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A ‘crooked path’ to constitutionalism

It was not long after the federal was created in 1787 that many antislavery Northerners began labelling it a pro-document. Parts of it did support — the clause that counted a slave as three-fifths of a person, which gave the slave states greater representation in Congress and the Electoral College than opponents of believed they deserved; and the fugitive slave clause, which required persons held to service who had escaped to free states to be returned to their owners.

We have long known of this pro-slavery view of the Constitution, one that has been much emphasised at the present time. In The Crooked Path to Abolition his solid, carefully and rigorously argued book, James Oakes, a professor of history at the Graduate Center of the City University of New York, describes and analyses the antislavery constitutiona­lism that emerged in a dialectical struggle with pro-slavery constitutionalism in antebellum

The Northern opponents of slavery began by emphasising that the never mentioned “slaves” or “slavery,” that it never accepted the idea that there could be property in man and that with the ending of the international slave trade in 1808 it promised a future for the nation without the despicable institution. Although the antislavery advocates conceded that the gave no authority to Congress to interfere with slavery within the states, they stressed that it did grant power to Congress to curb and limit the institution in a variety of other ways.

In making their case that the Constitution favoured freedom over slavery, the antislavery Northerners interpreted and parsed every part of it as imaginatively as possible, seeking to whittle away at the pro-slavery arguments. Congress, they said, had the sole constitutional authority to prohibit slavery in the territories and, indeed, had an obligation to do so. It could also suppress the coastwise slave trade and abolish slavery in the District of Columbia. They claimed that many parts of the Constitution worked against slavery. The Fifth Amendment, for example, declared that no person could be deprived of liberty without due process of law, which the Northern opponents of slavery could use to stymie enforcement of the Fugitive Slave Acts. They stressed that the preamble of the Constitution granted the federal government the power to “secure the blessings of liberty” and that the Fourth Amendment guaranteed the right of people to be secure from unreasonable seizures. They even invoked Congress’s war powers and the federal guarantee of a republican form of government to every state in Article IV, Section 4, to threaten slavery in the states. If the slave states ever seceded, the antislavery Northerners warned, they would forfeit their constitutional rights, and the free states would no longer be obliged to enforce the fugitive slave clause.

THE CROOKED PATH TO ABOLITION: and the Antislavery Constitution

Author: James Oakes

Publisher: W W Norton

Price: $26.95; Pages: 288

By the 1850s the antislavery Northerners had built a powerful case for antislavery constitutionalism. They had created a “Constitution that made freedom the rule and slavery the exception.” The Republican Party became the political embodiment of this antislavery constitutionalism, with its most eloquent spokesman. So fearful were the Southern slaveholders of Lincoln and the Republicans that simply his election as president in November 1860 precipitated the immediate secession of many slave states. By February 1, 1861, even before Lincoln took office in March, seven states had formed the Confederacy. Four more joined between April and June 1861.

Lincoln hated slavery as much as any abolitionist, but as an ambitious and sensitive politician in a radically democratic society he couldn’t ignore the feelings of the diverse constituents of Northern society. He believed in law and order and in the Constitution; and thus because of the Constitution’s ambiguity, he had to make his way along a very “crooked path” to achieve the ultimate extinction of slavery that he wanted.

Through all his twists and turns Lincoln held firm to his belief that the guiding spirit of the Constitution was the principle of fundamental human equality proclaimed in the Declaration of Independence. Because he came to realise that racial discrimination was really a means of supporting slavery, he moved toward a position of true racial equality. In the end, Mr Oakes observes, “Lincoln became the first president to publicly endorse voting rights for Black men.”

In his final and perhaps most original chapter Mr Oakes traces the winding route Lincoln followed in order to get to the 13th Amendment, which abolished slavery in the United States once and for all. A Republican-dominated Congress might muster the two-thirds vote to pass such an amendment, but ratification by three-quarters of the states would be more difficult. During the war, Lincoln’s position became more and more radical, but, Oakes says, Lincoln was sceptical all along that emancipating slaves, even in large numbers, would ever be enough; and he always remained committed to the belief that the slave states should abolish slavery on their own.

The Emancipation Proclamation and the treating of slaves as military contraband were simply means to be used to pressure the states to free their enslaved populations on their own. By the end of January 1865 there were 27 free states and nine slave states in the Union, exactly the proportions needed to ratify the amendment. “This amendment,” Lincoln said, “is a king’s cure for all the evils. It winds the whole thing up.”

©2021 The New York Times News Service

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