The sesquicentennial of the Civil War and the Reconstruction are upon us—and they will be for the next decade and more. Path-breaking scholarship about these epochs appears at a steady clip, inviting us to tear ourselves away from such current preoccupations as polarization, income inequality, and the struggle for social policy. “But wait,” a busy political scientist would think, “isn’t that better left to historians?” The scholar might reconsider that thought after absorbing the books under review, which communicate a great deal about public policy, political parties, leadership, and political transformation. They vividly remind us that destroying the world’s largest system of slavery—which is what we did 150 years ago—was a world-historical accomplishment.
Liberals and revolutionaries in Europe applauded the end of American slavery. Karl Marx was among those cheering for the Stars and Stripes. They knew something that we usually fail to recall—and can rediscover through the kinds of books under review. A stylized fact about nineteenth-century American politics is the relative inactivity and limits of national government. What our authors show, though, is how ambitious national public policy, party-building, and leadership were in the lead-up to the Civil War and during the Civil War itself. The daring aim of Reconstruction, to establish the world’s first bi-racial democracy, had roots in a decade of “big”—in fact, really big—policy. The deeper lesson here is that the sesquicentennial period is our time as much as it is a time for historians.
There’s a striking leitmotif in these works—namely the role of transformative policy in bringing on the Civil War and in its conduct. Christopher Childers’ study of “popular sovereignty” and Martin Quitt’s biography of Stephen Douglas, the figure who thought most deeply about it, place us at one end of the historical arc: the Kansas–Nebraska Act. Kansas–Nebraska is a major case of a statute generating new politics, though hardly the politics that Douglas intended. It triggered the formal organization of the Republican Party and imposed sharp losses on Democrats in the 1854 elections. Equally important, it brought Abraham Lincoln back into national politics, but this time with a much higher profile.
At the other end of the historical arc lies the Emancipation Proclamation. People often consider it symbolic—at most a statement of a change in the Union’s war aims but not a substantive policy that actually emancipated anybody. There is nothing soaring about it. As Richard Hofstadter remarked, rhetorically the Proclamation has “all the moral grandeur of a bill of lading.” Footnote 1
But as James Oakes shows, the Proclamation was the charter that ratified and expanded the policy process of making “freedom national.” (Charles Sumner's 1852 Senate speech calling for repeal of the Fugitive Slave Act brought the term into popular currency.) The principals in the policy process were congressional Republicans, President Lincoln and his cabinet, the Union military officers on the ground who made on-the-spot policy regarding slavery, and not least the black people who placed themselves in Union custody or who went into federal and military service.
Oakes carefully draws out how these military, legislative, executive, and semi-citizen protagonists coordinated their actions. They could do that effectively because intellectually and philosophically they were on the same page: they all wanted to make freedom national. They knew what that phrase meant—and they wanted it to come fully alive.
Oakes convincingly portrays their policy collaboration as rooted in an interpretation of the Constitution and of the American regime that Republicans had forged in the few years that they existed as an opposition party before assuming control. Through Oakes’ eyes we see that when the Republican Party, in a breathtaking victory, took over the federal government in 1861, it was a revolutionary party. Oakes does not explicitly portray it that way. But he replaces the familiar trope of Lincoln versus Congress with Lincoln and Congress—and if you take political parties and party-building seriously (as I do), then the idea that this was a revolutionary party emerges from his pages.
The Republican Party was revolutionary, however, in a very unusual way: it meant to restore what its activists and politicians took to be the Founders’ intentions, namely, that freedom should be national and slavery local. In responding to and guiding the events of the Civil War this restorationist stance led them, step-by-step, to destroy the world’s largest system of slavery. Slavery was thus not just confined in place; it was ultimately swept aside altogether.
Once Lincoln and Congress discerned the Proclamation’s limits—as the tide in the Civil War turned for the Union—they reached for constitutional emancipation. The Proclamation turned out to be the penultimate stop on the line before Congress wrote the Thirteenth Amendment.
Because Republicans saw themselves as legatees of the Founders, they consciously stayed as much as they could within the Constitution of 1787 and the Founders’ vision. When they wrote Section One of the Thirteenth Amendment they borrowed, in part, from the prohibition on slavery in the territories that Nathan Dane (later a founder of the Harvard Law School) quietly slipped into the Northwest Ordinance of 1787 while a delegate to the Continental Congress.
Social revolution and constitutional continuity were thus fused together by a political party that had established itself only six years before and acquired power electorally. Thanks to the centrifugal potential of federalism its power was vastly augmented by the political secession of its most implacable opponents. This improbable configuration has no close parallel in Western political history.
In making freedom national Republicans also liberated the central government and its agencies from their thorough permeation by slave-holders’ interests, the routine policy of using slaves to do government work, and the multi-faceted work of protecting slavery. David Ericson analyzes very well this bundle of tasks and missions. His crisply executed study offers a searching exploration of the melding of slavery and state. The US central state in the antebellum period was not a “slave state.” But it was far more “slave-centered” than we knew before his study. Making freedom national thus transformed the American state into a free state.
As for Bruce Levine’s study, it is a tale of slavery’s implosion. Levine’s title references Edgar Allan Poe’s “Fall of the House of Usher”—a short story about horror in a Gothic house that is itself alive and on the verge of tearing itself apart because its tenants are insane. Footnote 2 Similarly, Levine shows how a vast system of forced labor crashed to the ground in a few short years.
Poor and middling whites initially fought for the large slaveholders. But, as war pressures mounted, white yeomen gradually (if incompletely) began to defect from their cross-class alliance. Equally fascinating is Levine’s deft depiction of how countless African-American Southerners who were held in slavery simply slipped away from enslavement. They did so as Union lines drew nearer, and as the military emergency weakened the system of slave discipline by reducing its manpower. Union policy (Oakes’ focus) was battering the House of Dixie from the outside; enslaved Americans were tugging on it from the inside (Levine’s focus.)
Yet on the eve of the Civil War slavery was a proud empire and most African-Americans were in bondage. As a South Carolina planter and United States senator told his colleagues, the slave states equaled the combined territory of Great Britain, France, Austria, Prussia, and Spain. Out of the twelve million people in the South, about one-third were enslaved. Levine reports the value of the slaves as $3 billion, and in today’s dollars this is astronomical—perhaps as much as $10 trillion (Levine, p. 3). Footnote 3 By then, the American South produced two-thirds of all the cotton produced globally and 80 percent of the cotton that Great Britain used for textiles.
Levine briskly sketches the tiny elite who ruled this land—and who had enormous influence on the federal government. Those who owned at least 20 people were classified by the Census as a “planter.” There were about 46,000 such planters. About 10,000 planters owned more than 50 people. About 3,000 planters owned 100 or more. At the level of 250 slaves, there were 300 planters. About 50 Southern men owned 500 or more people. One man—and this boggles the mind—owned 1,500 people (pp. 4–6).
The Kansas–Nebraska Act and the Threat of Regime Change
So what brought this autocracy down? One of the most important proximate causes was public policy having unintended consequences. The policy literature often attends to failure and backlash. Instead of fixing a problem, a policy instead makes it worse and creates sharp divisions. The Kansas–Nebraska Act of 1854 was very much that kind of policy. Indeed, the historian Michael Holt has written that the “Kansas–Nebraska Act is arguably the most consequential piece of legislation ever enacted by Congress.” Footnote 4
On its face, the Kansas–Nebraska Act was no more than a territorial organization statute. Yet it was obvious, during the months that Congress worked on it, that something enormous was afoot. During Senate debate over the bill, Sen. Sam Houston (D-TX) warned his colleagues that the act’s repeal of the Missouri Compromise would “convulse the country from Maine to the Rio Grande” (Childers, p. 220). Sen. Stephen Douglas—the act’s great sponsor—fretted about the act’s potential effect on the party system. The evening before President Franklin Pierce signed the Kansas–Nebraska Act, as Douglas’s new biographer Martin Quitt tells us, Douglas informed the Senate “he had learned that ‘the old political parties are to be dissolved, and that the northern Whigs, disaffected Democrats, Abolitionists, and Free-Soilers, are to be fused and amalgamated into a sectional party’” (p. 124).
For many who watched the act’s progress through Congress, “convulsion” and party system disruption were not the half of it. The act actually portended a change of regime. Abraham Lincoln said so eloquently in his epoch-making Peoria, Illinois speech in mid-October, 1854.
At the time Lincoln was a circuit-riding lawyer in a prosperous private practice. He headquartered it in Springfield, IL, where his family also resided and where his partner, William Herndon, worked while Lincoln was on circuit. Lincoln’s previous national political experience was his service for one term (1847–1849) in the 30th Congress, representing the 7th Congressional District of Illinois—a position that he did not seek again. But Lincoln emerged from his obscurity to challenge Senator Stephen Douglas—and to philosophically and rhetorically meet what he took to be the threat posed by the Act and the man who stood behind it. Footnote 5
The Act was manifestly Douglas’s handiwork. As chair of the Senate Committee on Territories (which he had chaired since 1847), Douglas had written the law and guided it through the Senate. Christopher Childers notes that “Douglas . . . maintained an almost constant presence in the House chamber while the representatives considered his bill” (p. 229). Douglas later boasted privately to his brother-in-law, “I passed the Nebraska–Act myself” (Quitt, p. 119). Douglas fostered public support for it, touring Illinois in the fall of 1854 in advance of congressional elections that would soon prove quite disastrous for Northern Democrats.
Lincoln evidently watched closely—and took to speaking out. On October 16 he warned at Peoria that a revolution-by-statute had just taken place and that a constitutional emergency was at hand:
Near eighty years ago we began by declaring that all men are created equal; but now from that beginning we have run to the other declaration, that for SOME men to enslave OTHERS is a “sacred right of self-government”. . . . When [Sen. John] Pettit, in connection with his support of the Nebraska bill, called the Declaration of Independence “a self-evident lie” he only did what consistency and candor require all other Nebraska men to do. Of the forty odd Nebraska Senators who sat present and heard him, no one rebuked him. Nor am I apprized that any Nebraska newspaper, or any Nebraska orator, in the whole nation, has ever yet rebuked him . . . . If it had been said in old Independence Hall, seventy-eight years ago, the very door-keeper would have throttled the man, and thrust him into the street. Let no one be deceived. The spirit of seventy-six and the spirit of Nebraska are utter antagonisms; and the former is being rapidly displaced by the latter . . . Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us turn and wash it white, in the spirit, if not the blood, of the Revolution . . . Let us re-adopt the Declaration of Independence, and with it, the practices and policy, which harmonize with it…If we do this, we shall have not only saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving. Footnote 6
Why was “Nebraska” so dangerous? The heart of the “Nebraska–Act” was “popular sovereignty.” This was precisely what Douglas considered worthy of defense. The idea enshrined a case-by-case, sub-national procedure for working out the balance of free and slave states. It offered a clever way to obviate the excruciating work of crafting grand compromises in Congress over how to bring territories into the Union.
Such struggles had gripped Congress several times before. First there had been the Compromise of 1820 (the Missouri Compromise), which regulated slavery in the Louisiana Purchase. Then there had been the furor over the 1846 Wilmot Proviso. It sought to extend the principle of the Missouri Compromise, i.e., that Congress could regulate slavery in the Louisiana Purchase, to the lands gained via the Mexican Cession. That uproar led to the Compromise of 1850, which seemingly calmed the turmoil. The 1850 Compromise fudged whether Congress regulated slavery in the Mexican Cession by letting New Mexico and Utah territories come into the Union as they wished. But in return those who worried about slavery’s expansion got California as a free state and the abolition of the slave trade in the District of Columbia.
Then, in 1854, in a seemingly brilliant and foresighted move, Stephen Douglas sought to create a new framework without waiting for the next crisis. He replaced the idea that Congress regulated slavery in any territory with “popular sovereignty” and he devolved it to pre-statehood, territorial party politics. This design radically peripheralized the regulation of slavery’s boundaries. Building on the provision in the Compromise of 1850 that had left slave or free status up to settlers in New Mexico and Utah, Congress would now accept whatever white settlers decided on their own, no longer presuming to guide the issue from Washington. To do this, however, the “Nebraska–Act” repealed the Missouri Compromise of 1820—which restricted slavery to one part of the Louisiana Purchase.
Douglas thought that his plan fixed the slavery issue. But Lincoln thought that “Nebraska” instead made slavery’s nationalization much more likely. Its pure proceduralism enthroned the contingencies of territorial party politics and constitutional conventions.
The withdrawal of a formal guarantee against slavery’s nationalization violated the Founders’ intent, or so men like Lincoln thought. How did Lincoln and other anti-Nebraska activists know about this intent? They thought that they knew because of the Declaration’s enunciation of natural equality and natural rights, because of the pregnant euphemisms regarding enslavement in the Constitution (slaves are always referred to in the Constitution of 1787 as Persons), because of the stipulation in Article 1, Section 9 that Congress could not prohibit the slave trade (“importation of Persons”) before 1808, which effectively stipulated when Congress could act, and finally because of the Northwest Ordinance’s provision that Congress had the power to prohibit slavery in the territories. This ensemble of provisions, ideals, and policies kept slavery local. They had been part of a plan at the Founding to place slavery on the course of “ultimate extinction,” to use Lincoln’s phrase from his 1858 debates with Douglas.
More broadly, these charters and provisions, and their educative effects, created a moral cordon around slavery. So long as Americans took them seriously—and not as “self-evident lies”—then some day, in the distant (but not impossible) future, full emancipation might finally and peacefully emerge. One by one, slave states would do what the Northern states had done: abolish slavery according to a variety of timetables and compensation plans.
This was an astonishing vision, to be sure, and profoundly paternalistic. It tolerated human misery on a grand scale; on the other hand it meant to avoid civil war. Since about three-quarters of a million men died in the Civil War, the plan’s long-run moral calculus is complicated. Footnote 7
In the short run, this idea—that those who opposed slavery were acting on instructions from the Founders—supercharged the work of party building. The political piety of the anti-Nebraska (and eventually Republican) stance also offered a very powerful retort to the populism of “popular sovereignty.” It provided a way to frame “popular sovereignty” as an utterly false populism.
Popular sovereignty, via the “Nebraska–Act,” unbuckled the Founders’ imaginary moral cordon around slavery. It withdrew the congressional power to regulate slavery in the territories that had been staked out by the Northwest Ordinance. The Act formalized indifference, so Lincoln thought, as to whether slavery might in time become national—and, correlatively, freedom only local. Fatefully and inexorably the ratio of slave to free states might shift in favor of the former. To introduce and to institutionalize such a contingency was madness: it risked a change of regime, and a reversal of the Founders’ intentions.
Nothing less than a political emergency was at hand as the ink dried on President Franklin Pierce’s signature on the Kansas–Nebraska Act. That perception had enormous electoral and party-organizational consequences. It is a pity that Hannah Arendt never focused on this moment in American political development, for she would have recognized it as a major case of political action: millions stepping into the public sphere to defend the republic and reconstitute the regime.
The 1854 congressional elections a few months later were the biggest electoral earthquake in American history up to that point. The Whig party disappeared and anti-slavery Democrats bolted from their party. Most free-state House Democrats who ran for re-election lost their seats. Democrats still retained a lop-sided majority of the Senate (about 63 percent). But overnight the Senate’s entire minority became anti-Nebraska.
The before and after contrasts were dramatic. The 33rd Congress had just four Free-Soilers in the House and 67 percent of the House was Democratic. In the 34th Congress, however, anti-Nebraska candidates running on various tickets captured almost 43 percent of the House, making them the largest faction—and reducing Democrats to just fewer than 36 percent. The anti-Nebraska plurality also found a large ally. About 22 percent of the House comprised nativists in the American (“Know-Nothing”) party. The turmoil on the ground unleashed by Kansas–Nebraska also gave nativists running room—and they took it. They became available for an irregular party coalition, and for organizing the House. Footnote 8
The protracted but ultimately successful quest to elect Speaker Nathaniel Banks, a Massachusetts Know-Nothing who also objected to slavery, did something vital. As Jeffery Jenkins and Timothy Nokken have shown, the struggle built the House’s discordant elements into a new party, the Republican Party. Footnote 9
As the new party became an accomplished fact in the next few years many Southern observers inferred that the South should pre-emptively secede. Eventually there would be a Republican president. A Republican administration would use patronage to attract Southern white supporters, dividing the South. It might even encourage slave revolt and insurrection.
When these fears became real with Lincoln’s election in 1860, the secession fuse began to quickly burn. Acting with dispatch, South Carolina demanded withdrawal of federal forces from the Charleston harbor area. In late December 1860, an Army detachment moved from the indefensible Fort Moultrie, on Sullivan’s Island, the port of entry for countless African slaves, to Fort Sumter in Charleston Harbor itself. By early February 1861, before Lincoln arrived in Washington for his inauguration, the core of the Confederate States of America—Alabama, Florida, Georgia, Louisiana, Mississippi, and South Carolina—emerged at a convention in Montgomery, Alabama. (Delegates from Texas soon joined them.) Their provisional constitution expressly protected slavery. When Lincoln notified South Carolina that he intended to resupply Fort Sumter, Confederate forces promptly shelled it into submission; the fort’s surrender occurred on April 14. The next day, the President called 75,000 state militia into 90 days (yes, 90 days) of federal service to suppress rebellion. In response, delegates from Arizona Territory, Arkansas, Kentucky, Missouri, North Carolina, Tennessee, and Virginia formally joined the new confederation dedicated to perpetuating slavery.
Making Freedom National
This great crisis of 1861 had many possible outcomes besides the results that actually occurred: the destruction of slavery; the complete military defeat of the Confederate States of America; the emancipation of four million human beings; and (last but hardly least), the preservation of the Constitution of 1787. How Americans got there from the standoff of spring 1861 is of course beyond the scope of this essay. But sketching Levine and Oakes will take you some way toward the answer.
Slavery collapsed, first of all, because no one who was enslaved wanted that status—and everyone in it understood instantly and precisely when the moment to escape it had arrived. W.E.B. Du Bois eloquently showed this in “The General Strike,” an early chapter of his New Deal-era masterpiece, Black Reconstruction, at one point writing, “At the first gun of Sumter, the black mass began not to move but to heave with nervous tension and watchful waiting.” Footnote 10
Levine, similarly, tells of watchful, well-informed waiting among black Southerners. “One Mississippi planter fretted in the spring of 1861 that blacks in his vicinity ‘all knew of the war and what it was for’” (p. 94). Slaves in Georgia and South Carolina sang a spiritual, “We’ll soon be free/When the Lord will call us home” (p. 95). Such alertness and anticipation were fused with politic caution—a feigning of obedience and taking care to say nothing that might cause punishment or even execution.
Another response to the crisis was greater resistance, James Scott-style. One plantation mistress, for example, intended to reprimand a servant. Jane (the servant) came to the appointment with her mistress holding a large carving knife (p. 154).
A third response was what abolitionists had long before called “self-emancipation.” Levine does not refer to the term, preferring to describe it at length; Oakes has a whole chapter on the concept. “Self-emancipation” was the proverbial flight to freedom, undertaken in dead of night or when those who outwardly controlled you were distracted. Freedom was seized when you knew that if you could just make it over the line—there literally was a line in jurisdictional space—between freedom and not-freedom, you would change your life forever.
Self-emancipation had conceptually been in existence for decades. It was, after all, the basis for Dred Scott’s claim to freedom. When John Quincy Adams argued before the Supreme Court for his clients in the Amistad case, he called them “self-emancipated.”
The concept and the act took new forms as the great division among white Americans widened. The federal installations that David Ericson describes in his study of the American ante-bellum state were now outposts of freedom. Their personnel no longer worked under any obvious obligation to enforce the fugitive slave provision of the Constitution of 1787 (Article 4, Section 2, Clause 3), and its latest enforcement statute, the Fugitive Save Act of 1850. Thus, on March 12, 1861, before the shelling of Fort Sumter, eight Florida slaves appeared at Fort Pickens, off the Florida coast. Soon the same happened at Fort Monroe, Virginia, commanded by General Benjamin Butler; it had 3,000 self-emancipated souls in its care by the end of 1862.
But more was at work than slave self-assertion. American slavery also began to crumble because of national public policy. This is where Oakes comes in—and his focus on policy development is why his book might make a valuable addition to policy courses. Oakes stakes out a remarkably bold position, namely, that the freedom national concept governed a wide range of federal policy initiatives. As he writes, “I always believed that the purpose of the war shifted ‘from Union to emancipation,’ but over the course of my research that familiar transition vanished like dust in the wind, and I have been unable to recover it” (p. xxiii).
In contrast to the story that Oakes tells, though, is the well-documented view that initially Lincoln (and with him the congressional Republicans) did no more than preserve the integrity of the Union, and postpone action on slavery. As the 90-day call-up of April 15, 1861 suggests, Lincoln did not foresee anything like the approximation of total war that eventually occurred. Eventually, military necessity (which is invoked in the Emancipation Proclamation) forced a rethinking of Union aims. As African-American soldiers, such as those of the 54th Massachusetts Regiment, performed heroically in battle, the idea of going all the way toward emancipation—previously a minority position among abolitionists—took hold. Policy alternatives, such as mass re-location of African-Americans, which was the purpose of the American Colonization Society that had been established in 1817, lost traction, even though there is an echo of colonization in the Second Confiscation Act of 1862.
Oakes sees more singleness of purpose. He argues that Republicans possessed a policy analytic framework that guided them from the start. Under the Constitution, the United States could not abolish slavery in the states (though it could do so in the District of Columbia, which it did in April, 1862.) All that Lincoln and congressional Republicans could do was urge abolition upon the Union slave states. Still, the United States could abolish slavery in territories—and they composed a lot of space. More potent yet, Republicans believed that the Constitution incorporated the law of war, and under the law of war armies could immediately emancipate the slaves of their opponents. Any enslaved people who arrived behind the lines that the Union held in the theater of war were immediately and forever free. This was why the president and top military leaders promptly backed up Gen. Benjamin Butler’s decision at Fort Monroe, Virginia to endorse the self-emancipation of the black people who arrived at the fort that he commanded. Lincoln was thrilled by Butler’s decision: he called it “’Butler’s fugitive slave law’” (p. 99).
Here American political science played a supporting role in an early and little-known case of top federal officials reaching out for academic advice. In late 1862, the Union Army’s General in Chief and the Secretary of War invited Columbia University’s Francis Lieber to codify the law of war. Lieber, a German-born liberal revolutionary, was among the first American professors to call himself a professor of political science. Footnote 11 Lincoln’s advisors worked with Lieber because the President, building upon the Preliminary Emancipation Proclamation of September 1862, planned to issue the Final Proclamation in early 1863. They asked for a full theory of how the proclamation would cover the areas in rebellion.
What Lieber gave them on very short notice—in a prodigious burst of intellectual production—was a full code with 157 articles. Those articles dealing with military emancipation were protean in their implications. Because men were equal under natural law it had always been the case that fugitive slaves escaping into another country were immediately free. The same was true for the Civil War. Any fugitive slave coming into Union custody was “immediately entitled to the rights and privileges of a freeman.” Lieber’s code held, in other words, that the United States Army was an instant emancipator wherever it encountered slavery (pp. 350-52).
This discussion of Lincoln and his Proclamation might seem very executive-centered. But another remarkable feature of Oakes’ study is the focus on congressional Republicans. As Oakes writes, “Lincoln was neither quicker nor slower than Republican legislators. Instead they seemed to move in tandem” (p. xviii). Lincoln once apparently said that the difference between him and Charles Sumner was six weeks (p. xxi).
Lincoln and his congressional colleagues are usually supposed to have been at loggerheads, with Lincoln soberly taming impetuous radicals and quietly making deals with conservatives and unionist Democrats as he kept his eye on the future of the Union, prodded obstinate generals, and headed off congressional meddling. On this view, the Emancipation Proclamation was Lincoln’s baby, and he birthed it on his own with advice from his cabinet.
Yet the Proclamation had congressional origins as well. In the Confiscation Acts, congressional Republicans connected the confiscation of rebel property and the civic prospects of African-Americans. Congress also provided for black military enlistment—and the plan meant to pull freedmen from the South into the US Army. Congress formally abolished slavery in the territories and not just the District. Congress admitted West Virginia on condition that it gradually abolish slavery. In short, at both ends of Pennsylvania Avenue, national leaders of a new party worked to make freedom national and to revolutionize the status of African-Americans.
Equipped with Oakes’ discussion, one can read the Proclamation with new eyes. It was the charter for a program of military emancipation that had been underway, and that had rapidly grown, since Gen. Butler refused to return the self-emancipated people who arrived at Fort Monroe. It went one key step further, as well: it invited military service. Self-emancipation could now take an African-American man into the very core of American citizenship. And, in fact, Attorney General Edward Bates had earlier declared that free African-Americans were not simply free but citizens. On January 5, 1863 Bates added to the Proclamation by holding that those freed by military emancipation would be “entitled to all the protections of freedom the Constitution guaranteed to all citizens” (p. 358).
Beyond Military Emancipation
But the Confederacy was not helpless. It announced and pursued a policy of returning captured slaves to their masters. Slave masters were also not helpless. They responded by “refugeeing” their people. That is, they would send slaves into the Confederate interior. Texas, in particular, received a very large number of such refugees—Levine estimates about 150,000 by late 1862 (p. 155).
Military emancipation in fact faced a massive structural limitation. The problem can be seen in part by consulting Levine’s third map, for 1864–65. The Confederacy had shrunk by then— but it was hardly gone. Most slaves were still in bondage.
The American continent was then home to the largest slave system in the world. Brazil, the next largest, was less than half the size of the American slave system. Oakes strongly emphasizes this: “Not only did the South’s slave population dwarf all others, its sheer expanse . . . defied military conquest. Spread across two-thirds of the continent, slavery reached all the way from Wilmington, Delaware to Brownsville, Texas” (p. 396). By the end of the war, about 525,000 men, women, and children were in federal institutions—or only about 13 percent of the system’s size in 1860 (p. 421).
As the prospect of military victory became obvious to Lincoln and Congress, in the wake of the July 3, 1863 victory at Gettysburg and the July 4, 1863 surrender of Vicksburg, Republicans realized that the war might well end without the full destruction of slavery. A map at the front of Oakes’ book shows where military emancipation actually occurred: one sees only small areas at various edges of the Confederacy.
The Proclamation thus set the agenda of the 38th Congress when it assembled in December 1863. Recognition of the Proclamation’s limitations helped to create the will within Congress to amend the Constitution. On March 28, 1864, the Senate Judiciary Committee reported the Thirteenth Amendment. A new battle began: the battle for a two-thirds majority in the House—the quest that Spielberg’s “Lincoln” so vividly dramatized. The success of that quest eventually depended on “shirking” by Democrats who had lost their 1864 re-election bids, that is, voting their own preferences rather than those of their constituents.
In the end, the Amendment passed in the House by just three votes (p. 480). That fact underscores the contingency of the freedom national project. A reaction to it had erupted in Congress and then during the 1864 elections. The Republican Party was a revolutionary party. But it played by constitutional rules—and it punctiliously changed the rules according to the rules for changing the rules. And it competed for popular support with a vigorous opposition.
Racist Democratic resistance to the Thirteenth Amendment marked the forceful rise in national politics of racist (as distinct from pro-slavery) agitation and mobilization. A great backlash—one that would influence American politics for well over a century into our own time—had begun.
How Much Transformation?
As we have seen, Republicans used the American military as the agent of emancipation under the law of war—a use that, in turn, set the stage for constitutional emancipation. Republicans also empowered the military and the central state. During the Civil War the US finally recognized Liberia and Haiti. Federal installations, such as Fort Monroe, Virginia, became sanctuaries. As the cunning of history would have it, Fort Monroe had provided several detachments to Col. Robert E. Lee for John Brown’s execution (Ericson, p. 123). A military (and a federal government) that once relied extensively on slave labor now featured black combat regiments.
Thomas Wentworth Higginson, the abolitionist Unitarian minister, commanded the first such regiment. His command was the First South Carolina Volunteers. Higginson famously wondered just how the epic quest to make freedom national would all work out. In a diary entry just after Lincoln issued the Proclamation, Higginson wrote, “revolutions may go backward; and the habit of injustice seems so deeply impressed upon the whites, that it is hard to believe in the possibility of anything better. I dare not yet hope that the promise of the President’s Proclamation will be kept.” Footnote 12
Seldom has there been a more prescient worry—and it is akin to the note on which David Ericson ends his book: “A civil war was required to eradicate the house of slavery. Unfortunately the ‘new birth of freedom’ was only a partial birth” (p. 185). Higginson’s “habit of injustice” persisted.
White supremacy and the repression of African-American labor were relentlessly rebuilt in the decades after Reconstruction. In response, millions of black Southerners undertook a second kind of self-emancipation as they migrated to Kansas in the 1880s, Oklahoma toward the end of the nineteenth century, and to northern and western cities in the first half of the twentieth century. Footnote 13
Attorney General Edward Bates wrote in 1862 that there was no such thing as a “fractionalized” citizenship – citizenship that meant one thing in one state and another in another state (Oakes, p. 358). But in the decades after the Reconstruction the United States elaborated “fractionalized citizenship.” Such citizenship is a pervasive feature, in fact, of our own politics: just ask lesbians and gays.
The long-run denouement of the quest to make freedom national raises the question of just how transformative public policy—even the incredibly dynamic anti-slavery policy of the Civil War—can really be. William Graham Sumner famously doubted the promise of public policy when he wrote that “legislation cannot make mores.” Footnote 14
One can get a partial answer from thinking counterfactually. Ericson counsels thinking counterfactually about American political development (pp. 17-21), and Oakes also does it quite powerfully in his preface. He posits a President George McClellan taking the oath of office in March 1865. By then the drive to repeal the Thirteenth Amendment would have died in the House. The Confederacy and the Union would have reunited with slavery intact. Just when would slavery have ended with that scenario?
The federal anti-slavery policy drive that began in 1861 created an America infinitely preferable to the one that would have emerged if the quest to make freedom national had faltered and failed. Political scientists as well as historians have a stake in appreciating the counterfactual and its implications.
In fact, we have a lot of thinking to do along with the historians—and with such talented American political development scholars as David Ericson. If there was contingency in emancipation, then there was contingency in Reconstruction and in its aftermath. As we revisit these periods we can see the uncertainties of our own politics with new eyes—and grasp that the future of the American regime is as much ours to shape as it was for Americans 150 years ago.
Rick Valelly is Claude C. Smith ’14 Professor of Political Science at Swarthmore College and author of The Two Reconstructions: The Struggle for Black Enfranchisement (University of Chicago Press, 2004). His most recent book is American Politics: A Very Short Introduction (Oxford University Press, 2013).
