Rebecca Zietlow's The Forgotten Emancipator succeeds at its appointed task: it rescues Ohio Congressman James Ashley from historical obscurity. Ashley was one of the most radical members of Congress throughout the 1860s, deeply committed to antislavery principles and to racial equality. He also espoused what Zietlow terms a “free labor vision,” which led him to agitate for better working conditions for Northern laborers. Ashley was the father of the Thirteenth Amendment, and Zietlow convincingly demonstrates that he viewed the measure as embodying more than just a prohibition on slavery. For Ashley, it also contained a “positive right to free labor”—a promise on the part of the federal government to protect workers from their employers’ exploitation.

Zietlow presents an engaging portrait of Ashley, whom she clearly admires. What's not to love? Ashley supported not just emancipation, but also a very modern-sounding vision of racial equality in the United States. Ashley's vision of “freedom” included a baseline of political, social, and economic rights for all Americans, regardless of race. The Forgotten Emancipator is written more for legal scholars than for historians. Zietlow is engaged in a quasi-Originalist enterprise, in that she seeks to resurrect Ashley's views to guide contemporary thinking about the proper interpretation of the Thirteenth Amendment. Zietlow offers this portrait of Ashley to prove instructive to modern lawyers, who could think of Ashley as a hero—as one of the “Founders” of the new Constitution forged during Reconstruction.

But Ashley was an outlier, and Zietlow's book offers little in the way of contextualization and robust historiography. Zietlow primarily relies on scholarship that focuses on Reconstruction's linkages to the labor movement. There were such connections, to be sure, but only those on the most radical end of the nineteenth-century political spectrum would have drawn them. Many nineteenth-century Americans considered workers’ interests to be diametrically opposed to emancipation. Northern workers worried that newly freed African Americans would come North to compete with them for jobs. These beliefs propelled the bloody New York City draft riots of 1863. In fact, slavery's apologists often contrasted the terrible working conditions of wage laborers with the supposed benevolence of the institution of slavery, which “protected” slaves in old age and infirmity against the harshness of capitalism. In the eyes of most people of Ashley's time, the horrors of slavery in the rural South did not map on neatly to the problems of workers in the urban North. Ashley saw the similarities, though, and this marked him as quite extraordinary among his contemporaries. His was not, as Zietlow should make clear, a mainstream view in the 1860s. He is more a man for our times than for his own.

This issue aside, Zietlow's research yields fascinating insights about constitutional paths not taken during the Civil War era. Before Ashley conceived the Thirteenth Amendment, he served as the chair of the House's Committee on the Territories. In this capacity, he championed—along with fellow Radicals—the seemingly odd notion that the Confederate states might be governed under the law of conquest. Following this vision, Congress could exercise plenary power over the federal territories and could reshape their municipal law at will, although there was no such direct federal authority over the states. During the Civil War, Ashley argued that either because of attempted secession or by virtue of conquest, the states became, in effect, federal territories. Congress could (if it ignored the dictates of the Dred Scott decision) abolish slavery, legislate racial equality, and provide economic protections for the state's citizens.

As early as late 1861, Ashley and his fellow radicals began developing this territorial theory. In early 1862, he proposed a piece of legislation that “refram[ed] the relationship between the rebel states and the federal government” (99). It would have authorized the federal government to free slaves in the Confederate states and to transfer land ownership from slaveholders to slaves. Ashley's 1862 bill did not pass. More moderate Republicans, including President Lincoln, objected to the idea that the Confederate states had written themselves out of the Union. Instead, several years later, Ashley and others seized on the Guarantee Clause as the basis for Reconstruction. They also sought to supplement the federal government's powers through formal constitutional amendments.

We can only speculate about  what might have happened if Ashley's arguments had won the day in 1862. The power derived from the law of conquest was vast, but it was also temporary. If Congress had been unconstrained by constitutional limits on federal authority, it could have thoroughly remade Southern society during the Civil War. If so, formal changes to the Constitution might have been unnecessary, and as a result, the Reconstruction amendments might never have existed. We might have seen more thoroughgoing social and economic changes in the postwar United States, but the text undergirding most of the twentieth and twenty-first century's constitutional innovations might never have come into being. Was such a tradeoff worth it, given that the vague language of the Reconstruction amendments can be interpreted and reinterpreted for new generations?

Zietlow's careful excavation of Ashley's constitutional thought thus shines a light on contingency in constitutional history. Congress rejected Ashley's initial constitutional theory, but eventually endorsed a less radical alternative—a formal constitutional amendment that accomplished only some of Ashley's policy objectives. Ashley himself regretted that Congress took what he termed the “less safe [and] less desirable” path during Reconstruction. Yet, once it became part of the Constitution, the Thirteenth Amendment took on a life of its own. Its language, as Zietlow (among others) argues, can be read to support “a positive right to free labor” and thus “improve the lives of workers of all races” (187). That is what Ashley would have wanted.