>> good evening. one of the leading historians his work focused on the self examining economic social system that shaped southern life. his books include the ruling class the radical and republican and triumph of antislavery politics and freedom national. they later won the prize and annual award for the scholarly work in english on abraham lincoln or the civil war era and

from california berkeley he's been on the faculty of the university of new york graduate center since 1997 and the holder of the graduate school of humanities chair since 98. he teaches courses on contracts with criminal law and regulations. he attended princeton university, oxford university and yale law school and served as a law clerk for the judge of the united states court of appeals. he was awarded for his book race, crime and the law and recent books include race, affirmative action and the law, the persistence of the color line, radical politics and the racial politics and the politics

of racial be a trail. abraham lincoln and the antislavery constitution that explores how the party adhered to the strategy founded in the constitution itself. so without more from me we look forward to a wonderful conversation. >> thank you so much for that gracious introduction and i would like to get the conversation started. i am delighted to be in conversation with james oakes whose work i've used in courses and my own written work and we are going to discuss this book abraham lincoln and the antislavery constitution.

and my question there are thousands of books on lincoln. why did you feel you needed to write this one? >> i didn't feel i needed to write this one. i never expected to write another book on lincoln. it's not a book i plan to write. it came at the suggestion of my editor that had a couple suggestions that were sort of fallouts from my earlier work. but the suggestion came at a time i was teaching seminars and one of the things that's always disturbed me about some scholarship is the tendency to take him out of history and treat him as though he were some supernatural trans historical

figure and it seemed to me the constitutionalism was a critical context in which you had to see him because lincoln was he had two characteristics that made him extremely useful for historians. the first is that he could articulate the position of the republican party with extraordinary skill and effectiveness. he was a very good writer but also completely unoriginal. he didn't create the ideas that you've read of other republicans, other folks. he wasn't saying other things he was just seeing them in a better way often so he's useful in that sense so the constitutionalism

but i don't think that we have adequately appreciated so so that was back to the context in which he operated politically, constitutionally and the like. >> okay. you say that lincoln denied that the constitution protected the slavery as a right of property. what do you mean by that? if it wasn't a right of property, what was it? >> anti-slavery folks had a

legal right which is a right created by statute or local governments or state constitutions and they differentiated that from a fundamental constitutional right. the conflict, the basic conflict over the constitution as it related to slavery was the proslavery position the constitution recognized as a right of property and articulated by lincoln, that it did no such thing. the constitution did not treat slavery as a fundamental right of property. it only recognized the existence in the states that created it as a mere legal right. i'm not sure if constitutional scholars would recognize that as a meaningful distinction and in

fact, proslavery folks did not as a meaningful distinction but that was lincoln's position that it isn't the same thing as property created by local or state law. >> one of the things about your book is that it emerges at a moment in which historiographical debate is not just a debate in colleges and not just in historical societies but it's being voiced by electoral politicians. it's a debate on the front page of the newspapers. between for instance 1619, "the

new york times" through some of the detractors, 1776. where does this fit on the spectrum between the 1619 camp and 1776 camp? it doesn't fit in either of those camps. i think of them as driven by a kind of patriotic nationalism and i think of nationalism as always and interpretation of history and it's always a distorted interpretation of history. i think of it as driven to some extent by black nationalists or separatist interpretation on the history, and i think nationalism is always a distorted interpretation of history and what is missing for me from not

just those versions but a lot of mainstream but it was just way too much conflict over these issues. whether you are saying america was born as a freedom loving nation, you know, dedicated to freedom for all you are missing the degree to which. if you say that america was born in a slave country dedicated to slavery and the revolution was founded to protect slavery you are missing the degree to which there was in fact and enormous conflict at the heart of the revolution and history over these very issues so for me it's

a conflict question and that's what i try to do in the book is to show i wrote this to some extent as an anti-originalist book with the intricacies of what her regionalism is but it did seem to me that for the proslavery constitution as the originally understood public meaning of the constitution for the large numbers of americans. but large numbers but eventually thateventually took control of e federal government in 1861 and implemented the document is

historically significant that didn't think as a part of the document. in your book you mainly talk about lincoln antislavery and anti-slavery doctrines. that is the main subject. you talk about lincoln and race and you call lincoln one of the

things historians have uncovered about the history of the colonization movement, which emerged in 1817 and reflected the shift away from an optimistic view of the future in the united states. the first generation looked to a time when african americans would be incorporated as full citizens. by 1817 the colonization council had a different perception of the possibilities of the biracial democracy in the united states and they were very pessimistic about the future because of the reaction against of the egalitarianism of the revolution that had set in and

we know what was happening in the north but they were taking votes from blacks that had previously had it and they were entering into a period of tens racial discrimination. people who were committed to a future of universal freedom without slavery maybe began to think pessimistically about that prospect. some were just racist who couldn't imagine the united states with free blacks in it and some were antislavery folks who might have liked that kind of thing but imagine that as an ideal kind of future. and lincoln comes out of that kind of pessimistic tradition that doesn't imagine the

possibility of whites ever allowing blacks to live as equals. he invites these guys to the white house and behaves very high handedly and says among other things no matter where you go in this country you are not treated as equals. go to the best place, go to massachusetts or to new england. the place where you are treated the best you still are not treated as equal and you should think about going someplace else where you can be treated as equals, where you deserve to be treated as equals. so it isn't racism so much as

pessimism about the prospect of blacks of her living as equals with whites in the united states. >> the pessimistic tradition really interests me in a deep way partly because my father was deeply pessimistic. the pessimistic tradition has deep inroads for instance and deep roots in black nationalism. it also has deep roots in thomas jefferson or alexis de tocqueville obviously very different about lincoln is right there with his pessimism. although you mentioned, and he

mentioned so poignantly that at the end of his life, lincoln is starting to use the speech. the kind that you are talking about is different than the kind of pessimism that lincoln exhibited. that is where the pessimism was somewhere else coming from kind of observations of political and

social reality of the united states more than jefferson's. but i think the movement of lincoln on the race is in race n interesting and important part of his story. he said he always hated slavery and couldn't remember. his parents attended and antislavery church so we had no reason to believe that he needed to be persuaded but on the subject of race, it does seem to me that a compelling case can be made that he moved and i think really needed to move. as i said in the book, i speculate about this. i don't know if there is a way to move it but he came to the politics and the

constitutionalism the more his deference to racial prejudice diminished. so that the movement is not just at the end of his life. it starts i think in the 1850s when he starts having to articulate for the first time in the constitutionalism like all men are created equal in the sense that they are all equally entitled to the same natural rights and it is an explicitly racially egalitarian position to take in the 1850s. it's not equal citizenship and it's not equal political rights. but as he pushes in that direction towards antislavery politics as he has radicalized by the civil war in the way that many northerners are radicalized over the course of the civil war he does it seems to me move more

and more in the direction of inequality and never gets to where we would like him to have gotten but it doesn't matter he's the first president to ever publicly endorse black voting rights. in your view is there any place with respect to the slavery issue where lincoln comes up short among politicians of his era, is there a politician who may be comes out better? >> charles sumner comes out better than everybody. but it's a -- it seems to be

built into the way people talk about lincoln and the comparison is always with the more radical end of the spectrum the right wing of the spectrum is the southern democrats but the third party lincoln is smack dab in the middle of that so on the left and what we would call today centerleft or something like that and the radicals like charles sumner and thaddeus stevens and others that we are familiar with. so, he comes up short compared to that. >> although they never became

president. yes and he could become president in part. one of the things i try to do in that book is to separate out his own personal feelings about certain issues like abolition in washington, d.c., like the due process rights of fugitive slaves and the position he wants the republican party to take in order for it to be a successful winning coalition so he is very clear when they are trying to get the conservatives to stay with them as a party he doesn't want the issue of washington,

d.c. raised. he thinks it is a common ground issue and it's going to be slavery in the territories. and of the antislavery base of the republican party to build the coalition. different from the radicals that he wasn't an abolitionist and never claimed to be an abolitionist but emphasizing those differences we missed to the degree to which there is a broad base of thought among those that radicals and mainstream politicians like abraham lincoln shared and that

is historically very significant. >> one of the things about your book that i found really instructive was the number of steps that lincoln and the republican party took so they think of emancipation proclamation and the 13th amendment. i don't typically think of all of the steps and i must say there became a point in the book i stopped counting there were so many. would you walk through some of those that don't get much attention?

>> this was the essay that i wrote. the last chapter that caused my editor to say you need to turn this into a book. that is what pushed me all the way back. it has two more years to go, nobody knows that. but many historians think of it as the deathknell of slavery it just took two more years to end but one of the things i'm trying to, and it was in some ways the deathknell. i don't want to deny that. it was a necessary but not sufficient to step and one of the things that i find so interesting is the way that lincoln begins to use large-scale emancipation especially the recruitment into the union army from the slave states to undermine in the slave

states enough to get the slave states under pressure to abolish slavery on their own that it was necessary to do that. it would be abolished state by state and the antislavery project was to use the federal government to the fullest extent of its constitutional power, to nudge the state to get them to abolish slavery on their own and the war accelerates the process dramatically and gives lincoln a kind of leverage he can use to undermine in states like maryland, missouri, arkansas,

louisiana to pressure those states to abolish slavery on their own. the reason that's important it's a simple question of mathematics and arithmetic's. you need a three quarters of the states to ratify the constitutional amendment. steven spielberg's movie on lincoln treats the congress' passage in the house of representatives the final vote to get the amendment through the house. that's the end but that could only be the end if there were enough states that had abolished slavery and were willing to pass that amendment and that took several years of work. it was the combination of a larger antislavery project grounded in the constitutional premise the federal government didn't have the power to abolish in the state. so the irony is that in order to

get slavery abolished nationwide and ratified you had to get the states to abolish slavery so that they were willing to ratify. so, you go from the emancipation proclamation to open the union army to black troops and start putting pressure on individual states to get the slavery abolished and they start to do that in 1864 and between january of 1864 and january of 1865, six states or proto- states if you will abolish slavery and that does shift the balance of power between the slaves and slave and free states. it's inconceivable that an amendment would have been passed. there are 18 states and 15 slave states and even adding three new three states during the war

would only make it 21 to 15. you had to slip enough slave states over to get a constitutional amendment so that process i don't think has been sufficiently appreciated in the scholarship and if we are going to talk about lincoln's central role i would put it there at least as much as the emancipation proclamation. it is important but it strikes me as something called for by the second act everybody is waiting for and had he not issued that statement he would issue a proclamation he might have been impeached by the time congress came back because they were waiting for it because congress had authorized it.

>> you mentioned the confiscation acts. there were a number of confiscation acts or telling the union army don't enforce the fugitive slave law anymore or the efforts to get to the border state to get rid of slavery. i think i was surprised to see they were brought together in one place and all of these various steps. they lost sight of the

amendment. the momentum was building. >> i agree. if i am pushing for anything in the last ten things i've written, it's emancipation was a complicated process it makes no more sense than a saying that they freed themselves. they are all essential indispensable agents in a long and complicated process that had different steps. it isn't a simple direct step from fort sumter to the 13th amendment. it's not inevitable or ordained from any step. i started because of a previous

book that i've written about in which lincoln calls one of the highlights of the book a major event of the book. i contemplated the meeting and both of them completely committed at that point to the abolition of slavery and absolutely certain that it wasn't over. that if they won that election and in august they were sure he would the civil war would have ended without the abolition or slavery.

it wasn't over until it was over. there was nothing inevitable about this. so, getting those steps, getting that understanding of how difficult it was is something i've been trying to get out for a long time that it goes back very far and that it took a long time. >> i would digress for a moment and ask about the relationship between lincoln and douglas. two absolutely extraordinary people. how did they feel toward one another? >> it changed over time. it's not entirely easy to tell because they were both pretty shut mouth about their own private feelings about things. they were public. we know them from their public speeches. but it looks to me and i've said

this in my book that in this over the course of the three meetings they had, they grew in friendship and affection towards one another so that's how douglas first initiates the first meeting in the summer of 1862 as a kind of protest he's going to complain you haven't done enough. he comes away not persuaded, but in pressed and the second meeting when lincoln calls douglas back to the white house and asks him for his help in getting slavery abolished, douglas is even more, he goes to the way saying he's even more

committed than i had realized, and he probably was more committed than lincoln had been to the complete eradication of slavery and then the third time he goes to see lincoln give that amazing second inaugural address and lincoln calls him back into the reception and greets him publicly and it looks to me like they grew he he he let me ask you a question you've written books and mentioned in your acknowledgment you say you talk about the difference between the way legal scholars and historians might approach the

same subject. what did you have in mind there, what is the difference? >> i guess i was thinking there's a kind of commitment to the text of the constitution and reading everything you need to know about the constitution from the text itself as a kind of lawyerly way of dealing with constitutional issues that the text is not self-explanatory and that as the historian i'm interested in and the conflicts seem to be just looking at the

text and reading what the text said wasn't enough. i should have been more careful because the best legal scholars know that, and the best historians. there are historians that know you need to read that text and that's not incompatible with the way an argument for the public meeting is framed and you need to read machiavellian in the context of other people writing about power in the renaissance italy that's the way you understand it, it's kind of the original public meeting. it's not rather than the great tradition machiavelli compared to somebody before him but the

original meeting you've got to do the same thing and so maybe it is not so different as i was suggesting. it was a response to some conversations i was having with some other professors and i didn't want to, i don't know what i wanted to do. he wrote a really important book on citizenship and he had me reading on the origins of the civil war before it is deeply embedded in the back of my brain that i ended up coming back to it decades later isn't entirely

surprising. if you think of him as a legal historian even though he was out of a history program, that kind of stuff is what legal scholars do. >> i think of analytic historians being very lawyerly. among those who come to mind i would say your self and david potter. david potter's book on the secession crisis very careful. he has a point he wants to make.

he doesn't evade counter evidence. he's making an argument among the law professors there are people who do the same sort of thing. so i was just suggesting i mean i don't think that actually there is a category of legal scholarship over here they grapple with of the subject and if they are doing a good job, they are doing a good job. >> i concede. >> listen, we have a wonderful audience and i think they probably have some questions for you. i will yield the floor.

let's see if some of the audience have questions. >> we ask you to use the q and a function and we will get to as many of them as we possibly can. on lincoln's position on the 1861 proposed amendment ostensibly to persuade other states from secession? >> for those who don't know, it was proposed by a northern republican during this crisis that says congress shall have no power to abolish slavery in the state and one of the points i've been trying to make in this book and other books is that this restated the obvious. it wasn't a meaningful

alternative to the situation that existed. if you read the text it says it cannot be changed so as to allow congress to abolish slavery so it is even within the text of the amendment itself it was acknowledging that it was asserting the position that everybody already pretty much accepted that the constitution didn't allow and one of the most telling points about the significance of that doctrine is that even if it had passed, nothing would have changed. that's not how slavery was abolished. it was stated by state-by-state and then effectively is bypassed the federal consensus and said there is no slavery anywhere in the nation.

so, i think too much has been made of the amendment they recognized it as a meaningless of any particular principal that had been accepted. >> you certainly touched on this previously but a little bit more detail they had to be compensated. who would pay that compensation? >> i started to get at this on the question randy asked me earlier. lincoln believed in compensation of the states that abolished

slavery and may be at the rate of $300 per slave, but i don't think that he believed the government should be giving slaveholders money. a state could take the compensation funds and say we are going to build a railroad with of this or build schools with it so it wasn't specifically framed i think mostly to go to the slaveholders but he wasn't willing to say that. he holds out compensation as one of the incentives to get the states to abolish slavery and he's still advocating in early 1865 when he is not sure they have enough states to get the amendment ratified. he is still suggesting the amounts to get them to do that. basically a bribe to the states

to get them to abolish slavery. >> didn't the legislation that provided for the end of slavery in the district of columbia direct the money going to the slaveholders? the reason why was sort of like sticking it to their predecessors like you shouldn't have done this. you shouldn't have allowed slavery here. we are responsible for having slavery. we are responsible for allowing it into the district of columbia so we are going to pay you to take the slaves away from you but congress was not responsible in mississippi or delaware or wherever things like that so it wasn't a precedent in any way.

by the time congress passes that, the major mechanism of the emancipation is military emancipation and that is not compensated. you don't compensate a disloyal slaveholder from a state engaged in this behavior once you've emancipated them it's only in that part that they had control over. 1,900 something like that who got money out of the 400,000. so it isn't a major part of the story of emancipation i don't think. it says something about the politics of getting the states to abolish but it's one of the

like it's if you hold out to the states to get them to abolish slavery. >> speaking of predecessors, paul wrote what role did john quincy adams have in the development of the constitutionalism? >> that is a good and very important question. so, it was john quincy adams who plays a peculiar role because as far as i can tell, he's the only american statesman whoever argued that it was illegal for belligerents to abolish our emancipated slaves. he said this in the negotiations of the ending of the war of 1812 when he was secretary of state.

that was inconsistent with the history that the united states already had of the emancipation going from the revolution to the treaties of paris and both acknowledged it was legitimate to emancipate the slaves during wartime. it was john quincy adams who in the 1840s when he turned to congress as a representative from massachusetts the constitution doesn't allow for the federal government in peacetime to interfere in the state but if there is a war, it is perfectly legitimate under the law and the clause to offer emancipation to slaves in order to suppress an insurrection.

that doctrine migrates from his mouth into the mainstream of politics and lincoln is saying that and this is one of the things you know, one of the things i'm trying to say in the book is that there was this doctrine i call the forfeiture of rights doctrine that states if you secede from the union and go to rebellion any constitutional rights that you have as a slaveholder are forfeited by your disloyalty and that's the logical outcome of the john quincy adams doctrine that once you are in the state of war we can emancipated slaves we wouldn't be able to emancipate during peacetime. lincoln gives a speech in 1859 in which he says you leave the

union, we are under no obligation to return your fugitive slaves and he repeats about and begins to adopt that and it's mainstream and high slavery faulted by the 1850s and it was john quincy adams who i think was one of the earliest the advisors of what could be done in war time that couldn't be done in these times to slavery. >> [inaudible] >> popular in massachusetts. >> the greatest that we've ever had. [laughter] peter wrote i was struck by your

statement i wonder if you can expand upon it. it's fairly uncontroversial that the public statement comes in his december 1862 annual address to congress. it's a very interesting statement because it is framed as an attack on racist justifications for the colonization and indication that we are not to bringing people here that wouldn't otherwise be here if we didn't colonize them we don't do anything to bring back. but it's his last statement in favor of colonization and he never says it again. there's indications that privately he may have asked his attorney general to think i

doubt if he ever gave up on the idea that might be the best solution or go to solution the last public statement he makes is in december of 1862 before the emancipation proclamation. and this gets back to a point we were discussing earlier it's a much more effective way to get the states to abolish slavery if you put them in a union army offering colonization which he never really thought was impractical anyway.

aside from colonization what did they think or attempt otherwise supporting the newly emancipated? >> that requires thinking about his, how he thought about reconstruction and we only have tea leaves and i don't think that he thought enough about that issue before he died. he is a supporter of the homestead act and he might have been a bit more aggressive in using the homestead act, but i don't think that he was thinking very deeply about compensation. i don't think that it was in general on the minds of most republicans. there were few who thought about

the land redistribution and things like that. but compensation wasn't something that he and most republicans were thinking about. >> i would like to push you on this a little bit and try to read the tea leaves. so, lincoln is killed, andrew johnson becomes president, andrew johnson shows himself to be a thoroughgoing reactionary. he gets the left wing of the republican party particularly really angry with him. is it possible to think that reconstruction actually became

more radical than it would have been had lincoln lived? >> yes, i think so. i think a lot of what the radical, so many of the not the 13th and 14th amendments, but i think that maybe the 15th amendment because it was deeply tied to this end so that a president could undermine the sense that you had to have black voting rights against such dangerous executive authorities and that might not have been the case had lincoln lived. [laughter] >> i don't know.

>> it's also conceivable to me that if republicans needed to consolidate their power as a party and lincoln was a party guy and it's not inconceivable that he would have recognized that the future of the republican party would depend on black voting rights in the south. and kind of an alliance or coalition of the non-slaveholding whites were poor whites and poor blacks. that's consistent with the way he thought about things and how republicans were thinking about things, so it is conceivable to me that it could go that way as well. >> media would result in the amendment i don't know, but it isn't hard for me to imagine congressional statutes that make

it or congressional reconstruction requirements that require black voting without a constitutional amendment we could go on for hours on the other hand we can't go on for hours. thank you

>> hello and welcome everybody welcome to tonight's conversation that are here to discuss the new book i will just hold it up for