14 minute read
The Abolitionist Roots of Civil War Constitutionalism
by Dr. Manisha Sinha
(Title image) Produced in Boston, MA, this illustration (above) exemplifies the antagonism between Northern abolitionists and supporters of the Fugitive Slave Act of 1850. William Lloyd Garrison is featured on the left protecting a slave woman and pointing a pistol toward a slave catcher. Lithograph, 1851. Image: Library of Congress.
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On the eve of the Civil War, when the success of the Republican party seemed imminent, most abolitionists felt that they and the Republicans, who were committed to the non-expansion of slavery, were part of a grand antislavery coalition. The relationship between the abolition movement, whose goal was immediate emancipation and black rights, and political antislavery was intimate and symbiotic. We cannot however collapse abolitionism into Republicanism or vice versa. The politics of abolition, like its constituency, was multi-faceted, diverse, and contentious. No one slogan or program can encapsulate it except perhaps “human rights,” a term abolitionists first popularized. Radical Republicans like Thaddeus Stevens and Charles Sumner made it a touchstone for reconstructing American democracy after the Civil War.
From the creation of the American republic to the sectional controversies over abolitionist petitions, fugitive slaves, and the extension of slavery, abolition and political antislavery were allied. Not only did the roots of antislavery constitutionalism lie in abolition, but radical free soilers were either political abolitionists themselves or had close ties to the movement. If we were to draw a Venn diagram to represent abolition as a social movement and antislavery political parties, Radical Republicans would inhabit the middle of two overlapping circles. This antislavery platform, call it “freedom national” á la Sumner or the “denationalization of slavery” like Salmon P. Chase, was not abolition but it could lead or pave the way to abolition. Most abolitionists understood that as did most deep south slaveholders, who viewed the election of Abraham Lincoln as an existential threat and as good reason to secede from the Union.
Abolitionists’ rich debates over the nature of the Constitution and the use of law and state action to not just destroy slavery but also establish African American citizenship had fed into that outcome. If antislavery constitutional theory was the vehicle through which Republican politicians pushed the abolitionist agenda, its abolitionist roots deserve more attention. Sectional compromise and the desire to preserve the Union and reverence for the Constitution thwarted abolitionist aims.
Abolitionists combined radical rhetoric with circumspect means, reviving early antislavery petition campaigns to Congress for abolition in the District of Columbia and against the admission of new slave states. Yet they were frequently the target of mob violence, north and south, as fanatics who threatened the Union and Constitution. Their “promiscuous” meetings, which included blacks and women, did not help. The lessons of the 1830s, made William Lloyd Garrison and his followers move towards a critique of the church and state and women’s rights. Garrison’s critics sought to purge the movement of his heresies that threatened to make abolition even more unpopular.
But far from being an extremist minority, abolitionism had an impact on the national political arena, leading southerners to make respectful enquiries of James Birney, secretary of the American Anti Slavery Society (AASS), founded in 1833, on the exact strength of its affiliates’ membership. In 1838 Theodore Weld published The Power of Congress over the District of Columbia, in which he argued that the constitutional power of the federal government to legislate for the District was so clear it “defies misconstruction.” Weld also researched the “rights of colored citizens under the U.S. Constitution,” insisting that the Constitution’s equal privileges and immunities clause applied to free African Americans, who were citizens of the northern states. Abolitionist ideas made headway when federal courts held that the southern states’ Negro Seamen Laws, which imprisoned all free black seamen visiting southern ports, violated the Constitution and American treaties.
The next year the abolitionist Judge William Jay explicitly connected the powers of the federal government with black citizenship. Despite holding “our fathers,” here the son of John Jay was speaking literally, guilty of the constitutional compromises over slavery, he argued that the Constitution recognized no differences based on color, but the federal government “oppress[ed] and degrade[d] the free people of color” of the District of Columbia. A host of petty restrictions aided slaveholders “in trampling upon those great principles of human rights” by operating on the assumption that all free blacks were fugitive slaves. Jay listed the names and stories of blacks held in D.C. prisons and who at times were sold as they had no slaveholding claimants.
Domestically and internationally, the U.S. government acted as the handmaiden of slavery, violating constitutionally guaranteed rights of citizens, upholding the domestic slave trade and slavery. The federal government not only sustained but subsidized slavery, reimbursing its functionaries, particularly army officers in the frontiers, for employing slave labor. Implicit in Jay’s argument was the notion that northerners should redeem the federal government from being a tool of “the Slave Power.” In a companion pamphlet on the “Condition of the Free People of Color,” Jay listed the disabilities on black citizenship in the slaveholding republic, the lack of “elective franchise,” denial of rights of “locomotion,” “impediments to education,” susceptibility to enslavement, and “subjection to insult and outrage.”
Unlike Weld and Jay who conceded that the federal government had no authority to interfere with southern slavery, some Liberty party (formed in 1840) constitutionalists went much further. A Liberty party founder, Alvan Stewart argued that the Constitution’s guarantees of citizenship, which were violated by slavery, allowed the federal government to abolish slavery in the southern states. He pronounced slavery unconstitutional on the basis of the Fifth Amendment, which stipulated that no person could be deprived of life, liberty, and property without the due process of law. In “A Constitutional Argument on the Subject of Slavery,” Stewart urged that the federal government ought to abolish slavery in order to fulfill the constitutional guarantee of republican government in the southern states, this reasoning would be invoked to justify Reconstruction after the Civil War, and in accordance with the general welfare. He died in 1849, and though free soilers rejected his constitutional views, Stewart influenced radical political abolitionists.
The emergence of political abolitionism forced Garrison and his allies to develop their own stance on politics, often mischaracterized as an outdated adherence to moral suasion or as apolitical. Rejecting electoral politics, Garrisonians developed the politics of agitation. The fugitive slave controversy played a crucial role in Garrison’s rejection of what he called a proslavery Union and Constitution. In 1842, Chief Justice Joseph Story in the Supreme Court case Prigg v. Pennsylvania declared northern personal liberty laws that gave free blacks and suspected fugitives certain legal protections, due process and trial by jury, unconstitutional. That year, Garrison announced his doctrine in The Liberator, “a repeal of the Union between northern liberty and southern slavery is essential to the abolition of one, and preservation of the other.” This was a concerted attack on slaveholders’ political power and not a retreat into inaction. By 1844, the official policy of the AASS became “no union with slaveholders.” The Union Garrison pointed out in his “Address to the Friends of Freedom and Emancipation in the United States,” was bought “at the expense of the colored population of the country.”
Unknown to historians, Garrison derived his famous indictment of the Constitution as “a covenant with death” and an “agreement with hell” from the black abolitionist Reverend James W.C. Pennington. In 1842, at the height of the controversy over the fugitive slave George Latimer in Massachusetts, Pennington delivered a sermon to his Hartford congregation, Covenants Involving Moral Wrong are not Obligatory Upon Man, which began with a quotation from the Book of Isaiah, “And your Covenant with Death shall be Disannulled, and Your Agreement with Hell Shall not Stand.” He argued that “laws and compacts designed to legalize the system of human bondage” ought to be swept away as they involved disobedience to God. Pennington evoked a higher law, long before it became popular with antislavery politicians such as William Seward in the 1850s. Pennington ironically was associated with the anti-Garrisonian, Tappanite wing of the abolition movement. Garrison extended Pennington’s Biblical indictment of the fugitive slave clause and law to the entire Constitution when Anthony Burns was remanded back to slavery from Boston in 1854.
The abolitionist debate over the Constitution prefigured the Civil War and Reconstruction debates over the powers of the federal government, federalism and states’ rights, emancipation, and citizenship rights. Garrisonians’ and political abolitionists’ stances on the nature of the Constitution developed in response to each other but were united against proslavery constitutionalism. In 1844, Wendell Phillips, a lawyer by training, presented the full-blown Garrisonian argument in "The Constitution A Pro-Slavery Compact." Mining James Madison’s notes on the constitutional convention, first published in 1840, Phillips concluded that the Constitution was an “infamous” bargain that proved “the melancholy fact” that “our fathers bartered honesty for gain, and became partners with tyrants, that they might profit from their tyranny,” a radical abolitionist indictment of their sacrosanct liberty-loving reputation. The AASS published an expanded version of Phillips’ pamphlet with an endorsement from its executive committee. It went through three editions, meriting a response from abolitionists in the Liberty party.
William Goodell’s Views of American Constitutional Law in its Bearing upon American Slavery (1844) and Massachusetts lawyer Lysander Spooner’s The Unconstitutionality of Slavery (1845) were the most detailed expositions of the political abolitionist position. Goodell argued that slaveholders’ proslavery reading of the Constitution was based on their rejection of democracy, their defense of slavery, and contempt for the laboring masses, black and white. He refuted it with their own principle of strict construction arguing that the Constitution did not recognize slavery since it only alluded to “persons.” Even the three-fifths clause, Gerrit Smith argued, could not prevent a northern majority from voting in an antislavery government, which is exactly what happened in 1860 with Lincoln’s election.
Similarly, according to Spooner, all law, especially constitutional law must be based on principles of natural rights and justice. The Constitution recognized all people including blacks as “citizens.” Furthermore, the preamble referred to all the people of the United States, not just whites or free people, as citizens of the country. The only guarantee in the Constitution concerned not slavery, despite the “arrogant” and “bombastic” claims of slaveholders, but a republican form of government, which slavery contravened. (The constitutional clause used to justify Reconstruction after the Civil War.) Spooner concluded that the Constitution guaranteed that all the children of slaves were born free and ought to be freed immediately by federal judges.
Antislavery politicians were able to distill the most effective constitutional strategy from this abolitionist debate. The person who best developed “Constitutional Antislavery” was the Ohio lawyer, politician Salmon P. Chase. Chase reassured northerners of the constitutionally legitimate nature of the antislavery political project. Conceding ground to the Garrisonians, he argued that the Constitution protected slavery in the southern states but made it the duty of the federal government to act against slavery in areas under it, the District of Columbia, the federal territories, the interstate slave trade, and the fugitive slave clause. His notion of the “divorce” of the federal government from slavery became incorporated into the Liberty Party platform of 1844 and his slogan the “denationalization of slavery” became the rallying cry of the Free Soil party, founded in 1848 after the Mexican war. It was perhaps fit that this adept theorist of antislavery constitutionalism succeeded Roger Taney, the avatar of proslavery constitutionalism and author of the infamous Dred Scott decision, as Chief Justice of the United States Supreme Court. Sumner’s “Freedom National” concept was also based on the argument that it was the duty of federal government to promote antislavery. Sumner disputed the constitutionality of the federal Fugitive Slave law, which he always referred to as an illegitimate “bill.”
But the last word on antislavery constitutionalism belongs to the great black abolitionist Frederick Douglass. In 1851, Douglass announced his conversion from the Garrisonian doctrine that the Constitution was a proslavery document to the argument that it was antislavery. Like most political abolitionists, Douglass insisted that constitutional guarantees of citizenship rights included African Americans. He went further. The original intent of its framers, many of whom he well knew were slaveholders, Douglass implied, was irrelevant. This claim was bold in the context of nineteenth century American constitutionalism when both slaveholding southern and antislavery northern politicians regularly sought to enlist the founders on their side of the sectional conflict. Anticipating modern constitutional theorists, Douglass argued that the Constitution was a living document whose democratic promise must be extended by subsequent generations. As he put it in his speech, which was published as a pamphlet, The Constitution of the United States: Is it Pro-slavery or Anti-Slavery, slaveholders had given the Constitution a “proslavery interpretation” but it “will afford slavery no protection when it shall cease to be administered by slaveholders.” Douglass did invoke the founding generation and their ideals, but he asked his and future generations to imagine black citizenship. By refusing to be held hostage to the original intent of the Constitution’s framers, as if that is even discernible, Douglass anticipated its remaking after the Civil War.
In the end, both the Garrisonians and political abolitionists were proven right. Slavery was abolished through political action but in the midst of the enormous bloodletting of the Civil War, a covenant with death indeed. Slaveholders’ armed rebellion uncoupled slavery from the Union and Constitution. For long, abolitionists, like modern political theorists, had debated whether the American government was a tool of the “Slave Power,” or whether it was an arena of conflict, susceptible to antislavery influence. Lincoln’s competing loyalties to the Union and Constitution had moderated his antislavery beliefs through much of his political career. During the revolutionary crisis generated by southern secession, Lincoln’s competing political loyalties became compatible. The war allowed a majority of northerners to align their commitment to the Union and, most importantly for a lawyer like Lincoln, to the Constitution, with emancipation in the southern states.
Abolitionist constitutional thought, based on a vindication of black citizenship rights, also bore fruit during the crisis of the Union. When Lincoln, criticized by abolitionists like Frances Ellen Watkins Harper for supporting the colonizing of free blacks out of the country, endorsed limited black suffrage before his death, he inhabited abolitionist ground. Harper wrote,
Let the President be answered firmly and respectfully, not in the tones of supplication and entreaty, but of earnestness and decision, that while we admit the right of every man to choose his home, that we neither see the wisdom nor expediency of our self-exportation from a land which has been in large measure enriched by our toil for generations, till we have a birth-right on the soil, and the strongest claims on the nation for that justice and equity which has been withheld from us for ages—ages whose accumulated wrongs have dragged the present wars that overshadow our head.
Lincoln became the first American President to advocate black citizenship. Reconstruction, fueled by the refusal of former slaveholders to accept emancipation and Andrew Johnson’s restoration, had long roots in abolitionist constitutionalism. For it to triumph fully, new federal laws guaranteeing black civil rights had to be passed and the Constitution would have to be remade with the Thirteenth, Fourteenth, and Fifteenth Amendments. The fight for black citizenship propelled American state formation during Reconstruction. Until today, reinforced by the events of the Civil Rights movement, the black view of the federal government as the guardian of citizenship rights stands in glaring contrast to conservatives’ states’ rights and anti “big government” views.
After 1877, the narrow reading and misreading of Reconstruction amendments and federal laws by the Supreme Court would eclipse Civil War constitutionalism, a counterrevolution completed in Plessy v Ferguson (1896) that legitimized Jim Crow. But it had been the long abolitionist struggle for equal black citizenship that flowered during Reconstruction, its promise cut short by racist terror, disfranchisement, segregation, debt peonage, and convict lease labor in the south that made a mockery of black freedom. END
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Dr. Manisha Sinha is the Draper Chair in American history at the University of Connecticut and the author of, The Rise and Fall of the Second American Republic: Reconstruction, 1860-1920 (Forthcoming Liveright, March 2024).
