Reviving the Republican Face of Constitutional Rights ...
"Constitutions as Ways of Life; Rights as Political Practices: Using Theory and History to Reframe American Constitutional Politics"
Elizabeth Beaumont
University of Minnesota beaumont@umn.edu
Draft – please do not cite or circulate without permission.
Introduction
This paper is a work-in-progress stemming from a larger book project examining the role of civic participation in constitutional theory and politics, with particular attention to the ways in which citizens have understood, argued about, practiced, and helped transform constitutional rights and liberty during critical historical periods. The broader project challenges dominant accounts of constitutional theory and seeks to excavate and reinvigorate the notion of a civic constitution in which engaged citizens play a pivotal role in defining and transforming constitutional principles. I call this distinctive form of civic engagement public guardianship of liberty, the beliefs and activities that treat the Constitution and rights as res publicae – public things and matters of public concern and shared responsibility. I argue that this form of constitutional politics is not only a recurring mechanism for constitutional interpretation and change, but it bears witness to a more powerful -- and more empowering -- view of constitutional rights and liberty. My goal, in part, is to reorient the way we think and talk about constitutions and the relationship between people and constitutions, encouraging us to recognize the ways in which constitutions are defined by the “ways of life” of the people, as Aristotle urged, and the ways in which rights are defined by political practices, including the beliefs and actions of ordinary people.
At first glance, these ideas that citizens participate actively and creatively in shaping Constitutional rights and commitments -- the meaning and institutionalization of the fundamental principles of the political community -- may seem indisputable. Some may even wonder how anyone could reasonably think otherwise. Yet the vast body of modern constitutional theory gives little attention to popular constitutional debates, judgments, and activities. As a result, Aristotle’s classical notion of a civic constitution, or the perception that constitutions and citizens are interdependent and that constitutions are as much shaped by citizens as citizens are shaped by constitutions, seems all but lost. Citizens are rarely recognized as creative and influential constitutional thinkers and actors. Instead, people remain ghostly figures, appearing as passive spectators to constitutional politics and rights developments spearheaded by judges and presidents (Wolin, Fugitive Democracy 1996). Ironically, some of the most prominent scholarship on popular constitutionalism gives surprisingly little attention to the constitutional ideas and actions of engaged citizens and civic groups (Ackerman 1993, 1998; Kramer 2004). These failings leave us with a constitutional system whose legitimating principles of popular sovereignty and participation in self-rule seem to have been rendered empty or fictional. Moreover, it prevents us from recognizing the multiple stages on which rights play out, and appreciating the extent to which public involvement in constitutional politics helps define and reform our constitutional rights and commitments.
To demonstrate how the concept of public guardianship improves our understanding of the United States Constitution, and of constitutional democracy, the book project revisits several historical periods of constitutional conflict and development, illuminating the ways in which citizens’ constitutional arguments and activities have contributed to revolutionary reinterpretations – even re-foundings – of the constitutional order. Drawing on a range of primary and secondary literature, particularly the letters, petitions, publications, and accounts of the political activities of a range of activists and groups, I show that popular constitutional judgments and actions have played a dramatic and creative role in four revolutionary shifts -- constitutional founding and adoption of the Bill of Rights, abolition of slavery, women’s suffrage, and passage of national civil rights legislation. I advance a combination of conceptual, normative, analytic, and descriptive claims to make a case for conceiving of the American constitutional project as a story of changing constitutional understandings and rights arguments and activities spun as much from the minds of engaged citizens as from political leaders.
Along the way, I challenge some mainstream currents in constitutional theory, arguing that failure to recognize the role of the public in shaping the constitutional order is not merely an empirical flaw that can be addressed by including a wider range of voices. The deeper problem is theoretical and normative. It has as much to do with how we conceive of the American constitutional project today as it has to do with how we view the Constitution in history. If constitutional democracy is to be more than a mirage that flickers and disappears on approach, we need a thicker account of the role of people and groups in defining the Constitution’s core public commitments, its principles of justice and legitimacy. And if constitutional liberty and rights are to exist as something more than parchment promises, we need to appreciate of the ways in which many relatively ordinary people have worked toward reimagining and realizing these ideals.
I am not arguing that public participation in shaping the meaning of fundamental Constitutional rights and principles always leads to wiser or more just constitutional settlements. Indeed, the competing constitutional visions asserted by engaged citizens during historical periods can be disheartening as well as inspirational. Civic participation in American constitutionalism has sometimes contributed to fairer, freer, and more egalitarian constitutional commitments and practices, but it can also contribute to oppressive and inegalitarian permutations of the constitutional order.
But even if public involvement in defining public constitutional commitments cannot guarantee outcomes with which wise moral philosophers would agree, I argue that this involvement is valuable because it upholds and embodies crucial elements of constitutional liberty: participation in meaningful self-government through what I call public guardianship of liberty. This liberty includes the creative power of the people to help define what it means to possess constitutional rights and to participate in directing our public purposes and influencing our shared national identity. Constitutional scholarship has not recognized or appreciated these aspects of constitutional liberty, or our ability to share in power over and responsibility for what we jointly, as a political community, express as our fundamental public commitments, and the ways in which we define and apply these public commitments in practice.
A project of this size and scope is not without its challenges. Tracing origins, specifying processes of social and political change, and conceptualizing emergent phenomena are all difficult tasks. I try to bypass some of these difficulties by avoiding the temptation of trying to offer a complete explanation or general theory of constitutional development. Rather, I seek to identify broad patterns of popular participation in important constitutional changes for which there is much compelling empirical evidence, and argue that this expanded vantage opens important windows on constitutional theory. The strength of this approach lies less in its causal claims than in its conceptual and normative contributions, and the ways in which it tries to illuminate the important notion of democratic or popular constitutionalism through careful conceptual treatment and empirical support.
Below, I turn to a well-known period of constitutional crisis – the abolition movement, Civil War, and Reconstruction (roughly 1830-1880) -- as a case study of the public face of constitutional rights and the role of many engaged citizens in redefining constitutional principles through their arguments and actions. The draft is preliminary, and I have large collection of examples of popular constitutional argument from primary sources that I have not yet been able to incorporate. But the paper begins to trace a set of general arguments about the role of anti-slavery activists in defining rights and reshaping fundamental constitutional commitments we now take for granted.
Abolition as a Constitutional Project
“[W]e all declare for liberty; but in using the same word we do not all mean the same thing.” - Abraham Lincoln, “Address at Sanitary Fair, Baltimore 1864
Draft: Please do not share or cite with permission from the author.
In combination, the Thirteenth, Fourteenth, and Fifteenth Amendments prohibit slavery and indentured servitude throughout the United States, establish national citizenship for all native-born and naturalized persons, prohibit states from depriving individuals’ liberty without due process of law, and equal protection under law, and prohibit racial discrimination in states’ voting laws. While these provisions are widely recognized as embodying a set of fundamental constitutional principles that transformed the original Constitution, disagreements over how we should understand these principles are a foremost problem in constitutional law and a central concern of American politics, from issues involving labor regulations (Lochner v. New York), uses of “grandfather clauses” and all-white primaries to restrict voting (Guinn v. United States and Smith v. Allwright ), and criminalization of homosexual intimacy (Bowers v. Hardwick and Lawrence v. Texas). For constitutional theorists across the political spectrum, understanding the Post-War Constitution and the “majestic generalities” of the Fourteenth Amendment’s due process, equal protection, and privileges and immunities clauses often hinges on the constructions of political leaders. The opinions of the Supreme Court typically take center stage, but some attention is given to the views of President Lincoln and leaders of the 39th Congress and the constructions of leaders that followed.[i] Such conventional accounts of the Reconstruction Amendments offer valuable knowledge, but they also contribute to a limited and skewed perspective on constitutional meaning and change, preventing us from fully understanding the sources, scope, and substance of revolution of constitutional rights and principles reflected by the Civil War Amendments.
In this chapter, I argue that only by exploring the ways in which a broad range of anti-slavery activists theorized about the constitution and worked politically to redefine its meaning-- the meaning of fundamental constitutional commitments to a national political community characterized by active national citizenship and rights and institutions necessary for republican government, substantive personal liberty, equality under law -- can we fully understand the innovative constitutional principles that paved the way for the Reconstruction Amendments. Paying attention to the interactions between abolitionists’ constitutional work and that of state and national political institutions provides a more nuanced understanding of how large-scale participation in rights talk and practice shaped some of the most important principles of the U.S. Constitution. And we come to see many engaged citizens whose voices are generally overlooked by constitutional scholarship as constitutional theorists, agents, and actors participating in defining and transforming the constitutional order. The set of ideas that infused the Reconstruction Amendments, including the thinking of key political leaders who guided the amendment process, including Abraham Lincoln and important figures of the 39th Congress, were shaped by this popular constitutional movement. We can better understand what our constitution is and what it has become by recognizing how many of the animating principles we attribute to the Constitution itself -- or to the Founders, Supreme Court Justices, or other political leaders -- were first envisioned and then carefully crafted through public guardianship of rights.
By the 1830s, a growing number of abolitionists were engaging in a politics of rights that revolved around asserting creative, radical claims about constitutional principles, framing political debates over slavery in terms of these principles, and pressing political leaders and institutions to uphold these principles through their actions. For example, in 1837, the New England Anti-Slavery Convention rejected prevailing pro-slavery constitutional interpretations, arguing that the most fundamental constitutional principles are those protecting personal liberty, and the priority of these principles points to the impermissibility of slavery: “The whole system of slavery is unconstitutional, null and void… So far from the Constitution authorizing or permitting slavery, it was established to guard life, liberty, and property."
I contend that abolition should be understood as a constitutional project and that the pattern of broad civic involvement surrounding slavery exemplifies public guardianship of constitutional liberty, treating constitutional rights as public concerns and a focal point for political challenge and renewal. Indeed, many who participated in anti-slavery work explicitly recognized and defined their role as one of defining and defending the “fundamental principles of liberty” they considered founding national commitments and viewed as necessary for just, legitimate constitutional governance:
There is imminent danger that the fundamental principles of liberty will be lost even in the free states unless the minds of the people are aroused to consider them in their particular bearings on the subject of slavery. When our nation was founded, the truth of these principles was deeply felt by all, and there was an entire opposition between them and the system of slavery.…[ii]
They called for serious national reflection on “great principles of freedom” warning that “unless as a nation we are aroused to consider them again,” the nation will be ruined, since even though many people talk about freedom, by failing to address freedom in light of on-going slavery, “we are losing the very elementary ideas of what freedom is…”(ibid). Anti-slavery activists like this saw themselves as rousing the nation to recognize the extent to which the public commitment to freedom represented by the Constitution was irrevocably violated under the reigning constitutional order.
Using various tools of communication and influence, anti-slavery advocates like this used rights talk and constitutional arguments as immanent criticism to challenge slavery, construing core constitutional principles in new and unorthodox ways and seeking to dramatically refashion dominant constitutional culture and practice.[iii] In voicing and acting on their constitutional judgments, those who participated in anti-slavery work sought to grow the movement, influence public opinion and set the terms of political debate, and pressure local, state, and national politicians to govern in accordance with these judgments. The anti-slavery constitutional vision became increasingly important in American politics, framing the major controversies of the era around their understandings of fundamental constitutional principles, influencing the views and actions of political leaders and parties, and ultimately providing the theoretical underpinnings of the new constitutional architecture embodied in the 13th, 14th and 15th Amendments.
To understand the ideas and influence involved in the rights claims and constitutional interpretations advanced by anti-slavery advocates, I consider some key elements of emerging anti-slavery constitutionalism. I then sketch some of the ways in which anti-slavery activists used these rights claims and practices to frame political debates and shift the opinions of ordinary citizens and leaders. Their web of arguments and actions challenged dominant constitutional norms and practices and sought to overthrow the pro-slavery constitutional ideology and remake the constitutional order. As hundreds of examples from the anti-slavery movement demonstrate, abolitionist activists were not simply appealing to judges, courts, or elected politicians to ask them to end slavery or to extend an existing corpus of national constitutional rights to Blacks. They were transforming, through word and deed, what it meant to possess constitutional rights, what it meant to be a citizen in a republic, what kinds of laws and political structures free institutions require, and who has authority to interpret, judge, and reimagine the constitutional order.
While the federalist constitutional ideology that surrounded adoption of the Bill of Rights centered on popular consent, state citizenship, negative liberty, common law rights and states’ rights– principles that stressed national non-interference in the customary rights of individuals and the political autonomy of state government, the anti-slavery constitutional ideas and actions that laid the groundwork for the Reconstruction Amendments redefined the Constitution’s public commitments. They articulated three overlapping principles they believed were required for a genuine constitutional republic. The first is rights of active national citizenship: the Constitution is not legitimated solely through an initial act of popular consent and ratification, it must guarantee national freedom and on-going republican government within and across states by protecting capacities for political speech, action, and influence of ordinary people throughout the national political community, including rights to political criticism (which could be punished as seditious libel under common law). The second is the priority of substantive personal liberty: the Constitution is not a guarantee of national non-interference with traditional common law rights or states’ rights, or solely a set of limitations on national government with respect to personal liberty. Rather, it is responsible for protecting the substantive liberty of individuals to direct their own lives and labor as free, autonomous persons (a principle lawyers would construe as “substantive due process”), and should prioritize and protect national freedom and personal liberty over other constitutional commitments . The third is racial equality under law: Black Americans must be recognized as citizens and members of the political community entitled to equal treatment under law, and states cannot maintain de facto slavery through discriminatory laws. (Notably, the abolitionist constitutional ideology stopped short of national voting rights or equal rights and equal opportunity.) These three anti-slavery principles framed the public backdrop of the Reconstruction Amendments as they were ratified, as well as guiding the views of key political leaders who shepherded the amendment process, including Abraham Lincoln and important figures of the 39th Congress.
I am not suggesting that this is the only lens through which we can understand the abolition movement, or that there was a clear constitutional consensus among the millions of people who participated in it to varying degrees, from attending an anti-slavery lecture or fair or buying anti-slavery literature to more intensive involvement and leadership that often involved personal risk and sacrifice. The anti-slavery movement was never a unified group, and remained highly decentralized and local, even after it developed national organizations and leadership. Those who participated in the movement operated from many motivations and pursued different goals and strategies that criss-crossed the abolitionist project for constitutional reform, from ending slave trade, to eliminating slavery within states and territories, to creating foreign colonies for free blacks, to improving the conditions of free blacks through assistance with jobs and education.[iv] Because my interest is in understanding how anti-slavery ideas and activism shaped constitutional theory and politics, I leave aside many other important aspects of the movement.[v]
Nor am I suggesting that abolitionists’ constitutional views have gone completely unnoticed. But while several scholars have explored abolitionists’ constitutional ideology, such as William Wiecek, they treat this as the largely formal, legally-oriented writing of a handful of prominent abolitionists, especially lawyers, rendering all but invisible the broader sets of voices and actions that helped give meaning to these constitutional ideas and worked for their political recognition. This contributes to a stunted understanding of the sources of what many now consider our most important constitutional principles, and ignores the extensive and creative civic action involved in engendering this new constitutional framework.
What I am suggesting is that abolitionism included a strong form of popular or democratic constitutionalism that is largely overlooked by most constitutional scholarship, that many relatively ordinary people were involved in the intersecting rights claims and constitutional activities that marked abolition as a constitutional movement, that as anti-slavery efforts grew, abolitionists’ articulated distinctive readings of the constitution’s fundamental commitments, and that the constitutional theory and action of abolitionists had dramatic implications for constitutional development, not only through its framing influence on political debates, including, ultimately, adoption of the Reconstruction Amendments, but through its lasting influence on patterns of constitutional reform and recognition of the authority of ordinary people to participate in judging the Constitution and defining and re-founding its public commitments.
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Confronting the Pro-Slavery Constitutional Order
Small numbers of American colonists, especially Quakers, had worked to curtail or eliminate slavery since the Revolutionary era. Although early anti-slavery activists often relied on religious arguments and methods of moral suasion, issuing pleas for voluntary manumission of slaves, even this work had a political dimension – collective action aimed at broad social change. But as the movement and its goals expanded and its influence grew, and increasingly turned attention to the goal of ending slavery across the country, abolition became a full-fledged constitutional project – a project to redefine the Constitution. Throughout the early- to mid- 1800s, participants in anti-slavery work provoked and responded to a series of critical political events that turned abolition into a distinctively constitutional project, including the Missouri Compromise, the Gag Rule of 1836, the Wilmot Proviso (1846), and the Fugitive Slave Act of 1850. Participating in these controversies fractured the movement around constitutional questions, and persuaded many anti-slavery activists that the existing constitutional order – the dominant interpretations of its principles and the set of institutional arrangements and practices operating under it --was an obstacle to ending slavery. Many activists began to redefine fundamental constitutional principles around the many problems slavery raised for the political community, and began to see their own task as one of contributing to constitutional reform or revolution.
As the 19th century progressed, major veins of anti-slavery rhetoric and activism, as well as internal debates about the methods and strategy of the movement, focused on conflicts between slavery and constitutional rights and other principles. The public arguments and practices of a growing wave of anti-slavery advocates, particularly “radical abolitionists,” centered on critiquing or transforming the dominant constitutional order with respect to slavery.
As Frederick Douglass argued at an 1851 meeting of the Colored Citizens of Ohio, the Constitution was considered pro-slavery “by those who framed it,” and it has been generally “construed to that end ever since its adoption.”[vi] Anti-slavery activists recognized the thorough entrenchment of this constitutional order, noting that prior to the 1850s, “almost every person supposed the C[onstitution] of the U.S. guaranteed slavery.”[vii] And one common goal, increasingly, was to refound this constitutional order, though different wings of the movement often disagreed about the right strategies or methods for achieving this. Or, as those who supported the states-rights constitutional regime perceived it, well before the outbreak of military conflict, abolitionists had been “warring for years against the Constitution of the United States and the rights of the States under it” and they sought to eliminate slavery “regardless of the obligations of the Constitution, or the rights of the States, or of persons or property.”[viii]
As we shall see, in undertaking a political battle against the pro-slavery constitutional order – long before the outbreak of national Civil War -- anti-slavery activists were not only challenging the status of slavery in the Constitution. They were identifying fundamental principles necessary for Constitutional justice and legitimacy: national rights of active citizenship protecting meaningful participation in republican government and the operation of free institutions, the priority of the substantive liberty of members of the national political community, as well as their right to fair and impartial legal processes, and racial equality under law.
So how and why was it that “almost every person” believed the United States Constitution “guaranteed slavery”? A powerful combination of constitutional text, historical beliefs, and on-going laws, practices, and culture supported this view. Both slavery and anti-slavery work pre-dated the national Constitution. Under British rule, slavery was protected by the Crown and legal in all colonies. During the Revolutionary era, anti-slavery groups were already at work to end slavery and provide some kinds of assistance to free blacks, contributing to slavery’s prohibition and demise in several Northern states and territories, encouraging other. Northern states to adopt laws for gradual abolition, and helping to persuade Congress to exclude slavery from the Northwest territories in 1784. Deviating from these trends, the Constitutional convention adopted several powerful protections for slavery that permeated the overall constitutional framework, shaping its mechanisms of representation and federalism.
The first of the Constitution’s slavery provisions is best known: The Enumeration Clause counted every slave as 3/5 of a person for purposes of representation and taxation[ix]. The other three major slavery provisions tend to receive less scholarly attention, but they greatly influenced the trajectory of anti-slavery constitutional debates and actions. The Fugitive Slave Clause stated that the laws of one state could not release slaves from bondage in another and required that states in which escaped slaves are found must deliver them back to the owner upon a claim. The final two major slave provisions prohibited Congress from banning slave trade or limiting how highly slaves can be taxed until after 1808,[x] and the special guarantee in Article V that the Constitution could not be formally amended before 1808 to change these restrictions on Congress’s ability to interfere with slave trade.
Today, the Constitution’s major provisions bearing on slavery are typically described as unfortunate but politically necessary compromises needed to gain needed Southern support for the new Constitution, but we can also read them as a backlash against the political power of anti-slavery ideology and activism. And, they can be read as provisions that seemed to render the whole Constitution a pro-slavery document – operating together to limit the power of national, state, and local governments to curtail or eliminate slavery, and giving slavery a preferred position or more extensive reach than any other substantive policy moral principle in the new Constitution. We can see the distinctive way in which slavery shaped the overall architecture of the federal Constitution by comparing it to the Articles of Confederation it replaced – a bare bones constitution that had included no provisions dealing with slavery and in which slavery played no overt role in structuring political institutions.[xi]
Constitutional entrenchment of slavery was demanded precisely because Southern delegates were keenly aware of the political tide of anti-slavery sentiments to influence state and national government, and the threat this posed. The Constitution’s slavery compromises not only insulated slavery from national democratic politics, but they warped the moral-structural framework of the Constitution: slavery explicitly circumscribed the nature – and constitutional census -- of the political community and the structure of political institutions, limiting the power of Congress, state governments, and people to act against it. Not only were the people and their congressional representatives prohibited from banning slave trade or taxing it highly until 1808, methods that could restrict slavery’s growth and possibly cause its demise, but these prohibitions were also virtually the only constitutional provisions that could not be amended, for at least a generation. States were also differentially empowered and restrained by the Constitution’s slavery provisions. First, the Enumeration or 3/5 clause ensured that slave states held national political power vastly disproportionate to their eligible voting population through representation in the House. Second, the Fugitive Slave Clause prevented the laws of free states from releasing slaves who entered their states from bondage, b) required free states to return slaves to prior owners upon their claims, and c) indicates that, in this area, the laws of slave states, rights of slave owners, and the slave system permanently outweigh the laws of free states and the rights they grant to Blacks. Thus, these three issues, required return of fugitive slaves, slave states’ ability to wield political power in the House on the backs of slaves, and prohibitions on national interference with slave trade not only shielded slavery from the reach of state and national politics, but they came to form lynchpins of dominant 19th century constitutional understandings.
As one group of anti-slavery advocates noted in an 1857 “Address to the Electors of Connecticut,” the Supreme Court’s ruling in Dred Scott represents the pinnacle of pro-slavery constitutional construction. This construction, as announced by the Taney Court, held that blacks could never be citizens or members of the political community with equal rights, identified the Fifth Amendment property rights of slave-owners as paramount to any other constitutional principal, and denied the power of Congress, and perhaps all states as well, to prohibit slavery. Those who opposed to slavery condemned this decision as “based upon the assertion, that the Constitution recognizes and guarranties the right of property in man” and that interfering with this right “is beyond the power, both of Congress, and of the people of the territories themselves.[xii] And they viewed this constitutional order as a threat to national freedom and to “free institutions” throughout the United States, arguing that “Under this construction of the Constitution”, they urged, it is extremely difficult for “free institutions” to “exist at all.”
While the Revolutionaries had come to see the English Crown as exerting tyrannical power violating more fundamental constitutional principles of liberty, Radical Abolitionists came to recognize “the slave power” and the dominant constitutional norms through which it operated as similarly tyrannical – exerting unchecked power and violating what they took as fundamental constitutional principles. In pro-slavery renderings, the Constitution not only permitted property, trade, and commerce in “persons,” but it prioritized slavery over competing constitutional principles, removing an entire class of people from the constitutional boundaries of individual rights and national citizenship and permitting a caste system that violated substantive principles of liberty and republican government. As anti-slavery activists took up the question of how we should understand the Constitution, pro-slavery constitutional readings permeated the political backdrop against which they asserted their competing constitutional vision.
The Emergence of Anti-slavery Constitutionalism
By the close of the 18th century, anti-slavery societies had formed across much of the early United States. By the 1830s, a wide range of activists had begun articulating and disseminating the core elements of a new and formative anti-slavery constitutional interpretation.[xiii] An article from the prominent anti-slavery newspaper The Liberator reporting the growth antislavery societies across the country as a reflection of sweeping social transformation regarding the practice of chattel slavery: “The world has witnessed no moral change like this since the Reformation.” The work of abolition was never merely moral, however, and the political events of the 19th century encouraged many reformers to come to recognize that abolition required constitutional revolution: political arguments and actions aimed at redefining the core principles and structures of the national political community. Even as anti-slavery groups were able to point to many achievements, radical abolitionists became increasingly dissatisfied with what they viewed as unacceptable compromises, “halfway” measures, and judicial decisions that constructed the Constitution as protecting slavery above all else, including the Kansas-Nebraska Act of 1854 and “Bleeding Kansas.”
By the time the Dred Scott decision was issued in 1857, unprecedented numbers of Americans were involved in combatting slavery through a broad set of rights claims and activities that, cumulatively, framing the terms of national political debates on slavery around their understandings of fundamental constitutional principles. In doing so, they implicitly and explicitly challenged constitutional orthodoxy and issued radical new constitutional interpretations. Thus, debates over slavery increasingly became debates over the very nature and structure of the Constitution, and anti-slavery activists believed they had the right and authority to help interpret and shape the meaning of fundamental constitutional principles.
A massive array of historical documents demonstrate the ways in which many citizens and groups used sets of interlocking rights claims, constitutional interpretations, and political activities to spur and frame state and national debates on slavery, to critique and challenge the laws and practices contributing to the pro-slavery constitutional order, and, ultimately, to demand that the Constitution be interpreted and reconstructed around redefined principles of active national citizenship, substantive individual liberty, and, ultimately, racially equality under law. [xiv] Scholars have chronicled the anti-slavery constitutional ideologies of leading abolitionist lawyers, but tend to overlook the much broader range of participants, ideas, and activities involved in making the new constitutional vision take root in the public imagination and in constitutional politics.
Even in such early arguments and actions, abolitionists’ forays into politics often had an underlying constitutional dimension – they were fueled by the belief that, whatever compromises on slavery the Constitution might include, there were other constitutional principles that contradicted slavery and could be used to constrain it, if not eradicate it outright, and they considered these the Constitution’s most fundamental public commitments. Thus, even when anti-slavery constitutionalism was in its young stages in the early 1800s, and there were not yet systematic articulations of abolitionist constitutional theory, many activists and leaders in the movement were already proclaiming, as in John Parrish’s Remarks on the Slavery of the Black People; Addressed to the Citizens of the United States, that slavery “is against the essence of the Constitution,” that citizens and leaders should recognize this and acknowledge that there is political authority to end slavery.[xv]
By the 1830s, it had become common for those involved with anti-slavery work to invoke constitutional principles and interpretations as well as moral and religious arguments about slavery.[xvi] Indeed, anti-slavery literature from this period forward begins to overflow with arguments that slavery is unconstitutional, a judgment the authors frequently recognized was contrary to public opinion, current laws, and judicial rulings. Nathaniel Colver, a Massachusetts cleric, for example, argued that the Constitution did not “recognize any right of slaveholding,"[xvii] while others gave speeches declaring that slaveholding "is contrary to the Constitution of the United States."[xviii] In her 1838 letter published in the anti-slavery press, Angela Grimke went farther still, urging that the unconstitutionality of slavery was so profound that it required civil disobedience against the existing constitutional order. Grimke suggested that abolitionists believe “all the slaveholding laws violate the fundamental principle of the Constitution of the United States” and that the slaveholder is not “bound by the immoral and unconstitutional laws of the southern states” but rather is bound “as a man, as an American, to break them, and that immediately and openly.”[xix]
Black abolitionists, too, frequently expressed opposition to slavery and hopes for the future of Blacks in the nation in terms of fundamental constitutional rights and principles. Charles Remond, for example, argued in a speeches reprinted in various newspapers in the 1840s that the very existence of slavery was “entirely opposed” to the “fundamental principles” of the Constitution and the “great republic”[xx] Such activists repeatedly and publically challenged the reining constitutional order, arguing that it contradicted the correct or just understandings of fundamental constitutional principles related to equal or unbiased individual liberty and the free institutions of republican government. But the anti-slavery constitutional project was not simply a critique: as their political opponents recognized, their arguments and activities aimed at engendering a new constitutional ideology – what many recognized as an “abolition construction of the Federal Constitution.”[xxi]
The Pluralist Foundations and Political Work of the Anti-Slavery Constitutional Movement
It is tempting to depict and understand anti-slavery constitutional ideology solely in terms of the relatively formal, often legalistic treatises offered by lawyers like Joel Tiffany. But much is lost by such approaches, which reveal only the tip of the abolitionist iceberg. From the formation of the first anti-slavery society in 1775, building a network of civic organizations was a central focus. ‘Joining and associating’ remained a critical component throughout every phase of the abolition movement, with strong emphasis on recruiting new members and expanding societies in order to increase the reach and power of anti-slavery ideas.[xxii] By mid-century, thousands of anti-slavery chapters operated in nearly every state and territory outside the South, and tens of thousands of citizens were members of these groups during the 19th century, while millions would, at some point, attend an anti-slavery lecture, fair, or convention. Many of these people were involved, implicitly or explicitly, in creating and diffusing the anti-slavery constitutional vision. Some of their efforts are included in written records -- petitioning, giving speeches, writing pamphlets – but most are not.
In 1829, the American Convention of Abolitionists noted the political power they had acquired, and suggested that their series of successes should inspire their growing ranks to undertake even greater exertions in hopes of achieving greater goals:
within little more than half a century, very few, and most of them possessed of comparatively little influence in political circles, were known to advocate our cause. Now thousands are enlisted in it, some of whom are among the most influential characters in the nation.[xxiii]
They took great pride that the “great and important work” to rid much of the country to slavery, including the achievement of the Missouri Compromise, which would prohibit slavery’s extension in the North, “has unquestionably been accomplished by the active labors [of anti-slavery activists].
Cultural prejudices of the period dictated that not all anti-slavery activists had equal capacities to participate in all forms of politics. So it comes as no surprise that many leaders of the movement were political elites: politicians, ministers, lawyers, or prominent members of society, such as Benjamin Franklin and Charles Sumner. But most of those involved with anti-slavery – and who made it a national movement rather than an academic exercise -- came from the ‘middling’ classes – tailors, blacksmiths, innkeepers.[xxiv] As the number of anti-slavery groups grew, they became increasingly diverse, attracting participants from many walks of life including large numbers of church-based groups and many chapters of freed blacks and women, though these were usually separate.
To an unprecedented extent, abolition was a pluralist national constitutional movement in a way the Revolutionary constitutional movement had never been -- many of its prominent voices and actors were Blacks, such as Charles Remond, women, such as the Grimke sisters, former slaves, such as Frederick Douglass, those who were largely self-made or self-educated, such as William Lloyd Garrison, and, sometimes, all of the above, as in the case of Harriet Tubman.
But in conjunction with the crucial work of such visible leaders, the work of abolitionism included tens of thousands of men and women whose voices history has not recorded, but who also helped paved the way for a new constitutional order through their ideas and actions. Some contributed to this constitutional vision by transgressing the existing constitutional order, believing, as Angela Grimke did, that such actions were justified precisely because the practice of slavery so strongly contradicted the nation’s fundamental commitments. Those who worked directly for the Underground Railroad, ferrying slaves from the South up to Canada, are the most striking example of this. But there were many small, every day actions that helped spread the anti-slavery constitutional vision. From the men who raised money to circulate anti-slavery literature in the South, to the women who participated in church sewing circles to supply settlements of Fugitive Slaves in Canada, these actions were fundamental challenges to the law of the land concerning slavery, and were acts of civil disobedience aimed at undermining and overturning the pro-slavery constitutional order.
Moreover, when we think about the pluralist foundations of the anti-slavery constitutional vision, it is also important to recognize that, while fractures within abolitionism were important, there was not always a bright line between those who, for example, joined churches that espoused the sinfulness of slavery, and those who gave public speeches declaring the unconstitutionality of slavery. Rather, these were two ends of a spectrum of beliefs and practices that often worked together to thwart the broader constitutional culture that supported slavery. In many cases, even moderate and gradualist forms of abolitionism also served to challenge the dominant constitutional order, though less explicitly than radical abolitionism. One potent illustration of this is that widespread popular participation in “accommodationist” anti-slavery efforts to encourage voluntary manumission in the South, which were often based on religious appeals rather than constitutional claims, created a backlash of laws in some Southern states that prohibited even these voluntary actions against slavery. By blocking this avenue for anti-slavery reform, such laws provoked many individual and groups who had previously held more moderate anti-slavery to sympathize with more radical anti-slavery beliefs and approaches associated with anti-slavery constitutionalism.[xxv]
Indeed, as anti-slavery activists succeeded in pushing principles such as “national freedom” and non-extension into national legislation, and framing political controversies over slavery as a battle for constitutional rights and principles, endorsing any form of abolitionism, gradualist or not, came to involve embracing a set of commitments that challenged the constitutional, political, economic, and social status quo. This is one reason why, as the 19th century progressed, supporters of slavery came to see few important distinctions between and among the far-ranging strands of abolitionism, instead often portraying all abolitionists as participants in one grand overarching scheme to overturn the Constitution and constitutional liberty as they conceived it. And to some extent, they were right.
The Principles of Anti-Slavery Constitutionalism
By the 1830s, radical wings of the abolition movement began to more forcefully advance a set of claims about the rights of blacks and the practice of slavery that directly opposed the constitutional orthodoxy that animated Congress, the federal courts, the national executive, many states, and much of public opinion. Anti-slavery arguments regarding the relationship between slavery, rights, and the Constitution took various forms. They were not always consistent, and some offered more fully elaborated arguments than others, ranging from short speeches to book-length treatments, but in reading their work we see the emergence of important patterns that contributed to a distinctive constitutional vision.[xxvi]
In thousands of pamphlets, speeches, lectures, and other writings and addresses, this vision invoked the Constitution’s mantle to assert the existence of blacks’ and slaves’ rights as citizens and members of “the People” and the power and obligation of the national government to protect the constitutional rights of all citizens, including those held as slaves. One key element of anti-slavery constitutionalism emphasized principles related to individual liberties and rights (including both the natural rights expressed in the Declaration of Independence and the guarantees of the Bill of Rights, particularly the Fifth Amendment Due Process Clause’s protections for individual liberty, or what would later emerge as the judicial doctrine of “substantive due process”). But, often in conjunction with their emphasis on rights and liberty, they also stressed principles of citizenship and the equal rights of citizens (expressed in the Privileges and Immunities Clause), and republicanism and popular sovereignty (expressed in the Guarantee Clause of Article IV, section 4 and in the preamble). New understandings of these principles provided the framework for a radical critique and creative reenvisioning of the constitutional order. This emerging set of constitutional interpretations insisted that the Constitution must be interpreted to guarantee substantive liberty and include blacks in the political community, constructions that would prevent laws such as the Fugitive Slave Act, contradict the Supreme Court’s interpretation in Dred Scott, and, taken to its farthest extreme, prohibit slavery anywhere in the United States and its territories.
The Priority of Substantive Liberty and Rights
Foremost among the elements of the abolitionist constitutional project was an insistence on the priority of substantive liberty in the Constitution. Such arguments that often invoked constitutional provisions related to personal liberty and rights, and also frequently called upon the principles of inalienable rights expressed in the Declaration of Independence[xxvii][xxviii] This interpretation was often linked to another pillar of anti-slavery constitutional construction: the view of the Bill of Rights as a source of national power and not simply a limitation on it. This counter-orthodox vision treated constitutional rights and other normative principles not merely as guidelines that government should strive to uphold, or as limits on national government to prevent its interference with common law rights, but as supreme dictates outweighing contradictory provisions of the Constitution and capable of empowering state and national governments to protect individual’s substantive liberty.
To give just one potent illustration of this, Black minister J.W.C. Pennington argued against the constitutionality of the Fugitive Slave Law of 1850 (and the Fugitive Slave Clause itself) through an interpretation drawing together the assertion of inalienable rights in the Declaration of Independence with the public commitments expressed in the Constitution’s preamble. He argues that the Constitution cannot “unsettle” what the Declaration affirms and that the Fugitive Slave Law is immoral and unconstitutional. Like Angela Grimke, he urges his listeners that civil disobedience against the Fugitive Slave Law is justified because the Constitutional clause that authorizes it is void or a “dead letter” due to its conflict with the Constitution’s fundamental principles and “spirit” as expressed in the preamble:
We do not want to break the Constitution, but we want to mend it; for we contend that just at this clause [the Fugitive Slave Clause], there is no Constitution, as applied to slavery. There is a breach here which is only filled with dead letters. What is the Constitution? Is it a sovereign over the will and the power of the people? No, it is the creature of that will and power…. [I]n this clause there is an assumption of power which the framers of the Constitution never had lodged in hands. …
Against the Fugitive Slave Clause, Pennington appeals first to the Declaration of Independence, which he notes “places personal liberty among the inalienable rights of all men,” and, if this is the case “then no power on earth can alienate it-- not even the Constitution which is twelve years younger than the Declaration”. He goes on to present an explicitly constitutional challenge framed in the “spirit” and reason or purpose of the Constitution expressed in the preamble:
As evidence that this clause is not obligatory, we allege that it is in conflict with the total design, scope, and spirit of the Constitution itself. In the preface to this document, some six specifications are made by way of setting the groundwork: the people giving their reasons for framing and adopting it as follows:
(1) “In order to form a more perfect union.”
(2) “To establish justice.”
(3) “Ensure domestic tranquility.”
(4) “Provide the general welfare.”
(5) “Promote the general welfare.”
(6) “And secure the blessings of liberty to ourselves and our posterity.”
Here is the spirit of the Constitution, and a noble spirit it is. But in order to convince my hearers that the clause in question is in direct and palpable conflict with this spirit, I have only to ask, what one of those objects are not absolutely hindered by this clause?[xxix]
Such constitutional arguments were frequently insisted that the fundamental constitutional commitments reflected by provisions like the Preamble and Bill of Rights must be read as national in scale, and as outweighing or have a preferred position among other constitutional commitments, particularly its concessions to slavery.
Anti-slavery activists sometimes focused on specific rights such as free speech that seemed to be threatened by the pro-slavery constitutional order, but they also focused strongly on the broader principle that under the 5th amendment’s guarantee that individual liberty could not be abrogated without due process of law. This clause was repeatedly construed as having a substantive meaning similar to what is now recognized as the judicial doctrine of substantive due process. Reverend Orange Scott, for example, announced at the 1837 convention of the New England Anti-Slavery Society that:
The whole system of slavery is unconstitutional, null and void, and the time is coming when the Judges of the land will pronounce it so. So far from the Constitution authorizing or permitting slavery, it was established to guard life, liberty, and property.[xxx]
Likewise, during a meeting of the State Convention of the Colored Citizens of Ohio in 1851, black anti-slavery activist William Howard Day challenged the dominant pro-slavery construction of the Constitution by offering a radical interpretation of the due process’s clause’s guarantee of liberty (as well as the preamble’s promise of liberty). He argues that those offering pro-slavery arguments “partake of the error of making the construction of the Constitution of the United States, the same as the Constitution itself:”
There is no dispute between us in regard to the proslavery action of this government, nor any doubt in our minds in regard to the aid which the Supreme Court of the United Sates has given to Slavery… ; but that is not the Constitution…. We, most of us, profess to believe in the Bible; but men have, from the Bible, attempted to justify the worst of iniquities. Do we, in such a case, discard the Bible… or do we not rather discard the false opinions of mistaken men, in regard to it? … So in regard to the Constitution… If it says it was framed to “establish justice,” it, of course, is opposed to injustice; if it says plainly no person shall be deprived of life, liberty, or property, without due process of law,”—I suppose it means it, and I shall avail myself of the benefit of it.[xxxi]
He goes on to suggest that the Constitution is not only “the foundation of American liberties” but a tool to be used to for achieve those liberties. He says that “our business is with the Constitution”, not with judges interpretations of it, and that “if it says it was framed to “establish justice”” and that “no person shall be deprived of life, liberty, or property without due process of law,” I suppose it means it and shall avail myself the benefit of it.” “I would plant myself upon that Constitution and using the weapons they [these constitutional principles] have given me, I would appeal to the American people for the rights thus guarantied.”
Notably, Frederick Douglass disagreed with William Day’s constitutional interpretation at the time, but came to adopt similar views. We can see this in Douglass’s 1860 speech on the unconstitutionality of slavery, which argues that we can differentiate between a current or historical constitutional order and what we take to be more authentic or just understandings of constitutional principles:
It is just possible the people's practice may be diametrically opposed to
their own declared,
their own acknowledged laws, and
their own acknowledged principles.[xxxii]
Douglas offered radical reinterpretations of the Constitution’s public commitments represented by the Bill of Rights and other principles as his framework of analysis for critiquing the current “constitution of action”, arguing that Americans
have trampled upon their own constitution, stepped beyond the limits set for themselves, and, in their ever-abounding iniquity, established a constitution of action outside of the fundamental law of the land.”
He concludes his speech by telling the audience that though his goal is sweeping – to correct deficient and unjust constitutional understandings and practices that are depriving millions of blacks from participating in the public commitment to liberty -- he is not seeking to overturn the government to achieve this constitutional revolution. Rather, he intends to radically reform the constitutional order in part by electing political leaders who will act on this view:
[W]hat do we want? We want this:—whereas slavery has ruled the land, now must liberty; whereas pro-slavery men have sat in the Supreme Court of the United States, and given the constitution a pro-slavery interpretation against its plain reading, let us by our votes put men into that Supreme Court who will decide, and who will concede that that constitution is not slavery.[xxxiii]
Pennington’s, Douglass’s, and many other abolitionists’ interpretations of constitutional liberty included the idea that the Fifth Amendment’s due process clause empowered the federal government to abolish slavery in the states.[xxxiv]
Such radical abolitionists read the set of guarantees for liberty found in the Bill of Rights not simply as a limit on federal power, but as a source of power for protecting the rights of all citizens across the nation – and within every state -- from infringement by any power, whether foreign or domestic, including the acts of individual states. Some suggested that this permitted the use of judicial review to strike down state laws violating constitutional rights: whenever any state attempts to deprive a citizen of “those rights and privileges... such legislation of the state is void,” and the federal judiciary must correct the violation.[xxxv] Anti-slavery arguments that the promises of substantive and procedural rights included in the Constitution applies to state as well as federal government actions, often using what is now termed a “substantive” reading of the liberty protected by the 5th Amendment’s due process clause, were implicitly, and sometimes expressly, challenging the Supreme Court’s contrary interpretation in Barron v. Baltimore. Under that construction, which generally supported pro-slavery positions, the Justices held that the Bill of Rights does not apply to the states, and therefore states are not required to respect any of these guarantees.[xxxvi]
Moreover, as the “Slave Power” became increasingly repressive with respect to individual liberty, with book-burnings, the censorship of mail, and the gradual criminalization of all dissent, anti-slavery activists increasingly emphasized that their readings of the Constitution were not simply necessary for establishing or protecting the substantive and procedural rights and liberties of blacks, but that their constitutional interpretations were the only way to respect and uphold the liberties of all citizens, white and black.
Prominent groups such as the American Anti-Slavery Society responded to political events such as the Gag Rule and the Fugitive Slave Law of 1850 by identifying the struggle against slavery with a larger battle to protect both the substantive and procedural constitutional liberties of all Americans from the tyrannical threat posed by slave states. As Frederick Douglass put it,
Step by step we have seen the slave power advancing; poisoning, corrupting, and perverting the institutions of the country…The white man’s liberty has been marked out for the same grave with the black man’s.[xxxvii]
Many sought to persuade the public that rights violations must be viewed as a slippery slope, such that the violations of some people’s rights, slave or free, must be seen as opening the door to violating the rights of all citizens: As one anti-slavery sympathizer put it, “you cannot permit another's rights to be infringed without paving the way for a violation of your own!” [xxxviii]
Active National Citizenship and Republican Government
In conjunction with insistence the priority of substantive liberty in the Constitution and its promise of national freedom, anti-slavery constitutional ideology invoked and refashioned constitutional principles of active national citizenship and republican government. Through their arguments and actions, participants in anti-slavery work created a new emphasis on national freedom, active national citizenship, and the need for government to protect the capacity for individuals and groups to participate in republican government.
As the nineteenth century progressed and conflict over slavery became more extensive and protracted, anti-slavery activists increasingly viewed and portrayed the pro-slavery constitutional order or “Slaveocracy” as a threat to constitutional liberties of all citizens, particularly their capacities to participate in political rule.
As evidence of Southern attempts at tyranny, abolitionists touted a record of specific violations of constitutional rights that hampered the ability of anti-slavery activists to participate in important aspects of self-rule, particularly freedoms of assembly and association, petition, conscience, speech, and press: every slave state made it a felony to say or write anything that might even indirectly lead to discontent or rebellion, and most Southern states had laws that forbid circulating “incendiary” material through the mail, which led to seizure and destruction of many anti-slavery publications. [xxxix] Writing in the 1840’s, anti-slavery politician Joshua Giddings of Ohio listed ten historical proofs of tyranny, including the Fugitive Slave law of 1793; the Gag Rule and other attempts to block anti-slavery petitions to Congress; the attacks of southern states on free speech and press; and demands for extension of the slave trade into the Southwest and for the reopening of the slave trade.[xl] The Supreme Court’s opinion in Dred Scott clinched the evidence.
Such events permitted abolitionists to make still more persuasive their challenge to the pro-slavery constitutional ideology. They repeatedly charged that a “Slaveocracy” or manipulative and aristocratic “Slave Power” faction was willing to extinguish the participatory liberties of all Americans to achieve its ends.[xli] Abolitionists campaigned to convince the public that slaveholders were not content to merely perpetuate the existing practice of slavery, but sought to expand it indefinitely, and to destroy the political freedom of all Americans, whites included, in the process. The 1839 National Convention of Abolitionists resolved that the events of the past five years “leave no doubt that the SLAVE POWER is now waging a deliberate and determined war against the liberties of the free states.” By 1845 charges that slavery was incompatible with constitutional principles of republican government and free institutions were common.
Abolitionists used the repressive actions of the “Slave Power” to show the direct threat to participatory rights from the pro-slavery constitutional regime: in their desire to protect slavery and prevent political interference, the “Slave Power” was becoming increasingly repressive, with book-burnings, the censorship of mails, and the gradual criminalization of all dissent. Reliance on this theory of a Southern conspiracy against the constitutional liberties of all Americans, and of all states, was a powerful rhetorical device used by many abolitionists, and it was later adopted by the nascent Republican Party.[xlii]
In construing a constitutional principle of equal citizenship, radical abolitionists also emphasized the constitutional requirement of "a republican form of government" found in the guarantee clause. A republic, they argued, must necessarily respect the ideals and rights of the Declaration of Independence -- all men must be secure in the enjoyment of their rights to life, liberty, property -- which stood as the "authenticated definition of a republican form of Government."[xliii] "The very pith and essence of a republican government . . . [is] the protection and security of those rights."[xliv]
To define the guarantee clause’s principle of a republican form of government, some turned to Madison's definition of a republic in Federalist 39:
a government which derives all its powers directly or indirectly from the great body of the people...It is essential to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it.
From this basis, they argued that a republic cannot exist when the only empowered participants are small or "favored class," such as slaveholders. Slavery violated the constitution’s fundamental principles of popular self-government reflected in the guarantee clause, as well as in its overall history and architecture.[xlv] In combination with the supremacy clause, anti-slavery activists often read the verb "guarantee" in the guarantee clause as a grant of power to the national government to ensure that state governments conformed to the principles of republicanism. This conferred power on the national government to check the internal policies of the states exhibiting tyrannical or oppressive actions toward its people.[xlvi]
Racial Equality under Law
Many sought to persuade the public that the constitution’s fundamental commitments entitled slaves and free Blacks to equality under the law of the land. Racial equality under law was connected to the priority of substantive liberty, since it generally included the need for some, if not all of the protections found in the Bill of Rights to apply to Blacks, such as rights to free speech and assembly, rights to hold property, habeas corpus, and jury trials. For example, Charles Olcott argued in his 1838 “Lectures on the Abolition of Slavery” that the Bill of Rights applied to slaves as well as freemen because both were included in the Preamble’s reference to “We the People.”[xlvii]
Insistence on the need for the Constitution to recognize and protect racial equality under law also came in the form of insistence on black’s rights of citizenship by virtue of their inclusion in “We the People” and the guarantees of the privileges and immunities clause. Frederick Douglass argued in his speech on Dred Scott, for example, that the Constitution’s preamble must be taken to include all people, including blacks:
“We, the people — not we, the white people — not we, the citizens, or the legal voters — not we, the privileged class, and excluding all other classes but we, the people, not we, the horses and cattle, but we the people — the men and women, the human inhabitants of the United States, do ordain and establish this Constitution.”[xlviii]
Others, such as Joel Tiffany, offered more legalistic arguments, suggesting that slaves must be recognized as U.S. citizens by virtue of having been born on American soil and that the privileges and immunities clause must be read as guaranteeing blacks rights as citizens.[xlix]
Black newspapers like the Voice of the Fugitive included articles and editorials pointing out that state laws based on racial prejudice contradicted principles of constitutional liberty. They urged blacks to work to recover their “birthright privileges” with the encouragement that “a proportion of the citizens of the United States are ardently putting forth their untiring efforts to establish equal liberty” and some portions of the nation “are aiming to remodel their framework of their legislative actions, hat they may build upon the pure principles of unbiased liberty.”[l] In other words, not only were many anti-slavery activists, particularly black abolitionists, urging the need to recognize constitutional liberty as a national requirement, but that legislating racial inequality directly violates the Constitution’s public commitment to liberty.
Although belief in black’s full social and political equality was not yet widely accepted even in most anti-slavery circles, radical abolitionists argued that the Constitution must be understood to provide Blacks with equality under law, though they often defined the specific dimensions of racial equality differently. Free blacks, in particular, asserted that the fundamental constitutional principles were inconsistent with a color line for voting: the Colored American newspaper, for example, announced that the right of suffrage is a right of citizenship that “belongs to every American citizen and none should be satisfied without the exercise of it.”[li] Radical white abolitionists adopted these views more slowly. Years later, for example, William Goodell's Port Byron address (1845) similarly proclaimed that equal right of Blacks to vote was protected, under the mantle of the privileges and immunities clause. At the farthest end of the anti-slavery construction of equality for blacks under law, Gerrit Smith, as the Liberty League presidential candidate of 1848, proclaimed that, under principles of equal citizenship, blacks should have rights of social equality "in the school, or the house of worship, or elsewhere."[lii]
Clearly, the abolitionists’ Constitutional interpretations and assertions directly contradicted the dominant pro-slavery constitutional order, including reigning judicial doctrines and opinions. The reigning constitutional understanding they opposed did not view republican government or citizenship and extending to slaves, see the Bill of Rights as a constraint on states or as conferring any enforcement powers on Congress, nor did it consider the rights of “the people” claimed in the Bill of Rights inclusive of slaves (or of most other minorities), but instead as referring exclusively to a white male public. [liii]
Anti-slavery voices like this one asked Americans to consider the question of the constitutionality of ending slavery by pitting the pro-slavery view of the Constitution against the anti-slavery view and deciding which was correct:
What? Is the Constitution such as to countenance… the practices of despotic Governments, but not to countenance, even in the extremest case, the necessity of a great reform, which the enlightened spirit of our century has demanded so long, and not ceased to demand?... Is it, indeed, your opinion that… neither the writ of habeas corpus, nor the liberty of the press, nor the authority of the regular courts of justice, in one word, no right shall be held sacred and inviolable under the Constitution but that most monstrous and abominable right which permits one man to hold another as property? Is to your constitutional conscience our whole magna charta of liberties nothing, and Slavery all?[liv]
Indeed, the dominant states-rights constitutional interpretation came under such thorough attack by anti-slavery advocates that, by 1864, they had issued an annotated text of the Constitution, Our National Charters: For the Millions, that identified nearly half of the Constitution’s clauses as either directly opposing or potentially opposing the practice of slavery.[lv]
The new conception of rights and constitutionalism embodied in the anti-slavery constitutional ideology and Reconstruction Amendments it inspired were often asserted as “originalist” or in keeping with the Founder’s intentions by those who supported it and decried as dangerously revolutionary by those who didn’t. For example, members of the Illinois Anti-Slavery Convention portrayed constitutional history in this way:
all the fathers of our country were unanimous in the feeling that a system so at war with the principles of freedom, would endanger the existence of freedom in the nation. None justified it--none called it an essential portion of republicanism--none covered with odium those who wished to abolish it. But it was a common understanding that it should be confined to its original limits, and thereafter abolished as soon as possible…[lvi]
As this example suggests, the set of anti-slavery understandings of constitutional rights and principles that involved a combination or constitutional critique and reenvisioning that simultaneously built on, borrowed from, and transformed eighteenth century notions of rights and constitutionalism. Like the American Patriots and Revolutionaries who asserted that their challenges to Crown and Parliament were based on the “true” principles of the British constitution, anti-slavery activists repeatedly argued that the interpretations of constitutional rights and principles they used to challenge many aspects of the reigning pro-slavery constitutional order were the correct, authentic, and just interpretations.
Theorizing and Enacting the Anti-Slavery Constitutional Vision: “Rights Talk” and Rights Practices as Constitutional Engagement
Critics of rights such as Mary Ann Glendon, Michael Sandel, and communitarians like Amitai Etizioni often suggest that “rights talk” is a relatively recent phenomenon that promotes “relentless individualism,” undermine “civic and moral virtue,” and replaces earlier commitments to civic responsibility. Even those who view rights in more positive lights often depict them largely in terms of individual legal claims and court decisions rather than facets of civic constitutionalism.[lvii] The experience of anti-slavery advocates portrays a practice of rights very different from either view. Rather than operating to quell or displace important forms of civic participation or undermine civic concern, the rights discourses and activities of abolitionists operated as an important stimulus for citizens’ widespread engagement in issues of fundamental public importance.
Anti-slavery activists worked on many fronts to critique the existing constitutional order and provision a new constitutional vision, disseminating their views through text, speech, and political action: creating groups and recruiting members, shaping public views through their own publications and presses as well as through interactions with broader popular media, including thousands of editorials and letters sent to local and regional newspapers, through lecture circuits, conventions, fairs, and public debates and speeches; and by influencing the views of political leaders, parties, and other reform groups through correspondence, petitions, campaigns, and voting. A number of anti-slavery groups participated in litigation and legal aid work, but this was a minor front.[lviii] Far greater energy went into forming and growing organizations and seeking to influence public opinion, frame political debates, and influence political leaders regarding the relationships between slavery and constitutional principles.
The abolitionist movement, for example, almost literally blanketed the United States with its arguments. According to one count, in just a single year (1837-1838) the American Anti-Slavery Society published nearly 8,000 bound volumes, over 47,000 tracts and pamphlets, and 10,000 prints. Its quarterly Anti-Slavery Magazine had an annual circulation of 9,000; a children’s volume, Slave Friend, had a circulation of 131,000; the monthly Human Rights, had a circulation of nearly 190,000, and the weekly Emancipator, had a circulation of 217,000.[lix] To be sure, explicit and extended constitutional arguments were only a minor facet of this communication campaign. At the same time however, discussions of rights, liberty and other constitutional principles frequently emerged in publications that were not theoretical treatises on the Constitution and that were intended for mass consumption. Uncle Tom’s Cabin , for example, the most popular book next to the Bible in both the U.S. and England during the period, selling more than one million copies, not only described the moral evil of slavery, but included an attack on its legal and political structure.
In addition to using abolition presses and other popular media to assert their constitutional ideology, anti-slavery activists used a range of other political activities to critique and reshape the constitutional order. In 1841, the widely distributed New England Anti-Slavery Almanac included a list of “Things for Abolitionists to Do” that advised local “grass-roots” abolitionists on how to further the cause in their own communities, encouraging activities like the following:
1. Speak for the slave; plead his cause everywhere, and make every body feel that you are in earnest. Get up anti-slavery discussions in debating societies, lyceums, and wherever you can get an opening, abroad and at home...wherever you find [a] mind to be influenced, speak for the slave ...
2. Write for the slave. Do you take a religious or a political paper? write a short article for it, a fact, an argument, an appeal, a slave law...something short and pithy...in short, something, if not more than five lines, full of liberty, and get them into your newspaper...
3. Petition for the slave. Begin at once to circulate petitions for the immediate abolition of slavery in the District of Columbia, and in Florida, against the admission of Florida into the Union as a slave state, for the prohibition of the internal slave trade...Let every abolitionist bestir himself also in circulating petitions to the legislature of the state in which he lives, praying the repeal of all laws graduating rights by the skin.
4. Work for the slave. Distribute anti-slavery publications, circulate them in your neighborhood, take them with you on journeys, take them as you go to meetings, to the polls, to the stores, to mill, to school, and every where; establish an anti-slavery library; get subscribers for anti-slavery newspapers, and collect money for anti-slavery societies; gather facts illustrating the condition of slaves; search out all who have lived in slave states, get them to write out their testimony as to the food, clothing, lodging, shelter, labor, and punishments of slaves, their moral condition, the licentiousness of slave-holders, &c., &c., and forward them to some anti-slavery paper for publication...
5. Work for the free people of color; see that your schools are open to their children, and that they enjoy in every respect all the rights to which as human beings they are entitled. Get merchants to take them as clerks, mechanics as apprentices, physicians and lawyers as students: if the place of worship which you attend has a negro seat [or a segregated section for blacks], go and sit in it.[lx]
As abolitionists’ initial emphasis on disseminating and enacting their constitutional vision through media and voluntary efforts was thwarted by the political actions of the South, such as banning voluntary manumission efforts and the circulation of anti-slavery literature, abolitionists’ focus shifted to include stronger insistence on the need for political action to achieve constitutional reform. In particular, petitioning state and national governments became among most controversial methods of critiquing the existing constitutional regime and seeking to instantiate their own anti-slavery constitutional vision.[lxi]
The first seeds of anti-slavery constitutionalism operating through petitions: Quaker abolitionists petitioned the first national Congress to end slavery, reflecting their belief that Congress possessed this power under the Constitution. In subsequent years, a number of different anti-slavery groups petitioned Congress to end slavery outright, while others limited their requests to ending slavery in various territories, in Washington D.C., and to ending foreign slave trade, which would help prevent its further growth and might allow it to wither away. Freed blacks, too, petitioned Congress to take national action on slavery. Which the contents of petitions to Congress sometimes seem to have conceded that banning slavery outright was not possible, such petitions nonetheless contributed to an important new principle of constitutionalism: that ordinary citizens have a role to play in upholding constitutional liberty, that they are members of the political community who take these issues as their own concern, and they believe their political views on this national controversy merit Congress’s serious consideration.
At the state level, abolitionist efforts to pressure representatives to outlaw slavery through petitions, “memorials”, and remonstrances and other efforts had contributed to successes.[lxii] By 1780, the petitions and other actions of the Pennsylvania Abolition Society had helped secure the world’s first gradual abolition law for Pennsylvania -- all slaves born after 1780 would be freed at age 28, and most other northern states followed Pennsylvania’s lead.[lxiii] Black abolitionists also used petitions to achieve constitutional change by focusing on state legislatures. In 1837, for example, the Colored American newspaper ran articles encouraging blacks to petition their state governments for suffrage legislation and voting rights. Blacks, for example, petitioned the New York’s legislature to seek the extension of civil rights for free blacks, including trial by jury, restoration of voting rights (blacks had been permitted to vote prior to 1821) and a repeal of the law authorizing slavery in the state.[lxiv]
For decades, while many national political leaders tried to avoid the divisive issue of slavery, anti-slavery groups also continuously petitioned or “memorialized” Congress to protect free Blacks, curtail the domestic slave trade, ban overseas slave trade, and prohibit slavery in the District of Columbia and other territories under Congressional control. From the beginning, these efforts to sway national legislation often included constitutional interpretations and claims of individual liberty that conflicted with orthodox constitutional understandings and practices.
Although they could not vote, during the early decades of the 19th century, women emerged as critical participants in constitutional debates through their role in petitioning Congress to end slavery in the District of Columbia, the new U.S. territories, if not altogether.[lxv] Even in strongly pro-slavery regions such as Virginia, some women began petitioning state legislatures to emancipate slaves, sometimes circulating their petitions through newspapers. One comprehensive study of legislative records and other primary sources suggests that between 1831 and 1863 women provided approximately 3 million signatures to petitions to Congress on issues of slavery.[lxvi] A copy of a blank form used for petitioning Congress that was widely used in the 1830’s looked like this:
TO THE CONGRESS OF THE UNITED STATES
YOUR PETITIONERS, Ladies of the town of ___, in the county of ___, and state of __, beg leave to represent to your honorable body, that the people of the United States have vested in Congress, by the first Article of the Federal Constitution, “exclusive legislation, in all cases whatsoever,” over the District of Columbia…. Your Petitioners do not ask your honorable body to legislate for the abolition of slavery in the several states where it exists… [But] Your Petitioners….most respectfully but earnestly entreat your honorable body to pass without delay such laws, as to your wisdom may seem right and proper for the entire abolition of slavery and the slave trade in the District of Colombia.[lxvii]
We can better understand how petitioning intersected with the spread of anti-slavery arguments and activism through a portrait of the one abolitionist, Mary Avery White, a grandmother from a small rural community in Massachusetts. White was not a prominent leader, and did not speak or write publicly on slavery herself, but her diary describes hundreds of hours dedicated to anti-slavery ideas and activism. In additional to circulating anti-slavery petitions, she organized a local female antislavery society, attended abolitionist lectures, helped organized prayer services, sent boxes of clothes to fugitive slaves in Canada, raised money for the cause by making quilts in sewing circles that were sold at Anti-Slavery Fairs, and opened her home to white and Black abolitionist lecturers.[lxviii] Historians have shown that relatively ordinary women like Mary Avery White played a critical role in the anti-slavery cause, despite the fact that many objected to women’s involvement in public affairs.[lxix]
An 1839 article, “What Have Women to Do with Slavery,” portrays a fictionalized discussion of the propriety of women’s participation in the anti-slavery movement, an issue that divided the anti-slavery movement. The discussion condenses the real-life disagreement between the Grimke sisters and Catherine Beecher over women’s political participation in the abolition cause, particularly their central role in petitioning:
Mrs. A. Is it possible, my dear Harriet… that you have actually joined the Anti-Slavery Society? … It is evident, my dear, that men are appointed by Providence to make and administer the laws; it is a violation of the Divine Order when women interfere in politics. Slavery is the law of the land—it is a political question—and therefore there is a great impropriety in women’s meddling with the subject… Your uncle says you only do harm by all these petitions, for instance.
Harriet. We think otherwise, and while we do, we must still send up petitions; if Congress takes the part of the unjust judge, we must imitate that of the importunate widow; but there are other and perhaps more effectual means in the hands of women.[lxx]
Due in large part to women’s work, often included going door-to-door to collect signatures, anti-slavery groups began flooding the U.S. Congress with anti-slavery petitions.
By 1835, the American Anti-Slavery Society undertook a nation-wide petition drive, an effort that attempted to force discussion of slavery into the homes of ordinary citizens as well as into Congressional debates. Anti-slavery petition drives demanding various kinds of anti-slavery legislation were so successful that Congress, hoping to avoid addressing the contentious issue, responded by passing the first of a succession of “Gag Rules” of 1836, which tabled all abolitionist petitions and prevented any debate or action on constituents’ communication regarding slavery:
“Resolved. That all petitions, memorials, resolutions, propositions, or papers, relating in any way… to slavery or the abolition of slavery shall, without being either printed or referred, be laid on the table, and that no further action whatever shall be had thereon”.
This absolute ban persisted until 1844, but only seemed to induce greater resolve among abolitionists, and in fact helped spur the growth of the movement: from 1836 to 1838 the American Anti-Slavery Society nearly tripled in size, growing from 527 chapters to 1,350 nationwide. One notable reason for this was that Congress’s Gag Rules allowed anti-slavery activists to add a new constitutional argument to their arsenal: that slavery advocates were unconstitutionally violating First Amendment protections for the rights to free speech and petition.
The response from the Black newspaper the Weekly Advocate to the gag rule is typical of that offered by many radical abolitionists.
In every country that has pretended to constitutional liberty, the free privilege of petition has been held as an unquestionable and indefeasible right of its people… This, we confess, is the most alarming symptom that has ever met our observation… We have seen the rights of Free Discussion and the Liberty of the Press, which are expressly secured by the Constitution, vociferously denounced… And now we live to see the Right of Petition opposed by one hundred and two of the chosen representatives of this republican people… We have ever thought that the actual slavery of one portion of a people must lead to the virtual slavery of another, and both ancient history and modern example would seem to confirm this opinion.[lxxi]
After the Southern-dominated Congress adopted the first of many Gag Rules prohibiting the legislature from taking any action on anti-slavery petitions or other communications, the number of anti-slavery petitions rose more than ten-fold-- from 23,000 in the year before the rule to 300,000 petitions the year after, and the number of signatures per petition also continued to rise.[lxxii] In 1838, for example, the AAS sent petitions with more than 400,000 signatures, by 1840, more than two million Americans had signed an abolitionist petition[lxxiii]. The same year, the Massachusetts Anti-Slavery Society announced willingness to challenge constitutional orthodoxy in federal courts, urging southern slaves to petition Congress for a redress of their grievances, and, if they were unsuccessful,
then we will lend them our aid in bringing their cause before the [Supreme] court of the United States to ascertain if a man can be held in bondage agreeably to the principles contained in the Declaration of Independence of the Constitution of our country.[lxxiv]
Overall then, while the abolitionists’ rights talk and rights practices sometime related to legal claims made in courts and judicial opinions, this was a common focus. Moreover, it was the Dred Scott decision that drew abolitionists attention to the role of federal judiciary and judicial review in rights claims, but mainly as a perceived obstacle to recognizing the rights, liberty, and other fundamental commitments abolitionists identified in the Constitution.
The Anti-Slavery Backdrop of the Reconstruction Amendments
Through this interlocking network of creative constitutional arguments and rights claims and actions, participants in the Anti-Slavery Movement helped to radically transform prior constitutional understandings. Historian Eric Foner refers to the Civil War as “the Second American Revolution”,[lxxv] but it is clear that many citizens perceived that the revolution was as much constitutional as military. An 1862 speech to a mass meeting of citizens in New York, for example, identifies “the great revolution at present going on in the popular heart of the country” animated by the political and constitutional battle to end slavery.[lxxvi]
As anti-slavery activists engaged in public guardianship of rights, their rights claims and constitutional arguments increasingly fueled constitutional politics. The constitutional arguments and actions of citizens involved in the abolitionism helped to frame national debates on slavery and influencing the constitutional views of ordinary Americans and political leaders, such as by shaping the platforms of a slew of national political parties, including the Republican platform on which Abraham Lincoln and members of the 39th Congress were elected.[lxxvii] Moreover, as several constitutional historians have carefully shown, the innovative constitutional ideology expressed by radical abolitionists strongly infused Congressional debates during and after the Civil War at work, and was clearly visible in the views of the principal congressional architects of the Reconstruction Amendments.[lxxviii] In particular, the arguments of the Fourteenth Amendment’s supporters, particularly Radical Republicans, echoed the key rights arguments and constitutional interpretations that had been espoused by the abolitionists over the prior decades. [lxxix][lxxx]
Creation and adoption of the Reconstruction Amendments marked the extent to which many Americans had begun thinking very differently about the framework of constitutional rights, principles, and power. Moreover, as reading some of the anti-slavery arguments indicates, the seeds of many of our most important “modern” constitutional principles and interpretations were first imagined and sown by radical abolitionists, including early arguments for substantive due process, equal protection of the laws, and rights of citizenship.
Even constitutional scholars who take history seriously generally skip past the long and intense public struggle involved in identifying these fundamental principles and working for their Constitutional recognition. As a result, the Reconstruction Amendments often seem to appear as natural and obvious extensions of the original Constitution or as quick, inevitable settlements to Civil War. Moreover, these Amendments are often treated as though they germinated in the heads and hearts of political leaders like Abraham Lincoln and Congressman John Bingham. These common scholarly tendencies greatly diminish the political scope of the constitutional settlement. Coming to understand the origins of these constitutional pillars in civic life and action does not discount the ultimate importance of national political leadership, but it gives us new appreciation for the broad public foundations on which they were erected.
Some Tentative Conclusions
The cumulative failure of constitutional scholarship to attend to the role of popular rights discourses in shaping the Reconstruction Revolution also leads us to overlook important features of that revolution. For example, the arguments and activities that characterize this rights revolution contradict the construal of “rights talk” offered by critics and challenge the common view that “the Bill of Rights has not always occupied a central place in our constitutional dialogue” but is a new feature (if not a pathology) of the modern United States.[lxxxi] Second, it shows that popular rights arguments and constitutional engagement is not limited to litigation or treating rights as legal claims, but both involve a range of arguments and actions intersecting with the constitutional constructions emerging from states, Congress, and the President, as well as the courts. Last, and most importantly, by recognizing that the creative germination of a new anti-slavery constitutional vision that began to develop in public forums long before it succeeded in inspiring formal constitutional amendments, we can better recognize the ways in which engaged citizens play a pivotal role in defining and redefining individual and collective liberty.
By considering the long road to the Civil War Amendments, we see how anti-slavery rights discourses and constitutional interpretations helped precipitate a revolution in constitutional order. This approach demonstrates that the ideas that helped inspire and catalyze the Thirteenth, Fourteenth, and Fifteenth Amendments radically altered the framework of constitutional principles and power structures.[lxxxii] These Amendments were part of a larger pattern of conceptual change initiated by the rights discourses and constitutional interpretations championed by the anti-slavery movement. Those who participated in the abolition as a constitutional project were often viewed as radicals, and, to a great extent precisely the views and actions that made them radical at that moment in time are now recognized as a core element of American constitutionalism – the right to participate actively in national politics, the priority of substantive liberty over other constitutional commitments, and the belief in racial equality under law, including in voting rights. These aspects of abolitionist constitutional ideology are now so closely interwoven with the U.S. Constitution, that we tend to believe that they were always present, and fail to recognize how distinctive and revolutionary they were in the 19th century.
Illuminating a broader understanding of constitutional ideas and politics during critical historical junctures reveals that public struggles to establish, define, or transform constitutional principles have played a central role in periodically transforming the American republic. By situating dominant one-sided, top-down accounts of constitutional theory and development in a larger social and political context filled with popular constitutional discourse and action —or, in short, by taking popular sovereignty and constitutional liberty seriously, this project helps paint a more vivid picture of what a national constitution is—and what our Constitution has become. Tracing some of the pieces of this pattern not only provides us with a more nuanced perspective on the American Constitution in practice, it fleshes out an account of American constitutional identity in which citizens are a vibrant, not ghostly, presence.
Notes
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[i] Ackerman 1994, 18-20; 1998, Chapter Five “Presidential Leadership”, pp. 120-159, and Chapter Six “The Convention/Congress”, pp. 160-185; see also Chs. Seven and Eight. Akhil Amar’s study of the Fourteenth Amendment (1998) focuses on Justices like Marshall and Joseph Story, state judges like Chief Justice of the Georgia State Supreme Court, Joseph Henry Lumpkin, and the arguments in First and Thirty-Ninth Congresses, especially John Bingham. Moreover, his main concern is the lawyer’s question of whether the Fourteenth Amendment was intended to “incorporate” the Bill of Rights, and to answer that question he does not look far beyond Amendments drafters, ratifiers, and judicial interpreters. See esp. Ch. 7-9.
[ii] Illinois Anti-Slavery Convention [1838], Proceedings of the Ill. Anti-Slavery Convention: Held at Upper Alton on the Twenty-sixth, Twenty-seventh, and Twenty-eighth October, 1837
[iii] This idea of conceptual stretching builds on the work of Quentin Skinner, James Tully, and other intellectual historians. According to this school, when we study historical debates, such as debates over constitutional rights, we must attend to the larger context, which allows us to ascertain whether the debaters were merely “accepting and endorsing” the prevailing assumptions and conventions they invoke, or whether they were questioning, repudiating, and manipulating-- or “stretching”-- those conventions. As Tully explains, conceptual stretching can occur when part of an ideology, such as our liberal constitutional ideology, is held fast, while another part is changed, by appealing to and reinforcing conventions while simultaneously subverting them. In the case of the new conception of constitutional rights that animated the Fourteenth Amendment, those who shared this understanding both consciously and unconsciously linked their new conception of constitutional rights to the existing Constitution and “original” understandings of constitutional rights, thus permitting them to believe, or to claim, that it was not a radical deviation from the conceptions of the Founding generation, but rather a return to or the logical fulfillment of “true” constitutional principles. See Tully 1988, at 10, 14.
[iv] Anti-slavery work began in Pennsylvania as a small group of Quakers espousing private acts of emancipation and gradual legal reform, but its focus changed considerably as the antislavery cause grew into a national movement. Many scholars disagree on the primary emphasis of abolitionism from the 1830s to the Civil War. Some tie abolition to the Second Great Awakening, temperance, and other moral reform movements, treating it as a religious crusade tied to spiritual renewal rather than a political crusade (Stewart 1996). Others see early antislavery organizations as a radical splinter movement attached to neither religious revival nor partisan politics (Kraditor 1979), and still others see it as a political reform movement that evolved into a mainstream political party (Sewell 1976). The idea that abolition was a constitutional reform movement is not entirely new (Wiecek, Curtis, etc.). Sewell, Richard H. 1976. Ballots for Freedom: Antislavery Politics in the United States, 1837-1860 (New York: Norton). Kraditor, Aileen S. 1967. Means and Ends in American Abolitionism: Garrison and his Critics on Strategy and Tactics, 1834-1850 (Chicago: Elephant Paperbacks). Stewart, James Brewer. 1996. Holy Warriors: The Abolitionists and American Slavery (New York: Hill and Wang).
[v] I generally focus on the “radical” abolitionists who insisted that fundamental constitutional rights and other principles prohibited (or should prohibit) the practice of slavery and permitted Congress and individual states to act against it. Other wings of anti-slavery thought and action had different goals and priorities. For example, both the second Great Awakening and the colonization movements were extremely important for the growth of anti-slavery and the ideas it encompassed. The religious element, for example, helped “mainstream” anti-slavery sentiment and brought into many churches the goal of working actively to rid society of the “sin” of slavery. The colonization wing of the movement, with early supported from many prominent leaders, including James Madison, Henry Clay, and future Harvard president Edward Everett, expanded rapidly after creation of the American Colonization Society in 1816, spawning hundreds of chapters by the 1830s. Ironically, the popularity of the colonization wing burgeoned partly in response to early, though partial, successes of the abolition movement to persuade northern state legislatures to outlaw slavery. The growth of the colonization ideology, however, forced those who did not favor encouraging or forcing free Blacks to migrate to Africa or other countries to identify and more clearly articulate a constitutional vision, or a vision of a collective future, in which free Blacks would play a role in the republic.
[vi] Douglass, The Colored Citizens of Ohio, Minutes of the State Convention, Convened at Columbus, 1851. p. 8. The African American Experience in Ohio 1850-1920, Library of Congress American Memory Collection.
[vii] Lewis Tappan to William Jay, 11 Oct. 1844, Lewis Tappan Papers, LC, quoted in Wiecek, 254.
[viii] Speech of Hon. J. Ross Snowden, delivered at Philadelphia, Thursday, September 17, 1863. Philadelphia, 1863. In An American Time Capsule, American Library of Congress.
[ix] To balance Southern and Northern desires for political power, the Enumeration Clause counts "other persons," or slaves, as three-fifths of a whole person. This compromise was hard-fought, with Northerners wishing slaves to exist as uncounted legal property, like mules or horses. Southerners wanted slaves counted as whole persons despite their legal status because they made up such a large proportion of their population. The precise ratio -- three-fifths -- had been used Congress in other contemporary legislation and this was agreed to with little debate.
[x] This compromise alleviated Southern suspicions that Congress would use immediately use its constitutional power to regulate commerce to abolish slave trade or slavery.
[xi] The Articles did include provisions regarding fugitives, but this was framed quite differently from the Constitution’s Fugitive Slave Clause. Under the Articles, states were represented equally in Congress, so the status of slaves had not bearing on electoral representation, a critical issues for structuring the new House of Representatives. In addition, since Congress had no power to regulate interstate commerce under the Articles, the desire of many to protect slave trade was not an issue.
[xii] “An address to the electors of Connecticut.” March 1857. Signed first by Chairman STEPHEN D. PARDEE, and then by Erastus J. Bassett, James M. Woodward, H. H. Starkweather, Asa Hill, George D. Wadhams, William Humes, D. D. Silliman, L. E. Pease. In An American Time Capsule, American Library of Congress.
[xiii] This included not only Northern states where there was little reliance on slave labor and relatively few slaves, such as Massachusetts, Rhode Island, and Connecticut, but also regions where slavery was more widespread, including New York, and, at least temporarily, Maryland, Virginia, and Kentucky.
[xiv] While early anti-slavery work had often focused on religious and moral appeals and calls for voluntary efforts to end slave-holding, there were always some abolitionists who combined these appeals with a variety of legal and constitutional arguments and activities. And, over time, many anti-slavery groups came to recognize that passage of even gradual emancipation laws in states with large numbers of slaves is doubtful, partly because it can’t be expected that a minority of whites would be willing to “surrender political power” to blacks whom, many abolitionists presumed, would gain rights of citizenship upon emancipation. (American Convention of Abolition Societies Minutes, Vol II, 1828, p. 352. reprinted in Journal of Negro History 1921).
[xv]John Parrish, Remarks on the Slavery of the Black People; Addressed to the Citizens of the United States, Particularly to Those Who Are in Legislative or Executive Stations in the General or State Governments ... (Philadelphia: Kimber, Conrad, 1806), 30-31; Torrey, Portraiture of Domestic Slavery, 59; Duncan, Treatise on Slavery, 30, 53.Fourth Annual Report of the American Anti-Slavery Society, 116-117; an excerpt from the black abolitionist’s essay, first printed in the Colored American, was reprinted in Friend of Man, 23 Aug. 1837. Wiecek 1977, p. 252-3. Even the moderate American Convention of Abolition Societies issued early arguments identifying the patent conflict between constitutional principles and the practice of slavery, suggesting that emancipation could resolve the recurring and problematic “charge of inconsistency, between the constitutional declaration, and the legal provisions of some of the states”. American Convention of Abolition Societies Minutes, Vol III, 1801, p. 360; reprinted in Journal of Negro History 1921.
[xvi] The 1833 Constitution and Declaration of Sentiments of the Anti-Slavery Party, for example, combined visceral images of the cruelties of slavery with arguments that slaves are unfairly excluded from constitutional liberty and “really enjoy no constitution nor legal protection from licentious and murderous outrages on their persons.” American Anti-Slavery Society, Constitution and Declaration of Sentiments, December 4, 1833.
[xvii] Proceedings of the Fourth New England Anti-Slavery Convention, Held in Boston. . . . 1837 (Boston: Isaac Knapp, 1837), 79; 17-18. There was also a series of articles published articles in the Quarterly Anti-Slavery Magazine in 1836 and 1837 that included several elements of radical theory. Wiecek 1977.
[xviii] Speech of N. P. Rogers, Esq. Before the N.H. Anti-Slavery Society," Emancipator, 30 June 1836.
[xix] Angelina Grimké, Letters to Catharine E. Beecher in reply to an Essay on Slavery and Abolitionism addressed to A. E. Grimké by the Author (Boston, 1838).
[xx] Remond, Charles Lenox. 1841. Anti-Slavery Lecture. Liberator, November 19, 1841; In other speeches, however, Remond offered Garrison’s pro-slavery reading of the Constitution. See, for example Remond 1844. Report of the New England Convention. National Anti-Slavery Standard. July 18, 1844.
[xxi] Circular of the Central Abolition Committee in the Proceedings of the Radical Abolitionist Convention (New York, 26-28 June 1855), p. 66.
[xxii] For example, in 1794, the American Convention of Abolition Societies called on supporters to “form Societies, in every state, for the purpose of promoting the abolition of the slave-trade” and improvement of the condition of blacks. American Convention of Abolition Societies Minutes,Vol II, 1794, p. 358.
[xxiii] American Convention of Abolition Societies Minutes, Vol III, 1829; p. 373.
[xxiv] Franklin famously denounced slavery as "an atrocious debasement of human nature." Benjamin Franklin, "An Address to the Public from the Pennsylvania Society for Promoting the Abolition of Slavery" (1789), Benjamin Franklin, Writings ed. J.A. Leo Lemay (New York: Library of America, 1987), 1154. Among the most well-known articulations of the constitutionality of slavery were Samuel Sewall (1700), James Otis (1761), John Adams (pre-1776), , L. C. J. Mansfield (1772), S. G. Tucker (1795), Bishop Samuel Horsley (1806), Rev. John Rankin (1823), David Walker (1829), Samuel May (1836), Salmon P. Chase (1837), Gerrit Smith (1839), George Mellen (1841), Alvan Stewart (1845), Lysander Spooner (1845), Benjamin Shaw (1846), Rev. William Patton (1846), Horace Mann (1849), Joel Tiffany (1849), Rev. John G. Fee (1851), William Goodell (1852), Abraham Lincoln (1854), Edward C. Rogers (1855), Rev. George B. Cheever (1857), Frederick Douglass (1860), and Charles Sumner (1860).
[xxv] In response to inducements for voluntary emancipation, many slave states have “produced the enactment of laws… greatly limiting the exercise of benevolent feelings in this way” that must be challenged (American Convention of Abolition Societies Minutes, Vol II, 1828 p. 353).
[xxvi] George W. F. Mellen’s 1841 An Argument on the Unconstitutionality of Slavery was the first, though not the most frequently cited, book-length treatment of the radical argument.
[xxvii] Like other rights movements, including the workingmen’s movements and mid-century women’s rights movement, the abolition movement frequently invoked the Declaration of Independence and its arguments of equality and individual rights and liberty, but this was not the only basis for their insistence on a strong reading of constitutional liberty. Daniel Rodgers and Philip Foner connect the strong emphasis on the Declaration of Independence and natural rights that infused much of abolitionist thought with the artisans’ and workingmens’ associations of the 1820’s and 30’s. During this time, numerous labor groups adopted public “declarations of rights” that appealed to the natural rights described in the Declaration of Independence and described the need to complete “the unfinished work” of the American Revolution by fulfilling the promise of the Declaration—which, for them, meant ending monopolies and protecting the rights of white workers. In addition, the mid-century women’s rights movement, which was closely intertwined with the anti-slavery crusade, expressed a new understanding of rights and equality of the sexes, also linked to the ideas of the Declaration of Independence. Rodgers 1987; Foner 1976, 2-17, 47-76. See, for example, the “Declaration of Rights” by Equal Rights Advocates and Anti-Monopolists of New York, September 1836. On the women’s rights movement, see Flexner 1959. For examples of the rights arguments used by the womens’ movement, see Sarah Grimke, 1837 “Legal Disabilities of Women,” from Letters on the Equality of the Sexes and the Condition of Women, 74-83, reprinted in Wendy McElroy, ed. 1982, Freedom Feminism and the State 121-127; and the Seneca Falls Declaration of Sentiments and Resolutions (1848). Even the Garrisonian wing of the antislavery movement, which accepted the orthodox constitutional ideology, argued that the natural rights described in the Declaration of Independence, as well as scripture, should be used to evaluate the Constitution order, and required that the Union be dissolved and the pro-slavery Constitution destroyed. Wiecek 1977, esp. 239-245, Cover 1975, 168.
[xxviii] The American Convention of Abolition Societies made typical arguments as to why the dominant constitutional interpretation that protected slavery could not be considered correct or just, arguing at various times that slavery violates “the rights of individuals” and that “By the Law of Nature, all men are entitled to equal privileges, and, although the artificial distinctions of society may have abrogated it in practice, they are unable to justify the destruction” of rights that are “inherent in every individual of the human race.” American Convention of Abolition Societies Minutes, Vol II, 1828 p. 351, and Vol III, 1825; p. 366), reprinted in Journal of Negro History 1921. There are many other examples of this type of argument from abolitionists. Lysander Spooner’s popular pamphlet The Unconstitutionality of Slavery, similarly insisted that, following the Declaration’s logic, “no law inconsistent with Natural Rights, can arise out of any compact of Government.” in Commager 1979, 22-3. Alvan Stewart provides another example of abolitionists’ strong reliance on the Declaration of Independence, arguing that “ There is a class of rights of the most personal and sacred character to the citizen, which are a portion of individual sovereignty, never surrendered by the citizen. . . The legislatures of the States and Union are forbidden by the constitutions of the States and Union from touching those unsurrendered rights.” Stewart, "Response to Marcy," in Marsh, ed., Writings of Stewart, 65. in Wiecek 1977, p. 304. In his study of the legal methodology of abolitionists, Robert Cover shows that nineteenth century judges and courts were generally inhospitable to abolitionists’ natural rights arguments and instead focused on positive law when they decided cases such as those involving fugitive slaves. Cover 1975
[xxix] Pennington, J. W. C. 1842. Covenants Involving Moral Wrongs are not Obligatory Upon Man. November 17, 1842
Presscopy – Connecticut Historical Society, Hartford – Anti-Slavery Pamphlets.
[xxx] Proceedings of the Fourth New England Anti-Slavery Convention, Held in Boston. . . . 1837 (Boston: Isaac Knapp, 1837), 17-18.
[xxxi] Day, William Howard. 1851. Minutes of the State Convention, of the Colored Citizens of Ohio. January 15-18, 1851. Presscopy -- Harvard University -- Anti-Slavery Pamphlets.
[xxxii] Frederick Douglass, 1860. The Constitution of the United States: Is It Pro-slavery or Anti-Slavery (Halifax: T. & W. Birtwhistle). P. 7. This work expanded on the early arguments Douglass made regarding the contradictions between slavery and public commitments expressed in American founding documents in his 1852 speech "What, to the American Slave, is your 4th of July?".
[xxxiii] Frederick Douglass, 1860. The Constitution of the United States: Is It Pro-slavery or Anti-Slavery (Halifax: T. & W. Birtwhistle). P. 19.
[xxxiv]See, for example, Alvan Stewart’s Friend of Man, 18 Oct. 1837, reprinted in TenBroek, Equal under Law, Appendix B, 281-295. Portions of this address were printed in Emancipator, 17 May 1838. Stewart’s proposal fell short of the required-two thirds support, but a majority of the AASS supported the idea of adopting this set of understandings and removing the pro-slavery constitutional interpretation from the society’s constitution.
[xxxv] Tiffany 1849,A Treatise on the Unconstitutionality of American Slavery 55-58; 84-99, in Curtis 1986, 42-4.
[xxxvi] Gerrit Smith, who was nominated for President by anti-slavery advocates, explicitly rejected Barron in 1850, claiming that the Court was wrong and that only the First, Ninth, and Tenth Amendments were exclusively restrictions on federal power. See Smith, Constitutional Argument, appendix, in Wiecek 1977, 286.
[xxxvii] Douglass, Speech on the Dred Scott Decision, May 1857.
[xxxviii] Speech by Carl Schurz, “The Life of slavery, or the life of the nation?” Mass meeting of the citizens of New York, (without distinction of party) at the Cooper Institute, New York, March 6, 1862. In From Slavery to Freedom.
[xxxix] See Kenneth Stampp 1956, 206-216.
[xl] In 1836, the House of Representatives had adopted a rule denying a hearing to petitions for anti-slavery objects. As a result, abolitionists were able to assert that the rule violated their constitutional right to petition, and that the Southern Democrats and the slave states they represented were determined to trample all constitutional rights to ensure the persistence of slavery. This only increased support for the abolitionists, and led to several petition campaigns that succeeded in sending tens of thousands of anti-slavery petitions to state and national representatives.
[xli] On the slave power conspiracy, see Nye 1949. Nye explains that the typical definition of the “Slave Power” was “that control in and over the government which is exercised by a comparatively small number of persons... bound together in a common interest, by being owners of slaves,” and that all definitions agreed that it was fundamentally “an aristocracy constituted and organized on the basis of the ownership of slaves.”
[xlii] On the conspiracy theory postulated by the American Revolutionaries, see Bernard Bailyn 19xx; on the conspiracy theory advanced by Anti-Federalists, see my Chapter x and Rutland 1955, and Levy 1988.
[xliii] William Goodell, The Rights and the Wrongs of Rhode Island; Comprising Views of Liberty and Law, of Religion and Rights, as Exhibited in the Recent and Existing Difficulties in That State . . . (Whitesboro, N.Y., Christian Investigator No. 8, 1842), 27, in Wiecek 1977, 270.
[xliv] Goodell, Views, 39, 49 (quotation); Stewart, Letter to [Gamaliel] Bailey, April 1842, in Marsh, ed., Writings of Stewart, 268; Stewart, "New Jersey Argument," 336, 345; Smith, "To the Friends of the Slave in the Town of Smithfield" (1844, broadside) in Gerrit Smith Collection, New York State Historical Association, Cooperstown; Theodore Parker, The Relation of Slavery to a Republican Form of Government . . . (Boston: William L. Kent, 1858), 8-14.. In Wiecek 1977, 270.
[xlv] Goodell, Our National Charters, 62-65; Goodell, Views, 46-57; Mellen, Argument, 87; "Address of the Liberty Party Convention, Held at Peterboro......... Emancipator and Free American, 10 March 1842. In Wiecek 1977, 270.
[xlvi] Smith, Constitutional Argument, 20-21; Goodell, Views, 46-57; [Goodell], Address of the Macedon Convention, 3; Spooner, Unconstitutionality, 105-114; Address of the Free Constitutionalists, 10; Goodell, Our National Charters, 62-65. In Wiecek 1977, 271.
[xlvii] see Commager 1970, 22-3. For other examples of abolitionists’ constitutional arguments and interpretations, see Ten Broek 25, 29, 116, 121, 145, 235; Graham 155, 539. Nor were these ideas the Bill of Rights limited to radical abolitionists, but similar ideas were advanced by some national politicians and jurists. In 1836, former Senator William Plummer published a pamphlet asserting that First Amendment rights of speech and press were protected from state as well as federal violation. See Curtis 1986, 30. Arguments linking natural rights to state constitutional rights figured in the prominent 1836 Commonwealth v. Aves case, in which the Massachusetts Supreme Court found that slavery is “contrary to natural right” and had been abolished in Massachusetts either via a British judicial opinion written in 1772, or by the Declaration of Independence, or by the declaration of rights in the state constitution of 1780, which stated that “All men are born free and equal, and have certain natural, essential, and inalienable rights...” Commonwealth v. Aves, 1836. 35 Mass. (18 Pick.) 193.
[xlviii] Douglass, Speech on the Dred Scott Decision, May 1857.
[xlix] Tiffany, Treatise, 57, 92, and ch. 12 passim. In Wiecek 1977.
[l] Editor, “Extract from the Law of Louisiana”, Voice of the Fugitive. January 15, 1851. “Committee Inspired by Henry Highland,” The Colored American, 1850
[li] Editor, “Right of Suffrage,” Colored American, July 15, 1837.
[lii] Goodell, Address Read at the New-York State Liberty Convention, 7; Gerrit Smith to L. K. Ingalls, 15 Aug. 1848, (broadside) in Birney Papers, vol. 18, Clements Library, Univ. of Michigan. In Wiecek, 269.
[liii] For further discussions of some of the constitutional arguments used by abolitionist lawyers and other leaders, see Commager 1979, 22-3; ten Broek 25, 29, 116, 121, 145, 235; Graham 155, 237-8, 539, Wiecek 1977 passim, and Curtis 1986, passim.
[liv] Speech by Carl Schurz, “The Life of slavery, or the life of the nation?” Mass meeting of the citizens of New York, (without distinction of party) at the Cooper Institute, New York, March 6, 1862. In From Slavery to Freedom.
[lv] William Goodell, Our National Charters: For the Millions ... (New York: J. W. Alden, 1864), in Wiecek 1977, p. 265.
[lvi] Illinois Anti-Slavery Convention [1838], Proceedings of the Ill. Anti-Slavery Convention: Held at Upper Alton on the Twenty-sixth, Twenty-seventh, and Twenty-eighth October, 1837.
[lvii] See, for example, McCann, Scheingold, Epp, and Peter Irons.
[lviii] Accounts of work of early abolition groups included their efforts to assist blacks in gaining freedom, serving as ‘repositories’ for legal documents that might be necessary to protect slaves, such as keeping deeds of manumission or emancipation. Some societies also used litigation, often relying on state laws. See, for example, American Convention of Abolition Societies Minutes,Vol I, 1797, p. 320-2. Isaac Hillyard, [Connecticut? : s.n., 1797, Early American Imprints, 1st series, no. 48143. In the late 1700s, northern societies reported having helped several hundred blacks gain their freedom since their formation. The Alexandria Society of Virginia reported “Twenty-six complaints made to the society – six persons relieved on the law against importation; five will probably be relieved; the other fourteen cases… are doubtful. A suit in Norfolk court and one in North Carolina now carrying on at the expense of this society.” (American Convention of Abolition Societies Minutes, Vol I, 1797 318).
[lix] Revisionist historian Avery Craven argues that the abolitionists, whom he depicts as irresponsible fanatics, created a mass hysteria over slavery. He likens their concerted efforts to sway public opinion to “propaganda” and attempts at popular “indoctrination” by emotionalizing politics. see pp. 134-150.
[lx] The New England Anti-Slavery Almanac for 1841 (Boston: J. A. Collins, 1841), opposite title page, 16, 20.
[lxi] Since the dominant constitutional understanding seemed to restrict the ability of Congress to restrict the practice of slavery, individual states were free to act, and abolitionists’ earliest efforts focused primarily on individual states. Many societies kept close tabs and reported on of all of the state laws relating to slavery, including both those currently in force and those that had been repealed, as well as proposed and pending legislation. American Convention of Abolition Societies Minutes, Vol I, 1797; p. 319.
[lxii] Many memorialists urged that state legislatures should pass laws “fixing a certain period after which all shall be born free, or shall be free at a certain age,” and a number of states adopted such laws (American Convention of Abolition Societies Minutes, Vol II, 1828 p. 352).
[lxiii] These states included New Jersey, Rhode Island, Massachusetts, Connecticut and New York. Society for the Relief of Free Negroes, Unlawfully Held in Bondage. 1784. Early American Imprints, 1st series, no. 18786.
[lxiv]Editor, Colored American. March 11, 1837 and July 15, 1837.
[lxv]Stewart 1996; Van Broekhoven, Deborah Bingham. 1994. “’Let Your Names Be Enrolled’: Method and Ideology in Women’s Antislavery Petitioning,” in Yellin and Van Horne, eds, The Abolitionist Sisterhood: Women’s Political Culture in Antebellum America (Ithaca: Cornell); Kathryn Kish Sklar, ed., 2000. Women’s Rights Emerges within the Antislavery Movement, 1830-1870: A Brief History with Documents (Boston, MA: Bedford/St. Martin’s). Julie Roy Jeffrey, 1998. The Great Silent Army of Abolitionism: Ordinary Women in the Antislavery Movement. (Chapel Hill, University of North Carolina Press). Susan Zaeske. 2003. Signatures of Citizenship (Chapel Hill: University of North Carolina Press). On women’s roles in nineteenth century politics more generally, see also Nancy Cott’s 1977 The Bonds of Womanhood: “Woman’s Sphere” in New England, 1780–1835 (Yale University Press) showing the difficulty of women’s participation in public affairs, and Mary Ryan, describing the "circuitous routes" women traveled to enter public discourse in the nineteenth-century United States. 1990. Women in Public: Between Banners and Ballots, 1825-1880 (Baltimore: Johns Hopkins University Press).
[lxvi] Zaeske 2003.
[lxvii]To The Congress of the United States, Petition, ca. 1835, Moore Family Papers, Old Sturbridge Village Research Library. The petition circulated by the Grimke sisters in 1834 had a similar message:
“We do not ask your honorable body to transcend your constitutional powers, by legislating on the subject of slavery within the boundaries of any slaveholding State; but we do conjure you to abolish slavery in the District of Columbia where you exercise exclusive jurisdiction. In the name of humanity, justice, equal rights and impartial law, our country’s weal, her honor and her cherished hopes we earnestly implore for this our humble petition, your favorable regard.”
Petition Form for Women 1834, in Gilbert H. Barnes and Dwight L. Dumond, eds., Letters of Theodore Dwight Weld, Angelina Grimke Weld and Sarah Grimke, 1822-1844 (New York: Appleton-Century Company, Inc.). Volume 1, pp. 175-176
[lxviii] See Diary of Mary White, Boylston, Mass., 1836-1844, Vol. 1. Old Sturbridge Village Research Library.
[lxix] Julie Roy Jeffrey, The Great Silent Army of Abolitionists
[lxx] E. L. F. [possibly Eliza Lee Follen], “What Have Women to Do with Slavery,” The Liberator, Nov. 1, 1839. Boston, MA. In 1836, Angelina and Sarah Grimke began a multi-state tour in which they urged women to petition Congress to abolish slavery. The following spring, Catharine Beecher’s Essay on Slavery and Abolitionism, with Reference to the Duty of American Females was published. Despite her own anti-slavery stance, Beecher insisted that women forgo direct appeals to United States senators and representatives. In 1837, she told Angelina Grimké and her readers, “In this country, petitions to congress, in reference to the official duties of legislators, seem, in all cases, to fall entirely without the sphere of female duty.” Grimké issued a public response, declaring that “Whatever it is morally right for man to do, it is morally right for woman to do.” See Beecher 1837 Essay on Slavery and Abolitionism, with Reference to the Duty of American Females and Grimke, Letters to Cath[a]rine E. Beecher, in Reply to an Essay on Slavery and Abolitionism,Addressed to A. E. Grimké.
[lxxi] Editor, “The Right to Petition.” Colored American, January 21, 1837.
[lxxii] See Russell B. Nye 1949, Fettered Freedom: Civil Liberties and the Slavery Controversy, 1830-1860, pp. 37, 53. Gilbert Hobbs Barnes 1933, The Anti-Slavery Impulse 1830-1844, p. 266 reports that the average number of signatures per petition in his samples from 1836 to 1840 were: 1836-37: 32 signatures per petition; 1837-38: 59 signatures per petition; 1838-39: 91 signatures per petition; 1839-40: 107 signatures per petition
[lxxiii] Edward Magdol, “A Window on the Abolitionist Constituency: Anti-Slavery Petitions 1836-1839,” in Kraut, ed. Crusaders and Compromisers, 45-46.
[lxxiv] Wiecek, 253, citing Tuckerman, William Jay, 86.
[lxxv] Foner describes the Republicans as grappling with the task of “embedding in the Constitution, beyond the reach of Presidential vetoes and shifting political majorities, the results of the Civil War.” Foner p. 114, 194.
[lxxvi] “The Life of slavery, or the life of the nation?” Mass meeting of the citizens of New York, (without distinction of party) at the Cooper Institute, New York, March 6, 1862.
[lxxvii] A number of scholars have demonstrated how key elements of abolitionist thought were adopted by the Republican framers of the Fourteenth Amendment, including principles of equality and natural rights and other unorthodox constitutional interpretations, such as the view that the Due Process clause and/or the Bill of Rights conferred power on federal government and limited states. In addition to ten Broek and Graham, noted above, others have traced the connections between abolitionists’ arguments and particular political documents and congressional debates. See Kelly 1956, esp. 1050-57; Levy 1972; Curtis 1986; Richards 19xx; Nelson 1988. Commager points out that many of the Republican leaders who helped frame and ratify the Fourteenth Amendment had strong ties to the abolition and transcendental movements, including Jacob Howard and Zachariah Chandler of Michigan, John Bingham, Benjamin Wade, James Ashley, and William Lawrence of Ohio; Lyman Trumbull of Illinois, and James Grimes of Iowa. Commager 1970, 21. See also Curtis 1986, 42-45.
[lxxviii] A number of elements of radical abolitionists’ constitutional ideology were absorbed into national political institutions. From 1843 to 1860 the party platforms of a succession of anti-slavery parties-- the Liberty Party, the Free Soil party, and the Republican party-- were penned by prominent abolitionists, and all invoked some combination of fundamental republican principles, the Declaration of Independence, and the Bill of Rights as constitutional arguments against the extension of slavery and, later, slavery itself. For example, several anti-slavery activists republished the Republican platform of 1856 in a letter of “Information for the People”, which framed the “Bleeding of Kansas” in terms of anti-slavery constitutionalism, and suggested that the constitutional rights of ordinary white citizens were also threatened by the states-rights constitutional regime. One resolution in the platform notes that “while the Constitution of the United States was ordained by the people in order to form a more perfect union… and secure the blessings of liberty, and contains ample provisions for the protection of the life, liberty, and property of every citizen,” in fact “the dearest constitutional rights of the people of Kansas have been fraudulently taken from them” by pro-slavery policies:
“tyrannical and unconstitutional laws have been enacted and enforced, the right of the people to keep and bear arms has been infringed, test-oaths of an extraordinary and entangling nature have been imposed as a condition of exercising the right of suffrage; the right of an accused person to a speedy and public trial by an impartial jury has been denied; the right of the people to be secure in their persons, houses, papers and effects, against unreasonable search and seizure, has been violated; they have been deprived of life, liberty and property, without due process of law; the freedom of speech and the press has been abridged; the right to choose their representatives has been made of no effect… and that for this high crime against the Constitution, the Union, and humanity, we arraign the administration, the President, his advisers… before the country and before the world.”
By 1864, the Republican Party (which took the name of the National Union Party during the Civil War) had adopted a platform that included the forceful resolution that slavery is “hostile to the principles of Republican government.”
[lxxix] ten Broek 1951, esp. 25-29; 116, 145, 235; Graham 1968, esp. 155, 237-8. Alfred Kelly argued that while in 1860 abolitionist constitutional doctrines were “outside the pale of constitutional orthodoxy,” the political upheaval of the Civil War permitted anti-slavery Republicans to write their radical reforms into the Constitution itself. Kelly 1956, 1054. Curtis likewise argues that the key to interpreting the debates over the Fourteenth Amendment centers on “certain unorthodox constitutional ideas held by a number of Republicans.” See Curtis 1986, 47, 7, citing as examples Bingham Globe 1866, 430, Broomhall, 1263, and Lawrence, 1833, 1835-36. Henry Steele Commager points out that many of the Republican leaders who helped frame and ratify the Fourteenth Amendment had strong ties to the abolition and transcendental movements, including Jacob Howard and Zachariah Chandler of Michigan, John Bingham, Benjamin Wade, James Ashley, and William Lawrence of Ohio; Lyman Trumbull of Illinois, and James Grimes of Iowa. Commager 1970, 21. See also Curtis 1986, 42-45; Levy 1972; Richards 19xx; Nelson 1988. More recently, Akhil Amar has shown that a significant number of Republican leaders and public commentators on the amendment’s adoption expressed at least some of the more common tenets of radical abolitionist thought, such as the belief that the Bill of Rights applied to the states even without the passage of the Fourteenth Amendment (despite the Barron v. Baltimore decision); and the belief that the privileges and immunities clause of the original Constitution protected the fundamental rights of citizens against infringement by states (despite Dred Scott ).
[lxxx] As others have chronicled, the arguments of anti-slavery constitutionalism appears throughout debates over the Fourteenth Amendment and related measures, including the first rights amendment proposed by John Bingham and the Joint Committee on Reconstruction in 1865; the Civil Rights Bill of 1866. It also appears in the debates over state ratification of the amendment carried out in political speeches, legislative committee reports, newspaper articles, and elsewhere.
[lxxxi] See James Ely, Jr. and David Bodenhamer, eds. 1993. The Bill of Rights in Modern America. Introduction, p. vii.
[lxxxii] For a competing view, see Cass Sunstein, who argues that Reconstruction merely affirmed an “original commitment” to a set of Founding principles. Sunstein 1993, at 136. See also Charles Black 1997, who argues that not only is there a continuous line between the principles of the Revolution, Founding and Reconstruction, but that the connection extends still further to the principles of espoused in the Universal Declaration of Human Rights in 1948. p. 4-9, 22, 26, 87-89, 133-4
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