My Article on Abolitionist Constitutionalism

I have blogged about this in the past, but the final published version of my article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment is now uploaded to SSRN. This is the final version as it will appear in the peer-reviewed Journal of Legal Analysis. Because the Journal is migrating from the Harvard University Press to the Oxford University Press, it won’t be posted on the new OUP website until July. But you can read it now! I have been working on this piece for about three years, beginning with a Guggenheim Fellowship in Constitutional Studies. I am very grateful to the Guggenheim Foundation for its support, as well as to Georgetown. The paper has been substantially revised since its first iteration due to excellent feedback from numerous persons I acknowledge in the first footnote. And as I read more, the thesis evolved as well. In particular, I had not realized when I began this project that most of these writers were instrumental in founding the Liberty, Free Soil, and Republican parties. And many of the views expressed here became part of the platforms of these three parties.

As a result of this research, I have become quite interested in the career of Salmon P. Chase who figures prominently in the narrative of this paper. Chase was an antislavery lawyer from Cincinnati who challenged the constitutionality of the Fugitive Slave Acts, defended fugitive slaves and those who aided them, going on to serve as Senator and Governor of Ohio (the first Republican governor in the U.S.), Lincoln’s Secretary of the Treasury during the Civil Way, and Chief Justice of the Supreme Court succeeding Roger Taney. Chase swore in both Lincoln and Johnson as president (an office he tried for more than once) and he presided over the Senate impeachment trial of Andrew Johnson. Three weeks before his death, Chase was also one of the four dissenters in the Slaughter-House Cases and the sole dissenter in Bradwell v. Illinois, which upheld the denial to women of the privilege of practicing law.

The article now begins with these two quotes:

The Fourteenth Amendment is universally presumed to be the outcome of the organized antislavery movement in the United States, yet its modern history continues to be written without reference to the abolitionists. Judges and historians seek an understanding of phrases admittedly designed to secure the ‘‘freedom of the slave race’’ without first examining the tenets of the group which fought longest and hardest to establish that freedom. — Howard Jay Graham, 1950

[T]he fight for liberty in this land was begun by the Radical Abolitionists long before the final battle. They were followed, however, by a class known as Constitutional Abolitionists; equally bold and brave, but more practical. It was the labor of the latter that accomplished glorious results; fought the good battle to a finish and destroyed the slave power. They were among the organizers of the Republican Party. — Benjamin Flowers Shaw, 1900

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, in the 1970s and 1980s 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, many of whom were instrumental in the formation of the Liberty, Free Soil, and Republican parties. 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 the forgotten writings of these “constitutional abolitionists,” 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.

Larry Solum calls it “highly recommended.” As he says, download it here while it’s hot.

Comments are closed.