James Oakes (1) (1953–)

The South's secession from the union has always puzzled me; how was this drastic action not contrary to the interests of the eleven slaveholding states? The incoming Republican administration had vowed not to allow expansion of slavery in territories and newly forming states, but Lincoln and others explicitly averred that his administration had no intention of interfering with slavery where it existed. Lincoln believed that the Constitution gave no sanction for such action. If southernors show more wanted slavery's expansion across the country, leaving the union would completely foreclose this. Further, Lincoln went to far as to state that the federal government was obligated to enforce the Fugitive Slave Act in the northern states, forcibly returning escaped slaves to bondage. In the longer term, why did the South not see that presidents with particular platforms will eventually be replaced by others who may hold opposite views. Granted, the abolitionists and anti-slavery activists were irksome to the slaveholders, but that was nothing new in 1860-61; the South had tolerated such perceived insults for decades. By far, the most significant downside for the South in seceding from the union was the threat of severing economic ties with the North. The agrarian nature of the South's economy was inextricably intertwined with the North's financial and manufacturing resources.

"The Scorpian's Sting", a collection of essays by James Oakes, clarifies how antislavery sentiments, both practical and philosophical, led to the destruction of slavery. The scorpian's sting referred to a metataphor in wide use that if encircled by a ring of fire, a scorpian will ultimately sting itself to death. Its meaning was not lost on Southern leaders. They well understood that if slavery was cordoned within its existing boundaries it could not survive, and they saw a new national political regime detemined to fence in slavery. Many thought that, even if not in the United States, slavery could expand southward to Cuba, the Caribeean, and Latin America.

Much was made in the South of the inviolability of property rights, widely held a Constitutional guarantee. Slaveholders maintained that slaves were property like any other form of property. Thus, a man could do with his human property what he could do with any fungible property, including removing it to anywhere in the country. Countering this, a powerful strain of thought among anti-slavery thinkers stemmed from a conception of an overarching higher natural law, that the most sacred and fundamental right of property was the property inherent in oneself. Depriving one of the right to his or her inherent property was inimical to this natural law. The Constitution did not specify "property"; it did not explicitly address slavery as a category of guaranteed property. That the South was aware of this potential threat to human property is evidenced by the inclusion of guaranteed slavery in the Confederate's constitution.

Neither side saw civil war as the inevitable result of secession, but thoughtful men must have surmised that a war once unleashed could result in dramatic and sweeping consequences. One such possible consequence was military confiscation of property under the laws of war. Taking property that impinged on the enemy's capacity to conduct war was entirely acceptable as a practical military measure. The application of this principle logically adhered to slaves whose services deprived to their owners certainly hindered the South's war effort. The key question about confiscated property was what was the obligation of the holders of confiscated property to return it after the conflict ceased? Contentious as it may have been, there was precedent from the Revolutionary War and War of 1812 that slaves under the control of a combatant need not be returned to their owners. Beyond the realm of international law, it was on moral grounds unquestionably inconceivable to reenslave confiscated persons at the war's conclusion.

There was a distinction, more in mid-19th century minds than in modern thinking, between emancipation and equality. If enslaving humans is immoral does their emancipation convey equality? If so, what sort of equality? The Declaration of Independence stated that all men held natural rights to life, liberty and property. Lincoln and the Republicans felt that slavery deprived blacks of the right to the products of their own labors, but does restoring this right necessarily confer political equality? Do free blacks become citizens? What does freedom mean for social equality? It is clear that Lincoln's views on racial equality were far distant from today's views. Not only did he persist in the prospect of colonization of blacks until quite late, he consistently posited a circumscribed view of the extent of political and civic rights that ensued from emancipation. A more expansive conception of the fruits of equality emerged from the radical Reconstructionist wing of the Republican party, but whether Lincoln would have moved this far cannot be known. show less

Summary: A historical account of how Abraham Lincoln, although not a traditional abolitionist, strongly supported and implemented the antislavery portions of the Constitution to pursue the end of slavery.

Abraham Lincoln was not an abolitionist in the traditional sense. He did not advocate immediate emancipation in the slave states. He did not advocate active resistance to the Fugitive Slave Act, but only for due process rights. He did not rail in his rhetoric against the vile evils of show more slavery. But Abraham Lincoln hated slavery and believed there were resources within the Constitution properly leveraged that would lead to its eventual end. How could this be so when the Constitution protected slavery in the states? Only states could abolish slavery, not the Federal government. Both Constitution and legislation allowed slave owners or their proxes to capture and return runaway slaves even where slavery was not legal. And there was that language of slaves being three-fifths of a person.

Actually those who believe in an antislavery Constitution might start there. Slaves are written of as “persons,” undermining the contention of slaves as being property. Beyond this, those who developed the idea of an antislavery Constitution drew on both the Declaration of Independence and the Preamble affirming the equality of persons. They focused on the due process rights protected under the Fifth Amendment to make it as hard as possible for slave owners to retrieve runaways, while not breaking the fugitive slave laws. They used the Federal power to regulate the territories to make these free rather than slave. The Constitution said Congress had no authority “to give legal existence to slavery in any territory of the United States.” They antislavery people were committed to no more compromises that would admit new slave states into the country.

Lincoln believed that slavery would eventually wither away of its own. Some proposed that slaves brought into free territory could sue for their freedom. The dynamic economy of the north would outstrip the south, particularly because it could not expand its economy, fenced about by free territories becoming states. Eventually Southern states would abolish slavery on their own, which only they could do, Lincoln believed, since the Constitution did not give this power to the Federal government.

James Oakes traces the development of this antislavery doctrine, particularly within the Republican party. With enough votes in the growing North, Lincoln was elected. While he assured the South that slavery would be upheld, the implementation of other aspects of the antislavery doctrine triggered secession. Oakes shows how this offered new avenues to antislavery effort: ending slavery in the District of Columbia, ending the slave trade and blocking slave shipping to southern ports, and most significantly, voiding Fugitive Slave laws for slave owners in rebel states, since they no longer were under the laws of the Union. Slaves who fled into Union lines would be considered “contraband” and emancipated. While this was not so for border states who remained in the Union, the Army was directed not to assist in the retrieval of any fugitive slaves, since they did not have the legal powers to properly adjudicate such matters. The owners were on their own, further contributing to abolition.

Oakes doesn’t portray Lincoln as an antiracist. He favored colonization of Blacks, believing Blacks and Whites could not live together. But he hated slavery with a singular focus. One senses a Lincoln both shrewd and resolute in availing himself of all the resources available in the Constitution to move the needle toward abolition and emancipation, even maneuvering conquered states to constitute themselves as free and to join in ratifying the Thirteenth Amendment.

What I continue to wonder about is whether Lincoln realized his approach would send the South over the edge, precipitating the Civil War? Or did the South adequately take on board Lincoln’s resolve to preserve the Union once attacked? I wonder, given the case Oakes make, whether there is an argument to suggest that the South played into Lincoln’s hand, accelerating the demise of slavery that may otherwise have taken another fifty to one hundred years. Did Lincoln fully understand the cards he was holding and play them to full advantage?

I’ve often commented about the writing of slavery into our Constitution. I don’t think we can dodge that terrible compromise. But Oakes offers another perspective, showing the side of the Constitution that assumes freedom and equality the norm and slavery an exception. He also shows the lawyerly genius of Lincoln to recognize and exploit that side to its full extreme. The great sadness of all this was the lives it cost, including in the end, Lincoln’s own. show less

James Oakes, one of our foremost Civil War historians, proposes in this book that the way to understand Lincoln’s position on slavery was not to focus on his emotional response, by which Lincoln considered slavery to be a social, political, and moral evil, but rather on his fierce devotion to the rule of law and the sanctity of the Union.

Lincoln, Oakes argues, was committed to “antislavery constitutionalism.”

Lincoln believed that the Declaration of Independence “meant that, at the show more very least, everybody was entitled to be free. It also meant that the promise of universal freedom was embodied in the Constitution.”

Lincoln once likened the Declaration to a picture, the Constitution to its frame. “The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple --- not the apple for the picture.”

Thus for Lincoln, the egalitarian principles of the Declaration of Independence were ‘embodied’ in the United States Constitution. For Lincoln, Oakes writes, “. . . the conclusion was inescapable. . . . In the phraseology of his day, the Constitution made freedom the rule and slavery the exception.”

Lincoln, in a speech on June 26, 1857, insisted that the Founders “meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence. . . . ” In other words, the purpose of law is to establish normative standards, and act as a bridge, from that which is, to that which ought to be. This philosophy was reified in the Declaration of Independence.

As Lincoln said in Peoria in 1854, we must re-adopt the Declaration along with practices and policies that harmonize with the plain meaning of the words set forth in the document:

“If we do this, we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving. We shall have so saved it, that the succeeding millions of free happy people, the world over, shall rise up, and call us blessed, to the latest generations.”

Evaluation: Oakes makes a subtle argument well worth perusing. Lincoln was only the 16th president, and the meaning of the Constitution was still a matter of salient public debate. Oakes takes us back to that time so we can put the slavery issue into that context, and understand Lincoln’s positions from a more period-specific point of view. show less

Really interesting book of essays on antebellum anti- and pro-slavery theory. Oakes takes his title from a popular metaphor: free states could surround slave states with a cordon of freedom—by banning slavery in D.C., banning slavery in the territories, protecting freedom of speech so that abolitionist tracts could reach the South, and providing stringent due process protections against abuse of the Fugitive Slave Act—which would ultimately lead the slave states to abolition, deprived of show more the territorial expansion necessary for slavery’s success. Like a scorpion surrounded by a ring of fire, which stung itself to death to avoid the fire, the slave states would destroy slavery without direct intervention into their governance by the northern states or by the federal government. Thus, when pro-slavery politicians protested these policies, they were fighting for the survival of slavery even though anti-slavery politicians largely disavowed any intention to intervene directly in the internal governance of the slave states. The argument fleshes out the implications of Lincoln's claim that a nation can't survive half slave and half free, which today we don't often think through in combination with the abolitionist claims to leave slavery alone in the slave states; it made me think about current cultural clashes and whether we can survive as a nation half of which guarantees equality to its citizens and half of which doesn't.

Other big themes include the debate over whether the natural right to freedom trumped the natural right to property, which affected questions such as what should happen when an enslaved person travelled to a state with no positive law about slavery, and the Framers’ debates about international law—when the Revolution ended, everyone accepted the idea of emancipation as part of a military strategy and that ex-slaves no longer on the territory in which they were emancipated would stay free, but the British and Americans fought bitterly about the reenslavement of those still in the territory. Also, military emancipation during the Civil War was a legal issue—Oakes contends that, until the Confederacy began claiming otherwise, no one had disputed that it was a perfectly legitimate military tactic for a combatant to emancipate the other side’s slaves on land under the combatant’s control, in order to get more help fighting. During the Civil War, the North did somewhat expand that idea by emancipating all slaves, even those not considered able to fight, but Oakes suggests that pre-war, one of the biggest reasons the slaveholding South could rationally have had not to leave the Union is that they could absolutely expect military emancipation if they were reconquered. show less