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[personal profile] calimac
James Oakes, The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Contitution (Norton, 2021)

I'd heard of this author but not read anything by him, so I picked this one up in the library. It's of admirable scholarship and (mostly, to my knowledge) accurate and insightful, but I found it terribly muddled and confusing, saved from generating bafflement only because I already knew much of what's in it.

Oakes's thesis - new to me in this form, but in accordance with what I already knew - is that in the antebellum period the Constitution could be read as both supporting slavery and (as much as possible in the circumstances) deprecating it, depending on which parts of the Constitution you looked at and how you read them. And he knows and explains what those parts are. These "proslavery" and "antislavery" Constitutions are the backbone of the book, and the story - insofar as there is one; it's more thematic than chronological - is Lincoln's gradual adherence to and interpretation of the antislavery Constitution.

This idea of supporting two contradictory ideas at once is something I'm familiar with from Tolkien, whose works are full of mutually contradictory ideas held simultaneously. But it's difficult to write about this clearly. I'm full of admiration of the occasional Tolkienian scholarly paper that can discuss a set of these ideas clearly and pellucidly, without getting caught up in a gigantic muddy muddle.

Oakes can't do this. He doesn't get the contradictory ideas confused - although there are a couple places where he's either wrong or doesn't explain himself - but he keeps stumbling over himself awkwardly while trying to discuss both at once. Perhaps vaguely aware that he might be confusing his audience, he tries to clarify by repeating his points. For instance, throughout the relevant chapter, he is constantly re-explaining that Lincoln accepted the fugitive slave clause of the Constitution (because it's in the Constitution) but opposed the Fugitive Slave Act of 1850 (because of its intrusions against civil rights and due process). As contradictory ideas go this is pretty weak - the one is a general principle, the other a specific enactment of that principle - yet Oakes seems to fear his audience won't understand it unless he keeps emphasizing it over and over.

I've never had any trouble understanding that. Here are some things Oakes says that I don't understand. He recounts how, when secession came, Lincoln and his antislavery allies would gleefully point out that, if these states were now foreign countries, the fugitive slave laws would no longer apply to them and they couldn't get their fugitives back. But I'd always understood that Lincoln's whole argument for preserving the Union and waging massive war to do so was that the Union was perpetual and secession was not legally possible. The states may have thought they had seceded, but according to this theory they had not done so: they were merely "out of their proper relationship," as the phrase went, with the Union. But if they had not legally seceded, no legal consequences of secession, such as cancellation of the right to use the fugitive slave laws, could apply.

The other thing I didn't understand has to do with the three-fifths clause. Now, there's nothing in US history more generally misunderstood than the three-fifths clause, but Oakes doesn't make the usual mistake: he knows that counting slaves as 3/5ths of a person for census-based representation wasn't an insult to the slaves: the insult to them was that they were slaves. The 3/5ths clause was solely about how much representation the slave-owners got on account of their slaves: the more of it the worse, from an antislavery perspective.

What Oakes says is that this clause was unambiguously a proslavery clause of the Constitution, because the slave-owners got this extra 60% as a bonus. But he doesn't address the question: what would the default have been without this clause? The Constitution says "the whole number of free persons" shall be counted, and this has always been interpreted to mean all such persons, whether eligible to vote or not, even whether citizens or not. So it's very inclusive. If there hadn't been a special provision for 3/5s of slaves in addition to this, would they have been omitted entirely, or would the word "free" have been deleted and the representation would have been based on the enumeration of all persons?

Oakes says the former, and he has sources from the time which seem to agree. But I've never seen this assertion made before, and because of the general inclusiveness of census enumeration for representation-figuring, I'd always assumed the three-fifths clause was a limitation on the slave-owning power, that without it they'd get representation for all five-fifths of their slaves. That would make the three-fifths provision an antislavery clause.

Here's something Oakes says that I thought genuinely insightful, a new observation of the implications of a known fact. He points out that the proslavery vs. antislavery tension was a new feature of the Constitution, not present in the Declaration of 1776, because in 1776 there were only slave states: none of the northern states had freed their slaves yet. This is true, but its effect on constitutional principles needed Oakes to point it out.

Date: 2022-08-31 06:07 am (UTC)
voidampersand: (Default)
From: [personal profile] voidampersand
There actually were three scenarios with the fugitive slave law.

First was the situation before the Civil War. The southern states were in the union and abiding by its laws, and the fugitive slave law was the law of the land.

Second was a counterfactual: The Confederate States would not be able to stop the United States, as a separate nation, from repealing any United States laws.

Third is the situation during the Civil War. The US passed the Confiscation Act, making the Fugitive Slave Act inapplicable to slave owners in rebellion against the United States. Slaves escaping from rebel owners were classified as contraband and not returned. Then there was the Emancipation Proclamation. At that point escaped slaves were no longer property., Finally the Fugitive Slave Act was repealed. It took years. One might imagine that the US military and government officials would just ignore laws that were obviously wrong, but instead they maintained the rule of law.

Date: 2022-08-31 03:53 pm (UTC)
voidampersand: (Default)
From: [personal profile] voidampersand
The second scenario was brought up before the Civil War, as an argument against secession. So there could be confusion about it.

There also was resistance to the Fugitive Slave Act from Vermont and some other states. It declared that the rights of habeas corpus and trial by jury superseded the right to retrieve ones property. And there were acts of civil disobedience by local government.

But I think the major source of confusion now is from the large fraction of American citizens who do not believe in the rule of law. They cannot understand the acts of people who believed in the rule of law above all else.

Date: 2022-08-31 02:07 pm (UTC)
oracne: turtle (Default)
From: [personal profile] oracne
I think part of the 3/5 conflict was also that the Southern states' population of free people was far outnumbered by the enslaved people. So for congressional purposes, the enslavers were at a numerical disadvantage if only free people were counted, and they did not want that at all.

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