Beaumont CHP 4

Pursuing Equality
University Press Scholarship Online
Oxford Scholarship Online

The Civic Constitution: Civic Visions and
Struggles in the Path toward Constitutional
Democracy
Elizabeth Beaumont
Print publication date: 2014

Print ISBN-13: 9780199940066
Published to Oxford Scholarship Online: April 2014
DOI: 10.1093/acprof:oso/9780199940066.001.0001
Pursuing Equality
Abolitionists, Antislavery Constitutionalism, and Pursuit of National Reconstruction
Elizabeth Beaumont
DOI:10.1093/acprof:oso/9780199940066.003.0004
Abstract and Keywords

Chapter 4 turns to abolitionists development of antislavery constitutionalism and their project
for national reconstruction. The chapter argues that the Thirteenth, Fourteenth, and Fifteenth
Amendments are markers of a civic refounding of the U.S. Constitution that promised new
membership, principles, and institutional arrangements for the political community. These
transformations were first imagined not by Lincoln or leading congressmen, but by a new group
of American revolutionaries: abolitionists, white and black. They launched a profound vision of
freedom from servitude, equal rights, and full citizenship for black men. By exploring
abolitionists complex movement to challenge and transform fundamental law, the chapter
shows how many different participants helped imagine a new antislavery Constitution and
reinvent the Declaration of Independence as a promise of racial equality and integration. These
reformers ideals, discourses, and pressures shaped the constitutional politics of the era,
including Republican Party platforms, Lincolns move for emancipation, and creation of the
Reconstruction Amendments.
Keywords: slavery, free blacks, abolition, abolitionists, antislavery constitutionalism, Reconstruction, Frederick
Douglass, William Lloyd Garrison, Abraham Lincoln, equal protection, black citizenship
13th Amendment, sec. 1: Neither slavery nor involuntary servitude . . . shall exist within
the United States.
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14th Amendment, sec.1: All persons born or naturalized in the United States. . . . are
citizens of the United States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws. . . .
15th Amendment: The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or previous
condition of servitude.
The Congress shall have power to enforce [these articles] by appropriate legislation.
[W]e address you as American citizens asserting their rights . . . notwithstanding the
cunning, cruel, and scandalous efforts to blot out that right, we declare that we are, and of
right we ought to be American Citizens. . . . By birth, we are American citizens; by the
principles of the Declaration of Independence, we are American citizens; within the
meaning of the United States Constitution, we are American citizens. . . . [Yet] all the
powers of slavery are exerted to prevent the elevation of the free people of color.
Frederick Douglass, Address of the Colored National Convention to the People of the
United States (1853)1
The Thirteenth, Fourteenth, and Fifteenth Amendments are widely known as the Reconstruction
Amendments. They are also markers of a civic refounding of the US Constitution. Their
provisions mark the promise of a new beginning for the political communityan alteration of
constitutional principles and structures and a new (p.120) body politic. These transformations
were first imagined not by Lincoln or leaders of the Thirty-ninth Congress, but by another
revolutionary movement: abolitionists, black and white. The glittering generalities of the
Reconstruction Amendment are only limited textual markers of their civic visions and struggles.
Over decades, these reformers developed an important creed of antislavery constitutionalism,
struggling to press new conceptions of liberty, equality, and justice into public imagination and
civic practice. They sought to overthrow an entrenched pro slavery constitutional order and
elevate a competing vision of fundamental rights and liberties and civic membership. At their
best, antislavery constitutionalists worked to construct a new republic in which blacks would be
free and equal citizens. Those who participated in this struggle should be seen as civic founders
of the new national commitments to racial equality and inclusion reflected in the Reconstruction
Amendments.
Although constitutional theorists such as Bruce Ackerman identify the Reconstruction
Amendments as a transformation, they offer little sense of the role of abolitionists visions and
struggles for setting this in motion. Instead, in many constitutional studies it seems that the keys
to understanding these Amendments are in Lincolns speeches or the work of the Thirty-ninth
Congress.2 By illuminating the abolitionists popular constitutional movement, we see how these
reformers imagined a new antislavery Constitution and reinvented the Declaration of
Independence as a promise of racial equality. Their discourses and pressures shaped the
constitutional politics of the era, including the platforms of the early Republican Party, Lincolns
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move for emancipation, and the framing and adoption of the Reconstruction Amendments. They
also offered vital models of new civic norms and relations reflecting their constitutional vision of
equal citizenship, including the first moves for integrated associations, churches, and schools.
Turning the lens of the civic constitution to the national reform project launched by abolitionists
in the early 1800s builds on important work while taking a different approach. Rather than
focusing solely on the antislavery constitutional arguments made by lawyers and politicians, I
emphasize the powerful web of unofficial interpretations emerging from a broad range of civic
voices, discourses, and activities.3 In addition, I emphasize that while the general movement is
known by the title of its ideals of antislavery and abolition, its radical constitutional vision
advocated racially egalitarian ideals as well emancipatory ideals.
In the first section, we see how abolitionists began adapting the discourses of popular
constitutionalism to support a new set of goals. This includes exploring the emergence of
nineteenth-century antislavery constitutionalism, the major tenets of the existing pro slavery
constitutional order, and the competing constitutional vision developed by reformers. Various
groups of abolitionists, especially blacks and radicals, began advancing a set of broad civic
ideals as well as more formal legal arguments by developing new understandings of fundamental
law and reinterpreting the Declaration of Independence, the Preamble, the Bill of Rights, and
other constitutional provisions. The antislavery ideals they advanced are important precursors
and sources of defining features and doctrines of modern constitutionalism, (p.121) including
national citizenship, enforceable constitutional rights, substantive liberty, and racial equality
under law (Wiecek 1977, 27475).
The second section of the chapter considers how participants in the broader abolitionist
movement worked to promote and enact their vision of an antislavery constitution and their civic
ideals of fundamental rights and equal citizenship. They not only sought to overthrow the
dominant constitutional order in favor of new interpretations, but to transform civic life and
relations as well. Rather than focusing solely on trying to persuade courts or legislators to adopt
their understandings of fundamental law, reformers also focused strongly on civic life. They
diffused their new ideals through every avenue they could pursue: through popular publications,
speeches at fairs, sermons, petitions, free produce consumerism, and work for the
Underground Railroad. These civic ideals inspired and empowered many people, including free
blacks and women, to begin claiming and exercising political voice and authority, rights, and
attributes of democratic citizenship. And the discourses and activities of radical antislavery
reformers gave greater vibrancy and new meanings to free speech, press, assembly, and petition
as national commitments and as civic practices (Curtis 2001).
The last section turns to the role of antislavery ideals in shaping the Reconstruction
Amendments. Radical abolitionists could not overturn and rewrite formal laws themselves, but
their views and activism influenced key officials. The text of the Reconstruction Amendments
only partially reflects radical abolitionists broadest goals. But these civic founders helped shift
what many citizens and leaders thought was constitutionally just and politically possible and
thus initiated a vital new beginning for the nation. They asserted competing conceptions of
citizenship, rights, and racial equality that planted the groundwork of important legal and civic
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reforms, shaped the Reconstruction Amendments, and inspired further constitutional hopes and
struggles, including the womens suffrage movement and civil rights movement.
Seen from this vantage, antislavery constitutionalism was not merely utopianthese ideals
mobilized decades of struggle to reform laws and civic institutions, offering important
challenges to the system of slaveocracy and vital efforts to create new constitutional ideals and
laws (pace Cover 1983, 39). Their vision opened new ways of thinking about fundamental law,
cultivating racially inclusive and egalitarian ideals. And it motivated some people to begin
enacting new understandings of equal rights, citizenship, and national identity in civic life.
I. The Emergence of Nineteenth-Century Antislavery Constitutionalism and the

Radical Contours of its Vision
See your Declaration Americans!!! Do you understand your own language? Hear your
languages, proclaimed to the world, July 4, 1776We hold these truths to be self evident
that ALL MEN ARE CREATED (p.122) EQUAL!! . . . Compare your own language. . . .
with your cruelties and murders inflicted by your cruel and unmerciful fathers and
yourselves on our fathers and on us.
David Walker, Appeal (1829)
In the eighteenth century, Americans had famously embraced ideals of liberty and equality
reflected in the Declaration of Independence and many of the first state constitutions.
Nineteenth-century politics and culture were deeply shaped by public debates over these
principles in relation to slavery and racial hierarchy and oppression. By the 1830s, the earlier
antislavery reform efforts we saw in Chapter 2 were growing into an organized movement for
national transformation.4 Radical blacks and were seeking to reinvent founding ideals of
American constitutionalism. Their vision linked the core principles of the Declaration of
Independence and Constitution to two new civic ideals and goals: (1) an emancipatory ideal
requiring immediate end to all chattel slavery; and (2) an egalitarian ideal entailing recognition
of blacks equal citizenship. Although the first goal is far better known, the second goal was
equally crucial to radical reformers. The new black newspapers, associations, and conventions
that emerged in this period were promoting a new discourse of fundamental principles,
proclaiming their awakening spirit to achieving rights of citizenship or the Rights of All.5
When William Lloyd Garrison and others formed the fledgling American Anti-Slavery Society,
they announced similar views, announcing that we plant ourselves on the Declaration of
Independence not only to abolish slavery but also to secure to the colored population of the
United States all the rights and privileges which belong to them as men and as Americans.6
These dual goals of ending slavery and achieving equal rights for African Americans were not
entirely new. As we saw earlier, some blacks had been petitioning for freedom and equality
since before independence, and antislavery groups had worked to end slavery in northern states.
But the emergence of radical abolitionism introduced a more far-reaching vision of black
freedom, equality, and citizenship into public discourse and constitutional politics.
One of the most powerful articulations of this vision was David Walkers Appeal. Walkers essay
attacks two foes: the pro slavery constitutional order and the growing colonization movement.
As we see in the epigraph above, he invokes the language of the Declaration of Independence to
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condemn Americans hypocrisy in maintaining slavery. But Walker also invokes the aspirational
language of the Preamble as a resource for collective ideals and empowerment, calling forth we
Coloured People of these United States and identifying blacks as fellow citizens who are
authorized to demand their equal Rights.7 His pamphlet offers a dramatic indictment of racial
subjection as well as slavery. And it attacks the powerful American Colonization Society
founded and led by James Madison, John Marshall, Henry Clay, and supported by many others
(including (p.123) William Lloyd Garrison, until 1830)and their goals of leaving southern
slavery undisturbed while expatriating free blacks to Africa. This colonization agenda stemmed
from two pervasive assumptions: that slavery was constitutionally permitted and that even free
blacks could not or should not ever become full members of the political community.8
The intersecting civic ideals and struggles of African American reformers such as Walker and
the emerging abolition movement directly challenged these views. William Lloyd Garrison, Lydia
Maria Child, William Watkins, Benjamin Lundy, and other white and black radicals began to
develop a competing vision. Rather than viewing blacks as existing outside or apart from the
American community and its fundamental law, they must be included and possess freedom in
the spirit as well as the letterand enjoy the same rights in this country as other citizens.9
Such radicals were publicly arguing that blacks must be recognized as citizens entitled to equal
rights, including rights to male suffrage and freedom from pernicious discrimination.
These radical egalitarian ideals revolutionized the antislavery struggle and fueled demands for a
sweeping constitutional transformation. Some considered Walkers Appeal an incendiary call to
violent revolutionand it is often believed to have helped trigger Nat Turners slave rebellion in
1831. But Walkers call also helped motivate a new stream of civic activism. His Appeal
expressed the basic logic that motivated radical antislavery constitutionalism: African Americans
were already citizens and members of We the People who should demand their equal rights as
a matter of justice. In the wake of Walkers appeal, blacks launched a new convention movement
that became another forum for antislavery constitutionalism, denouncing colonization and
declaring that they would pursue their rights and equality through civic and political action.10 As
one black paper noted, these goals required revolutionizing the existing political order: We
seek nothing less than the overthrow of despotism by the principles of freedom; the termination
of oppression. . . . the establishment of liberty by the supremacy of lawthe conformity of law to
the spirit of liberty.11 On this view, not only slavery itself but all state laws which
disenfranchise and degrade free blacks violated core principles of justice and must be
dismantled.12 The most egalitarian ideals of antislavery constitutionalism proposed
reconstructing the United States into a more democratic and more just nation by recognizing
blacks as free and equal citizens.13
In exploring antislavery constitutionalism, I draw out the distinctive pattern of new conceptions
of citizenship, rights, and equality advanced by many radical black and white reformers during
the antebellum era. By emphasizing these ideals, I am not suggesting that all participants in the
abolitionist movement fully endorsed or consistently upheld their most radical or egalitarian
aspects.14 Abolition was a sprawling, loose-knit, often fractious movement with a diverse array
of groups and goals and I focus mainly on those who envisioned and struggled for a
constitutional transformation. Their avowed goal was, as one advocate put it, to replace Sham
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(p.124) Democracy with new principles and structures, including a doctrine of common
brotherhood.15
By the 1830s, the crisscrossings and jarrings of such abolitionist discourses were contesting the
basic terms of American constitutionalism: republican self-rule, federalism, citizenship,
fundamental rights, and so on. Antislavery ideals and strugglesand powerful backlashes to
themshaped the constitutional debates and politics of the era. As supporters of the status quo
viewed it, the whole antislavery movement was warring for years against the Constitution of
the United States, before any military conflict erupted.16 To understand this battle, we need to
understand the pro slavery constitutional order reformers were warring against.
Confronting the Devils Pact and the Pro Slavery Constitutional Order
Anyone who opposed slavery in the nineteenth century confronted an entrenched constitutional
order variously described as a devils pact or a slaveocracy by critics or a white mans
republic by defenders.17 Pro slavery readings drawn from constitutional text, history, and
culture structured American politics and permeated all national institutions and mainstream
public opinion.18 These pro slavery tenets of fundamental law justified and were reinforced by a
network of political decisions and judicial opinions, including many state laws, the Missouri
Compromise and nullification crisis, the congressional Gag Rules that began in 1836, the
Fugitive Slave Act of 1850, the Kansas-Nebraska Act of 1854 and Bleeding Kansas, as well as
the Supreme Courts landmark decisions in Prigg v. Pennsylvania (41 U.S. 539 (1842)), and Dred
Scott (60 U.S. 393 (1857)) (Graber 2006; Waldstreicher 2009).
As Frederick Douglass noted, pro slavery views infused a series of constitutional settlements
of the slavery question:
Loud and exultingly have we been told that the slavery question is settled, and settled
forever. You remember it was settled thirty-seven years ago, when Missouri was admitted
into the Union with a slaveholding constitution, and slavery prohibited in all territory
north of thirty-six degrees of north latitude. Just fifteen years afterwards, it was settled
again by voting down the right of petition, and gagging down free discussion in Congress.
Ten years after this it was settled again by the annexation of Texas, and with it the war
with Mexico. In 1850 it was again settled [with a new Fugitive Slave Act]. This was called
a final settlement. . . . This last settlement [in Dred Scott] must be called the Taney
settlement.19
We can identify several core pillars of pro slavery constitutionalism that shaped these
settlements and became increasingly pronounced as they were used to block reformers
attempts at unsettling this order.20 Many aspects of these tenets were (p.125) more a matter
of interpretation than specific textual provision. But the textual Constitution accommodated
them so well that, when Confederate States framed their explicitly pro slavery constitution, they
did not need to create a new model. They simply copied the existing US Constitution and
inserted a few snippets of new text making visible what many Americans believed was already
there, including a prohibition on impairing the right of property in Negro slaves.
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Racial Inequality as the Cornerstone of our Republican Edifice
The first tenet of the pro slavery constitutional order treated racial inequality as the
cornerstone of our republican edifice.21 This view took its bearings from particular
understandings of the Bible, natural law, social traditions, and racialized conceptions of liberty
that suggested that natures God intended the African for the status of slavery.22 Leaders such
as John Calhounwho served variously as Vice President and a US Senatornot only argued
that slavery benefited and civilized blacks, but that it was an essential feature of republics and
successful societies: There never has yet existed a wealthy and civilized society in which one
portion of the community did not . . . live on the labor of the other.23
For Calhoun, Governor Hammond of South Carolina, and various other leaders, slavery and
white supremacynot whatever misleading promise of equal rights might seem to appear in the
Declaration of Independencewas the ultimate foundation of the national community. They
believed the liberty of the descendents of Africa in the United States is incompatable with the
safety and liberty of the European descendents and that slavery forms an exceptiona
necessary exceptionto the general liberty in the United States.24 Far from viewing
freedom as a universal principle, they declared it a great and dangerous error to suppose that
all people are equally entitled to liberty.25 One 1860 Address to Southern citizens
encapsulates this thinking: We would say to the world, the white man is and always has been
superior to the black man, and we prefer the blacks as slaves to having them in our midst as
equal citizens.26
Thus, when Confederates explained their new constitution, they pronounced Jeffersons ideas
fundamentally wrong because they rested upon the assumption of the equality of races. They
insisted that government must be founded upon exactly the opposite idea of the Declaration of
Independence: [I]ts foundations are laid, its corner-stone rests upon the great truth that the
negro is not equal to the white man; that slaverysubordination to the superior raceis his
natural and normal condition.27 Even white Americans who disliked or opposed slavery believed
the Constitution permitted many forms of racial hierarchy because they considered this
hierarchy natural. Racism so permeated culture that phrenologists, craniologists and others
asserted scientific proof that blacks were mentally inferior and that freedom harmed them.28
Such views allowed most people to believe that there were no constitutional commitments to
racial equality. Instead, a tenet of natural racial inferiority justified blacks legal inequality.
(p.126) The Primacy of Property Rights in Persons
A second major tenet of the pro slavery constitutional order emphasized the primacy of property
rights in people as a foundational commitment by insisting that the Fifth Amendment shielded
slaveholding from any national interference (Nedelsky 1990, 15153). Thus, leaders such as
Senator Henry Clay insisted That is property which the law declares to be property. Two
hundred years of legislation have sanctified and sanctioned negro slaves as property,
legislation under all the State Constitutions . . . and under the Federal Government itself.29
By the middle of the nineteenth century, the tenet of absolute property rights in man was at
such a pitch that Fire-eater Armistead Burt proclaimed that the great function of
government, in modern times, is protection of property and [p]roperty in slaves, of all other
property . . . most needs the arms of government. From the perspective of slaveocracy, the
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Constitution guarantees slaveholders the quiet and undisturbed enjoyment of this species of
property, as well as the means of making it profitable and desirable.30 Indeed, the pro slavery
forces that wrote Kansass Lecompton Constitution of 1857 proclaimed the right of property
higher than any constitutional sanction.
The Preferred Position of Slavery and its Constitutional Provisions
A third tenet of the pro slavery constitutional order gave a preferred position to the pro
slavery provisions adopted in the 1787 Constitution.31 As one letter to the editor suggested, the
pro slavery constitutional creed insisted on respect and enforcement for these provisions: I
would uphold that stipulation in the Constitution which gives Slaveholding States their right . . .
to count three-fifths of their slaves as inhabitants . . . I would uphold the provision in the
Constitution which gives the owner of the slave who escapes from his service the right to follow
him into a Free State, and retake and repossess him.32
This preferred position of slavery was not just an interpretive doctrine but a stance supported by
the Constitutions text and structure. Through the Slave Trade Clause (Art. I, sec. 9, cl. 1), not
only were citizens and their congressional representatives prohibited from banning this trade or
taxing it out of business until 1808, but these were the only provisions that the framers made
unamendable through Article V for at least a generation. Moreover, through the enumeration
or Three-Fifths Clause (Art. I, sec. 2, cl. 3), slavery structuredand warpedrepresentation,
granting slave states national power vastly disproportionate to their eligible white voting
population.33 And the Fugitive Slave Clause (Art. IV, sec. 2, cl. 3) empowered the rights of slave
states and slave owners over those of free states and blacks. Thus, these provisions were not
merely pragmatic compromises but fatal concessions allowing bondage to define the political
communityincluding the official national census.34 They shielded slavery from ordinary
electoral control and (p.127) curtailed democratic and national politics, limiting the power of
Congress and citizens to end it.
The Priority of States Rights
Readings of states rights formed a fourth component of pro slavery constitutionalism that
skewed the structure of federalism, defining both the limits of Congresss operation and
understandings of the Tenth Amendments recognition of states reserved powers.35 The most
radical pro slavery doctrines of states rights, appearing in the nullification crisis (18281833)
and again in the secession crisis (18601861), suggested much more than the basic idea that
states should be internally sovereign. During these crises, pro slavery voices suggested a
doctrine of state supremacy for interpreting constitutional law, advanced the doctrine of
interposition, the idea that states have a right to interpose their authority to resist
unconstitutional federal actions, and supported nullification, or states capacity to void federal
law.36
The general concept of states rights was not inherently pro slavery. Indeed, it was used by
other groups to oppose the Alien and Sedition Acts, to justify the Personal Liberty Laws
northern states passed to free and protect escaped slaves, and to argue that new states, such as
Kansas, had the right to prohibit slavery. But pro slavery constitutionalists were extremely
successful at coopting it. John Calhoun and other southern leaders entwined slavery in their
theory of states rights to prevent federal interference or discrimination against slavery, even
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in territories it controlled.37 And the Supreme Court rejected attempts to use states rights
doctrines for antislavery purposes when it struck down Pennsylvanias Personal Liberty Law
(Prigg v. Pennsylvania, 1842). The Confederate Constitution would stretch states rights into an
overarching governing ideal. It rewrote the national Preamble to declare states rights as the
basis of popular sovereignty underpinning constitutional authority and legitimacy: We, the
people of the Confederate States, each State acting in its sovereign and independent character.
Restricted Citizenship and Rights
A final tenet of the pro slavery constitutional order restricted national citizenship and rights to
white men. One Georgia congressman asserted this precept in 1799 in response to a petition
from free blacks: he said We the people, did not include them and therefore their political
views required no consideration.38 To justify this view, pro slavery advocates could emphasize
the widespread practice of slavery and the 1790 Naturalization Act, which, without debate over
its passage, restricted US citizenship to free white person[s]. Much of the legal apparatus
constricting citizenship operated at the state level, through state constitutions and statutes
enforcing slavery in the South and denying rights in the North.39 But the national constitution
permitted this, and placed no limits on states abilities to confer or deny citizenship or rights.
(p.128) In addition, under the pro slavery reading, the application and enforcement of
constitutional rights, generally, was quite constrained. These rights were treated as prohibitions
on national governmentnot as a grant of national power, a restriction on states, or a set of
enforceable guarantees for individuals (Amar 1998). In the antebellum era, the Bill of Rights was
rarely used to formally challenge federal or state law. Indeed, before the Reconstruction
Amendments, the Supreme Courts only move to judicially enforce the Bill of Rights against the
federal government was the Dred Scott case (60 U.S. 393, 422 (1857)).40 And, tellingly, the
Confederate Constitution that made pro slavery an explicit commitment moved the Bill of Rights
into its Article II to reflect dominant views that these rights were only limits on national power.
Prigg v. Pennsylvania and Dred Scott as Judicial Pinnacles of Pro Slavery Constitutionalism
Together, these tenets of the pro slavery constitutional order threw the cloak of fundamental law
around racial oppression; they constricted the boundaries of citizenship, defined operative
meanings of equality and liberty, and skewed representation, federalism, and politics generally.
The proslavery constitutional order was not initiated by the Supreme Court. But when
abolitionists began challenging this order and advancing their competing view of fundamental
law into newspapers, courtrooms, and legislative chambers, the Court rejected them by issuing
detailed defenses of proslavery constitutionalism. The Courts rulings in Prigg v. Pennsylvania
(1842) and then in Dred Scott (1857) placed judicial imprimatur on all major tenets of
slaveocracy (Finkelman 1987).
In Prigg, the Court identified slavery as a core constitutional commitment with which states
could not interfere. In this case, the Court struck down northern states personal liberty laws
established to protect alleged fugitive slaves from recapture without due process of law. When
the professional slave catcher Edward Prigg tried to remove Margaret Moran, an alleged
runaway, he was unable to meet the burden of proof set out by Pennsylvanias 1826 Personal
Liberty Law and failed to obtain the legal certificate permitting him to remove her. When Prigg
proceeded to ignore this and removed Moran illegally to Maryland, Pennsylvania convicted him
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of kidnapping. The US Supreme Court, however, overwhelmingly overturned Priggs conviction

(81) and pronounced state laws interfering with the return of alleged runaways a violation of
the Fugitive Slave Clause (though it indicated that slaves were not required to participate in
recapture). According to Justice Story, this clause was such a fundamental article that
without the adoption of which the Union could not have been formed. It was necessary to
uphold it to prevent perpetual strife among states (Prigg v. Pennsylvania, 41 U.S. 539 (1842)).
Moreover, slaveowners and their agents possess entire authority, in every state in the Union, to
seize and recapture his slave, whenever he can do it without any breach of the (p.129) peace,
or any illegal violence. Thus, the Court interpreted the Fugitive Slave Clause and enforcement
legislation as paramount constitutional commitments.
A decade later, the Court affirmed and greatly extended these proslavery constitutional views in
its more infamous Dred Scott opinion regarding the freedom suit of Scott, a former slave who
had been brought by his owner to Illinois, a free state, as well as to free territories where
slavery was forbidden by the Missouri Compromise. After returning to the slave state of
Missouri, Scott sued for his freedom. He asserted that the doctrine of once free, always free,
adapted from English common law and used by slaves and their allies to win freedom in some
state courts prevented his reenslavement.
Justice Taney not only rejected this freedom doctrine, but announced that slaves are not
citizens, possess no constitutional rights, and cannot bring suits in federal courts. He announced
that we think they are not, and that they are not included, and were not intended to be
included, under the word citizens in the Constitution, and can, therefore, claim none of the
rights and privileges which that instrument provides (Dred Scott, 60 U.S. 393 (1857)). Indeed,
the Court held that blacks could never be full citizens under the Constitution. Moreover, Taney
held that the national government had no right to interfere in domestic institutions of slavery
for any other purpose but that of protecting the rights of the [slave] owner, and struck down
the bereft Missouri Compromise. And the Courts view of the priority of slavery in supreme law
even could be read as suggesting that perhaps states could not completely ban all slavery
internally, either.41
Today, Dred Scott is nearly universally condemned. And abolitionists denounced Taney and his
colleagues for rendering the Constitution nothing more than guarantees of the universal spread
and security of the institution of African slavery.42 But as some scholars suggest, Dred Scott
could not be dismissed as a wrong judicial decision from the eras professional legal
standpoints (Graber 2006, 11, 2433).43 In many respects, the Court was simply articulating and
further reinforcing dominant constitutional tenetstenets that were undergirded by the
decisions of the Philadelphia Convention and ratified with very little public criticism.
Envisioning an Antislavery Constitution: Reinventing Ideals of Citizenship, Liberty, and Equality
Before and after these major judicial announcements, abolitionists denounced the pro slavery
constitutional order as violating principles of fundamental law. They developed a competing
vision of an antislavery constitution that they pressed forward into political institutions, public
debate, and civic life. This vision involved reinventing national ideals of citizenship, liberty, and
equality.
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Antislavery constitutionalism is typically associated with a small group political radicals,

especially lawyers such as Gerrit Smith and William Goodell who argued (p.130) that a
complete antislavery revolution could be achieved by properly interpreting the existing
Constitution as a charter of freedom and equal rights (ten Broek 1965; Wiecek 1977). They
reinterpreted many specific constitutional provisions in speeches, lawsuits, and treatises.44
Development of these more formal and detailed legal arguments was important, but antislavery
constitutional ideals were also interwoven with a much larger tapestry of discourses and
activities.45 We have already glimpsed some of these, including arguments from those such as
David Walker, black conventioneers, and William Lloyd Garrison and his growing antislavery
societies. As we shall see below, there were a great many reformers, especially women and
blacks, who also expressed and advanced antislavery constitutional ideals through campaigns
for moral suasion, petition drives, fund-raising for fugitive slave communities, support for the
Underground Railroad, and other efforts.
Even more moderate antislavery voices, such as members of the prewar Republican Party,
contributed to the project of challenging the pro slavery constitutional order. They did not
endorse immediate abolition or racial equality, but they did begin reinterpreting the
Constitution as including powerful commitments to national rights and liberty that applied to
blacks, that empowered Congress to prohibit slavery in territories, and that criticized the
Courts constitutional interpretation in Dred Scott (Kammen 1986, 96100; Vorenberg 2001).46
In developing a nuanced portrait of antislavery constitutionalism, I consider how several
important segments of this broad tapestry of civic ideals and activities overlapped and wove
together into a larger whole: a project for national reconstruction. At the core of this
reconstruction project was an emphasis on the Declaration of Independence and Constitution as
public touchstones for arguing about the essential commitments of the political community.47
Indeed, many white and black reformers described their radical reform goals merely as
upholding and extending fundamental principles and ending the entire opposition between
these principles and slavery.48
Such discourses sought to reinvent the Declaration of Independence and Constitution as
antislavery texts. They urged, for example, that ending slavery was essential to the consistency
and perpetuity of the Republican system inaugurated by the Declaration of Independence, and
designed to be secured by the Constitution.49 Reformers often described their construals of
broad constitutional principles as a matter of reason and common human decency and dignity,
but they also identified historical or original historical support for their views. This included,
for example, emphasizing the Northwest Ordinances prohibition on slavery in the territories in
1787 and noting the critical comments made by some framers in Philadelphia.50 Through an
array of re-readings of the principles of the Declaration and Constitution, they sought to create a
path from a revolutionary past to an antislavery future by imbuing the basic terms of American
constitutionalism with antislavery meanings.
When various activists condemned dominant interpretations as unconstitutional or said their
unorthodox views reflected the true Constitution and the (p.131) rights it already
guaranteed, they were not naive or uninformed about what official law was.51 But they were
determined to use public constitutional judgment to challenge the legitimacy of the proslavery
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order. As black activist William Howard Day argued: 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. . . . it is a construction of the Constitution, and a flawed one.52
Thus, Day and other radicals saw the Constitution as both a severe obstacle and a profound
instrument of reform. As Day says, I will 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 guaranteed.53 Rather than passively accepting official articulations
from courts and legislatures, such reformers believed they had the right and authorityeven the
dutyto help interpret its essential principles and purposes.
Frederick Douglass came to promote a similar view in his famous 1860 speech on the
unconstitutionality of slavery, which he insisted involved only a plain reading available to any
person of common sense. He, too, argues that current and historical American practices do not
fully define constitutional principles and that long-standing laws and practices can come to be
recognized as diametrically opposed to principles.54 His alternate interpretation is that the
American people 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 (Douglass 1860, 7). Douglass concludes by telling his audience
that no military revolution is needed to secure equal liberty for millions of blacks. Instead, he
insisted that such a transformation requires only justly interpreting and implementing the
Constitutions essential commitments.
But Douglasss and others condemnations of unjust constructions are not exclusively targeted
at political officials. Indeed, many antislavery speeches and publications were geared toward
ordinary Americans and called on them to take the Constitution more seriously by scrutinizing
it themselves. When the Dred Scott decision was announced, for instance, reformers encouraged
Americans to read the decision and ask themselves whether they agreed with the Courts
portrayals of slavery as the keystone of the nations fundamental law: Is the right of property
in slaves sacred, above the reach of State enactments and before and higher than any
Constitutional sanction? Is it a law unto itself, even higher than the Constitution of the United
States?55
Rather than simply accepting official pronouncements, abolitionists urged that all Americans
should engage in their own evaluations: What are our constitutional rights and obligations? is a
subject which should engage the attention of every citizen of our Republic.56 By the time of the
war, many reformers were similarly insisting on the need for public constitutional judgment:
every patriot, every lover of his country should ask himself, not what does this party teach, or
that party teach, but (p.132) what does the Constitution . . . teach. Our constitution should be a
textbook in our schools, and in our political meetings.57 Antislavery reformers were promoting
their vein of popular constitutionalism, proposing novel ways of understanding the
Constitutions essential commitments and their relation to slavery and racial discrimination.
New Precepts of Antislavery Constitutionalism
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Abolitionists discourses shared a basic affinity with those of eighteenth-century revolutionaries,

in that both were permeated by discussions of fundamental law. Not only prominent spokesmen,
but also many more ordinary participants in the broader antislavery movement were
disseminating new constitutional views and ideals in countless petitions, speeches, sermons,
letters to the editor, and other publications. Their arguments offered five sets of new precepts or
conceptions of fundamental law: substantive liberty, republican self-rule, national citizenship,
constitutional rights as trumps, equal rights and equal protection of the laws, and
nondiscrimination (see also ten Broek 1965; Wiecek 1977, 275). These new civic ideals played
important roles in debates over the Reconstruction Amendments and continue to shape modern
constitutional debates and laws.58
Substantive Liberty
In the eighteenth century, the revolutionary movement made liberty more popular, as common
white men asserted demands to share in political rule and rights. In the nineteenth century, the
antislavery movement insisted the principle of liberty must be more substantive, and it must be
broadened to include liberty for blacks. In their view, the core principle of liberty expressed in
the Declaration of Independence, the Constitutions Preamble, and Due Process Clause could be
invoked to challenge slavery as well as deprivations of other rights. Constitutional liberty should
be understood as entailing an enforceable promise to which slaves and free blacks, as well as
whites, could avail themselves.59
Such claims appear in decades of antebellum antislavery protests. One 1799 petition that blacks
sent to Congress, for example, urges that in the Constitution, no mention is made of black
people or Slaves and insists that if this system of law is to possesses any validity, blacks must
be able to partake of the Liberties and unalienable Rights therein held forth.60 According to
such radicals interpretations of the liberty justly due to every American citizen, according to
the laws of God and the Constitution, there must be immediate emancipation combined with
the protection of equitable laws. Slavery, they said, was not only morally evil but all
slaveholding laws violate the fundamental principles of the Constitution, especially those
announced in the Preamble.61 Abolitionist lawyers developed these views of a constitutional
promise of liberty into a more systematic doctrine of substantive due process, operating
through the Fifth Amendment.
(p.133) This antislavery conception of substantive liberty fueled much discourse and activism.
And, crucially, it formed the impetus for Personal Liberty Laws that activists persuaded
northern states to adopt to help protect the freedom of escaped slaves and free blacks and
hinder or prevent their reenslavement. These measures combated Fugitive Slave Laws by
restricting or prohibiting removal of blacks from free states and by providing alleged fugitives
with attorneys, habeas corpus rights, and jury trials. When the Supreme Court struck down such
laws in Prigg v. Pennsylvania (1842), discussed above, reformers continued insisting that their
interpretation of fundamental liberty was correct, and they pressed states to adopt new versions
of Personal Liberty Laws banning state involvement in recapturing alleged fugitives.
Congresss angry reaction was to pass the more repressive Fugitive Slave Law of 1850, which
allowed paid slave-catchers to kidnap and return alleged escapees without undergoing any
due process. Moreover, this Act decreed that any citizen could be enlisted to aid recapture, and
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it nullified Personal Liberty Laws and any rights that states guaranteed to blacks. Abolitionists
further amplified their substantive reading of liberty to condemn the Fugitive Slave Law, and to
encourage dissent and resistance:
It kills alike the true spirit of the Declaration of Independence, the Constitution, and the
palladium of our liberties. It is unconstitutional for the following considerations: It strips
man of his manhood and liberty upon an ex parte trial; sets aside the constitutional
guarantee of the writ of Habeas Corpus. . . . Thus the law strikes down all the shields of
liberty.62
Such antislavery reinterpretations of liberty also fueled radicals responses to the Dred Scott
decision. Many publicly urged that Dred Scott was unconstitutional for failing to recognize and
protect blacks substantive liberties.63 Some radicals took arguments about the implications of a
doctrine of substantive liberty still farther. Contrary to official interpretations, they insisted that,
to uphold the paramount constitutional commitment to liberty, Congress was empowered to
abolish slavery anywhere in the United States.64
By 1856, antislavery constitutionalists more basic ideal of substantive liberty was changing the
political playing field. This ideal infused the platform of the new Republican Party. Republicans
were now asserting that the primary object of the federal government was to secure the
liberty promulgated in the Declaration of Independence and embodied in the Federal
Constitution. To uphold the foundational principle that no person shall be deprived of life,
liberty, or property without due process of law, they insisted, it becomes our duty to maintain
this provision . . . against all attempts to violate it by prohibiting slavery in all existing and new
territories.65
Republican Self-Rule
Abolitionists also stretched older conceptions of republican governance into a broader and more
egalitarian principle opposing race-based aristocracy and tyranny. (p.134) Radicals, especially,
insisted that calling the United States a republic or democracy was a delusion.66 Frederick
Douglass pointed to the deep inconsistency in Americans self-conceptions, given that pro
slavery order created double tyrannythat of slaveholders over slaves, and that of
slaveholders over free white citizens: You hurl your anathemas at the crowned headed tyrants
of Russia and Austria, and pride yourselves on your Democratic institutions, he suggested to
northerners, while you yourselves consent to be the mere tools and bodyguards of the tyrants
of Virginia and Carolina.67
Some radical whites, as well as most black reformers, also believed republican principles
necessitated black suffrage. One collection of pamphlets asserting the Rights of the Colored
Men to Suffrage, Citizenship, and Trial by Jury included an array of arguments that one of our
first principles is, that we recognise no distinct castes or order of men, and our republican text
is, that all men are born equal, in civil and political rights. Thus, blacks must not be denied
suffrage (Yates 1838, 2526). Although more moderate reformers remained largely ambivalent
toward or opposed to black suffrage before the war, many agreed with the general assertion
that the existing constitutional order was a slaveocracy and that espoused principles of
republicanismsuch as those Madison suggested in Federalist No. 39were violated by rule of
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a minority or favored class.68 Not only slavery itself, a range of critics argued, but also the
Constitutions structural empowerment of slave owners and slave states in the Three-Fifths
Clause violated the ideal of self-rule.69
While the Stamp Act and other measures encouraged eighteenth century revolutionaries to
portray the British Empire as exerting tyrannical power, Dred Scott, the Bleeding of Kansas, and
other conflicts similarly provoked a widening array of critics to portray the slave power in
similar terms. Reformers encouraged Americans to recognize that slaveocracy did not just
tyrannize blacks, it tyrannized everyone. It was an engine of political repression eviscerating the
rights of all citizens and making it impossible for free institutions to exist at all in the United
States.70 Such assertions of a tyrannical pro slavery conspiracy against constitutional freedom
a despotic and liberticide conspiracybecame another powerful antislavery pillar adopted
by the nascent Republican Party.71 Pressures of war would further motivate the Republican
Party to adopt reformers broader argument that slavery must be abolished because it was
antithetical to republicanism: declaring slavery always and everywhere, hostile to the
principles of Republican government, the party announced that justice and national safety
demand its utter and complete extirpation from the soil of the Republic.72 A major national
party was now proclaiming the interpretations of republican self-rule that some abolitionists had
been espousing for decades.
National Citizenship and Black Citizenship
In connection with such arguments about republican self-rule, antislavery reformers were also
reinventing the meaning of We the People and, with it, the conception of citizenship. Before
the abolition movement, there was little emphasis on national citizenship under the Constitution
(Bickel 1973; Novak 2003). But the (p.135) goal of ending slavery opened up disputes over
citizenship and the question of what status blacks should have. Radical activists insisted that
blacks must be, by birthright and constitutional guarantee, full citizens of the nation. As one
radical platform put it, every African American man should be able to claim the proud privilege
of being a citizen of the country in which he resides and say, I enjoy equal privileges.73
While abolitionist lawyers developed doctrinal arguments for blacks citizenship under the
Constitution, this broad civic ideal was articulated in more popular rhetoric through a wide
variety of speeches, publications, and other channels.74 Some suggested, for instance, that the
Constitutions design, reflected in the Preamble, is to make the People one political family,
and to equalize the rights of citizenship throughout all the States of the Union.75 Frederick
Douglass and others interpreted the Preamble as a set of public commitments to racialand
genderequality and full membership in the People:
We, the peoplenot we, the white peoplenot we, the citizens, or the legal votersnot
we, the privileged class, and excluding all other classes but we, the people, not we, the
horses and cattle, but we the peoplethe men and women, the human inhabitants of the
United States, do ordain and establish this Constitution.76
Through such arguments, reformers were insisting that the boundaries of the political
community and definitions of citizenship must be redrawn to accord with the Preambles
promise.
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Treating Constitutional Rights as Trumps and Expanding National Power

As part of their reconception of national citizenship, abolitionists elevated new views of
individual rights as trumps over competing state interests that define modern
constitutionalism (ten Broek 1965). Charles Olcott, for example, argued in his 1838 public
lectures that the full Bill of Rights applied to slaves and free blacks, and must be respected or
upheld for all.77 Any reasonable person, reformers asserted, must recognize constitutional rights
as paramount national commitments. They condemned the pro slavery constitutional order for
promoting the view 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.78
As radical abolitionists portrayed it, the battle against slavery was a battle for all Americans
fundamental rights, including expressive and associative rights, rights to engage in self-rule,
and due process rights. They warned that slaveocracy was willing to extinguish all constitutional
liberties to maintain itself: Step by step we have seen the slave power advancing; poisoning,
corrupting, and perverting the (p.136) institutions of the country. . . . The white mans liberty
has been marked out for the same grave with the black mans.79 Reformers repeatedly insisted
on the competing ideal that just constitutional rule must ensure the rights of all under
democratic institutions, including abolitionists First Amendment rights.80 Continuing to allow
the constriction of constitutional rights, they warned, created a slippery slope to tyranny: You
cannot permit anothers rights to be infringed without paving the way for a violation of your
own!81
In these ways, antislavery activists sought to reinvent citizenship and individual rights as
foremost constitutional imperatives. This reinvention included many arguments that the textual
promises of the Preamble, Guarantee Clause, Privileges and Immunities Clause, and Supremacy
clause should be read as empowering and obligating national government to provide protection
and security for citizens fundamental rights (Wiecek 1977; Curtis 1986; Amar 1998).82 By this
new logic, Congress must possess power to defend the personal rights or interests of any man
and the federal judiciary was empowered to strike down and render void any attempt by states
to deprive a citizens rights and privileges (Tiffany 1849, 4244).83 As reformers faced
obstacles in promoting their controversial views and reform goals, they called public attention to
the importance of citizens liberties for political organizing, speech, and debate. A century
before the Supreme Court began identifying First Amendment freedoms as holding a preferred
position in our basic scheme or treating such rights as democratic freedoms requiring special
respect, abolitionists were advancing these views and planting the seeds for more civil
libertarian doctrines (see, e.g., Prince v. Massachusetts, 321 U.S. 158, 164 (1944), Thomas v.
Collins, 323 U.S. 516, 530 (1945)).
Thus, in dramatic contrast to pro slavery tenets and the Supreme Courts reading of the Bill of
Rights in Barron v. Baltimore (32 U.S. 243 (1833)), antislavery constitutionalists insisted that the
entire Bill of Rights, as well as other unenumerated fundamental rights, must be read as a set of
nationally enforceable guarantees.84 The selective incorporation doctrine later adopted by the
Supreme Court for nationalizing portions of the Bill of Rights provided a more limited and
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piecemeal approach than abolitionists more comprehensive doctrine of national constitutional

rights. (Curtis 1986; Amar 1998).
These antislavery reconceptions also frontally challenged the dominant doctrine of states rights
by insisting that states sovereignty is qualified by the fundamental rights of citizens in federal
constitution.85 Reformers insisted that local and state laws must uniformly respect the general
principles of national citizenship and rights because if we are one people, we must have one
common rule. Localities are not free to define the principles that determine claims to
citizenship and secure the common rights of the people.86 Rejecting Dred Scotts byzantine
reading of citizenship, radicals declared that all Citizens of one State must be citizens of the
nation, and all citizens everywhere alike must be entitled to the same privileges and the
same immunities.87
(p.137) Envisioning Racial Equality: Equal Rights, Equal Protection of Law, and NonDiscrimination
Refomers most egalitarian constitutional interpretations insist on what Angelina Grimke called
the principle of equal rights, irrespective of color or condition.88 Long before there was any
constitutional text promising equal protection of the law, radical abolitionists were insisting that
equal rights must be recognized as a precept of fundamental law.
Where pro slavery constitutionalism emphasized the naturalness of racial inequality,
reformers asserted natural equality and equal rights. All men are entitled to equal privileges,
radicals argued, and, although the artificial distinctions of society may have abrogated it in
practice, they are unable to justify the destruction.89 Securing equal rights for blacks was also
crucial for the fundamental principle of republican self-rule, some insisted: The moment the law
excludes a portion of the community from its equal regard, it divides the community into higher
and lower classes and becomes an aristocracy.90 And a variety of radicals insisted that their
civic ideal of the equal rights of man was already inherent in the Constitutions powers, first
principles, and self-evident truths and simply needed to be acknowledged and enforced.91
Officials such as Senator William Seward (who became Lincolns secretary of state) were
echoing over a decade of antislavery constitutional discourse when they began espousing more
egalitarian constitutional interpretations and opposing the Fugitive Slave Law of 1850. Seward
announced, for instance, that the Basis of the American Constitution was the philosophy of
absolute and inherent equality of all men. Any legitimate supreme law must reflect a
commitment to equality of races and one nation, race, or individual, may not oppress or
injure another.92
As radical abolitionists insisted on equal rights as a governing ideal, they were also crafting
important arguments against racial discrimination. The organizing principles of the two major
antislavery umbrella groups, the American Convention of Abolition Societies, and the American
Anti-Slavery Society publicly rejected racial hierarchy and discriminatory laws as part of their
own organizing charters and declarations of sentiments.93 Their operating manifestoes
proclaimed that blacks were equally entitled to protection of law and to the common
advantages of society, including advantages of vocation and education.
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The circulation and accumulation of many such statements during the lead up to the Civil War
allow us to see that, much as revolutionaries constitutional discourses regarding popular liberty
prefigured the Declaration of Independence, radicals insistence on impartial law and equal
rights prefigure the Fourteenth Amendments Privileges and Immunities and Equal Protection
Clauses. Garrisonians and other radicals spent decades proliferating these ideals, including very
similar specific phrasings, such as this: We believe that no class of men can rightfully be denied,
on account of their color, the enjoyment of equal rights with others, in the protection,
immunities and administration of the government under which they live.94 (p.138) Not
suprisingly, African Americans were most insistent that laws should be just and equal for all of
the people. They offered the most sweeping criticisms of racial prejudice and hierarchy,
identifying a system of oppression in northern states as a constitutional stain.95
White reformers did not all agree about which rights must equal, or what specific types of
changes this would require. But by mid-century there were rising arguments that equality of
rights prohibited legal discrimination and required security for an array of fundamental political,
civil, and social rights, including suffrage.96 Blacks consistently identified their enfranchisement
and integration of civic institutions as matters of equal rights. By 1848, for example, radicals
Liberty League Partywhich included black and white memberswas campaigning for blacks
suffrage along with rights of social equality in the school, or the house of worship, or
elsewhere.97
Radical abolitionists, especially blacks, also developed early notions of antidiscrimination that
are now central to modern constitutionalism. Charles Remond, for example, argued that
segregated transportation violated equality because complexion cannot rightfully [be] made the
criterion of rights. If rights, privileges, and immunities of citizens are to be just, impartial,
reasonable, he argued, they cannot be measured by race or any physical feature, especially
those over which men have no control.98 On this view, a foundational principle of equal rights
prohibited arbitrary discrimination. Government must protect all in the enjoyment of equal
rights such that:
The Protestant has no right to claim exemption from a tax imposed upon the Catholic; the
white man has no right to claim exemption from a burden imposed on the black man.
Political discriminations against any class of persons, on account of birth, complexion,
religion, or religious connection, can be justified on no Principle.99
These broad civic ideals of equal rights and nondiscrimination were a recurring theme in free
blacks constitutional discourses and activities.100 They denounced the injustice of racial
hierarchy as vehemently as slavery, and repeatedly asserted equal rights. Many, for instance,
proclaimed suffrage a right that belongs to every American citizen in their attempts to obtain
or reclaim voting rights in northern states.101 We see many outpourings of such rhetoric of equal
rights as a matter of fundamental law. When blacks petitioned the Pennsylvania legislature for
enfranchisement in 1855, they declared themselves citizens entitled to the promise of equal
rights through the Privileges and Immunities Clause: We are citizens of the United States, who
are entitled to all privileges and immunities of free citizens in the several States.102 Still other
blacks condemned and helped repeal Ohios discriminatory Black lawswhich prohibited blacks
from military service, attending public schools, or testifying against whites in courtby insisting
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on their equal rights. They were a portion of the people claiming to be the natural (p.139)
inheritors of an equal liberty embodied in the Declaration and Constitution: any laws sinking
us below our natural level must be treated as violations of their equal rights.103
Such constitutional discourses and demands countered pro slavery views that racial inequality is
a natural or justifiable constitutional feature. Rather, the foundation of a political community
must be the legal equality of all its subjects and it was abomination to think that men of
African descent are not equal in law to others, and cannot be citizens under our national
Constitution. If abolitionists gained power, some suggested, they would implement these
racially egalitarian ideals and cause men in this so called christian and democratic country to
be treated fairly without distinction of color.104
Eighteenth-century revolutionaries disseminated the idea that recognizing constitutional ideals
of popular rights and self-rule was common sense. These nineteenth-century revolutionaries
were now provocatively insisting that any reasonable person or thinking man must recognize
racial equality as an essential commitment of fundamental law:
No thinking man . . . [can] in sincere truth believe that the State laws, of late so common,
excluding negroes and imposing various disabilities and privations on account of color, are
constitutional. . . . These States think it expedient for them, and so determined to have
treated it as constitutional. But all these wrongs and base violations of our Constitution
must be done away.105
***
Weaving the Broader Antislavery Constitutional Vision
For many decades, various participants in the antislavery movement were working to develop
and promote this competing set of constitutional ideals and doctrines. Many hoped to persuade
state legislatures, Congress, and perhaps the Supreme Court to adopt their interpretations and
goals.106 But antislavery constitutionalism included much more than attempts to influence
political officials or institutions. This rich vein of popular constitutionalism inspired a great many
people to work to challenge and transform fundamental law and civic relations through a wider
set of discourses and activities that go beyond the mold of electoral pressure or legal mobilizing.
A prime example of the broader popular facet of antislavery constitutionalism is Harriet Beecher
Stowes Uncle Toms Cabin. Stowes serial novel can be seen as playing a role for antislavery
constitutionalism somewhat akin to the role Thomas Paines Common Sense played during in the
revolutionary era. This novellike Paines pamphletwas the most popular book next to the
Bible in the United States during its era, selling several million copies. And it provides popular
articulations of several key antislavery ideals. Uncle Toms Cabin is not typically recognized as
an (p.140) illustration of popular constitutionalism. But it can be read this way. (As can some of
the anti-Tom novels that began appearing to counteract its messages.)107
Stowe was a radical abolitionist who supported the Underground Railroad, housing fugitive
slaves in her home. Her novel, written after the passage of the controversial Fugitive Slave Act
of 1850, is a fictionalized account of a group of former slaves and their relations with various
white masters, friends, allies, and enemies. It not only offers a morality tale describing the
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cruelty of slavery, but also attacks its official legal framework and suggests the permissibility of
civil disobedience. At one point in the story, for example, Mary Bird and her husband, a senator,
argue over the Fugitive Slave Law. He tries to justify it. She denounces it as abominable and
says she will disobey it as an unjust law, announcing Ill break it, for one, first time I get a
chance and I hope I shall have a chance, I do! And when a group of slave catchers come to
capture George Harris as a runaway slave, he tells them I know very well that you have the law
on your side, and the power. Then Stowe portrays Harris as a latter-day American
revolutionary: she describes him as issuing his own declaration of independence by reporting
he was a free man willing to fight for our liberty till we die.108
In these and other portions of the novel, Stowe is offering core antislavery ideals of fundamental
law in narrative form. Elsewhere, she emphasizes how the racial prejudice of northerners
contributed to blacks continued oppression. She describes the perspectives of Ophelia St. Clare,
a devout Christian and critic of slavery who nonetheless feels repulsion toward blacks. She is
only able to overcome her hypocrisy by developing a personal relationship with a young slave
girl. Such human portraits helped to make ideals of liberty and equality for blacksas well as
civil disobedience to unjust lawmore lucid and concrete. It also extended these antislavery
ideals to a very broad segment of the American population. In the South, the message of Stowes
novel was perceived as so insurrectionary in intent that Maryland imprisoned Reverend
Samuel Green, a free black man, with a ten-year sentencethe statutory minimummerely for
possessing Uncle Toms Cabin (The Liberator, July 30, 1858, TL-AA).
Such popular antislavery writing often wove together reason with affect and moral suasion to
provoke critical reflection on national principles and their relation to racial oppression. Poet
Frances Harper Watkins, for example, spoke against the injustice of the Fugitive Slave Law and
the Dred Scott decision in poignant terms by imagining her own potential abduction and trial:
A man comes with his affidavits from the South and hurries me before a commissioner; on
that evidence ex parte alone he hitches me to the car of slavery and trails my womanhood
in the dust. I stand at the threshold of the Supreme Court and ask for justice, simple
justice. Upon my tortured hart is thrown the mocking words, You are a negro; you have
no rights which white men are bound to respect.109
(p.141) These types of challenges to pro slavery laws and norms through articulations of
competing ideals fill the novels, slave narratives, poetry, and other imaginative writing of the
movement.110 Lucy Stanton, for example, used her graduation speech as a missive for
antislavery constitutionalism, insisting that the Constitution must guarantee freedom and equal
rights to every citizen and pointing out that these ideals were everywhere violated in the
United States through rampant discrimination in educational, vocational, and other equal
opportunities.111
These are not formal constitutional arguments that one would hear in a courtroom or read in a
legal brief. Yet abolitionists poetry, verse, songs, images, and other creative offerings could
often more vividly and memorably convey abolitionists criticisms and broad civic ideals. These
forms of popular expression overlapped with more legally oriented abolition constructions of
the Constitution to provide greater civic resonance and purchase for these views.112
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To understand abolitionists constitutional reconstruction project, we need to consider this

broader range of ways that many ordinary participants were attempting to challenge and
reshape the dominant constitutional order operating in law, public sentiment and civic relations.
For antislaverys constitutional views and efforts to shape official law were not separate from
but deeply entwined with an array of concerted work to remove slavery by moral and political
action.113
II. Working to Enact an Antislavery Constitution and Refashion Citizenship and

Rights
In this section, we see how abolitionists sought to enact their competing constitutional vision
through their discourses and activities. Not only abolitionists ideals of fundamental law, but
their efforts to promote and enact them planted important taproots of the norms and civic
relations modern constitutional democracy. Much of abolitionists work was directed To the
Public in order to shape a greater revolution in the civic realm or an antislavery way of life.
As a key part of this, the movement encouraged several different groups of Americans to
embrace new understandings of the ideals of equality, liberty, and self-rule expressed in the
Declaration of Independence or the Constitution.114 Thus, the first black newspaper Freedoms
Journal helped foster antislavery constitutional ideals and consciousness among blacks when it
began urging its readership in 1827 to view a promise of blacks equal citizenship as part of the
Preamble, and to strive to raise People of Colour from their present degraded state into the
rank of freemen.115 And abolitionism also promoted new civic ideals and consciousness among
many whites, including women. As some of its participants reflected, the antislavery vision
provided women a consciousness of personal responsibility toward a system of slavery
intimately inwrought with the political, religious, and social life of the nation, and a
conscioussness of power to promote its overthrow through their own civic actions (Grew 1864,
124).
(p.142) As such examples suggest, abolitionists struggle against slaveocracy didnt just
promote rhetorical or abstract ideals of equality and civic membership, but it began to change
the meanings and practices of citizenship and rights for some Americans, including large
numbers of free blacks and women. Although radical abolitionism was a small fringe, its civic
ideals inspired several hundreds of thousands of Americans. By 1840, Garrisons radical
American Anti-Slavery Society included 2,000 local chapters and at least 200,000 dues-paying
members. Participants in these groups and other segments of the broader movement helped
advance the antislavery constitutional vision through a tremendous outpouring of democratic
activitydiffusion of thousands of publications, organization of hundreds of lectures and fairs,
mobilizations of boycotts and a free produce movement, massive petition campaigns, and civil
disobedience. As we now see, reformers work to promote their ideals of fundamental law
cultivated new norms of equal citizenship, promoted more vigorous expressive, associative, and
participatory rights, and challenged unconstitutional law through public debate and many
reform activities, including civil disobedience.
Reimagining Citizenship and Civic Relations
Well before the Fourteenth Amendment announced a new conception of national citizenship,
antislavery activists were shifting the faces and practices of citizenship and civic relations.
Although the movements most prominent leaders were white elites, it was fueled by large
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numbers of free blacks and women. Some became recognized civic leadersnot only Frederick
Douglass, but Charles Remond, William Wells Brown, Harriet Tubman, Sojourner Truth, Maria
Stewart, Sarah Forten, the Grimke sisters, Lydia Maria Child, and so on.116 Their visible
participation in politics was, in and of itself, a disruption of the dominant constitutional norms of
the white mans republic. Indeed, the pluralist visage of the antislavery movement, as well as
its substantive views, challenged the dominant order.
Despite many limitations, free blacks and women abolitionists were carving out channels
through which to enact their own citizenship and identity as members of the political community
[Quarles (1969] 1991, 3640). As Frances Watkins Harper put it, long before many women and
men obtained the formal status of citizenship, some were constituting themselves as citizens
who have a right to do my share of the work to be on the side of freedom and carry out the
greatest idea of the present age, the glorious idea of human brotherhood.117 In her view, civic
work for abolition called forth Earnest, self sacrificing souls that will stamp themselves not only
on the present but the future.
Most of those who advanced the antislavery vision in civic life are not named in written records.
The many black and white women who held bazaars and worked for antislavery fairs to promote
free labor goods and raising money for Freedoms Journal, the Liberator, and other
publications, for example, remain largely (p.143) unknown.118 As Mary Grew reflected on such
efforts by Anti-Slavery Women, she noted that they not only provided key financial support to
antislavery societies, but they had immense value as mediums of moral influence. Womens
opportunity of working for antislavery goals through civic activities such as fairs crystallized
sentiment into principle. (Grew 1864, 128).
We get a glimpse of some of the committed acts of citizenship that abolitionism inspired from
some women from the diary of Mary Avery White, a white grandmother from rural
Massachusetts. White was not a prominent figure and did not give public speeches or write
famous essays about slavery. But her diary describes hundreds of hours planting antislavery
ideals in her communitycirculating petitions, organizing a local society, attending lectures,
helping organize prayer services, sending boxes of clothes to fugitive slaves in Canada, raising
money by making quilts in sewing circles and selling them at antislavery fairs, and opening her
home to white and black abolitionist lecturers.119
Participation by women and blacks in antislavery politics was highly controversial, even within
the movement. As we see in the next chapter, when the Grimke sisters began to speak publicly
against slavery and petitioning to end it, they were excoriated for interfering in politics.120
Blacks, too, were often discouraged from active roles within the reform movement. As Frederick
Douglass noted, a significant segment of abolitionists frowned upon black participation or racial
integration:
[They] dont like colored celebrations, they dont like colored conventions, they dont like
colored antislavery fairs for the support of colored newspapers. They dont like any
demonstrations whatever in which colored men take a leading part. They talk of the proud
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Anglo-Saxon blood as flippantly as those who profess to believe in the natural inferiority of
races.121
Or, as Baptist minister Nathanial Paul pointed out, although many abolitionists hate both
slavery and prejudice, there were also abolitionists who, as bad as they hate slavery, hate a
man who wears a colored skin worse. The real battleground between liberty and slavery, he
recognized, is prejudice.122 The antislavery movement never fully overcame this battleground
of prejudice or fully integrated. But radicals, in particular, created many integrated groups and
the movement became an unprecedented cross-racial and cross-gender undertaking.
Norms of Civic Equality and the Challenge of Racial Prejudice
The most egalitarian aspects of the antislavery vision demanded overthrowing discriminatory
state laws and the racial prejudice that that defined civic relations and (p.144) undergirded
official law. The organizing constitution and declaration of sentiments of Garrisons American
Anti-slavery Society identified removing public prejudice and overthrow of prejudice as
explicit goals connected to gaining equality with whites (1838). Radical abolitionists sought to
end the crushing load of prejudice among whites that shuts out human beings from schools
and colleges, from the mechanical arts, from the house of God, from a share in the government
of the nation, from social intercourse with their fellow-creatures.123
Reformers work to promote racial equality took many forms. Free blacks insisted for decades
that achieving full citizenship required equal legal rights as well as ending the social norms
upholding the racial caste system operating in the North. Moses Grandys slave narrative, for
example, describes his bitter disappointment at escaping bondage only to find that the North
possessed a degrading system of racial segregation: No black man was admitted to the same
seats in churches with the whites, nor to the inside of public conveyances, nor into street
coaches or cabs . . . in various other ways, we were treated as though we were of a race of men
below the whites.124
For Grandy, David Walker, and other free blacks, pursuing the vision of equal citizenship
entailed demanding opportunities for all attributes of equal civic status or standing. How could
there be any talk of equal rights or a republic of liberty, Walkers Appeal had asked, when
blacks were excluded from every public office and privileged positionall the way from juror,
constable, lawyer, or judge, to mayor, senator, or president?125
The precepts of racial equality that such reformers articulated were not just attacks on law, but
attacks on civic norms of racial discrimination and hierarchy. When Lydia Maria Child, for
example, issued one of the first major radical abolitionist texts in 1833, she critiqued her fellow
New Englanders for their unrelenting efforts to keep the colored population in the lowest state
of degradation.126 She identifies the problem of discriminatory employment laws and practices,
anti-miscegenation laws, and white citizens repeated efforts to prevent inclusion of blacks in
their schools, theaters, railcars, and churches.
Child emphasized radical reformers goal of equal civil and political rights and privileges with
the whites, and suggested the possibility of a formal constitutional amendment to help achieve
this. But rather than simply condemning unjust laws as barriers to antislavery ideals of equal
citizenship, Childs Appeal also condemns northerners pervasive spirit of slavery as a major
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obstacle. Not all people can be abolitionist leaders or politicians, Child acknowledges, but we
can all do something to promote abolitionism and its vision of a more just community. This
includes ending the widespread public silence and apathy toward slavery and racial oppression
by using petitioning, almanacs, newspapers, sermons, and poetry to inspire sentiment and
pathos and to criticize our in-glorious institutions. Child believes a web of such expressive
actions would spark moral suasion and public debate, producing an entire revolution of public
feeling in favor of antislavery ideals of equal citizenship (Child 1833, 21032).
(p.145) Child is suggesting that radicals antislavery reconstruction project is not just a
challenge to official interpretations of the Constitution; it is a challenge to the way many
ordinary white Americans conceived of citizenship and civic relations. And she suggests that
legal reforms must be accompanied by changes in civic norms and by personal and civic
commitments to combat prejudice. At a minimum, she urged white Americans to recognize a
duty to practice simple respect and civility: We can speak kindly and respectfully of colored
people upon all occasions and teach children to do the same, rather than encouraging or
permitting attitudes of contempt. Beyond this, she argued that whites must stop trying to
prevent blacks from pursuing the same rights and privileges as other citizenssuch as
attending public schools, entering steamboats, or sharing in other social goods.
As abolitionists such as Child, Harriet Beecher Stowe, and Antoinette Brown recognized,
barriers to blacks equal citizenship were created not just by law, but by whites peculiar
prejudices and their popular endorsement of looking down upon the whole colored race in
sovereign contempt.127 Such reformers were elevating humanist calls for commonality and
social integration as companions to their criticisms of the laws of slaveocracy. And many of
these radicals were connecting espoused egalitarian ideals to their own reform efforts and
actions. The 1841 to do list provided in a popular antislavery almanac, for instance,
encouraged sympathizers to use their own rights and powersspeech, press, petitionto
remove all laws that enforce racial inequality by graduating rights by the skin.128 And it asks
them to take a first step to integrate their own communities, suggesting that if there is a
colored section of their churches, whites should begin integration by sitting in it themselves.
According to this view, to try to enact their civic ideal of equal rights, reformers should help
ensure that blacks enjoy in every respect all the rights to which as human beings they are
entitlednot only by insisting on and defending blacks rights under law, but by changing
practices of civic exclusion and a racial hierarchy in social, educational, and vocational realms.
We see similar calls for remaking civic norms and relations in the radical abolitionists
Declaration and Resolves, which encouraged members to practice the antislavery ideals they
preached:
as Abolitionists, it is our duty to practice in our lives, what we profess with our lips; and
therefore, we will, by our example, prove the vincibility of that prejudice against color,
which, in this country, drives the colored man from the workshop, the counting-room, and
the polls, making him a hissing and a by-word, a miserable outcast, the off-scouring of the
earth.129
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These racially egalitarian ideals of blacks full and equal civic membership were not consistently
upheld or practiced. But they were championed by radicals as a core commitment of
fundamental law, and they were the hope that inspired the first American experiments with
racially integrated civic institutions. Before (p.146) antislavery reformers refounded the official
Constitution by galvanizing the Reconstruction Amendments, they founded the first racially
integrated civic organizations and primary schools. Radical abolitionists also founded the first
integrated churches, beginning with Tremont Temple, and the first integrated colleges and
training institutes, including Oberlin College and the Oneida Institute. In Massachusetts,
radicals ideals and pressures achieved repeal of anti-miscegenation laws, an end to railways
segregation policies within the state, and the first state law outlawing separate schools for black
and white children in 1855.130 These attempts at creating integrated civic institutions were
fledglings, and moves for greater social integration remained largely exceptional cases. But
these efforts to pursue and enact ideals of racial equality offered early glimpses and initial
models for how Americans could attempt to refashion more egalitarian and democratic relations
and institutions.
We can better contextualize the importance of abolitionists halting steps toward refashioning
civic life by recalling how difficult it was to make any movement at all toward racial equality at
that time. From the perspective of mainstream society, simply talking about racial equality was
fanatical. The mere existence of a movement and groups that included whites, blacks, men,
and women deeply threatened social norms regarding each of these groups proper roles or
stations. Thus, even though only the radical wing of the antislavery movement adopted the most
racially egalitarian goals and integrationist practices, the general movement was perceived by
outsiders as a dangerous and unnatural social experiment involving mixed complexion and
promiscuous (mixed-gender) meetings and amalgamationist tendencies (Quarles 1969, 18).
This prejudicial worldview explains the severe reactions and backlashes that repeatedly
undermined and thwarted antislavery reform. In the North, abolitionist societies and churches
met with frequent harassment and attacksfrom being pelted with eggs or garbage, to arson
and property destruction, to many anti-abolition mobs and riots. In the most violent case,
abolitionist editor Elijah Lovejoy was killed by a mob.131 And there were many other incidents of
terrible cruelty and violence toward reformers. In one of the worst frays, a mob of perhaps
20,000 rioters in New York shouted African colonization slogans as they attacked white and
black abolitionists and their churches and homes over four days in 1834.132 In another
horrendous incident in Pennsylvania, a mixed race crowd was mobbed and stoned while waiting
to hear antislavery speeches. The former slaves who gave abolitionist lectures often faced
violence in northern towns, including as Martin Robinson Delanys recounting of an attempt to
tar and feather him or burn him alive in Ohio (North Star, July 14, 1848, AAN).
These riots, and dozens of others, were sometimes justified in news reports as acceptable
responses to the radicalism and amalgamation program imputed to abolitionists (Grimsted
1998, 36). We can only recognize how revolutionary the antislavery vision was by remembering
how inflammatory many Americans found (p.147) the very idea of whites and blacks, women
and men, mixing on terms of equality. The New York Herald described one meeting of
abolitionists and womens rights activists as a gathering of fanatical mongrels and suggested:
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The full consummation of their diabolical projects would reduce society to the most
beastly and promiscuous confusionthe most disgusting barbarism that could be devised;
and the most revolting familiarities of equality and licentiousness between whites and
blacks, of both sexes, that lunatics and demons could invent.133
From these Americans perspectives, radical abolitionists egalitarian ideals were neither an
inspirational ideal nor a rational push to extend fundamental constitutional principles. They
mounted a frontal attack on the official system of law, traditional values, and existing ways of
life.
Elevating Expressive, Associative, and Participatory Rights of Citizenship
As we saw earlier, one of abolitionists innovative constitutional views identified constitutional
rights as crucial national guarantees. Their strugglesand the backlashes they facedmade
expressive, associative, and participatory rights more salient and robust as rights of citizenship.
Indeed, the great repression and violence they faced led these reformers to become powerful
champions of new notions of constitutionally guaranteed civil liberties, and to connect the basic
ideals of antislavery with freedom of speech and press, assembly, and petitioning. Abolitionists
ideals and uses of these rights paved the groundwork for modern conceptions of civil liberties,
bringing new meanings, vitality, and a more national scope to First Amendment freedoms
(Curtis 2001). They did so in part by revealing the tremendous repression of liberty involved in
the pro slavery order. As John Mercer Langston noted, under slaveocracy, there is no American
who is in the full possession of his or her share of civil, religious, and political Liberty.134
From the start, these reformers were intensive practitioners of expressive and associative
rights. They disseminated their antislavery vision by forming societies throughout the North and
pursuing the goal of scattering all over the land their newspapers, books, pamphlets, tracts,
and other publications.135 The sheer volume of their public expression is dramatic. According to
one count, in just a single year (18371838) the American Anti-Slavery Society published nearly
8,000 bound volumes and over 47,000 tracts and pamphlets. Its childrens volume, Slave Friend,
had a circulation of 131,000; its monthly Human Rights had a circulation of nearly 190,000, and
the weekly Emancipator had a circulation of 217,000.136 Black reformers, too, participated in the
struggle against the proslavery order by greatly expanding their political associations and
creating many presses from which to plead our own cause, choosing expressive titles such as
Freedoms Journal, The Colored American, and The Rights of All (Newman, Rael, and Lapsansky
2000).
(p.148) The proliferations of antislavery groups and publications met widespread opposition. In
the North, reformers meetings and presses faced popular clamor, and repeated attacks, but
police and officials said they had no power to protect activists. There were also some efforts to
legally suppress antislavery gatherings as disorderly (see, e.g., Grew 1864, 12526). In
response, reformers essays proclaimed Americans who used violence against antislavery
presses and conventions, as well as the judges and representatives who permitted censorship
and violence, as enemies of the Constitution (Thomas 1835, 10).
In the South, antislavery publications such as David Walkers Appeal and abolitionists mail
campaigns were so hated and feared that they catalyzed new laws banning incendiary
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material. Southern states already possessed restrictive anti-assembly laws prohibiting free
blacks or slaves from gathering. As abolitionism rose, these states also began to criminalize
speaking, writing, or circulating through mail any criticism of slavery, often seizing and
destroying antislavery literature (Stampp 1956, 20616). Some southern states, and Andrew
Jackson, encouraged the federal government to close the US mail to abolitionist literature, or
even to close the postal system entirely. South Carolina went farther, arguing that northern
states, too, must ban antislavery groups and make it highly penal to print, publish, and
distribute newspapers, pamphlets, tracts, and pictorial representations of slavery, on grounds
that these could inspire insurrection (Thomas 1835, 1130).137
Challenging such repression occurring under the dominant order led abolitionists to launch
public debate on their competing interpretation of constitutional rights as substantive national
guarantees. As Frederick Douglass pointed out, while some Americans believed that the
principle of free speech was an accomplished fact reactions to abolitionists demonstrated the
fragility, constriction, and uneven enjoyment of this right.138 Both older common law traditions
and antebellum American legal practices gave free speech and press a limited meaning. Since
the Supreme Courts ruling in Barron restricted the entire Bill of Rights to limits against federal
government, this left states free to define rights, including seditious speech, as broadly as they
liked and to punish it as they chose.139 Although the Sedition Act of 1798, which made political
criticism a national crime, had prompted a national debate on speech rights, that dispute
actually involved a states rights argument. Indeed, in that conflict, critics asserted that the First
Amendment left states free to define and punish speech as seditious libel but prohibited
Congress from doing so. A similar view that states had the right to prevent seditious speech led
John Calhoun and southerners, as well as some northerners, to argue that abolitionists views
could be suppressed because their arguments contravened the spirit of the Constitution, which
guarantees to each state the exclusive regulation of all local interest.140
The obstacles to public debate and organizing abolitionists encountered energized their
arguments that Americans must treat First Amendment freedoms as nation-wide guarantees
even in the face of controversy. As some southern states argued that all antislavery societies
should be prohibited as violating the obligations of the (p.149) compact of the union,
abolitionists emphasized the overriding importance of citizens rights to meet for political
purposes without fearing mobs or jail.141
Reformers discourses and activities were provoking serious constitutional debates about the
need to uphold speech and press rights within and across states. Responses to the Boston Riot,
for example, in which William Lloyd Garrison was dragged through the streets at the end of a
rope, shocked and outraged some who otherwise felt little sympathy for abolitionists. The riot
encouraged new emphasis on civil libertarian ideals as national commitments. Even many who
considered Garrison a hot-headed enthusiast, a notoriety hunter and all that his enemies
represent him agreed with abolitionists portrayals of these actions as violations of national
ideals. There could be no prating about the freedom and equality of men, and constitutional
principles so long as citizens who exercise free speech can be hunted down like a wild
beast.142
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Abolitionists also advanced their constitutional vision by using their ill-treatment to condemn
constrictions of citizens rights under the pro slavery constitutional order. Lydia Maria Child, for
example, noted how many people were persecuted or expelled from southern states, merely for
declaring that they considered Slavery an impolitic system. She pointedly asked, What
respect for constitutional rights was manifested by Alabama, when a bookseller in Mobile was
compelled to flee for his life, because he had, at the special request of some of the citizens,
imported a few copies of a novel that everybody was curious to read [Uncle Toms Cabin]?143
Antislavery groups framed these repressions as part of slaveocracys barbaric crusade against
free speech, censorship, and post office despotism.144 They urged all Americans to reject
such tyranny and enact a constitutional order featuring a more robust view of expressive rights.
They should recognize, argued Frederick Douglass, that prohibiting speech and press is a
double wrong because it violates the right of the hearer as well as those of the speaker. The
law of slavery should not able to trample underfoot the law of free speech and the law for
the protection of public meetings.
Not only must freedom of expression belong to all, but it should be enforced against threats and
mobs, since there can be no right of speech where any man . . . is overawed by force and
compelled [to] suppress their honest sentiments.145 For Douglass, David Ruggles, and other
blacks, who had so much at stake in these struggles, speech and press rights were particularly
valuablein some states these were the only political rights they could exerciseand they
championed their uses of expressive rights as trumpets of freedom.146
The Right to Petition as a Pathway for Political Voice, Influence, and Membership
Abolitionists civic discourses and activities also energized and expanded petitioning beyond its
eighteenth-century uses. William Lloyd Garrison, who denounced (p.150) voting, strongly
encouraged it as a key method of moral suasion that could be used for expressing antislavery
ideals and pursuing reforms. Over many decades, Garrison and other abolitionists flooded state
and national legislatures with petitions expressing their ideals and seeking an array of reforms,
from abolishing slavery within states, to ending slave trade, to ending slavery in US territories,
to demanding Personal Liberty Laws, integrated schools, suffrage, and other rights for blacks.
Petitioning was a particularly crucial way for women and free blacks in the movement to
exercise civil rights and political voice. It was also a way to assert their own civic identity and
membership.147 As free blacks explained in their earliest recorded petition to Congress in 1799,
they lacked the privilege of representation and sought to use this method to seek the public
justice and protection which is the great object of Government. This was a key medium for
expressing antislavery constitutional views and goals, such as arguments that the Fugitive Slave
Law posed a direct violation of the declared fundamental principles of the Constitution.148
Through antislavery work, many American women, too, began petitioning for the first time.
Moreover, women became the instigators of the nationwide petition drives launched by the
American Anti-Slavery Societythe first use of such mass scale petitions in the United States.149
Records suggest that from 1831 to 1863 women collected approximately 3 million signatures for
congressional petitions regarding slavery, often by circulating them door-to-door in their
communities (Zaeske 2003, 2).150
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Through petitioning, blacks and women were publicly identifying themselves as members of the
political community who possessed authority to participate in politics, They were selfauthorizing their involvement in official debates over slavery, arguing that We . . . conceive
ourselves authorized to address and petition you. Antislavery petitions also became methods for
women and blacks to assert political right to be represented in public Councils, in common
with . . . every other class of Citizens within the Jurisdiction of the United States . . . as set forth
in the Preamble . . . We the People of the United States. 151
As with antislavery uses of speech and press, these acts of petitioning challenged the dominant
constitutional order on two fronts. The first involved the messages antislavery conveyed; the
second involved the messengers. The combination of attacks on slavery and assertions of civic
membership by free blacks and women provoked further discomfort and backlash. To stamp out
this onslaught of antislavery appeals coming from the wrong sorts of people, Congress adopted a
succession of infamous Gag Rules that immediately tabled all abolitionist petitions to leaders
so that that no further action whatever shall be had thereon.152 In addition, Congress resolved
that slaves held no right to petition in 1837, debated resolutions that free blacks did not possess
this right, and some congressmen also stated that women lacked this right, too.153
Abolitionists now became not just innovators of mass petitioning, but public defenders of
petitioning as a fundamental right. As one report argued, the gag rule (p.151) made a
mockery of the right to petition and violated the whole premise of constitutional democracy. If
any subject disagreeable to the majority, may in this way be blinked and got rid of, then what
becomes of our rights and liberties?154 One report in the Weekly Advocate warned that it now
seemed that the actual slavery of one portion of a people must lead to the virtual slavery of
another by suppressing fundamental rights to participate in politics.155
By emphasizing slaveocracys threats to cherished civil and political rights, abolitionists
promoted their competing constitutional vision and drew more supporters. In the two years
following the Gag Rule, the American Anti-Slavery Society nearly tripled in size, and the number
of antislavery petitions rose more than tenfoldfrom 23,000 in the year before the rule to
300,000 petitions the year after (Magdol 1983, 4546).156 But the full importance of petitioning
for antislavery constitutionalism cannot be understood through these numbers. As one fervent
abolitionist noted, mass petitioning was not just an effort to encourage legislative debate and
action against slavery, but to try to reshape public opinion through individual interactions and
conversations: By collecting a signature, you not only gain the persons name, but you excite
inquiry in her mind and she will excite it in others; thus the circle imperceptibly widens (Zaeske
2003, 175). Just as importantly, petitioners were cultivating democratic citizenship. For African
Americans and women, especially, petitions were channels for proclaiming their rights and
national membership.
Challenging Unconstitutional Law through Civil Disobedience and Militant Resistance
The antislavery movement also fostered a range of dissenting and oppositional activities. Much
as revolutionaries struggles incorporated a range of legal transgressions, abolitionists
struggles included various methods of challenging law, including forms of nonparticipation or
withdrawal, civil disobedience, and more forceful resistance. Many participants, following
William Lloyd Garrison, adopted tactics of boycotting slave-made goods and buying only free
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produce. Some also practiced civil noninvolvement by refusing to vote, serve on juries, join the
militia, or provide military service (Kraditor 1969). By the 1850s, some radicalsespecially
Quakers and blacksmore assertively broke the law by transgressing the Fugitive Slave Laws
and assisting fugitives in various ways. Reformers major civil disobedience effort, the
Underground Railroad, helped perhaps as many as 100,000 slaves claim their title to liberty
and helped to fund and support various sanctuaries and settlements (Still 1872).157
As David Ruggles noted, many largely ordinary people were helping to pursue a mighty
revolution against the Slave Power not only through the most dangerous work of directly
ferrying slaves, as Harriet Tubman did, but through a web of many efforts to challenge and
overthrow the system of law and practice that in the aggregate to make up that monstrous
system of inequity (Hodges 2010, 91). Contributors (p.152) to this mighty revolution included
those who broke the law by concealing fugitives, such as Harriet Beecher Stowe and John Van
Zandt (see, e.g. Jones v. Van Zandt 46 U.S. 215 (1847)). They also included women and men such
as Levi and Beulah Coffin, Prudence Crandall, and Margaret Crittenden Douglass, who were
often engaging in civil disobedience when they taught black children to read, which was illegal
in parts of the North, as well as the South (see, e.g., Crandall v. Connecticut, 10 Conn. 339
(1834)).
Contributors to this revolution also included those who helped to fund antislavery literature for
Southern distribution or who helped circulate these views and materials in the South. Such
seditious activity was generally illegal, so that possession alone could result in prosecution
and jail (see, e.g., U.S. v. Reuben Crandall, C.C.D.C. Fed. Case # 14,885 (1836)). Women who
participated in church sewing circles or raised money through fairs to help supply fugitive slaves
settlements in Canada were also contributing to a web of transgressions against official law and
dominant norms. In different ways, these were all forms of civil resistance, as well as acts of
hope. They were aimed at undermining and overturning the pro slavery constitutional system
and laying a foundation of new civic norms and relations to support a new constitutional
order.158
It is no coincidence that it was an abolitionist sympathizerHenry David Thoreauwho
articulated the most famous defense of civil disobedience in the United States during this period
of intense antislavery challenges to official law. But years before Thoreau offered his argument
for individual acts of resistance, radical abolitionists had already begun developing new
conceptions and uses of civil resistance as a precept and tool of antislavery constitutionalism. By
1836, Angelina Grimke was arguing in her speeches that, because slavery was entirely
opposed to the fundamental principles of the Constitution and the great republic, laws
protecting slavery were unjust and could be conscientiously disobeyed. And Charles Lenox
Remond was introducing arguments for tax resistance: that so long as free blacks were denied
rights and privileges, they should refuse to pay taxes though it costs imprisonment or
confiscation.159
When the Supreme Court struck down northern states personal liberty laws providing due
process to alleged runaways in Prigg v. Pennsylvania (1842), radical reformers began issuing
more extensive treatises on The Unconstitutionality of Slavery (Spooner 1845) as well as
proclaiming Resistance to Slavery Every Mans Duty (Allen 1847). The 1850 Fugitive Slave
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Law catalyzed still more extensive calls for civil disobedience, including William Charles
Beechers sermon Duty of Disobedience to Wicked Laws (1851) and Nathaniel Halls essay on
the Limits of Civil Obedience (1851, MAC-CUL).
Such radicals argued that avoidance or resistance to complying with the Fugitive Slave Law was
justified not simply as a matter of personal conscience, but as a matter of constitutionality:
[W]e contend that just at this clause [the Fugitive Slave Clause, Article IV, sec. 2, cl. 3], there is
no Constitution, as applied to slavery. There (p.153) is a breach here which is only filled with
dead letters.160 According to their ideals, civil disobedience to any law passed under this dead
letter clause was justifiable: This clause patently conflicts with the total design, scope, and
spirit of the Constitutions groundwork of purposes reflected in the Preamble:
(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.161
All of these fundamental commitments, critics argued, conflicted with the Fugitive Slave Clause
and any laws passed under its authority. Black abolitionists such as James Pennington were
challenging official constitutional laws and doctrines with readings based on their civic ideals.
They argued that the Preamble represented the true noble spirit of the Constitution. Such
reinterpretations of the Constitution as a liberty document were diffused by Americans who
resisted the Fugitive Slave Law or assisted runaways. Reverend Jermain Wesley Loguen, a
fugitive slave himself, for instance, persuaded residents of Syracuse to defy law by declaring
their city a refuge or open city by arguing that, since the national government transgressed
Constitutional . . . limits their community should resist these aggressions against liberty and
provide a model for other northern communities to follow.162
The farthest extremes of resistance to the pro slavery constitutional order were violent uprisings
and armed insurrections, such as slave revolts led by Denmark Vesey and Nat Turner (Aptheker
1993). Although antislavery constitutionalists overwhelmingly rejected violent methods and
many abolitionists, most notably Garrisonians, were pacifists, some activists did engage in
violent resistance. In Pennsylvania, for example, when a group of black and white reformers
tried to prevent recapture of alleged fugitives by an armed posse, they sparked the Christiana
Riot that killed a white slaveowner. To protect the proslavery order, President Fillmore called
out the Marines to pursue the activists, leading to the largest number of simultaneous arrests
for treason in the United States (U.S. v. Hanway, 2 Wall. Jr. (C. C.) (1851); Katz 1974, 170).
As conflicts over slavery grew more intense in the 1850s, some abolitionists embraced the
tactics of armed revolution. John Brown and a small group of other men participated in the
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Bleeding of Kansas, engaging in armed violence to protest and block the unfair tactics used to
prevent Kansass admission as a free state. When Brown then planned and led at attack on the
armory at Harpers Ferry, many Americans considered this a treasonous terrorist act. William
Lloyd Garrison, despite his avowed pacifism, offered a different perspective. He argued that
anyone who (p.154) endorsed the Revolution and its violent war could not consistently
condemn violent revolts against slavery.
Garrison asks, Who instigated John Brown? Let us see. It must have been Patrick Henry,
who saidand he was a VirginianGive me liberty, or give me death! . . . It must have
been Thomas Jeffersonanother Virginianwho said of the bondage of the Virginia slaves,
that one hour of it is fraught with more misery than ages of that which our fathers rose in
rebellion to opposeand who, as the author of the Declaration of Independence,
proclaimed it to be a SELF-EVIDENT TRUTH, that all men are created equal, and
endowed by their Creator with AN INALIENABLE RIGHT TO LIBERTY.163
Garrison condemned Browns violence. He also insisted, however, that Browns actions were
instigated by the very ideals that founded American constitutionalism. As Garrison suggested,
such violence could be seen as a justifiable rebellion against the brutal tyranny of slavery.
III. Inscribing Antislavery Commitments in Text: The Reconstruction Amendments

as the Promise of a New National Beginning
By 1856, these overlapping streams of antislavery ideals, discourses, and pressures had
contributed to major constitutional conflicts. Abolitionists had also helped to reshape the
American Party system, contributing to the downfall of the Whigs. They launched new parties,
such as the Liberty Party (1840) and the Radical Abolition Party (1855), and ultimately
contributed to the formation of a national Republican Party with a moderate antislavery stance.
The new Republican platform did not include radicals calls for immediate abolition or blacks
equal citizenship. But it frontally condemned slavery as barbarism and adopted several
positions reflecting basic tenets of antislavery constitutionalism. This included identifying the
Declaration of Independence as a source of constitutional commitments, endorsing general
maxims of substantive liberty and equal rights of citizens, and condemning attacks on citizens
constitutional rights in Kansas. Thus, the platform of 1856 declared that the spirit of our
institutions as well as the Constitution of our country, guarantees liberty of conscience and
equality of rights among citizens and declared that Congress was empowered to prevent any
further extension of slavery in the territories (Johnson 1978, 2728).
These early Republican stances were not full-fledged endorsements of abolitionism, but
opponents viewed them as a tidal shift toward antislavery ideals, including (p.155) their views
of national power. Thus, when Lincoln gained the presidency in 1860, following a Republican
takeover of the House of Representatives in 1858, it seemed to the South that the whole national
government was permeated by abolition men who would revolutionize law. Seven states
seceded. Their declarations of secession record the forceful collision between the entrenched
pro slavery order they endorsed, and the competing antislavery views and activities they
proclaimed unconstitutional. Georgias statement, for example, rejected the ideas of the
equality of the black and white races and the disregard of all constitutional guarantees in its
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[slaverys] favor that they believed were boldly proclaimed by Republicans (Moore 1862,
1:21).
This move to disunite was precisely what Garrisonians had long insisted was necessary to
initiate a new free and egalitarian republic. But for Lincoln and most congressional leaders,
fears of dissolution outweighed opposition to slavery. As a result, Congress began planning a
new constitutional pact with the devil: a pro slavery amendment that would permanently
prohibit national interference with slavery.164 The proposed Corwin amendment then passed
both houses and was adopted by two states before the outbreak of war. Even as antislavery
advocates had gained a foothold in national power through Republican allies, this nearly
resulted in a constitutional settlement diametrically opposed to their goals. Their rise then
provoked a full-scale war.
The Civil War that broke out in 1861 is sometimes described as the Second American
Revolution.165 Many Americans, especially abolitionists, depicted it this way at the timeas a
battle over the future of a nation whose identity was as deeply entwined with slavery as it was
with espoused ideals of freedom and equality. As one 1862 speech to a mass gathering in New
York framed it, there was a great revolution at present going on in the popular heart of the
country, a battle between slavery and the life of the nation.166
Pressures of war now motivated some crucial new national policies regarding blacks status as
citizens, beginning with their participation in the war. Although some black men had fought in
the Revolutionary War, most were subsequently excluded or banned from military service. Many
now sought to enlist. When this was finally permittedon grounds of military necessity
180,000 staked their own lives in this battle with the aspiration of securing their rights as
citizens of the United States.167
Both sides in this revolutionary war claimed the Constitutions mantle. Confederates portrayed
themselves as upholding the Constitution as the supreme law of the land and protecting the
principles of its founders.168 Antislavery activists, by contrast, proclaimed this a fight for the
supremacy of a Constitution full of guarantees of freedoman antislavery Constitution long
proclaimed by radicalspitted against the spirit of slavery.169 Reformers campaigned to
overthrow the proslavery constitutional order. They launched a new wave of mass petitions
calling for decisive national action against slavery, flooding Congress. Radical William Goodell
(p.156) widely disseminated an annotated Constitution, Our National Charters, for the
Millions, identifying at least half of its provisions as antislavery.170 Lysander Spooner sent
every Congressman his lengthy treatise on the unconstitutionality of slavery.
While radical abolitionists remained a minority, they were gaining important audiences for their
views and wielding greater influence on public debates. Mainstream Republican papers now
covered their meetings and lectures. Perhaps 50,000 peopleincluding congressmen and the
vice-presidentattended one of Wendell Phillipss nearly 200 lectures on war and emancipation,
in which he offered an antislavery vision of the republic and insisted on the need to create a new
nation that knows neither black nor white . . . [and] holds an equal scepter over all. (Foner
2010, 18990).
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The war created a crucial new opening for pursuing antislavery civic ideals, but as Garrison,
Douglass, and other complained, reformers had to continually press Lincoln and other leaders
toward these goals (Garrison and Garrison 1894, 3135 and passim). Lincolns highly
controversial Emancipation Proclamation would be pushed forward by a combination of
exigencies of war and ongoing antislavery pressures. This included further mass petitioning,
mass rally in Chicago, and a delegation to the White House. It also included demands from
abolitionist-backed congressional Republicans who had already declared rebels slaves forever
free in a Confiscation Act.171
A civic scaffolding of antislavery constitutionalists arguments, activities, and support made it
possible for Lincoln to decree emancipationimmediate and without compensation or
colonizationas national law.172 Lincoln himself would later suggest that he had been only an
instrument of larger social forces in moving to end slavery: the logic and moral power of
Garrison and the anti-slavery people of the country and the Army have done all. Reformers
civic work, followed by military victory, helped pave the way for his crucial steps toward
national freedom and reconstruction.173
Prohibiting Every Last Vestige of Slavery: The Thirteenth Amendment and the Goal of Final
Freedom
The Reconstruction Amendments were formed against this complex backdrop of antislavery civic
ideals and activism, as well as by official debates. They were drafted and adopted in an
exceptional postwar context in which abolitionist views helped shape key leaders perspectives
of what was politically possible, necessary, and desirable.
Although radical abolitionists had long argued that the existing Constitution couldand should
simply be interpreted as an antislavery charter of liberty and equality, many groups now
began encouraging Congress to adopt an official abolition amendment. This goal called forth the
largest wave of American petitioning yet. It was led by women of the National Loyal League who
collected nearly 400,000 signatures for a Thirteenth Amendment (Vorenberg 2003, 132; Zaeske
2003). In (p.157) the letter accompanying the first installment of petitions, collected and rolled
up state by state, reformers described the signatories as a mighty army . . . without arms or
banners:
They are from all parts of the country and from every condition of life. They are from the
sea-board, fanned by the free airs of the ocean, and from the Mississippi and the prairies
of the West, fanned by the free airs which fertilize that extensive region. They are from
the families of the educated and uneducated, rich and poor, of every profession, business,
and calling in life, representing every sentiment, thought, hope, passion, activity,
intelligence which inspires, strengthens, and adorns our social system. (HWS 1970, 2:78
80)
According to one count, approximately one in twenty-four northern Americans signed one of the
petitions for the Thirteenth Amendment, and it was the first amendment to result from a petition
campaign to Congress.174
Petitioners attached a range of hopes and expectations to their requests for the Thirteenth
Amendment, including many expressions of emancipatory and egalitarian antislavery ideals. The
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goal of such an amendment, African American petitioners in Nashville urged, went beyond
formal emancipation: it was to complete the work begun by the nation at large by abolishing
every last vestige of slavery by the express words of your organic law. Former slaves,
especially, warned that unless slavery be expressly abolished by the Constitution, blacks could
not achieve durable freedom.175 The Womens League that spearheaded efforts to gain public
support for the Thirteenth Amendment, too, imagined it as a broad promise of liberty. They
insisted on a national pledge of freedom that conferred not only official emancipation, but
equal rights. Their campaign to seek the Thirteenth Amendment also announced that blacks
must obtain the rights or privileges as free and equal citizens of a common
Republic (Resolutions, May 14, 1863). Even William Lloyd Garrison now endorsed a formal
abolition amendment, suggesting that this could transform the Constitution he had long
ridiculed and condemned as a covenant with death into a covenant with life (Vorenberg
2003, 136).
As a number of historical studies show, the radical Republicans who played the most prominent
role in drafting and pressing forward the Civil War Amendments were deeply influenced by
antislavery constitutional ideas.176 Historian Michael Vorenburg emphasizes that when the
Thirteenth Amendment was passed, abolitionists, blacks, and prominent Republicans all
considered it a broad guarantee of final freedom and free and equal citizenship (Vorenberg
2001).
Nearly immediately, however, an array of powerful forces and ongoing prejudices began
blocking basic goals of emancipation as well as goals of equal citizenship. The amendments lack
of explicit legal guarantees and silence regarding enforcement left (p.158) blacks with no clear
basis on which to stake claims to freedom and rights and left the door open to southern
intransigence.177
In the South, the amendment was immediately interpreted merely as a narrow rule or
prohibition on de jure slavery: states and towns adopted Black Codes that were lightly adapted
slave codes. They created a legal structure of white supremacy that limited blacks freedom in
almost every area of life, denying rights enumerated in the Bill of Rights (assembly, conscience,
property ownership, and bearing arms) as well as denying other important freedoms (free
contract, labor, and travel, access to education, and the ability to choose professions and
residence).178 It was not only the South that failed to implement antislavery constitutional
ideals. Rather than moving to ensure free blacks full equality as citizens through new laws or
amendments to state constitutionsas radical abolitionists insisted should occurnorthern
states did quite little. Most of the North largely maintained its own prewar racial hierarchy
separate transportation, schools, hospitals, and so onthat operated as much on tradition and
public sentiments as on explicit Black laws.179 In 1865, Harriet Tubman was severely beaten
for refusing to leave a whites-only car on a train in Philadelphiathe original home of the
abolition movement.180
The more egregious problems freedmen faced in the South, however, became the sole focal
point of reformers demands for more sweeping national reform. As one group of southern
blacks petitioned, the Constitution now made them formally and legally free, but there was no
coinciding state action to recognize our standing, and secure to us by law, our rights as
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freemen.181 Instead, the Thirteenth Amendment seemed to have little meaning. Some freemen
asked judges to review and reject the new Black Codes, asking Is this or is it not Involuntarey
Slavery?182 Blacks continued insisting that they were entitled to equal rights as citizens
already promised by the Constitution.183 An array of such complaints and pressures provoked
the Thirty-ninth Congress to begin further constitutional reforms by identifying Black Codes as
iniquities that practically made slaves of men we have declared to be free.184
The Fourteenth Amendment as a Further Guarantee of Equal Citizenship and Rights
The path to the Fourteenth Amendment, too, reflected abolitionists constitutional ideology. In
congressional debates over the first Civil Rights Bill and what became the Fourteenth
Amendment, these measures were variously described as further declaring antislavery
principles already included in the eighteenth-century Constitution and in the Thirteenth
Amendment.185 They were portrayed as abolishing the doctrines of pro slavery constitutionalism
espoused in Dred Scott. They were also described as embracing the civic ideals and
constitutional views abolitionists had been advancing for decades: rights of national citizenship,
substantive liberty, and racial equality under law, as well as congressional empowerment to
uphold these principles and prevent state violations. Several of these key components of (p.159)
abolitionist thought were espoused by the Radical Republicans who framed and shepherded the
Fourteenth Amendment.
Adoption of antislavery ideals by key leaders explains the frequency with which Republicans
argued that a true or just interpretation of the eighteenth-century Constitution would recognize
it as a charter of antislavery provisions. They repeated abolitionists views that the Bill of Rights
was already incorporated to prevent state violations. They also reiterated abolitionists views
that the Fifth Amendment contained a promise of substantive liberty that empowered the federal
government to enforce fundamental rights of citizenship and prohibited states violations of
these rights.186
Senator Jacob Howard, for example, who carried the amendment through Congress, espoused
abolitionists unorthodox conceptions of equality and enforceability of fundamental rights and
principles of nondiscrimination.187 Howard also stressed that the proposed amendment would
protect substantive liberty and prohibit racial discrimination and the injustices of caste. In
Howards words, the measure: abolishes all class legislation in the States and does away with
the injustice of subjecting one caste of person to a code not applicable to another. It prohibits
the hanging of a black man for a crime for which the white man is not to be hanged. It protects
the black man in his fundamental rights. . . . with the same shield which it throws over the white
man.188 In the popular press and during the ratification debates, the Fourteenth Amendment
was closely associated with Howards speeches and his broad portrayal of the goal of blacks
equal citizenship.189 As a result, from critics perspectives, the Fourteenth Amendment
threatened to bring about a constitutional revolution: a more radical change in this system of
Government, to institute a wider departure from the theory upon which our fathers formed it
than ever before was proposed.190
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The Fifteenth Amendment and Black Suffrage: Attempting a Triumph of Democratic Principle
over Prejudice
Among the antislavery ideals that shaped Reconstruction, black suffrage remained particularly
controversial. Indeed, it was three days after attending Lincolns first public speech suggesting
that black soldiers, if not all black men, should possess suffrage that John Wilkes Booth
assassinated Lincoln.191 Prior to the Fifteenth Amendment, only five New England states,
containing only 6 percent of the nations black population, permitted black suffrage on equal
terms.192 But radical reformers had long identified suffrage as a fundamental right of
citizenship, and they now saw an opportunity to pursue textual enumeration for this
commitment. Reiterating antislavery constitutional ideals, their speeches and publications
emphasized that the nation could not claim to be a republic or democracy without enfranchising
blacks. They also suggested that Lincolns death should be an impetus to move forward with
national reconstruction through universal male suffrage.193
(p.160) Blacks sent petitions arguing that their fundamental right to participate in self-rule
must trump racial prejudice. They insisted that the fact that the negro suffrage proposition may
shock popular prejudice must not be considered a conclusive argument against its wisdom and
policy. They emphasized that, if prejudice prevailed instead of principle during the war, not
a single colored soldier would have been in the Union army to-day. But principle and justice
triumphed, and now near 200,000 colored patriots stand under the folds of the national flag.194
The strongest advocates of the Fifteenth Amendment again drew from the fountain of
antislavery arguments, and their rhetoric pervades Republicans speeches during official
debates.195 Abolitionist Senator Charles Sumner, for instance, argued that a new formal suffrage
amendment would be superfluous: a reduplication in a new form merely reinforcing existing
constitutional principles of citizenship and rights. It would function like a declaratory statute,
removing all doubts and cavils and like an additional force in mechanics, or like a
reinforcement in the field.196 Opponents rejected the idea of suffrage as an essential right.
They warned that treating it as such would mean voting should also be a right for the American
Indian and female populations. Such a possibility was considered so outrageous that opponents
proposed womens suffrage in an attempt to doom the Amendment.197
As southern states were readmitted to the Union and Republicans confronted threats to
Reconstruction and to their own political power, they agreed on the necessity of enfranchising
black men while disagreeing about how far blacks political rights should go. During the
debates, they considered, but unfortunately abandoned the idea of guaranteeing rights to office
holding. They also set aside the idea of prohibiting states from adopting literacy, property, and
nativity tests for suffrage. Instead, the Fifteenth Amendment included only the more limited
and widely brokenpromise that race would cease to be a barrier to voting.
The Unfinished Revolution of Antislavery Constitutionalism and Reconstruction

Ladies and Gentlemen: The great problem to be solved by the American people, if I
understand it, is this: Whether or not there is strength enough in democracy, virtue
enough in our civilization, and power enough in our religion to have mercy and deal justly
with four millions of people but lately translated from the old oligarchy of slavery to the
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new commonwealth of freedom; and upon the right solution of this question depends in a
large measure the future strength, progress and durability of our nation.
Frances Ellen Watkins Harper, The Great Problem to be Solved (1875)
(p.161) In public memory, it was Lincolns Gettysburg Address that wove the antislavery vision
of a new birth of freedom and a broader conception of equality and democracy into the
national ethos.198 But just as Jeffersons Declaration of Independence reflected the civic ideals of
a revolutionary struggle, Lincolns Address echoed ideals that blacks and radical abolitionists
had been urging for decades. They reread the Declaration of Independence as including an
expression of profound constitutional commitments to racial equality, human freedom, and
inclusive self-governance.
Lincoln echoed these central claims when he urged that the nation had been dedicated to the
proposition that all men are created equal since its inception. And he was echoing radical
abolitionists vision of a new national beginning when he gave a new democratic charge to
Americans: to dedicate themselves with increased devotion to the unfinished work and
great task remaining before us: the cause of ensuring that this nation, under God, shall have
a new birth of freedom.199 Lincolns specific dedication is to The brave men, living and dead,
who struggled here. But it would be fitting to extend his dedication to this new birth of freedom
to all those who struggled to create new national ideals of freedom and equality.
Recovering abolitionists, above all blacks and radicals, as civic founders reveals their crucial
role in setting in motion a profound national transformation. Their web of civic ideals activism
challenged slaveocracy with an alternative constitutional vision that shaped the creation of the
Reconstruction Amendments. Their vision instilled hope that the oligarchy of slavery could be
overturned and the political community could be refounded as a commonwealth of freedom.
Perhaps the only thing the most hopeful supporters and the most vehement critics of these
amendments could agree upon was that these measures sought to transform the Constitution
into an instrument securing blacks emancipation, equal rights, and citizenship. They sought to
officially stamp it an antislavery constitution rather than a pro slavery constitution.
One need hardly point out that adoption of the Reconstruction Amendments was not a final
settlement or comprehensive victory for the broadest aspirations of antislavery
constitutionalism. Constitutional reconstruction inspired some important attempts to put into
effect new ideals of equal rights and citizenship, including blacks efforts to exercise suffrage
and obtain opportunities for education and employment. There were also brave early efforts for
civil rights legislation and favorable judicial decisions (Foner 2005; Brandwein 2011). But these
advances spurred retaliation and reaction. The shortcomings of the Freedmens Bureau, birth of
the Ku Klux Klans countermovement, recalcitrant white prejudice, congressional neglect, Jim
Crow laws, and Supreme Court decisions in the Civil Rights Cases (109 U.S. 3(1883))
undermined most efforts to implement broad antislavery goals. The new amendments did not
end racial hierarchy and oppression in the North or South. They did not resolve what W. E. B.
DuBois identified as the problem of the color-line, and left reconstruction an unfinished
revolution (DuBois 1903, ch. 2).200 It would take another movement for constitutional
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transformationthe civil rights (p.162) movementto reinvigorate and augment radical

reformers vision of constitutional democracy founded on racial equality.
The tendency to overlook the contributions of black and white abolitionists to the texts, ideals,
and norms of American constitutionalism obscures the decades of intense civic struggles and
aspirations that paved the way for the Reconstruction Amendments. It obscures the creative
force of their constitutional vision. These amendments can now seem natural extensions of the
original Constitution because we have adopted abolitionists perspectives that commitments to
non-servitude and racial equality should be part of fundamental law.201 Many of the innovative
views abolitionists urgeda substantive reading of constitutional liberty, nationalization of
constitutional rights, precepts of racial equality under law, and prohibitions on pernicious racial
discriminationare now so interwoven in modern American constitutionalism that we fail to
recognize how revolutionary they were when civic reformers first conceived them. Moreover,
there is little recognition of antislavery activists popular constitutionalism as a democratizing
force: a source of robust models of egalitarian citizenship and more vibrant expressive,
associative, and participatory rights.
Radical black and white abolitionists had begun a world-building project of unshackling the
nation from the bonds of racial oppression and hierarchy (Olson 2004, 133). They did not come
close to achieving their transformative goals. But their ideals and actions created a potent vision
that the Constitution could be refounded as the basis for a more racially egalitarian community
a vision whose best ideals we are still struggling to achieve.
Notes:
(1) Frederick Douglass, The Claims of Our Common Cause, Proceedings of the Colored
Convention, Rochester, July 68, 1853 (Foner 1999, 26071).
(2) Ackerman 1993, 1820; 1998, 12059, 16085; see also chs. 78. Akhil Amars (1998) study
of the Fourteenth Amendment, for instance, focuses on Supreme Court Justices such as John
Marshall and Joseph Story, some key state judges, and the arguments in First and Thirty-ninth
Congresses, especially those of John Bingham. Moreover, his main concern is the lawyers
narrower doctrinal 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. 79. Pamela Brandweins
work on constitutional reconstruction asks broader questions, yet similarly focuses on
arguments of the Thirty-ninth Congress and Supreme Court, as well as disputes among early
constitutional scholars (Brandwein 1999, 2011). Likewise, Judith Baers (1983) work identifying
the broad meaning of equality in the Fourteenth Amendment focuses primarily on congressional
debates and legislation. Scholars offering conservative readings of the Fourteenth Amendment
also generally focus on the Thirty-ninth Congress (see, e.g., Berger 1977).
(3) The important body of work on antislavery constitutional views includes ten Broek 1965;
Graham 1968; Wiecek 1977; Cover 1983; Curtis 1986; Moore 1996, ch. 2. While most of these
authors recognize, as Wiecek notes, that antislavery constitutionalism developed from nontechnical, popular origins that lay outside courts and legislatures (1977, 7), their analyses
nonetheless focus on expressions from a handful of abolitionist leaders and lawyers appearing in
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legal briefs, political speeches, legislative debates, and extensive or formal constitutional
treatises. The sets of discourses and activities I am mapping out build on this work, but offer a
broader and more integrated set of perspectives on the discourses and activities comprising
antislavery constitutionalism as a vein of popular constitutionalism.
(4) As we saw in Chapter 3, by the late eighteenth century a small antislavery movement that
sometimes used arguments related to higher law constitutional principles to challenge slavery or
racially discriminatory law. Beginning in the 1830s, use of constitutional rhetoric became a far
more pronounced companion or alternative to religious and scriptural rhetoric. See also Wiecek
1977.
(5) Bell 1969a. For a discussion of the early Negro Convention movement during the three
decades prior to the Civil War, including and its role in demonstrating to the American public
that the man of color was ready to assume the full responsibilities of citizenship, see Bell
1969b, ch. 1.
(6) American Anti-Slavery Society, ([1833] 1835). Declaration of Sentiments and constitution of
the American Anti-Slavery Society: together with all those parts of the Constitution of the United
States which are supposed to have any relation to slavery (MAC-CUL). See, similarly,
Declaration of the National Anti-Slavery Convention (1833) Philadelphia, and Garrison,
Abolitionist, or Record of the New England Anti-Slavery Society (1833) (MAC-CUL).
(7) David Walker 1830. Even before Walkers Appeal, other black civic leaders in Philadelphia,
Samuel Cornish and James Forten had written an 1827 essay critiquing colonization as an
injustice for free blacks. Their essay did not develop this critique into a sweeping call for blacks
equal citizenship, as Walker did.
(8) Several other famous radical abolitionists, including Gerrit Smith and Lewis Tappan, as well
as some prominent blacks, previously supported colonization or were member of chapters of the
African Colonization Society (ACS) that formed in 1816. Thomas Jeffersons Notes on Virginia
(1784) is the most infamous statement of the widespread view that it would be impossible for
blacks to achieve equal citizenship in the United States. These were also the motivating views of
the ACS. In 1833, radical abolitionist Lydia Maria Child offered a stinging critique of the ACSs
quiescence toward slavery and its deep prejudice toward free blacks. Her extensive examples of
the groups complacency toward slavery begin with Henry Clays insistence in the first ACS
annual report that It is far from the intention of this Society to affect, in any manner, the tenure
by which a certain species of property is held. I am myself a slave-holder, and I consider that
kind of property as inviolable as any other in the country (Child 1833, 131). She further
condemns the groups acceptance of racial hierarchy, noting that the Managers of the ACS
report that it is an ordination of Providence that people of color must always be in a state of
degradation herethat they never can have all the rights and privileges of citizens (14041).
(9) William Lloyd Garrison, An Address, Delivered Before the Free People of Color, in
Philadelphia, New-York, and Other Cities during the Month of June, 1831 (Boston: Stephen
Foster, 1831) (MAC-CUL).
(10) See the Second (1832) and Third (1833) National Negro Conventions (Bell 1969).
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(11) From Facts for the People. . . . Our Objects, July 8, 1837. Printed in The Colored American
(AAN).
(12) Garrison, An Address, Delivered Before the Free People of Color, 1831 (MAC-CUL).
(13) See, e.g., Freedoms Journal (1827), vol. 1, no. 3, p. 12 (AAN).
(14) Although many scholars emphasize distinctions between different strands and eras of
antislavery work, if we examine the discourses and activities we can also see important areas
and patterns of intersection. From this perspective, an historically extended antebellum
antislavery or abolition movement overlapped with what became the twin goals of radical
abolitionists and African Americansending bondage and achieving free and equal citizenship
for blacks. For example, the petitioning that blacks and abolition societies began to undertake in
the eighteenth century used similar rhetoric, often invoking the Declaration of Independence,
and identified the same broad goals, including securing fundamental rights to all blacks. See,
e.g., the Minutes of the American Convention for Promoting the Abolition of Slavery, and
Improving the Condition of the African Race (Philadelphia, 1798), 20 (MAC-CUL). By the 1830s,
radical blacks and whites, such as David Walker and William Lloyd Garrison, were adapting
antislavery ideals into sweeping egalitarian reform goals, including far louder demands for black
suffrage and political rights, an end to legal discrimination equal access to educational and
vocational opportunity, and more. For historians takes on the distinctiveness of nineteenth
century abolitionism, see Nash and Soderlund 1991 and Newman 2002.
(15) Introduction, in Griffiths 1854, 11.
(16) This included not only northern states where there was little reliance on slave labor and
relatively few slaves, such as Massachusetts, Rhode Island, New Hampshire, Connecticut, and
Vermont, but also regions where slavery was more widespread. The latter regions where civic
groups had begun seeking antislavery reforms included New York, and, at least for a temporary
period, in Maryland, Virginia, and Kentucky. See, for a recounting of such activism, Speech of
Hon. J. Ross Snowden, delivered at Philadelphia, Thursday, September 17, 1863 (ATC-LOC).
(17) William Lloyd Garrison, Speech, July 4, 1854, Framingham, Massachusetts. Excerpts of the
speech are included in The Liberator, vol. 24, nos. 2729 (July 7, 14, 21, 1854) (TL-AA). See, e.g.,
John L. Dorsey, Chapter 3. Slavery recognized by the Constitution in his Documentary history
of slavery in the United States. By a native of Maryland (Washington: J. T. Towers, 1851) (MCLOC).
(18) Lewis Tappan to William Jay, October 11, 1844, Lewis Tappan Papers, LC, quoted in
(Wiecek 1977, 254). Douglass, The Colored Citizens of Ohio, Minutes of the State Convention,
Convened at Columbus (1851), 8. The African American Experience in Ohio 18501920 (MCLOC).
(19) Frederick Douglass, Speech on Dred Scott (Foner 1950, 2:42223).
(20) John Calhouns 1851 Disquisition on Government is often identified as the most extended
statement of pro slavery constitutionalism by a national politician, but these ideas had older
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roots and were endorsed by many political and religious leaders and more ordinary Americans.
For several detailed analyses of pro slavery ideology and constitutionalism, see Jenkins 1935;
Bestor 1961; Cover 1975; Finkelman 1981, ch. 8.
(21) John C. Calhoun, Senate Speech on the Oregon Bill, June 27, 1848; and Calhoun,
Disquisition on Government (1851). The ideas Calhoun presented reflected sentiments that were
very common in the South, but were also held by many Northerners, especially before 1850.
(22) Alexander McCaine, Slavery Defended from Scripture, Against the Attacks of the
Abolitionists (Baltimore: Wm. Wooddy, 1842); J. Jacobus Flournoy, An Essay on the Origin,
Habits, &c. of The African Race: Incidental to the Propreity of Having Nothing to do with
Negroes: Addressed to the Good People of the United States (New York, 1835), 5, 9, 15, 48 (MCLOC). For other examples, see the arguments of George McDuffie (1836), E. N. Elliott, and
James Henry Hammond (1852) in (Faust 1981, 12), as well as Hammonds Letter to an English
Abolitionist (Faust 1981, 168205). Among the most infamous diatribes is George Fitzhughs
Cannibals All! or, Slaves without Masters (Richmond, VA: A. Morris, 1857). See also Fitzhughs
Slavery Justified (1850) and Sociology for the South (1854) (MAC-CUL).
(23) John C. Calhoun, Congressional Globe, 24th Congress, 2nd Sess. (February 6, 1837), 157
59. Calhoun suggested that never before has the black race of Central Africa, from the dawn of
history to the present day, attained a condition so civilized and so improved, not only physically,
but morally and intellectually. This was Calhouns response to a wave of antislavery petitions to
Congress and the question of whether they ought to be considered by Congress or tabled under
a gag rule. See also Mark Grabers discussion (2006, 137140) of Calhouns and other
Southerners pro slavery constitutional interpretations and politics.
(24) Sen. Henry Clay (D-KY), Speech on the Subject of Abolition Petitions, February 7, 1839
(Boston: J. Monroe, 1839), 64.
(25) John C. Calhoun, Senate Speech on the Oregon Bill, June 27, 1848 and Calhoun,
Disquisition on Government (1851). The ideas Calhoun presented reflected sentiments
frequently expressed at mid-century, especially by southern writers.
(26) See, e.g., George W. L. Bickley, Knights of the Golden Circle, address to the citizens of the
Southern States by order of the Convention of K. G. C held at Raleigh, N. C., May 7, 1860, 17
(MOA).
(27) Stampp 1956, 21516. See Alexander H. Stephens, Cornerstone Address, March 21, 1861,
Savannah, Georgia, in Frank Moore (New York: O. P. Putnam, 1862), 4446.
(28) Various American scientists, for instance, suggested that unlike Caucasians, but like
orangutans, the brains of blacks stopped growing after puberty and also suggested that
statistics on mulattos showed that miscegenation caused physiological deterioration (see
Smedley 1999, 262). Others, including Drew Gilpin Faust (1981, 1418) similarly emphasize
ingrained beliefs about the natural inferiority of blacks as a core aspect of pro slavery
ideology. We see a prime example of this in V. Josiah C. Nott, Two Lectures on the Natural
History of the Caucasian and Negro Races (Faust 1981, 20638).
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(29) Sen. Henry Clay (D-KY), Speech on the subject of abolition petitions, February 7, 1839
(Boston: J. Monroe, 1839), 1112.
(30) Armistead Burt, 1850, 1851 (Huston 2003, 185).
(31) For several different and more detailed discussions of the original constitutional politics of
slavery and the ways in which this influenced some key aspects of American political
development from ratification to the Missouri Compromise and conflicts contributing to Civil
War, see Finkelman 1987; Waldstreicher 2009; and Graber 2006, 96120.
(32) Letter from a National Democrat, New York Daily Times, June 25, 1856, 3 (PHN).
(33) The Articles of Confederation, in contrast, include provisions regarding fugitives, but they
were framed differently from the Constitutions Fugitive Slave Clause. And, under the Articles,
states were represented equally in Congress, so the status of slaves had no bearing on the
critical issues of electoral representation in the national government.
(34) Frances Ellen Watkins Harper, Letter, Miss Watkins and the Constitution, 1859? (Foster
1990, 47).
(35) Rep. Hale (R-NY), Globe, February 27, 1866, 1066; Rep. Davis (R-NY), Globe, February 28,
1866, 1083.
(36) See, e.g., the discussions of the nullification theory and constitutional controversy in
Freehling 1965 and Miller 1952.
(37) In the early 1830s, Calhoun took states rights principle to its farthest extreme, urging that
states possessed power to nullify federal law through a state convention, and to secede from the
Union. While the initial target of Calhouns states rights interpretation was federal protective
tariffs, prompting South Carolinas nullification crisis of 1832, Calhoun later applied this theory
of states rights to the overall protection of slavery within states. For Calhouns theory of states
rights constitutionalism, see A Discourse on the Constitution and Government of the United
States (Calhoun 2003, 61221). For examples of Calhouns views on the relationship between
slavery and states rights constitutionalism, see, Speech on His Resolutions on the Slave
Question, February 19, 1847; Speech on the Oregon Bill June 27, 1848; and Speech on the
Slavery Question, March 4, 1850 (Calhoun 2003, 641660, 661684, 685726).
(38) As reported in the Philadelphia Gazette and Universal Daily Advertiser, December 31, 1799,
2 (EANS).
(39) While Jacksonian Era reforms had opened politics more fully to white men by removing
property qualifications and other limits on their suffrage, these expansions coincided with state
laws and constitutional amendments that often more explicitly barred women and blacks from
suffrage.
(40) It was not the Bill of Rights but the contract clause (Art. I, sec. 10, cl. 1) that proved the
dominant vehicle for the development of judicial review under the US Constitution: it was used
in nearly 40 percent of the cases challenging state legislation before 1889 (Wright 1938, 95).
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(41) See, e.g., Stephen Douglass argument that slaves are property Not merely . . . under the
local laws of the Slave States, but property within the meaning and under the protection of the
Federal Constitution. Therefore, like other personal effects, it may be removed by its Virginia
owner to Kansas, and there held as such . . . it is inviolable, and no Kansas constitution can take
it away. If this is the case, the State of New York (or any other state) never constitutionally
abolished slavery. Letter to the Editor from Stephen Douglas to the people of California, The
Doctrine and its Consequences, New York Times, May 26, 1859, 4 (PHN).
(42) Letter to the Editor from a Kentucky Subscriber, Louisville, KY, The Lecompton
ConventionShall it be Submitted? New York Times, November 28, 1857, 2 (PHN).
(43) While I agree with Grabers (2006) arguments regarding the legal bona fides of Dred Scott
and his argument that aspirational readings of the Constitution offered by Lincoln and others
were destabilizing, I disagree with his stance the role of a Constitution or good forms of
constitutionalism should be treated as a framework for the pragmatic negotiation of political
interests among elites, and his assertion that the paramount goal must always be stability or
military and economic benefits of national union. (see pp. 24853). The terms of the proslavery
constitutional order provided the benefits of union for some segments of the population at
tremendous cost and degradation borne by others.
(44) Even before political radicals broke from the Garrisonian wing, some had developed
systematic arguments regarding the unconstitutionality of slavery. See, e.g., Gerrit Smith,
Gerrit Smiths Constitutional Argument, 1844; William Goodell, Views of American
Constitutional law: in its bearing upon American Slavery, 1844; and Wendell Phillipps,
Constitution a pro slavery compact, 1844 (MAC-CUL). These were rearticulated in the Radical
Abolition Partys 1855 Declaration. Thomas Wentworth Higginson noted the many competing
constitutional views swirling among abolitionists and offered his perspective that, although he
agreed that the Constitution could be interpreted as a liberty document, initiating an antislavery
constitutional order would take a new revolution. Higginson, New Revolution: A Speech
before the American Anti-Slavery Society, New York, May 12, 1857 (MAC-CUL).
(45) Garrison changed his position on the Constitution several times, as did Douglass, though
they did so in somewhat opposite directions. Before he famously described the Constitution as
thoroughly corrupt, Garrison has suggested the Constitution could be an instrument for
achieving freedom and equal rights for blacks. Garrison also expressed some views favoring
constitutional amendment to change its pro slavery structure. And when the war emerged, he
did come to accept the use of force as the lesser of two evils needed to end slavery and uphold
the Constitution. To see Garrisons shifts, compare his argument in 1831 Address, Delivered
Before the Free People of Color to his more infamous argument in On the Constitution and the
Union (December 29, 1832) (TL-AA). See, e.g., Letter to Elizabeth Pease, June 20, 1849. Letters
of William Lloyd Garrison, vol. 3, edited by Walter M. Merill (Cambridge, MA: Harvard
University Press), 478. On Douglasss switch to an antislavery reading of the Constitution, see
Foner 1999.
(46) See, e.g., Chases arguments in Ohio v. Birney, 8 Ohio 230 (Dec 1837), and Lincolns
arguments in the LincolnDouglas debates and in his Speech on the Dred Scott Decision at
Springfield, Illinois, June 26, 1857 (Lincoln 1953).
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(47) A number of nineteenth-century reform groups were also arguing over how to understand
the Declaration of Independence and the language of the Constitution in relation to their own
rights and citizenship, notably the labor and early womens movements (Curtis 1986, 2425).
Phillip Foner, for instance, describes the strong emphasis on the Declaration of Independence
found in workingmens associations of the 1820s and 1830s. During this period, many labor
groups were adopting public declarations of rights and describing the need to complete the
unfinished work of the American Revolution by fulfilling the promise of the Declarationwhich,
for them, meant goals such as ending monopolies and protecting rights of white workers (Foner
1976, 217, 4776).
(48) Minutes of the Fifth Annual Convention for the Improvement of Free People of Colour in the
United States 1835. 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 (MAC-CUL).
(49) And many suggested that the Founders generally shared this view, claiming that Mr.
Madison . . . Franklin, Washington, Jefferson, and Wilson knew that if the Republic did not
smother Slavery, Slavery would smother the Republic. Letter to the Editor from Aquiday, The
Ordinance of 1787 New York Daily Times, July 23, 1856, 2 (PHN).
(50) See, e.g., Joel Tiffanys arguments (1849, 69) regarding statements of Benjamin Franklin,
James Madison, and other framers during and after the Philadelphia Convention.
(51) Salmon Chase, The address and reply on the presentation of a testimonial to S. P. Chase, by
the colored people of Cincinnati (Cincinnati: H. W. Derby and Co., 1845), 2728, 3132 (MCLOC).
(52) William Howard Day, Minutes of the State Convention, of the Colored Citizens of Ohio,
January 15, 1851. Press copy. Harvard University: Anti-Slavery Pamphlets (BAA-UDM).
(53) Ibid.
(54) Douglass, The Constitution and Slavery (Foner 1999, 12933). This work expanded on the
early arguments Douglass made regarding the contradictions between slavery and public
commitments expressed in American founding documents. See, for example, his 1852 speech
The Meaning of July 4th for the Negro? (Foner 1999, 188).
(55) Letter to the Editor from a Kentucky Subscriber, Louisville, KY, The Lecompton
ConventionShall it be Submitted? New York Times, November 28, 1857, 2 (PHN).
(56) E. Maxon, For the National Era, March 1, 1860 (AAN).
(57) Letter to the Editor from Sinim, West Farms, The War and the Constitution, New York
Times, August 20, 1864, 2 (PHN).
(58) George W. F. Mellens 1841 An Argument on the Unconstitutionality of Slavery was the
first, though not the most frequently cited, book-length articulation of the political radicals
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theory of an antislavery constitution. Other extended treatises include Francis E. Brewster,

Slavery and the Constitution: Both Sides of the Question (Philadelphia: [s.n.], 1850) (MAC-CUL),
as well as better known pieces from Joel Tiffany (1849), William Goodell, and Lysander Spooner.
The views of these latter three political radicals receive extensive treatment in Wiecek 1977.
(59) William Howard Day, Minutes of the State Convention, of the Colored Citizens of Ohio,
January 15, 1851. Press copy. Harvard University: Anti-Slavery Pamphlets (BAA -UDM). This
included many versions of the argument that slaves should have liberties and rights which the
Constitution and the Law, rightly interpreted, secure to them Salmon Portland Chase, The
address and reply on the presentation of a testimonial to S. P. Chase, by the colored people of
Cincinnati (Cincinnati: H. W. Derby & Co., 1845), 2728 (MC-LOC).
(60) Petition of Absalom Jones and seventy-three others, 1799 (Foner and Branham 1998). See
also the 1797 Petition to Congress from four free African Americans (Jacob Nicholson and
others), to protect freed slaves from capture and resale and The Debate in the House of
Representatives to consider the petition and the vote to deny its hearing in committee Annals of
the Congress of the United States, 4th Congress, 2nd Session (MC-LOC); and see 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; and also to such individuals as hold them in bondage (Philadelphia: Kimber,
Conrad and Co., 1806), 4951 (MAC-CUL).
(61) Angelina Grimke, Letter II, Immediate Emancipation (Grimke 1838a, 1011).
(62) John Mercer Langston, Speech to the Colored Citizens of Ohio, 1850 (Foner and Walker,
1:259260). For similar attacks on the harsher Fugitive Slave Law of 1850 by white abolitionists,
see, for example, Samuel May and the American Anti-Slavery Societys 1856 The Fugitive Slave
Law and its Victims (MAC-CUL).
(63) An address to the electors of Connecticut, signed first by Chairman Stephen D.
Pardee. . . . March 1857 (ATC-LOC).
(64) See, e.g., Alvan Stewarts Friend of Man, October 18, 1837, reprinted in ten Broek 1965,
Appendix B, 281295. Portions of this address were printed in Emancipator, May 17, 1838.
Expressing another strand of this constitutional view, Salmon Chase argued in 1845 that
Congress is expressly prohibited from exerting its power to support slavery by the Fifth
Amendment declaration that no person shall be deprived of Life, Liberty, or Property, without
due process of law. Chase, The address and reply on the presentation of a testimonial to S. P.
Chase, by the colored people of Cincinnati (Cincinnati: H. W. Derby & Co., 1845), 2930 (MCLOC).
(65) Republican Platform, 1856, Philadelphia (Cooper and Fenton 1882, 3940). See also the
Republican Party Platform, Chicago, Illinois, May 16, 1860.
(66) Garrison, The American Union, The Liberator, January 10, 1845 (TL-AA).
(67) Frederick Douglass, What to the Slave is the Fourth of July, 1852 (Foner 1999).
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(68) Letter to the Editor from a Subscriber and Republican, The Dred Scott CaseHow Far the
Decision of the Supreme Court is Binding, New York Times, January 22, 1859, 2 (PHN).
(69) Goodell, Our National Charters, 6265; Goodell, Views, 4657; Mellen, Argument, 87;
Address of the Liberty Party Convention, Held at Peterboro . . . Emancipator and Free American,
March 10, 1842 (Wiecek 1977, 270).
(70) An address to the electors of Connecticut, 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, March 1857 (ATC-LOC).
(71) Letter to the Editor, Nebraska and the Law, New York Daily Times, June 6, 1854, 2 (PHN).
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. This latter phrase was
offered by John Quincy Adams in his speech A decade of the slave power. Reprinted in Facts
for the People, vol . I, no. 3 (Washington, DC, July 1855), 151 (MAC-CUL).
(72) Platform of the National Union Convention, Baltimore, Maryland, June 7, 1864, reprinted in
Commager 1958, 1:435.
(73) Russell Parrott, 1814 (Ripley et al. 19851992, 77). See William Wells Browns complaints
that he was not recognized as a citizen under the Constitution in I Have No Constitution, and
No Country. Address to the Paris Peace Congress, The Liberator, 1849 (TL-AA).
(74) Tiffany, A Treatise on the Unconstitutionality of American Slavery: Together With the
Powers and Duties of the Federal Government In Relation to That Subject (Mnemosyne
Reprinting: Miami, FL, 1849), 91. See also ch. 12.
(75) Equal Rights, The National Era, Washington, DC, May 18, 1848 (AAN)
(76) Douglass, Speech on the Dred Scott Decision, May 1857 (Foner 1999, 344). Other
abolitionists offered similar construals of the Preamble, such as Joel Tiffany (1849, 89).
(77) See Nye 1949, 2223. For other discussions of abolitionists constitutional arguments and
interpretations appearing in speeches, pamphlets, and treatises from prominent figures, see ten
Broek 1965, 25, 29, 116, 121, 145, 235; Graham 1968, 155, 539, and Curtis 1986, 30.
(78) 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 (FSF-LOC).
(79) Douglass, Speech on the Dred Scott Decision, May 1857 (Foner 1999, 344).
(80) Chase, The address and reply on the presentation of a testimonial to S. P. Chase, 2021
(MC-LOC).
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(81) Schurz, The Life of slavery, or the life of the nation? (FSF-LOC).
(82) William Wiecek canvasses the arguments William Goodell, Alvan Stewart, Gerrit Smith,
Theodore Parker, and Lysander Spooner offered (Wiecek 1977, 27075).
(83) See, similarly, Letter to the Editor from S., Louisiana and Nebraska, New York Daily Times
(18511857), June 27, 1854, 2 (PHN).
(84) Gerrit Smith, who was nominated for president by the antislavery Liberty Party, 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 (Wiecek 1977, 286).
(85) 1828 Memorial to Congress on DC, American Convention of Abolition Societies Minutes,
vol. 2, 1828 (ACAS 1921, 31034, 34546).
(86) William N. Slocum, The War, and How To End It, 3rd ed., revised (San Francisco, 1861), 38
(MC-LOC).
(87) Ibid.
(88) Angelina Grimke, Letter VII, Prejudice, (Grimke 1838a, 47).
(89) American Convention of Abolition Societies Minutes, vol. 2, 1828, and vol. 3, 1825 (ACAS
1921, 351, 366).
(90) Of Colored Citizens, From the Minutes of the Albany Convention of Colored Citizens,
January 2, 1841 The Colored American (AAN). See, similarly, Chase, The address and reply on
the presentation of a testimonial to S. P. Chase, 2021 (MC-LOC).
(91) Henry Stevens, To the freemen of Vermont, 1820. Broadside (ATC-LOC).
(92) William Seward, The Basis of the American Constitution, in Griffiths, ed., Autographs for
Freedom. Sewards first speech to the Senate, on March 11, 1850, condemning the proposed
Fugitive Slave Law, introduced these arguments to the Senate.
(93) See, e.g., American Convention of Abolition Societies Minutes (ACAS 1921, 351, 366). The
AASSs guiding Declaration of Sentiments (1833) included a civic or unofficial doctrine of
equal rights holding that all persons of color who possess the qualifications that are demanded
of others, ought to be admitted forthwith to the enjoyment of the same privileges as others; and
that the paths of preferment of wealth and of intelligence should be opened as widely to them as
to persons of a white complexion (2).
(94) An Apology for Abolitionists: Addressed by the Anti-Slavery Society of Meriden, Conn., to
Their Fellow-citizens (Middletown: C. H. Pelton, 1837). http://archive.org/details/
apologyforabolit00anti.
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(95) Of Colored Citizens. From the Minutes of the Albany Convention of Colored Citizens,
January 2, 1841 The Colored American (AAN).
(96) All Rights for All, December 8, 1854. Frederick Douglass Paper, Rochester, NY (AAN).
(97) Goodell, Address Read at the New-York State Liberty Convention, 7; Gerrit Smith to L. K.
Ingalls, August 15, 1848, (broadside) in Birney Papers, vol. 18, Clements Library, Univ. of
Michigan (Wiecek 1977, 269).
(98) Charles Lenox Remond, The Rights Of Colored Citizens In Traveling, The Liberator,
February 25, 1842 (TL-AA).
(99) Our Accusers AnsweredThe Defence of the Rights of Men, Not the Adoption of Their
Beliefs. The National Era, March 15, 1855 (AAN).
(100) Editor, Extract from the Law of Louisiana, Voice of the Fugitive, January 15, 1851;
Committee Inspired by Henry Highland, The Colored American, 1850 (AAN).
(101) Right of Suffrage in Connecticut.Our people of this State. The Colored American, June
12, 1841 (AAN). See, similarly, Rhode Island Suffrage Convention.The people of this State,
The Colored American (New York), October 30, 1841 (AAN). Editor, The Colored American,
March 11, 1837 and July 15, 1837 (AAN).
(102) Memorial of thirty thousand disfranchised citizens of Philadelphia, to the Honorable
Senate and House of Representatives, printed for the Memorialists (Philadelphia, 1855) (MCLOC).
(103) The Ohio black LawsNo. 3. Our State Government is an independent, The North Star
(Rochester, NY), August 21, 1848 (AAN). For example, Letter to the Editor from W. C. Popular
vs. Congressional Privileges W C, New York Daily Times, January 26, 1857, 3 (PHN).
(104) Apology for Abolitionists. http://archive.org/details/apologyforabolit00anti.
(105) Letter to the Editor from Z.B., Amherst, MA, Drafting Negroes, New York Times, August
21, 1862, 2 (PHN).
(106) In 1838, for example, the Massachusetts Anti-Slavery Society used antislavery
constitutional ideals to condemn the Gag Rule and violations of speech, press, and petition and
announced their willingness to challenge constitutional orthodoxy in the Supreme Court. The
society urged slaves to petition Congress for a redress of their grievances in order to bring our
colored friends within the brotherhood of this nation. They suggested they would then help
them pursue a constitutional challenge to slavery:
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. Proceedings of the Sixth
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Annual Meeting of the Massachusetts Anti-slavery Society, January 24, 1838 (Boston: Isaac
Knaap), xixii (MAC-CUL).
(107) Thomas Gossett (1985) notes that there were at least twenty-seven pro slavery works
written in direct response to Stowes novel from 1852 until the war.
(108) See Harriet Beecher Stowe (1852, 12021, 28384). Stowe notes that if it had been
despairing Hungarian fugitives making their way against search warrants and authorities of
their lawful government, Americans would applaud them. But when despairing African
fugitives do the same thing,it is what is it? She suggests that if readers see heroism in the
books model of assisting fugitives, they must do it on their own private responsibility. In her
Preface, Stowe criticizes the embarrassments of the legal relations of slavery and praises the
great cause of human liberty (pp. viiviii).
(109) Francis Ellen Harper Watkins, Could We Trace the Record of Every Human Heart (1857)
(Foster 1990, 101).
(110) For other examples of novels, see William Wells Browns Clotel (1853), Elizabeth Joness
The Young Abolitionists; Or Conversations on Slavery (Boston: Anti-Slavery Office, 1848), as well
as Frances Ellen Watkin Harpers story Two Offers and some of her Poems on Miscellaneous
Subjects, which sold over 10,000 copies from 1854 to 1857. Henry Wadsworth Longfellow was
among the most noted poets of the era to publish an extensive number of antislavery poems.
(111) Lucy Stanton A Plea for the Oppressed,Oberlin Evangelist, December 17, 1850,
reprinted in Foner and Branham 1998, 22023. See also the critiques of blacks unequal
education opportunities in Freedoms Journal (1827), vol. 1, no. 12, p. 47; no. 5, p. 18.
(112) See, e.g., the Circular of the Central Abolition Committee in the Proceedings of the
Radical Abolitionist Convention (New York), June 2628, 1855, 66 (MAC-CUL).
(113) Declaration of the anti-slavery convention, assembled in Philadelphia, December 4, 1833
(Philadelphia: Merribew & Gunn, 1833).
(114) Garrison, To the Public, The Liberator, vol. 1, no. 1, January 1, 1831 (TL-AA). Garrison
argues in this inaugural issue of the Liberator that Assenting to the self-evident truth
maintained in the American Declaration of Independence, that all men are created equal. . . . I
shall strenuously contend for the immediate enfranchisement of our slave population. Ibid. See
Garrisons reference to corrupt public sentiment in his editorial, Address to the Slaves of the
United States, The Liberator, June 2, 1843 (TL-AA).
(115) Views, Freedoms Journal (New York), May 25, 1827 (AAN).
(116) Some historians have shown how relatively ordinary people, particularly women and
blacks, played a critical role in the antislavery cause, despite the fact that many objected to
these groups involvement in public affairs. See, e.g., Jeffrey 1998 and Ripley et al. 19851992.
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(117) See Frances Ellen Watkins Harpers essays I have a Right to Do My Share (1859),
Could We Trace the Record of Every Human Heart (1857), and Our Greatest Want (1859)
(Foster 1990, 47, 102, 104).
(118) See, e.g., Elizabeth Wicks, Address Delivered before the African Benevolent Society of
Troy (1834), Maria Stewart, Productions (1835), and Mary Ann Shadd, A Plea for
Immigration, or Notes of Canada West (1852) (Newman, Rael, and Lapsansky 2000, 11431,
198213). See the many mentions of womens antislavery societies, fairs, and fundraising
included in the Black Abolitionist Archive (BAA-UDM).
(119) Diary of Mary White, Boylston, Mass., 18361844, vol. 1. Old Sturbridge Village Research
Library (http://www.osv.org/explore_learn/document_viewer.php?DocID = 832). For other
illustrations of womens work for abolition, see, for example, Report of the Boston Female Anti
Slavery Society: with a concise statement of events, previous and subsequent to the annual
meeting of 1835 (MAC-CUL).
(120) The discussion condenses the real-life disagreement between the Grimke sisters and
Catherine Beecher over womens political participation in the abolition movement. E. L. F.
[possibly Eliza Lee Follet], What Have Women to Do with Slavery, The Liberator (Boston),
November 1, 1839 (TL-AA). See Beecher 1837 and Grimke 1838a.
(121) Frederick Douglass, West India Emancipation Speech delivered at Canandaigua, New
York, August 3, 1857 (Foner 1999, 35868). George Frederickson (1971, 117) emphasizes how
many white abolitionists possessed a form of romantic racialism, either imagining themselves
the noble, saintly saviors of downtrodden people, or imagining blacks as inferiors in need of
whites shepherding and leadership.
(122) Nathaniel Paul, March 14, 1838, Speech reported in Friend of Man, in Ripley, Black
Abolitionist Papers, The Colored American, June 9, 1838 (AAN).
(123) See, e.g., Right of Suffrage and On the Rights of Colored People to Vote, The Colored
American (New York), March 4, 1837 and April 29, 1837 (AAN). See also Memorial of thirty
thousand disfranchised citizens of Philadelphia (1855) (MC-LOC).
(124) Moses Grandy, Narrative of the Life of Moses Grandy, Late a Slave in the United States of
America (London: Gilpin, 1843) (MAC-CUL).
(125) David Walker 1830. Black speeches and sermons of the antebellum era frequently
combined criticisms of slavery with discussions of the discrimination and prejudice free blacks
faced. Other illustrative examples include Rev. Theodore Wright, Prejudice toward the Colored
Man, October 2, 1837, Liberator (TL-AA) and Andrew Harris, Slavery Presses down upon the
Free People of Color (1839) The Sixth Annual Report of the Executive Committee of the
American Anti-Slavery Society (New York: William S. Dorr, 1839).
(126) Lydia Maria Child (1833,18788). See, similarly, Child, Anti-slavery Catechism (1836)
(MAC-CUL) and Angelina Grimke, Letter VII, Prejudice (1838a).
(127) Antoinette Browns, in Griffiths, ed., Autographs for Freedom.
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(128) The New England Anti-Slavery Almanac for 1841 (Boston: J. A. Collins, 1841), opposite
title page, 16, 20 (MAC-CUL).
(129) Proceedings of the Convention of Radical Political Abolitionists, held at Syracuse, N. Y.,
June 26th, 27th, and 28th, 1855: Slavery is an Outlaw, and forbidden by the Constitution, which
provides for its abolition, New York: Central Abolition Board (MAC-CUL).
(130) Litwack 1961, 1069. Litwack chronicles attempts by free blacks to challenge legal and
extra-legal racial discrimination and violence free blacks faced, including efforts to prevent
blacks from immigrating into northern states (ibid. 74).
(131) See Joseph C. Lovejoy and Owen Lovejoy, Memoir of Elijah P. Lovejoy (New York, 1838),
13756 (McMaster 1923, 47477).
(132) Grimsted (1998, 35) reports 1,218 instances of mob activity across the North and South
from 1828 to 1861. He describes 73 northern antislavery mobs in the prewar era, nearly half of
which occurred in 183438.
(133) The New York Herald, Monday, October 28, 1850, 4 (PHN).
(134) John Mercer Langston, Speech to the Colored Citizens of Ohio, 1850 (Foner and Walker, 1:
25960).
(135) William Lloyd Garrison, Address to the Slaves of the United States, The Liberator, June
2, 1843 (TL-AA).
(136) One revisionist historian, Avery Craven (1957, 13450, esp. 145), argued 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 indoctrination by emotionalizing
politics.
(137) See South Carolina Resolutions on Abolitionist Propaganda, December 16, 1835, reprinted
in Commager 1958, 1:281.
(138) Frederick Douglass, A Plea for Free Speech (1860) (Foner and Branham 1998, 35657).
(139) Despite advances in expressive freedoms promoted by revolutionary reformers, press
rights remained somewhat restricted, particularly for critics such as antifederalists and
abolitionists. Many still adhered to the view that free press meant only that there could be no
prior restraint on publicationnot that citizens abilities to criticize government practices were
protected, or that citizens could not be jailed for engaging in political criticism. State
governments were largely free to punish anything they defined as seditious libel against
politicians or political policies. Radical abolitionists began insisting on greater protections for
speech and press rights under the US and state constitutions. See, for example, Declaration of
sentiments and constitution of the American Anti-Slavery Society: together with all those parts
of the Constitution of the United States which are supposed to have any relation to slavery 1835
(MAC-CUL).
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(140) A Declaration of the Sentiments of the People of Hartford, 1835. Broadside, Old
Sturbridge Village Research Library.
(141) See South Carolina Resolutions on Abolitionist Propaganda, December 16, 1835, reprinted
in Commager 1958, 1:281. See Liberator, May 26, 1837 (TL-AA). See the newspaper accounts
and subsequent discussion of Pennsylvania Hall and other pro slavery violence (McMaster 1923,
49093).
(142) Boston Riot, Hampshire Gazette, Northampton, Massachusetts, October 25, 1835
(EANS).
(143) Correspondence between Lydia Maria Child and Gov. Wise and Mrs. Mason, of Virginia
Boston: The American Anti-Slavery Society, 1860, 67 (MC-LOC). See also Foner and Branham
1998, 331.
(144) Apology for Abolitionists, 1837, http://archive.org/details/apologyforabolit00anti. Postoffice Despotism Becoming Unpopular at the South, New York Times, June 16, 1860, 4 (PHN).
(145) Frederick Douglass, A Plea for Free Speech (1860) (Foner and Branham 1998, 357).
(146) Freedoms Journal, vol. 1, no. 13, p. 51, June 18, 1827.
(147) If it had been presented in legislative chambers, a 1792 petition would have constituted
the earliest effort by black abolitionists to encourage federal emancipation and support black
emigration (predating the petition of Absalom Jones and more than seventy Afro-Philadelphians
in December 1799). Philadelphias black community sought to mobilize a federally backed
program of gradual emancipation, such as a national version of the model of Pennsylvanias
gradual abolition act of 1780. See discussion in Newman et al. 2000.
(148) Petition for redress of grievances, submitted to the US Congress, 1797.
(149) Even in pro slavery regions such as Virginia, some women began petitioning state
legislatures to emancipate slaves (Jeffrey 1998; Sklar 2000; Zaeske 2003). On womens roles in
nineteenth-century politics more generally, see also Cott (1977) showing the difficulty of
womens participation in public affairs, and Ryan (1990) describing the circuitous routes
women traveled to enter public discourse in the nineteenth-century United States.
(150) Zaeske 2003, 25. Zaeske identifies that this is among the first instances in which large
numbers of womenincluding free black womencollectively petitioned Congress in an attempt
to influence national policy.
(151) Petition of Absalom Jones and others, 1799. See also 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; and also to such
individuals as hold them in bondage (Philadelphia: Kimber, Conrad and Co., 1806), 4951.
(152) The first Gag Rule also declared that Congress ought not to interfere with slavery in the
nations capital, as so many antislavery petitions were urging.
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(153) Niles Weekly Register, February 18, 1837, 389. See also Zaeske 2003, 79.
(154) For the Colored American. Our Washington Correspondent, The Colored American (New
York), January 16, 1841 (AAN).
(155) Editor, The Right to Petition, The Colored American, January 21, 1837 (AAN).
(156) See Nye 1949, 37, 53. Gilbert Hobbs Barnes reports that the average number of signatures
per petition in his samples from 1836 to 1840 were: 183637: 32 signatures per petition; 1837
38: 59 signatures per petition; 183839: 91 signatures per petition; 183940: 107 signatures per
petition (Barnes 1933, 266).
(157) See, also William M. Mitchell, The Under-ground Railroad (London: William Tweedie,
1860), 45.
(158) See Trial of Mrs. Douglass for Teaching Colored Children to Read (Commager 1958,
1:32728). Margaret Crittenden Douglass. Educational Laws of Virginia; The Personal Narrative
of Mrs. Margaret Douglass, a Southern Woman, Who Was Imprisoned for One Month in the
Common Jail of Norfolk, under the Laws of Virginia, for the Crime of Teaching Free Colored
Children to Read (Boston: John P. Jewett and Co., 1854).
(159) Charles Lenox Remond, Anti-Slavery Lecture, The Liberator, November 19, 1841 (TLAA). In some other speeches, however, Remond offered Garrisons pro slavery reading of the
Constitution, see, e.g., Remond, Report of the New England Convention, National Anti-Slavery
Standard, July 18, 1844 (AAN). See also Angelina Grimkes more limited argument that all the
slaveholding laws violate the fundamental principle of the Constitution of the United States and
that slaveholders need not consider themselves morally bound by such laws (Grimke 1838a).
(160) J. W. C. Pennington, Covenants Involving Moral Wrongs are not Obligatory Upon Man,
November 17, 1842. Press copyConnecticut Historical Society, HartfordAnti-Slavery
Pamphlets, 1842 (BAA -UDM).
(161) Ibid. For other abolitionist arguments regarding their doctrines of non-support or nonresistance and civil resistance or disobedience, see, e.g., G. W. Perkins, Prof. Stuart and slave
catching: remarks on Mr. Stuarts book Conscience and the Constitution, 1850, 1718 and
Charles Whipple, Non-resistance principle: with particular application to the help of slaves by
abolitionists, 1860 (MAC-CUL).
(162) Reverend Jermain Wesley Loguen, I Wont Obey the Fugitive Slave Law, 1842, reprinted
in Foner and Branham 1998, 226.
(163) William Lloyd Garrison, John Brown and the Principle of Nonresistance, Liberator,
December 16, 1859 (TL-AA).
(164) The Crittenden and Corwin Amendments were proposed in 18601861. The Corwin
Amendment proposed only the last, permanent, constitutional guarantee for slavery suggested
by Crittenden: No amendment shall be made to the Constitution which will authorize or give to
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Congress the power to abolish or interfere, within any State, with the domestic institutions
thereof, including that of persons held to labor or service by the laws of said State. For critical,
contemporaneous responses to these proposals, see The Crittenden Compromise, New York
Times, February 6, 1861 (PHN).
(165) A. E. Grimke, Appeal to the Christian Women of the South, 1836, New York: American
Anti-slavery Society (MAC-CUL). C. L. Remond, Letter to W. Garrison on March 7, 1841, The
Liberator, May 21, 1841 (TL-AA). See also Foner 1970, 1973.
(166) 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 (PHN).
(167) See, e.g., documents from the National Historical Archives included in Berlin, Fields,
Glymph, Reidy and Rowland (1985). Sherman, Special Field Orders No. 15. Savannah, GA.,
January 16, 1865, Headquarters Military Division of the Mississippi, Orders and Circulars, ser.
44, Adjutant General's Office, Record Group 94, National Archives (Berlin et al. 1990, 33840).
(168) The Valley Spirit, August 28, 1867, 2. See also Knights of the Golden Circle, address to the
citizens of the Southern States by order of the Convention of K. G. C. held at Raleigh, N. C., May
7, 1860, 4 (ATC-LOC), and Speech of Hon. J. Ross Snowden, delivered at Philadelphia, Thursday,
September 17. Snowden suggests that abolitionist fanaticism, now taken up by the Republican
Party, has imperiled the very existence of the Union and of constitutional liberty by seeking to
end slavery regardless of the obligations of the Constitution, or the rights of the States, or of
persons or property.
(169) Sympathy Wasted, New York Times, May 27, 1861, 4 (PHN).
(170) William Goodell, Our National Charters: For the Millions . . . (New York: J. W. Alden, 1864)
(Wiecek 1977, 265).
(171) Second Confiscation Act, CHAP. CXCV.An Act to suppress Insurrection, to punish Treason
and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes. U.S.,
Statutes at Large, Treaties, and Proclamations of the United States of America, vol. 12 (Boston,
1863), 58992. See sections 910. In January 1863, Lincoln announced the first version of the
Emancipation Proclamation, which held that that all slaves in rebellious states were free,
pledged monetary aid for any slave states not in rebellion to adopt emancipation, and suggested
the desirability of colonization of freed slaves outside the United States.
(172) The earliest national actions against slavery during the war included General John
Fremonts bold, if thwarted, declaration that all slaves in Missouri were free (which Lincoln
ordered him to modify) and congressional acts ending slavery in the territories. These acts
directly contradicted the Supreme Courts constitutional interpretation of property rights and
congressional power in Dred Scott, as well as the Fugitive Slave Clause.
(173) Daniel H. Chamberlains account of his meeting with Lincoln in Virginia on April 6, 1865.
New York Tribune, November 4, 1883 (Mayer 1998, 568). Foner (2010) describes the
development of Lincolns position on slavery. He describes Lincolns attempts to pursue
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colonization and his shift, in the last two years of his life, toward a stronger stance on abolition,
and, to a lesser extent, equal rights for blacks. Lincoln never wholeheartedly adopted the most
egalitarian elements of radical abolitionism. But he came to express and act on some of these
views, often in response to continued pressure from abolitionists, including his interactions with
Frederick Douglass. For example, Lincoln encouraged judicial adoption of abolitionists ideals by
purposefully placed an abolitionist with explicit antislavery constitutional views on the Supreme
Court through his appointment of Salmon Chase as Chief Justice in 1864.
(174) This research is from Wendy Hamand Venet and is based in the 1860 census, as conveyed
in Zaeske 2003, 171.
(175) Petition To the Union Convention of Tennessee Assembled in the Capitol at Nashville,
January 9, 1865: Newspaper clipping of Andrew Tait et al. to the Union Convention of
Tennessee, January 9, 1865, enclosed in Col. R. D. Mussey to Capt. C. P. Brown, January 23,
1865, Letters Received, ser. 925, Department of the Cumberland, U.S. Army Continental
Commands, Record Group 393 Pt. 1, National Archives (Berlin et al. 1992, 497505).
(176) Foner describes 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 1970, 114, 194). A large body of historical work shows how strongly Republican
leaders of the Thirty-ninth Congress were tied to the abolition movement (Commager 1967, 21).
Alfred Kelly argues that the political upheaval of the Civil War permitted antislavery
Republicans to write abolitionists radical constitutional doctrines into the Constitution (Kelly
1956, 1054). Others similarly argue that unorthodox constitutional ideas advanced by
abolitionists and held by key Republicans are the key to interpreting debates over the
Fourteenth Amendment (see Curtis 1986, 7, 4245, 47 and Amar 1998). More recently, some
describe the Radical Republicans in the Thirty-ninth Congress as Constitutional
Abolitionists (Benjamin Shaw, 1900, 6062, cited in Barnett 2011, 166, 25557).
(177) One commander of Reconstruction forces summarized the problems blacks faced in the
South: if planters cannot get slavery, they try for a despotism next to it. He noted his own
understanding of the goals of Reconstruction, even before passage of the Fourteenth
Amendment: Equality before the law is what we must aim at, including laws and rights that
apply without regard to the color of his skin. Maj. Gen. O. O Howard to Captain Charles C.
Soule, June 21, 1865, all filed as S-17 1865, Letters Received, ser. 15, Washington
Headquarters, Bureau of Refugees, Freedmen, and Abandoned Lands, Record Group 105,
National Archives (Hahn, Miller, ODonovan, Rodrigue, and Rowland 2008, 21522). In Senate
and House debates over the Civil Rights Bill of 1866, representatives repeatedly referred to the
evils of the Black Codes, such as vagrancy laws, which were calculated and intended to reduce
[blacks] to slavery again as positive proof of the need for a congressional enforcement of
blacks rights. Rep. Cook (R-IL), Globe, March 1, 1866, 1123. See also, e.g., Sen. Wilson (R-MA),
Globe, February 2, 1866, 603.
(178) For a detailed description of antebellum slave codes, see Stampp 1956, 20616. For
descriptions of the Black Codes during Reconstruction, see Stampp 1965; Foner 1988.
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(179) One example of such voluntary segregation comes from an anecdote shared by Mamie
Garvin Fields who recalls that whites even segregated days of the week, staying home on
Saturdays because that was the day that most blacks did their shopping, meeting, and greeting
(Ayers 1992, 13334, 13637, 14043). Likewise, as Joel Williamson notes, there were influential
economic, physical, and particularly social and psychological barriers that prevented many
blacks from seeking admission to white-dominated facilities, regardless of whether there were
specific laws in place preventing it (Williamson 1986, 17074).
(180) See Madison Smartt Bell, The Fugitive, New York Times, June 24, 2007, Review of
Beverly Lowrys Harriet Tubman: Imagining a Life.
(181) Petition of Tennessee Freedmen to the Freedmens Bureau Assistant Commissioner for
Kentucky, Tennessee, and Northern Alabama, July 27, 1865. Rev Lewis Bright et al. to General.
Fisk, July 27, 1865, B-36 1865, Registered Letters Received, ser. 3379, TN Assistant
Commissioner, Bureau of Refugees, Freedmen, and Abandoned Lands, Record Group 105,
National Archives (Hahn et al. 2008, 26264).
(182) Thos. B. Davis to Hon. J. Lanox Bond, November 6, 1864, filed with M-1932 1864, Letters
Received, ser. 12, Adjutant Generals Office, Record Group 94, National Archives (Berlin et al.
1992, 37072).
(183) Invoking antislavery ideals, they announced themselves as citizens and as a portion of
the the People, such as a petition penned by We the colored People, of Lincoln County.
Others petitioned the Union government seeking assistance in securing their Equal Rights.
They suggested that postwar southern laws made blacks Landless, Homeless. Voteless, and,
ultimately, this is not the condition of really freemen promised by the Constitution. Petition of
Henry Bram et al. to Major General O. O. Howard, [20 or October 21, 1865], B-53 1865, Letters
Received, ser. 15, Washington Headquarters, Bureau of Refugees, Freedmen, and Abandoned
Lands, Record Group 105, National Archives; Maj. Genl. O. O. Howard to the Committee of the
Colored people of Edisto Island, October 22, 1865, vol. 64, pp. 41516, Letters Sent, ser. 2,
Washington Headquarters, Bureau of Refugees, Freedmen, and Abandoned Lands, Record
Group 105, National Archives (Hahn et al. 2008, 44042). Petition of Henry Bram et al. to the
President of these United States, October 28, 1865, filed as P-27 1865, Letters Received, ser. 15,
Washington Headquarters, Bureau of Refugees, Freedmen, and Abandoned Lands, Record
Group 105, National Archives (Hahn et al. 2008, 44244).
(184) Sen. Wilson (R-MA), Globe, 603. Representative Cook said that laws against vagrancy
included in many Black Codes were calculated and intended to reduce them to slavery again.
Rep. Cook, Globe, 11234. For many similar criticisms of the Black Codes, see Rep. Wilson,
Globe, 1118; Rep. Eliot, Globe, 2773; Rep. Windom, Globe, 1159; Sen. Sumner, Globe, 95; Sen.
Trumbull, Globe, 474; Sen. Clark, Globe, 83334.
(185) In Senate and House debates over the Civil Rights Bill of 1866, representatives repeatedly
referred to the evils of the Black Codes, such as vagrancy laws, which were calculated and
intended to reduce [blacks] to slavery again as positive proof of the need for a congressional
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enforcement of African Americans freedom and fundamental rights. Rep. Cook (R-IL), Globe,
March 1, 1866, 1123. See also, e.g., Sen. Wilson (R-MA), Globe, February 2, 1866, 603.
(186) Antislavery constitutionalists arguments and rhetoric appears throughout debates over
the Reconstruction Amendments and initial Civil Rights Bills, including the first version of the
Fourteenth Amendment proposed by John Bingham and the Joint Committee on Reconstruction
in 1865 and 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. Radical Republicans repeatedly echoed the key rights arguments and
constitutional interpretations that had been espoused by the abolitionists over the prior decades
(ten Broek 1965, esp. 2529, 116, 145, 235; Graham 1968, esp. 155, 23728; Kelly 1956, 1054;
see also Nelson 1988). Henry Steele Commager (1967, 21) points out that many of the
Republican leaders who helped frame and ratify the Fourteenth Amendment were participants
in or strongly tied to the abolition movement, 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. Michael Kent Curtis (1986, 7, 4247) and
Akhil Amar (1998), among others, likewise stress that a significant number of Republican
leaders and public commentators on the amendments adoption expressed at some of the more
common tenets of radical abolitionist thought regarding the Bill of Rights and the Privileges and
Immunities Clauses as guarantees of national rights and citizenship.
(187) Sen. Howard (R-MI), Globe, May 23, 1866, 276566. Howard then explains that currently
the first eight amendments do not operate in the slightest degree as a restraint or prohibition
on State legislation, and there is no power given in the Constitution to enforce and to carry
out any of these guarantees. In light of the current lack of power to enforce the rights of
citizenship found in the Bill of Rights and elsewhere, the great object of the first section of this
amendment is, therefore, to restrain the power of the States and to compel them at all times to
respect these great fundamental guarantees. There is copious evidence challenging Raoul
Bergers (1977) assertions that the Fourteenth Amendment was intended by its congressional
framers and adopters to be read narrowly. For example, during debates over the Civil Rights
Bill, Representative Rogers asks: What broader words than privileges and immunities are to be
found in the dictionary? What right do we exercise under the Constitution, including that of the
right of suffrage, that under this language Congress may not grant the negro? (Rep. Rogers (DNJ), Globe, March 1, 1866, 1121, 1122). In another example, Senator Luke Poland argues that
the Amendments Due Process and Equal Protection Clauses are the very spirit and inspiration
of our system of government, the absolute foundation on which it was established, and these
commitments are essentially declared in the Declaration of Independence and in all the
provisions of the Constitution (Sen. Poland (R-VT), Globe, June 4, 1866, 2961).
(188) Sen. Howard, Globe, May 23, 1866, 2766.
(189) Several of the most prominent regional newspapers ran news accounts of his speech,
including the New York Times, the Philadelphia Inquirer, and the New York Herald, which relied
on Howards speech in its coverage of the amendment, which they described as frank and
satisfactory, and stated that his explanation of the amendment was cogent and clear. In North
Carolina, both the governor and the legislators referred to it as Howards amendment. New
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York Herald, May 25, 1866 (Flack 1908, 142). Governor Worth, Letter to D.H. Starbuck,
September 29, 1866; Wilmington Journal, February 15, 1867, Raleigh Sentinel, November 27,
1866; Fayetteville News, February 12, 1867 (Bond 1997, 55, 58, 69 n. 69). For New York Times
coverage, see May 24, 1866, at 1, cols. 56; Philadelphia Inquirer, May 24, 1866, at 8, col. 2
(Curtis 1986, 89 n. 220).
(190) Rep. Hale (R-NY), Globe, February 27, 1866, 1063.
(191) Lincoln notes, It is also unsatisfactory to some that the elective franchise is not given to
the colored man. I would myself prefer that it were now conferred on the very intelligent, and on
those who serve our cause as soldiers. See, Abraham Lincoln, Last Public Address, April 11,
1865 (Lincoln 1953, 8:400405).
(192) New York maintained a property requirement for black suffrage and in 1865 three other
statesConnecticut, Minnesota, and Wisconsinnarrowly voted down measures to provide
suffrage to blacks on an impartial basis (Van Alstyne 1965, 6970).
(193) See, e.g., Henry Ward Beecher and Wendell Phillips, Universal suffrage, and complete
equality in citizenship: the safeguards of democratic institutions: Shown in Discourses by Henry
Ward Beecher, Andrew Johnson, and Wendell Phillips, 1865 (MAC-CUL).
(194) To the Union Convention of Tennessee Assembled in the Capitol at Nashville, January 9,
1865 (Berlin et al. 1992, 497505).
(195) Representative Niblack, a Democrat, noted that he understood his Republican colleagues
to hold a doctrine of manhood suffrage: that a man, from the fact of belonging to the human
race, is entitled to vote and to be called a man and a brother. I understand them to urge it is a
question of manhood, rather than one that should be dependent on other qualifications, such as
intelligence, moral character, or religion (Rep. Niblack, Globe, February 27, 1866, 1056).
(196) Sen. Sumner, Globe, March 7, 1866, 1229. See also Sen. Wade, Sen. Clark, February 14,
1866, 833; Senator Yates referred to rights of suffrage as great and inalienable rights (Sen.
Yates, June 8, 1866, 3037). In the House, Representative Kelley stated that the right of
franchise is not only property but to the American citizen, the dearest property he owns, and
the proposed Fourteenth Amendment is intended to secure it (Rep. Kelley (R-PA), Globe,
February 27, 1866, 1063).
(197) Democrats vehemently criticized Radical Republicans espousal of the antislavery ideal
that suffrage is in every man, inalienable, and its denial, therefore, is inconsistent and
incompatible with the true object of a free government. If this were actually the case, Senator
Johnson argues, voting should also be a right for the American Indian and female populations,
which would mean that the United States had never possessed a truly republican government
(Sen. Johnson (D-MD), Globe, February 9, 1866, 768).
(198) See, e.g., Gary Willss (1992) argument that Lincolns Gettysburg Address reinterprets the
Declaration to create a new emphasis on equality.
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(199) Abraham Lincoln, Gettysburg Address, November 19, 1863 (Lincoln 1953).
(200) For general studies of Reconstruction efforts and their demise, see Stampp 1965; Foner
1973. While the Supreme Court played an important role in blocking some of Congresss most
important civil rights legislation, Brandwein (2011) shows that courts played a more
complicated role than is typically thought. Some were willing to support various types of rights
claims made by blacks. For broad discussions of the rise and operation of Jim Crow in the South,
see Woodward 1955; Williamson 1984.
(201) For example, Cass Sunstein (1993, 136) argues that Reconstruction affirmed an original
commitment to a set of Founding principles. See also Charles Black (1997, 49, 22, 26, 8789,
13334), who argues that there a continuous line between the principles of the Revolution,
Founding, and Reconstruction that extends to the principles of espoused in the Universal
Declaration of Human Rights in 1948. To be sure, radical antislavery constitutionalists
repeatedly argued that their views reflected the best or most faithful way of understanding the
Declaration, Preamble, and so on. But they were not the natural or dominant readings of these
expressions of fundamental law at the time. And it was tremendously difficult for abolitionists to
persuade leaders or the public that, in fact, goals of emancipation, racial equality, and free and
equal black citizenship were rational, just, or desirable extensions of founding principles of
American constitutionalism.
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Pursuing Equality

University Press Scholarship Online

Oxford Scholarship Online

Print publication date: 2014

Abstract and Keywords

I. The Emergence of Nineteenth-Century Antislavery Constitutionalism and the

Racial Inequality as the Cornerstone of our Republican Edifice

of kidnapping. The US Supreme Court, however, overwhelmingly overturned Priggs conviction

Antislavery constitutionalism is typically associated with a small group political radicals,

Abolitionists discourses shared a basic affinity with those of eighteenth-century revolutionaries,

Treating Constitutional Rights as Trumps and Expanding National Power

piecemeal approach than abolitionists more comprehensive doctrine of national constitutional

To understand abolitionists constitutional reconstruction project, we need to consider this

II. Working to Enact an Antislavery Constitution and Refashion Citizenship and

III. Inscribing Antislavery Commitments in Text: The Reconstruction Amendments

The Unfinished Revolution of Antislavery Constitutionalism and Reconstruction

transformationthe civil rights (p.162) movementto reinvigorate and augment radical

theory of an antislavery constitution. Other extended treatises include Francis E. Brewster,

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