After receiving comments from a number of people, and an insightful critical peer review report from an anonymous reviewer for Harvard’s Journal of Legal Analysis where it will appear next year, I have now posted to SSRN a substantially-revised version of my paper, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment (which you can download at the link). I think it is very much improved as a result of the feedback and additional research. Here is the abstract:
The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that disparaged abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Despite a brief revival of interest stimulated by the writings of Howard Jay Graham and Jacobus tenBroek, abolitionist constitutionalism remains obscure to law professors and even to historians of abolitionism.
This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.
The more one reads these forgotten abolitionist writings, the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came.
I do believe that the debate over the constitutionality of slavery–and slavery-related laws and policies–holds an important key to the debate over original public meaning vs. original framers’ intent, the meaning of the original Constitution, and the meaning of the Fourteenth Amendment. We have lost this perspective due to general acceptance of the Southern historians’ view of “radical” abolitionists, the “radical” Republicans in the Thirty-Ninth Congress, and the supposedly wrongheadedness of Reconstruction. How this shift came about is itself of historical interest, but I do not speculate about it in this paper. What I do hope to accomplish is to contribute to the “revisionist” historiography begun in the 1980s by such historians as William Wiecek and Eric Foner, by recognizing the degree to which the institution of slavery was seriously opposed on constitutional grounds, and how these arguments shaped the origin of the antislavery Republican party and Section One of the Fourteenth Amendment. But this paper is not a work of history. Instead, it is an explication of the largely lost legal arguments made against the Slave Power that historians have largely overlooked or dismissed, in part, because evaluating legal arguments is not their expertise. And I wish to revive the memory of these now obscure figures who fought against slavery both politically and by advancing serious constitutional arguments. So I will name them here (in order of their appearance in the paper): Theodore Dwight Weld, Alvan Stewart, Charles Dexter Cleveland, William Goodell, Lysander Spooner, Salmon P. Chase, Benjamin Shaw, James Birney, Joel Tiffany, Horace Mann, Lewis Tappan, Gerrit Smith, Byron Paine, and Frederick Douglass.