Abolitionist Constitutional Theory

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American abolitionists developed comprehensive but conflicting theories about the place of slavery in the American constitution. Though these ideas did not positively influence political and legal debate until the 1850s, they exercised profound influence over subsequent constitutional development, merging with constitutional aspirations of nonabolitionist Republicans after the civil war to provide the basis for what one writer has called the "Third Constitution": the thirteenth through fifteenth amendments. From abolitionist constitutional ideals embedded in section 1 of the fourteenth amendment, there emerged some principal trends of constitutional development in the century after the Civil War: substantive due process, equality before the law, protection for the privileges of national and state citizenship.

By the time abolitionists began systematically to expound constitutional ideas in the 1830s, the constitutional aspects of the controversy over slavery were well developed. Even before American independence, Quakers in the Middle Colonies and some Puritan ministers in New England had attacked slavery on religio-ethical grounds. In somerset ' scase (1772) william murray (Lord Mansfield), Chief Justice of King's Bench, suggested that slavery could be established only by positive law and that, as a legal institution, it was "odious." The American Revolution witnessed the total abolition, exclusion, or disappearance of slavery in some northern jurisdictions (Vermont, Massachusetts and Maine, New Hampshire, the Northwest Territory) and its gradual abolition in the rest (Pennsylvania, New York, New Jersey, Connecticut, Rhode Island). Early antislavery groups, federated as the American Convention of Abolition Societies, worked in legal and paternalistic ways to protect freed blacks and provide them jobs and education. Yet these Revolutionary-era inhibitions on slavery were offset by gains slavery made in the drafting of the United States Constitution, in which ten clauses promoted slavery's security, most notably in the federal number clause (Article I, section 2, clause 3), the slave trade clause (Article I, section 9, clause 1), and the fugitive slave clause (Article IV, section 2, clause 3).

Constitutional controversy flared over slavery in several early episodes: the federal abolition of the international slave trade and its incidents, the Missouri crisis (1819–1821), the disputes over federal aid to colonization of free blacks, Denmark Vesey's slave revolt (Charleston, 1822), and the Negro Seamen's Acts of the southern coastal states (1822–1830). But not until the ideas of immediate abolition rejuvenated the antislavery movement did abolitionists begin a systematic constitutional assault on slavery. When they organized the American Anti-Slavery Society (AASS) in 1833, abolitionists, in a document drafted by william lloyd garrison, pledged themselves to tolerate the continued existence of slavery in the states and rejected the possibility that the federal government could abolish it there. But they insisted that slavery should be abolished immediately, that blacks should not suffer legal discrimination because of race, and that Congress should abolish the interstate slave trade, ban slavery in the district of columbia and the territories, and refuse to admit new slave states.

The newly reorganized movement promptly encountered resistance that directed its thinking into constitutional modes. Federal efforts to suppress abolitionist mailings and to gag abolitionists' freedom of petition, together with mobbings throughout the northern states, diverted abolitionists briefly from the pursuit of freedom for blacks to a defense of civil liberties of whites. At the same time, they assaulted slavery's incidents piecemeal, attempting to protect fugitive slaves from rendition, and seeking repeal of statutes that permitted sojourning masters to keep their slaves with them for limited periods of time in northern states. They secured enactment of personalliberty laws : statutes that protected the freedom of black people in the northern states by providing them habeas corpus relief when seized as fugitives and by prohibiting state officials or public facilities from being used in the recapture of fugitives.

In 1839–1840, the unified antislavery movement split apart into three factions. Ironically, this organizational disaster stimulated abolitionists' systematic constitutional theorizing and broadcast their ideas widely outside the movement. Because of theological and tactical disagreements, the movement first broke into Garrisonian and political action wings, the Garrisonians condemning conventional electoral politics and the activists organizing a third party, the Liberty party, which ran its own presidential candidate in 1840 and 1844. The political action group subsequently split into those who believed slavery to be everywhere illegitimate and who therefore sought to have the federal government abolish slavery in the states, and those who continued to maintain the position of the original AASS Constitution, namely, that Congress lacked constitutional power to abolish slavery in the states. The Garrisonians, meanwhile, had concluded that the United States Constitution supported slavery and therefore called on northern states to secede from the Union and on individuals to disavow their allegiance to the Constitution.

Those who always maintained slavery's universal illegitimacy relied first on the due process clause of the Fifth Amendment, arguing that slaves were deprived of life, liberty, and property without legal justification, but they soon broadened their attack, ingeniously interpreting nearly a third of the Constitution's clauses, from the preamble to the tenth amendment, to support their untenable thesis that slavery had usurped its preferred constitutional status. The 1840 publication of james madison's notes of proceedings at the constitutional convention of 1787 was an embarrassment to them, disclosing as it did the concessions the Framers willingly made to the political power of slavery. Exponents of the universal-illegitimacy theory included Alvan Stewart, G. W. F. Mellen, Lysander Spooner, Joel Tiffany, and later, Gerrit Smith, james g. birney, Lewis Tappan, and Frederick Douglass. Their principal contributions to later constitutional development included: their insistence on equality before the law irrespective of race; their vision of national citizenship protecting individuals' rights throughout the Union; their reliance on the privileges and immunities clause (Article IV, section 2, clause 1) as a protection for persons of both races; and their uncompromising egalitarianism, which led them to condemn all forms of racial discrimination. They were scorned as extremists in their own time, even by fellow abolitionists, and modern scholars such as Robert Cover dismiss their ideas as "utopian."

Political action abolitionists who conceded the legality of slavery in the states remained closest to the mainstream of American politics and established a political alliance with like-minded men outside the abolitionist movement to create the Free Soil party in 1848. Their insistence that, as the federal government could not abolish slavery, neither could it establish it, led them to proclaim the doctrines of "divorce" and "freedom national." "Divorce" called for an immediate and absolute separation of the federal government from the support of slavery (for example, by abolishing the interstate slave trade and repealing the Fugitive Slave Act of 1793), coupled with an aggressive attack on the political bases of slavery's strength (repeal of the federal number clause, refusal to appoint slaveholders to federal posts). "Divorce" provided the doctrinal basis of the three-way Free Soil coalition of 1848, comprised of Conscience Whigs, Barnburner Democrats, and former Libertymen. Liberty leaders in the Free Soil group included salmon p. chase (later Chief Justice of the United States), Gamaliel Bailey, stanley matthews (a future justice of the United States Supreme Court), Representative Owen Lovejoy, and Joshua Leavitt.

Stimulated by the widespread popularity of the wilmot proviso (1846) in the north, which would have excluded slavery from all territories acquired as a result of the Mexican War, the abolitionist Free Soilers demanded "non-extension": the refusal to permit slavery in any American territories, and the nonadmission of new slave states. This became transformed into "freedom national," a constitutional doctrine holding that, under Somerset, freedom is the universal condition of humans, and slavery a local aberration created and continued only by local positive law. These ideas were cordially received by Whigs who formed a nucleus of the Republican party after the demise of the Free Soilers and the fragmentation of the regular parties as a result of the kansasnebraska act (1854): Joshua Giddings, charles sumner, Charles Francis Adams, and Horace Mann. Other Republicans such as abraham lincoln and william seward refused to accept "divorce" but made nonextension the cornerstone of Republican policy. "Freedom national" even influenced anti-abolitionists such as Lewis Cass and then stephen a. douglas, who promoted a modified version of it as the freeport doctrine of 1858.

Garrisonians dismissed the United States Constitution as the "covenant with death and agreement with hell" denounced by Isaiah, but they too influenced later constitutional development, principally through their insistence that the proslavery clauses of the Constitution would have to be repealed or nullified, and the federal government fumigated of its contamination with support of slavery. Though they included competent lawyers (Wendell Phillips, William I. Bowditch), the Garrisonians were distinguished chiefly by literary and polemical talent (Edmund Quincy, Lydia Maria Child) and consequently made little contribution to systematic constitutional exposition.

The crises of the union in the 1850s, beginning with enactment of the Fugitive Slave Act in 1850, leading through the dramatic fugitive recaptures and rescues, the Kansas-Nebraska Act (1854) and "Bleeding Kansas," and culminating, constitutionally, in dred scott v. sandford (1857), ableman v. booth (1859), and the pending appeal of People v. Lemmon (1860), together with legislative activity (chiefly enactment of ever broader personal liberty laws, including Vermont's Freedom Act of 1858), enabled abolitionists to work together toward common goals, and to overcome or survive their sectarian quarrels of the 1840s. Though fragmented as a distinct movement, abolitionists permeated the press, parties, and the churches, diffusing their ideas widely among persons who had not been theretofore involved in the antislavery movement. Thus egalitarians like Sumner and thaddeus stevens, conservative lawyers like john bingham and William Lawrence, and political leaders like william pitt fessenden and roscoe conkling were influenced by abolitionist constitutional ideas, appropriating them after the war and injecting them into the Constitution and its interpretation, both in cases and in statutes.

William M. Wiecek


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Fehrenbacher, Don 1978 The Dred Scott Case: Its Significance in American Law and Politics. New York: Oxford University Press.

Graham, Howard J. 1968 Everyman's Constitution. Madison: State Historical Society of Wisconsin.

Ten Broek, Jacobus 1965 Equal under Law. New York: Collier Books.

Wiecek, William M. 1977 The Sources of Antislavery Constitutionalism in America, 1760–1848. Ithaca, N.Y.: Cornell University Press.