The Crooked Path to Abolition with James Oakes | BRI Scholar Talks

0:00 more so that’s that’s what i’m trying to show in the book is the connection between these theories of the constitution and what the federal government could and could not do and how anti-slavery politicians develop a project to get the states to abolish slavery and how the war accelerates that process uh

0:20 and and puts that project on steroids in a way until you until you actually get uh the complete eradication of slavery in the united states [Music] hi this is tony williams a senior fellow at the bill of rights institute and i am very pleased to bring you another episode of scholar talks

0:42 on today’s episode we are very pleased to have distinguished scholar james oakes who is going to talk about his new book the crooked path to abolition abraham lincoln and the anti-slavery constitution and i just can’t say enough good things about this book so excited you’re on and that we’re

1:03 gonna be diving in in a minute uh but by way of introduction uh james oakes is the distinguished professor of history at the city university of new york and he’s one of the leading historians of 19th century america his pioneering and path-breaking books include the ruling race slavery and freedom and interpretation

1:23 of the old south the radical and the republican frederick douglass abraham lincoln and the triumph of anti-slavery politics and freedom national the destruction of slavery in the united states 1861 to 1860 he’s also a two-time winner of the

1:44 very prestigious lincoln prize uh and i think you’re going to win again for this one quite frankly so uh jen thank you very much for joining us well it’s very happy to be here thank you for having me great well let’s dive right in in the book you state that your views have changed over time and that you now embrace the

2:04 idea that the anti-slavery constitution is is more persuasive than the pro-slavery constitution can you please maybe explain those differences between the two and why you might have changed your mind well let me just correct one little thing about

2:25 that uh i find the anti-slavery constitutional argument more persuasive than i once found it but one of the points i’m trying to make in the book is that there is that there was an anti-slavery constitutional argument that was robust and intelligent and well worked out

2:46 alongside the more familiar pro-slavery constitutionalism that we associate with say judge tony’s decision in the dred scott case which is a fully elaborated inversion of the pro-slavery constitutional argument we all know that argument everybody quotes from the dred scott decision but we don’t really fully appreciate how

3:09 how robust and powerful the anti-slavery constitutional argument was and that i didn’t appreciate that uh uh for many years i wrote an article many years ago basically taking the william lloyd garrison position on the constitution that it was a pro-slavery document but when i started

3:31 studying anti-slavery politics and i first encountered the anti-slavery constitution in my studies of frederick douglass i thought well those are interesting but a bit eccentric but the more i dived into it i realized that his views of the constitution were actually much closer to the mainstream of the republican party and

3:54 ultimately to abraham lincoln than i once realized and that lincoln was articulating an understanding of the constitution that was as close to universal among northerners as you could get so and and since it’s not just a something that’s of interest as

4:15 intellectual history or as constitutional history that’s the interpretation of the constitution that basically took control of the federal government when lincoln and the republicans won in 1860 61 and it determined their policies during the war and led ultimately to the destruction of slavery in the united

4:36 states so it’s it’s an enormously significant body of thought that we don’t really know very much about so that’s one of the reasons i wrote that book so and readers will definitely know more about it uh and so what were lincoln’s reviews and and how does he come to hold

4:57 these these positions well he’s he’s a lawyer so he knows how to think in legal terms uh and he grew up in an anti-slavery household so he was always anti-slavery so uh he he one of the one of the there are two attributes of lincoln that make him interesting to me as a historian and one

5:20 is that he’s so he’s such a good writer and speaker that he articulates the anti-slavery position so forcefully and so clearly that you could just read him and you know what the anti-slavery position is but the other thing about him is that it’s a completely unoriginal position if you’ve read a lot of anti-slavery

5:40 thinkers you know that he is not saying anything that lots of other people weren’t saying he’s just saying it better so that’s important because it means he’s in he’s picking up something like the mainstream view of anti of the anti-slavery constitution that is that is held by virtually all anti-slavery politicians who are clearly

6:02 the majority in the north certainly by 1820 and so understanding where he gets his views understanding his views and where he gets them from is basically the same thing as understanding the history of anti-slavery constitutionalism by the time he takes up anti-slavery politics in the 1850s it is

6:22 a fully formed well-developed body of thought about what the constitution does and does not allow the federal government to do in an effort to put slavery as lincoln’s head on a course of ultimate extinction right and you described that in your book as the anti-slavery

6:43 project yes the anti-slavery constitution and and so that takes shape in in the decades leading up to the civil war and you provide a very thorough analysis of that can can you provide a few examples of that sure the anti-slavery project is a set of

7:05 policies that the federal government can pursue in an effort to get the states to abolish slavery on their own so the first thing you need to know about slavery in the constitution is that it left it’s a federal constitution and it left questions of personal status to the states states

7:26 determine who can and can get married they determine the laws of indentured servitude they determine master servant law labor law and they and it’s just and slavery is a state institution understood to be a state institution the federal government by by a virtually unanimous agreement

7:47 universal agreement cannot abolish slavery in the state but what can it do then short of abolishing slavery and say then that’s what the anti-slavery project is all about what can the federal government do well it can do a lot of different things it can for example a ban slave free from the western territories it can inhibit the recapture of fugitive

8:09 slaves by guaranteeing due process rights for accused fugitives it can ban slavery the importation of slaves from the atlantic slave trade it can abolish slavery in washington d.c it may even be able to regulate the interstate slave trade certainly the coast-wise slave trade and it can do all these things on the assumption that if if

8:29 the federal government does this the slave economy will not be able to survive on its own and you can restart the process of state-by-state abolition that ended when new jersey abolished slavery in 1804 so that’s the goal the goal is to use

8:49 the powers available to the federal government short of directly abolishing slavery in a state to get the states to abolish slavery on their own and and i try to show in how the civil war doesn’t alter that goal it accelerates it and that we wouldn’t have a 13th amendment if

9:10 if during the civil war lincoln had not pursued those policies to the point where enough states abolished slavery to ratify a 13th amendment right so there’s a direct correlation there’s a direct relationship i’m trying to say between this anti-slavery project that you first start seeing abolitionists formulate in the 1820s and

9:32 30s and the what you end up with with the ratification of the 13th amendment in december of 1865. that you can’t understand the one without the other okay very good and so let’s dial in a little bit on lincoln again uh he’s aroused to enter national politics after kansas nebraska

9:52 becomes to really national prominence obviously he’s then elected president uh how did his anti-slavery constitution use you know affect his his rhetoric during the 1850s affects his viewpoints and and even his uh you know his responses to events like dred scott and bleeding kansas

10:13 and support well over the course of his life in politics he he endorsed many of the specific policies associated with the anti-slavery project as a young legislator in the state of illinois he he argued explicitly for the first

10:34 time the first time and he ever makes about slavery that the con constitution empowered congress to abolish slavery in washington dc and when he is in congress the following decade he actually drafts legislation to abolish slavery in washington dc and of course as president he signs the law that does abolish slavery in washington dc so that’s one

10:55 thing in the 1840s when the issue of slavery in the territories comes to royal american politics he takes up that cause and says that votes for the what’s known as the wilmot proviso which would ban slavery from all the territory acquired from mexico during the war against mexico so he supports that position and he goes into the war favoring a ban on slavery in the

11:17 territories he advocates uh he begins to advocate in the 1850s for due process rights for accused fugitives it says so explicitly but he also takes up certain understandings of what what the federal government can do in wartime that it cannot do in peace time so that there is part of the

11:37 anti-slavery constitutional argument is that in peace time the federal government can’t touch slavery in a state but in wartime the federal government can in an effort to suppress an insurrection or repel an invasion uh confiscate the property of of the enemies and if they are enslaved

11:58 you can actually free them you have the right under the power under the war powers clause of the constitution to emancipate slaves confiscated from the enemy during war time and that policy they begin to implement lincoln begins to implement within weeks of fort sumter right so that he takes up that and he warns that he warns of that in 1859 in the speech he gives in

12:20 cincinnati and he repeats the warning in his inaugural address you know you complain that we’re not returning your fugitive slaves but what do you think is going to happen if you secede from the union he says and then your fugitive says now only partially returned will not be returned at all he’s it’s quite clear it’s quite clear that he has accepted that understanding of the war

12:42 powers clause that if you leave the union you will forfeit your rights under the constitution to your slave property so all of that stuff is bundled into abraham lincoln’s politics by the time he becomes president and allows us to understand the actions he took as president in in in an effort to

13:03 restore the union and at the same time act on his anti-slavery convictions and the anti-slavery convictions of the republican party now one of the more difficult obviously uh challenging complicated controversial uh topics in your book have to do with

13:24 lincoln’s views uh on slavery but then also on racist self can you spend a little time kind of unpacking his views sure there’s a way in which his understanding of of slavery and his understanding of race both need to be put in the context again of federalism right that there are certain things the federal

13:45 government cannot do about slavery and there are certain things only states can do the same thing is true to some extent of on when it comes to racial issues right so lincoln is a believer in fundamental natural rights that all men are entitled to as he says in 1854 if the negro is a man my

14:05 ancient faith tells me that all men are created equal and that means they are endowed with the right the natural right to freedom right slavery is a violation of the principles in the declaration of independence and that is true for blacks as well as whites for men as well as women and it sounds obvious and airy in certain ways today but in the 1850s

14:27 that was a very controversial position he got smashed at it uh by stephen douglas for say for taking that position his douglas’s position was the the declaration of independence actually means all white men are created equal and some of the slaveholders in the south actually reputed the whole notion of fundamental human equality so

14:49 to for lincoln to say all men are created equal means blacks as well as whites and uh is to take a fundamentally racially egalitarian position uh that was not universally accepted among whites in the united states so there’s that there’s a there’s another body of rights

15:09 that are sometimes ascribed to the states and sometimes ascribed to the federal government and it was not not clear until the 14th amendment decisively defined them as federally protected rights but those are the privileges and immunities of citizenship and lincoln comes around on that over the course of his life

15:29 and becomes more and more committed to the idea that blacks and whites are equally entitled to the privileges and immunities of citizenship that blacks are citizens of the united states if they were born in the u.s they have a birthright to citizenship so he’s he’s increasingly egalitarian on that score

15:50 where he falls short and where he is constantly and rightfully criticized for falling short is are the various forms of racial discrimination that are left to the states to determine states decide remember that what i said states decide who can marry whom and northern states decide that

16:10 blacks cannot marry whites that’s okay with lincoln if they decide black they might a blacks might be entitled to a jury trial or the right of habeas corpus but that doesn’t entitle them to serve on juries and so northern states frequently discriminated on that ground they didn’t allow black men to vote they often and so those kind of state-based

16:32 discriminations that’s where lincoln fell short that’s what those are the discriminations he deferred to and so historians talk all the time and i think accurately about lincoln’s growth what they really mean is his growth on the issue of race because on slavery he was always anti-slavery

16:52 but his views about race i think were actually pushed in a more egalitarian direction as he became more committed to anti-slavery politics that is anti-slavery constitutionalism had a kind of egalitarian of a kind of a very real egalitarian

17:15 underlayment and that as he became more and more committed to that understanding of the constitution he’s similarly less deferential to state-based discrimination until uh by the end of his life he becomes the first president ever to

17:36 publicly advocate voting rights for black men sorry something he had never done before the war and and so let’s uh maybe dig into that a little bit more especially during the civil war so and you mentioned it previously but uh how do how does the war wartime

17:56 presidential powers how do they all affect lincoln’s their constitutional ability to achieve that goal right those ends of the anti-slavery constitution right well the war was unfortunately tragically a necessary event to get to abolition

18:20 but it was not sufficient because throughout human history wars are the primary source of slaves right you you go to war with an enemy and you enslave the enemy uh the wars don’t start becoming uh taking on an anti-slavery flavor until the enlightenment and the age of

18:41 liberal revolutions in the late 18th century and armies don’t automatically emancipate slaves when slaves run to when to their lines they do so if they are told to do so and during the civil war uh uh starting very early on the lincoln administration adopted the policy of

19:01 increasingly uh uh allowing uh you know of of first first refusing to return fugitive slaves of people who were in rebellion of rebellious masters and then emancipating fugitives and then not allowing banning soldiers who disobey that order

19:22 criminalizing the return of fugitive slaves by union soldiers and and increasingly accelerating that policy because this is one of the things that it’s important to understand that throughout uh that the fugitive slave issue is a major issue in in

19:43 the sectional crisis leading up to the civil war and no no northerner would have gone into that war without understanding and knowing that once union armies show up slaves are going to run away and they’re going to come to our lines they they’ve been through this fugitive slave crisis in the 1850s northern states were

20:04 increasingly hostile to the attempts by southerners to come into their states and capture fugitive slaves the states threw down numerous roadblocks to the recapture of fugitive sites so it doesn’t make any sense to think that once the war begins these republican politicians in control of the federal government who had spent a decade or more

20:26 inhibiting the return of huges were suddenly going to turn around and send them back in fact they did exactly the opposite what they said was what lincoln said look the slaves are going to run they always run we know they’re going to run to union lines and we’re not going to return them and it took a while for that policy to you know get underway and there were soldiers who

20:48 returned fugitives to their masters and got punished for it like that but gradually the pro the policy becomes increasingly radicalized until you reach the emancipation proclamation the problem with the problem with the emancipation proclamation as lincoln saw it was that while it freed

21:08 all slaves who came within union lines it didn’t actually abolish slavery in any state because the federalism didn’t have the power to abolish slavery in a state so what you see is this very interesting process over the course of 1863 when the emancipation proclamation is being implemented as lincoln begins to use that as yet

21:30 another way in which the federal government can push the states to begin abolishing slavery on their own and he launches a campaign a full-throated campaign in the middle of 1863 shortly after the united states colored troops has been been established and he uses emancipation to

21:51 undermine the power of uh the slave holding interests in various states to get the states to begin abolishing slavery and in 1864 it works it starts to work and you know arkansas abolishes slavery first the first date and 60 years to do so and then eventually over the course of that year virginia uh

22:13 maryland tennessee louisiana missouri abolish slavery and and without those abolitions a 13th amendment uh could never have been ratified so so a third policy you know the the uh policy of nudging the states to abolish slavery a policy of military emancipation

22:33 leads to the possibility of an of a third policy which is a constitutional amendment to while slavery nationwide to simply bypass the restriction on the federal government from abolishing slavery in a state by simply abolishing it nationwide right but you needed those first two policies to get to that third policy so as you can do it if i’m going on too

22:55 long just to say something think of it in terms of numbers it’s a question of the balance of power right so in 1860 when the war begins there are 18 free states and 15 slave states now you need three quarters of the states to ratify a constitutional amendment 18 to 15 isn’t going to do it

23:16 over the course of the war the the federal government admits three new free states to the union so that pushes the ratio to 21 to 15. that’s not going to do it either what really does it is the flipping of six slave states in the last year of the war so that by january of 1865

23:37 when congress finally passes the 13th amendment and sends it to the states for ratification there are 27 state free states and nine slave states that’s the ratio you need three quarters and the consequences are are immediate right those states every one of those states

23:57 very rapidly ratifies the 13th amendment and by december the 13th amendment is part of the constitution so it’s at the the we’re back to that anti-slavery project right you need to use whatever power the federal government has to nudge the states to abolish slavery but during the war

24:18 the federal government has powers that it never had the power to emancipate significant numbers of slaves and therefore push the states to abolish avian and give it and give it a nudge that it didn’t have without wouldn’t have had without the war so that’s that’s what i’m trying to show in the book

24:38 is the connection between these theories of the constitution and what the federal government could and could not do and how anti-slavery politicians develop a project to get the states to abolish slavery and how the war accelerates that process uh and and puts that project on steroids in

24:59 a way until you until you actually get the complete eradication of slavery in the united states jim thank you very much for joining us the book is the crooked path to abolition abraham lincoln and the anti-slavery constitution by the way this is you did all of that in about 200 pages i mean it’s a

25:19 remarkable book because of the content but then also it just is very readable very well written and you know it’s a it’s a sort of beautifully concise book so thank you very much i appreciate that very remarkable well thank you again for joining us and to all of our viewers uh if you like

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26:02 conversations there thank you you