, it seems utopian to the point of being delusional. By the late 1850s—thanks largely to the provision in this same supposedly antislavery Constitution that granted slaveowners extra power on the basis of their human chattel—support for slavery had become deeply entrenched in the federal judiciary and a crucial pillar of the national, not merely the Southern, economy. It is by no means clear that in the absence of the South’s secession, Lincoln and the Republicans would have been able to do much damage, and they very well could have lost reelection in 1864, rapidly undoing whatever good their containment policies had done. For Oakes, the fact the South did secede is proof, if not that the cordon of freedom would have worked, then at least that the South thought it would. He sees secession as more of a “spectacular miscalculation” than “a hysterical overreaction to a non-existent threat.” That much seems right. Yet, if the threat wasn’t nonexistent, neither was it necessarily existential.
Even if slavery was on the ropes, as the country tilted toward civil war it was clear that its death was never going to be peaceful. As Oakes has noted, the price of human chattel was rising in the United States and beneficiaries of the slave system turned to increasingly virulent appeals to white supremacy to keep non-slaveholders in line. During the war, the Confederate states became even more determined to hold on to their purported property, passing laws authorizing white Southerners to shoot, decapitate, and publicly display the bodies of any enslaved person they suspected of running to Union lines. Surrounded by fire, the scorpion was always going to make one last desperate attempt to escape. Lincoln himself noted in 1855 that “there is no peaceful extinction of slavery in prospect for us.” Shot through with compromises, the Constitution could only do so much. It was always going to take a revolution.
Soon after war broke out, Lincoln and the Republicans began to deploy special wartime powers to deprive the rebels of a prime source of strength and hasten slavery’s demise. To do so, they weaponized, Oakes argues, two key planks of the antislavery constitution: First, that the rebel states forfeited any right to constitutional protection, including the return of fugitive slaves. Second, that the constitutional clause empowering the federal government to put down insurrections in the states implicitly granted it the power to emancipate slaves while so doing. In all three books, Oakes is masterful in showing how these two principles shaped Lincoln’s actions once the fighting commenced. Both, Oakes claims, were accepted almost as broadly in the Republican Party and the wartime Unionist coalition as the original common-ground position that slavery should not be permitted to expand to the territories.
As a result, during the war, the Union army became a force of emancipation, first by blocking the recapture of fugitives by disloyal masters and refusing to do anything to assist the identification and return of runaways from loyal ones. This significant shift in policy represented a crystallization of the antislavery theory of federal obligation: do nothing actively to help slavery, only to spread freedom. Before long—and well before the Emancipation Proclamation—federal troops were freeing slaves outright. Runaways from Maryland fled south to Virginia, rather than north to Pennsylvania, seeking protection behind Union lines.
All of this makes for a persuasive restatement of Oakes’s claim in Freedom National that the Union war effort from the start took aim at Southern slavery. What is less convincing, however, is Oakes’s insistence that the Antislavery Project as instituted remained “substantially unchanged” from before the war. In Scorpion’s Sting, he was somewhat more restrained in arguing for the durability of the Republican program. “The men and women who struggled to abolish slavery were not counting on a war to get the job done,” he wrote in the very first line of the book, adding later that the “war powers were incidental to their goal of destroying slavery.” In The Crooked Path, oddly enough, the path is made to seem less crooked: Beginning with John Quincy Adams’s congressional speeches in the 1830s and ’40s, Oakes affirms, a constitutional theory for military emancipation was widely adopted in antislavery ranks long before the war began. Yet, after Adams (who in any case was not really anticipating a civil war but potential European intervention in a US war with Mexico over the annexation of Texas), the possibility of wartime emancipation was only rarely discussed until the secession crisis; certainly, it wasn’t part of the Republican Party platform. “In the context of civil war,” Oakes notes, “antislavery constitutionalism provided the legal basis for the single most revolutionary moment in the political history of the United States: the liberation of four million enslaved Americans.” But that first part of his sentence is crucial: “in the context of civil war.”
Throughout Oakes’ emancipation trilogy, there is an unresolved tension between his reading of Lincoln and the Republicans’ “constitutionalism” and his insistence that what they accomplished was nonetheless “revolutionary.” The terms would seem to signify opposites—“constitutionalism” a basic adherence to traditional limitations on the exercise of sovereign power, “revolutionary” the decisive overthrow of the same. This tension in the trilogy is both frustrating and fruitful. It’s enlightening to learn about the intricate textual interpretation that Republicans devised to legitimize their program for slavery’s gradual abolition. But in practice it proved insufficient. Brute force was ultimately necessary to end slavery in America. If the antislavery interpretation of the Constitution gave the Republicans the excuse to do what they deemed necessary to undermine slavery, the revolutionary situation created by secession and civil war provided the opportunity. Even if the Republicans were not the ones who had acted to suspend the ordinary operations of the constitutional order, suspended they were, and Lincoln took advantage of the situation to accomplish what would have proven far more difficult, if not impossible, had they remained in effect. In the end, abolition was a revolutionary act in constitutional disguise.
Lincoln’s Proclamation freed individual slaves from bondage, but nowhere did it end slavery itself, which could have easily returned after the war. The president and congressional Republicans soon realized that the only way to ensure slavery died forever was changing the Constitution. Initially resistant (a hesitation Oakes does not explore), Lincoln came to think of an antislavery amendment as the “King’s cure,” a comprehensive solution to the issue that had caused the war. “It winds the whole thing up,” he noted.
That expediency, however, had rarely been anticipated in the annals of antislavery constitutionalism. Rather, it had been William Lloyd Garrison and his band of “antipolitical” radicals who for decades had identified the 1787 Constitution as an insuperable obstacle to abolition and predicted that only the rupture of the Union would ring the death-knell of slavery.
Oakes tries to show that the amendment overturning the federal consensus was itself adopted under the aegis of this consensus, since after its passage in Congress it had to be ratified by three-fourths of the states. “The federal consensus,” Oakes argues, “rather than an insuperable obstacle to abolition, was the method by which the Thirteenth Amendment was secured.” Yet the inescapable reality is that abolition was finally achieved in something like a constitutional state of emergency—despite the charter of 1787, not because of it. If this was indeed a “King’s cure,” the patient was strapped to a gurney and had an IV slammed into his arm.
To prove his case, Oakes rattles off the states that ratified the amendment quickly, including slave states like Maryland, Louisiana, and Tennessee, that either had never left the Union or were under military rule. Yet the legitimacy of these newly reconstituted legislatures in states under occupation was dubious at best. When Lincoln wrote to underlings asking them to organize elections for new state constitutional conventions that would, he hoped, abolish slavery, he was writing not to elected officials but to military officers. To pretend that this situation reflects Lincoln’s long-standing commitment to the federal consensus strains credulity to the breaking point. Oakes notes this himself: “some of these ‘states’ were barely even states,” he writes, and Virginia’s so-called Restored Government was “entirely a creature of the federal government.” The credibility of Louisiana and Tennessee, which also acted to abolish slavery, was equally questionable. “But as far as the Lincoln administration was concerned,” Oakes offers, “the only legitimate state government was a loyal state government.” On the constitutional amendment, too, Oakes was more forthright in Scorpion’s Sting about the role of compulsion. “By 1864 it was Union policy to require seceded states to abolish slavery as a condition for readmission to the Union.” But in Crooked Path, this claim has morphed into something quite different: “None of these states abolished slavery because Abraham Lincoln told them to abolish slavery.” In an endnote, Oakes notes that Lincoln never believed he could force a state to ratify the 13th Amendment in order to rejoin the Union. After Lincoln’s death, Andrew Johnson likewise didn’t insist; as Oakes puts it, he simply had Secretary of State William Seward “let it be known…that ratification was what Johnson expected.” It was an offer they couldn’t refuse. Secession provided the revolutionary conditions and thus the federal government leverage that the Constitution in its ordinary functions did not.
Slavery in the United States ended only because its defenders tried to leave the Union and its opponents fought and won a war to make them stay, then demanded abolition as the condition of readmission. Of course, as Oakes does acknowledge, it also had much to do with what W.E.B. Du Bois termed the “general strike,” in which the South’s enslaved black workers transferred their allegiance and labor to the North, further creating the conditions of revolution. Yet that uprising would have been nearly inconceivable—just ask John Brown—had the slaveowners not voluntarily surrendered the protections that membership in the Union had always afforded them and, even after 1861, would have remained in place. Oakes rightly notes “the irony—the supreme irony” that secession itself “radically accelerated the decades-long shift in the balance of power between slave and free states.” The temporary breakup of the Union proved the best thing that could have happened for the abolition of slavery—or for antislavery constitutionalism. “Disunion is abolition” runs one chapter title in Freedom National. Why dismiss those like Garrison who had only hoped it would come sooner?
If the cordon of freedom may not have worked, and military emancipation proved inadequate, and the 13th Amendment could be ratified only by pretending that random assortments of Unionists represented the legitimately constituted legislatures of their states, then the question has to be asked: What can we ultimately credit antislavery constitutionalism for? After the war, a whole new Constitution—in the form of the Reconstruction amendments—had to be grafted onto the tattered fragments of the old one. The country could not return to its former self; the nation had to be founded all over again.
Even then, it’s hardly clear that the amended Constitution really accomplished its intended purpose. Oakes has long been critical of histories that downplay the accomplishment of emancipation and claim that “slavery by another name” took hold in the South after Reconstruction. But what these histories do is help remind us how the absence of slavery doesn’t always mean the presence of freedom. After all, the limitations of what the Civil War accomplished can be traced directly back to the terms on which it was fought and a lasting peace finally achieved. Lincoln’s feints toward colonization of newly freed Blacks even after he had already determined to free every Southern slave—and his contention that emancipation was only a means to the end of saving the Union—were predicated on the assumption that white supremacy could and should survive the war. In this sense, the boldest act of American history was another dodge, another compromise between despotism and democracy. Maybe this reflected a sober recognition of political realities. A frontier-state politician acutely sensitive to the prickliness of white supremacy, Lincoln believed he would have the public’s backing to push universal emancipation only if he first paid homage to popular support for racial exclusion. But these balances and bargains also revealed that behind the slavery question was that of the inclusion of Black Americans as free and equal citizens. That fight, alas, continues, with the Constitution only occasionally on justice’s side.
In a 2017 discussion of what he called the “new consensus history”—especially the histories of slavery and capitalism that later informed the 1619 Project—Oakes derided contemporary scholarship for offering only “a history and politics of hopelessness.” More recently, Princeton historian Matthew Karp has argued in Harper’s Magazine against the emphasis, in the 1619 Project and other revisionist narratives, on centuries-spanning continuities rather than change over time. But wouldn’t it have been useful information to have in 1865 that more than a century and a half later the simple assertion that Black lives matter would still be controversial? That sensitivity to white supremacy would still be the marker of an able politician? Where is the hope in that? Where is the hope in the reflection, occasioned by Oakes’s work, that slavery could be abolished only once the Constitution had been annulled?