In my first post, I said that the basic premise of the Constitution is that people are fundamentally free, and that political institutions are created through that freedom, and are legitimate only insofar as they respect that freedom. The central value of the Constitution, I argue, is the liberty that the Declaration of Independence proclaims as the birthright of all people.
But can that be what the founders thought? After all, they lived with the institution of slavery, which obviously violated these principles. Can the founders have meant the Constitution to embody a classical liberalism that they were simultaneously flouting? Today it’s common to hear people say that the Declaration’s reference to equality actually only meant white men; that the Constitution was written only for white men—because the authors of these documents owned slaves. There’s one person who comes to mind who believed that the founders’ personal ownership of slaves was dispositive in interpreting the Constitution they wrote: Roger B. Taney. The fact that Jefferson and others owned slaves and did not immediately free them was, Taney asserted in Dred Scott, sufficient to show that they did not mean all men when using the phrase “all men” in the Declaration, and did not mean to include black people among the “people of the United States” referred to in the Constitution. Abraham Lincoln showed at tedious length in his Cooper Union speech how flimsy this argument really is, and it is tragic to see that many people today who consider themselves friends of equality and liberty—including even Justice Thurgood Marshall—endorse Taney’s shoddy Dred Scott reasoning.
Yet we can’t understand Dred Scott unless we understand that Taney was hoping his decision would deal the death-blow to a rising tide of anti-slavery constitutional thinking—a strain of thought that seems to be largely forgotten today and that I argue in Chapter 2 is essential to understanding the post-Civil War Constitution. These anti-slavery thinkers developed a constitutional theory that I, following the scholar Jacobus tenBroek, call “paramount national citizenship.” It was this theory that triumphed in the ratification of the Fourteenth Amendment—a sort of re-founding moment in constitutional law.
Keeping in mind that the anti-slavery lawyers differed among themselves in various ways, as lawyers always do, and that they did not claim to be inventing a constitutional theory so much as rescuing its true meaning from the pro-slavery forces who were perverting it, the theory of paramount national citizenship consisted of two basic elements:
1) The United States as a whole is the locus of sovereignty—not the individual states—and therefore Americans are members of the national body politic first, and of states only secondarily. (This is why secession is unconstitutional.) And since the Constitution is the supreme law of the land,
2) federal citizenship takes primacy over state citizenship, and with that citizenship comes the protection of natural rights and the common-law rights inherited from English history. States have no legitimate authority to deprive Americans of these rights.
These theses were controversial because the Constitution of 1787 didn’t define citizenship. States claimed authority to decide who were citizens, and the States Rights defenders of slavery claimed that this meant states could decide who was and was not a federal citizen. The most extreme of these was Senator John Calhoun, who denied that there was any such thing as an American nation or an American citizen…notwithstanding the Constitution’s textual references to “citizens of the United States” and “natural born citizen.”
Chief among the anti-slavery constitutionalists was one of my great heroes, John Quincy Adams. In a series of pamphlets and speeches written during his post-presidency Congressional service, Adams argued that the Constitution must be interpreted in light of the Declaration of Independence. Drawing on the writings of his father’s generation, he argued that it was the Declaration that created the American union and defined the terms of its legitimacy; the Constitution implemented its principles. Not only did sovereignty reside in the nation as a whole (rendering secession unconstitutional, of course), but that sovereignty was limited by the natural rights of man. The problems with the Articles of Confederation, he wrote,
arose out of a departure from the principles of the Declaration of Independence, and the substitution of state sovereignty instead of the constituent sovereignty of the people, as the foundation of the Revolution and of the Union. The war from the beginning had been, and yet was, a revolutionary popular war. The colonial governments never had possessed or pretended to claim sovereign power. Many of them had not even yet constituted themselves as independent States. The Declaration of Independence proclaims the natural rights of man, and the constituent power of the people to be the only sources of legitimate government. State sovereignty is a mere argument of power, without regard to right—a mere reproduction of the omnipotence of the British parliament in another form, and therefore not only inconsistent with, but directly in opposition to, the principles of the Declaration of independence.
(Again, it’s common today for people to scoff at the founding generation, and even to ridicule the natural rights tradition, because of slavery. But as a friend of mine recently put it, any condemnation of slavery must be on the grounds of natural justice. Slavery is so common an institution, pervasive in history, throughout all cultures and times, that if one is to condemn it, one has no real choice but to resort to the argument that it is unnatural–i.e., contrary to abstract principles of justice that derive their validity from something other than tradition and historical accident. To condemn men like Jefferson for holding slaves, as one should, one must already hold that slavery is wrong–which is a principle for which these very men pledged their lives, fortunes, and sacred honor.)
Adams’ disciples—notably Charles Sumner, William Seward, and Samuel Chase—held that all Americans, regardless of race, were entitled to common law rights and to the natural rights of mankind, and that the states had no legitimate authority to interfere with these rights. Some even considered Barron v. Baltimore to be wrongly decided. Some anti-slavery constitutionalists, including Lysander Spooner, Joel Tiffany, and Frederick Douglass, argued that slavery was already unconstitutional because it violated the privileges and immunities clause of Article IV, the Due Process Clause of the Fifth Amendment, and other constitutional provisions.
The anti-slavery constitutional arguments were not widely accepted at the time, but they were far more popular than today’s constitutional historians seem willing to admit. (With certain important exceptions.) Of course, constitutional arguments that the ordained legal academy reject as silly often turn out to be correct. And the pro-slavery constitutionalists were hardly less extreme in claiming, for instance, that there was no such thing as an American nation or that the framers meant for slavery to be protected forever. In any event, political events and decisions like Dred Scott made clear to anti-slavery constitutionalists that they would have to amend the Constitution—not to proclaim a new order of the ages, but to reassert what they thought had always been the proper reading of the document.
This they did in the Fourteenth Amendment, which proclaimed, first, that all persons born in the United States and subject to the jurisdiction thereof were national citizens first, and state citizens only derivatively. (The Amendment deprives the states of the most basic “sovereign” right of all: the power of determining citizenship. So much for States Rights.) Second, it proclaimed that the “privileges and immunities” of citizenship—a term which included natural and common law rights—would be protected against state interference. It also added additional protections explicitly aimed against state governments.
The Amendment constitutionalized—or, in the view of the anti-slavery constitutionalists, re-constitutionalized—the principles of the Declaration. As Justice Stephen Field said, shortly after the calamitous Slaughter-House Cases robbed that Amendment of much of its meaning, the Amendment
recognized, if it did not create, a National citizenship, and made all persons citizens except those who preferred to remain under the protection of a foreign government; and declared that their privileges and immunities, which embrace the fundamental rights belonging to citizens of all free governments, should not be abridged by any State. This National citizenship is primary, and not secondary. It clothes its possessor, or would do so if not shorn of its efficiency [sic] by [Slaughter-House], with the right, when his privileges and immunities are invaded by partial and discriminating legislation, to appeal from his State to his Nation, and gives him the assurance that, for his protection, he can invoke the whole power of the government.
How did Slaughter-House “shear” the Amendment of its efficacy? I’ll discuss that in my next post.