(Roughly) Daily

“Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.”*…

Washington as Statesman at the Constitutional Convention, oil on canvas by Junius Brutus Steams (1856). source

Franklin’s caution was, of course, premonitory. David W. Blight explains why in his review of James Oakes‘ new book, The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution

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.”

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…

he 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. 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.”…

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...

[There follows an illuminating recounting of the arguments between the two sides over the nexts several decades, then of Lincoln’s reading and the Civil War…]

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…

Too timely: “The Two Constitutions,” @davidwblight1 in @nybooks.

An apposite piece on the several ways that American’s “read” the founder of modern economics: “America’s Adam Smith” from Branko Milanovic (@BrankoMilan).

* Benjamin Franklin, in a November, 1789 letter to French scientist Jean-Baptiste Le Roy


As we choose a side, we might recall that it was on this date in 1967 that President Lyndon B. Johnson nominated Solicitor-General Thurgood Marshall to become the first black justice on the U.S. Supreme Court. A storied civil rights attorney and jurist (Federal Court of Appeals), Marshall served on the highest bench from 1967 until his retirement in 1991.


Written by (Roughly) Daily

June 13, 2023 at 1:00 am

%d bloggers like this: