Abolitionists

The Anti-Slavery Constitution

Tim Sandefur's excellent NRO column

|The Volokh Conspiracy |

Tim Sandefur has an excellent column, The Anti-Slavery Constitution, in National Review magazine that is available online. After a lengthy and accurate summary of abolitionist constitutionalism, here is the payoff last passage:

A year before his death [Frederick Douglass] bemoaned the resurgence of the old canards that the United States was meant only for whites and that blacks should be transported to Africa or somewhere else. "The bad thing," he said, was that this idea had even "begun to be advocated by colored men." The "colonization nonsense tends to throw over the negro a mantle of despair," he said. "It leads him to doubt the possibility of his progress as an American citizen . . . [and] forces upon him the idea that he is forever doomed to be a stranger and a sojourner in the land of his birth, and that he has no permanent abiding place here."

This Douglass could not accept. Black Americans, he insisted, were citizens, entitled to constitutional protections no less than whites were.

The same words apply with equal force to historians and scholars today who, however laudable their motivation to educate Americans about the history and the legacy of slavery, blithely assert that the Constitution was designed as an instrument of racial oppression by statesmen who regarded black people as categorically excluded from the principles of natural rights. That casual endorsement of the thesis of Dred Scott slights the hard work of anti-slavery leaders who, almost from the nation's birth, strove to protect the Constitution from the vicious stain of white supremacy and who later rescued it at the price of blood and fire. It teaches black Americans to doubt the possibility of their progress as American citizens and to imagine themselves forever doomed to be strangers in their homeland. And it shamefully betrays the countless ordinary men and women — their names lost to history — who strove to vindicate the right of Americans of all races to their stake in that "glorious liberty document."

I highly recommend you read the whole thing. Sandefur is the vice president for litigation at the Goldwater Institute in Arizona and the author of Frederick Douglass: Self-Made Man (2018) and The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (2015).  I have not yet read his new book on Douglass, but his book on the Declaration is great and shows you do not have to be a law professor to do good and important legal scholarship.  (The other book on the Declaration I recommend is American Scripture: Making the Declaration of Independence by the late Pauline Meier.)

I have been writing about abolitionist constitutionalism for over 20 years.  My first introduction to abolitionist constitutionalism was Lysander Spooner's The Unconstitutionality of Slavery, which was what first led me to be an originalist. I described his theory in Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner's Theory of Interpretation.

I later learned much more about antebellum abolitionist constitutionalist theories as well as their narrative of the Founding. Two years of reading in the field culminated in my article Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, from which Tim quotes. While I am very proud of this piece, I did mistakenly give Salmon Chase short shrift for the initial role he played in developing these arguments.

I corrected the record in my article, From Antislavery Lawyer to Chief Justice: The Remarkable but Forgotten Career of Salmon P. Chase. And to honor Chase properly, I created the annual Salmon P. Chase Distinguished Lecture, which is given each year in the courtroom of the Supreme Court and cosponsored by the Supreme Court Historical Society. This is followed by a faculty colloquium at Georgetown Law.

The development of abolitionist constitutionalism is a fascinating story, and largely unknown outside a small group of specialists in history and law. What was once just a personal interest of mine has now become a matter of vital importance for those who wish to defend the legitimacy of the Constitution, and even of the United States itself. As an introduction to the topic, you would do well to start with Tim Sandefur's super new article.

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  1. You can, and in fact should, agree that “Black Americans […] [are] citizens, entitled to constitutional protections no less than whites [are]” and “the Constitution was designed as an instrument of racial oppression by statesmen who regarded black people as categorically excluded from the principles of natural rights”

    That the Constitution in 1789 was not for black people is a matter of history. That the Constitution in 1868 was for black people is also a matter of history. Acknowledging that it changed is not to disparage the people that caused that change.

    1. Which clause in the constitution exempted blacks?

      1. Exempted blacks from what? If they’re the chattel to which the (later) due process clause applied–protecting the property rights of white slaveowners in their black slaves–is that not, in your view, an exemption from the original constitutional rights? Article I Sec. 9 Clause 1, then Article IV Sec. 2 Clause 3.

        1. Why do you repeatedly misrepresent Article I, Sec 9. Clause 1, which dealt ONLY with further importation of slaves?

          Article IV is totally irrelevant to the topic. And superfluous to the Article I cite.

        2. Both of these provisions deal with SLAVES, not black people. The constitution has ALWAYS been colorblind.

          There is absolutely nothing in the text that says otherwise — no matter what Democrat justices and politicians claimed.

    2. Escher, I highly recommend David Blight’s recent biography of Frederick Douglass. He began his public advocacy against slavery, and remained for a time, in agreement with you. But then changed to the opposite view, arguing that the Constitution had always been against slavery in its broadest principles, and favored slavery only as a matter of political compromise. That tale of conversion is one of the major themes of a very good book.

      1. I know it’s not PC to call Frederick Douglass dishonest, but yes, he was being dishonest.

        Look, the fundamental point here was in addition to being slave-rapists, the framers were a bunch of liars. They put stuff into their founding documents about equality that they clearly didn’t believe, because it would help sell the things.

        So, if you are an anti-slavery advocate, that gives you an opening. You can say “we just want to hold framers to their word”. It’s a powerful rhetorical tactic. It wasn’t, however, the truth. The truth is slavery was the single non-negotiable principle in the entire constitutional process, the thing this country was founded on. And it appears MULTIPLE times in the Constitution, which also contains all sorts of political structures designed to prevent anyone from trying to ban it.

        The only reason we even have this debate is because the fact that the founders of this country cared about themselves, not freedom, and were evil people who thought their right to rape and exploit their slaves was sacrosanct, is not compatible with people’s notions of their own patriotism. So we have to make up an alternate tale, and Douglass’ strategic dishonesty in support of larger justice is useful for that project.

  2. So many years since abolition and yet the Democrat party’s push to “other” black Americans runs unabated.

    Such consistency is … scary.

    1. Alright, dude. Blacks love voting for the party that’s othering them. Neato.

      1. The Democrat Party had over 70 percent of the black vote when they were planting strange fruit and standing in school doorways. That same party had a lock on those southern whites STANDING in the doorway.

        People are … stupid.

        1. First, that’s hardly a true generalization. Second, voting for FDR was not exactly a vote for lynching.

          I do note that your general conclusion is that black people are stupid.

          Wonder why they don’t vote for your party, with outreach like that. Way to go.

          1. The GOP platform called for federal legislation outlawing lynching while the Democrat party not own failed to do so, leaders fought tooth and nail — going so far as to filibuster any bill offered.

            Blacks and southern segregationists were in the SAME damn party — (much like Jews and Muslims today) . In order to get support from segregationists for his New Deal policies, FDR entrenched redlining in federal housing policy. Issue after issue … if you vote for a party entrenched in anti-black ideology — you get anti-black oppression.

            As you have refused to condemn all racism, it does not surprise me that YOU judge black voters stupid.

            A vote for Democrats WAS a vote for oppression.

            Vote for a party that loves taxation, don’t bitch when your company goes under or moves to Mexico.

              1. Bullshit — the last Republican to win a majority of the black vote was Hoover.

                https://www.factcheck.org/2008/04/blacks-and-the-democratic-party/

                While the GOP of these years was in no where near perfect, it is UNDENIABLE that the Democrats party was racist to it’s core — it was the friggin’ party of Jim Crow!

                1. Republican goobers WHINE about what WAS — “thinking” (lol) that will somehow excuse their shameful CURRENT racism … and their dumbfuck President’s shameful defense of white supremacists at Charlottesville.

                  That’s also why super-wacko Tucker Carlson says BOLTON is a leftist!!! They walk among us. They vote. And they breed.
                  (shudder)

                  FACT: Democrats got better on racism. Republicans got worse. It was “the Southern Strategy” — which conspired with the Klan mentality to seek raw power under Nixon.

                  Shameful.

                  1. The modern Democrat party is STILL racist, just now becoming anti-white and (if the drift continues) anti-Jewish.

                    And, considering the black (and brown) abortion rate, I wouldn’t exactly call them pro those folks either!!!

                    Modern progressive are just as racist bastards as the old ones

                    1. Only a TOTAL Trumptard would “think” that whites are anti-white!!!
                      They’re AFRAID of the TRUTH about THEMSELVES!

                      Now Trump’s totally shameless lie about Charlottesville, sucking up to white supremacists and neo-nazies. Bad enough that he said both sides were to blame. But he also went bat-shit crazy, saying the counter-protesters charged the nazis, swinging clubs. TOTAL psycho.

                      Initial assault, Charlottesville– Nazis and white supremacists attacking ith clubs, against peaceful protesters
                      “Alt-Left” standing peacefully, no visible clubs or bats.
                      Alt-Right Fascists/Racists crash into them en masse, swinging clubs.
                      Fascists are carrying the same shields as cops in riot gear. The motherfuckers CAME for violence.

                      cont’d

                    2. Part2
                      The actual video …Trump’s own voice … stating a PROVEN kie … as a snotty punk.

                      https://youtube.com/watch?v=xgOfyqy1r2o
                      “What about the alt left that came charging at, as you say, at the alt right? Do they have any assemblage of guilt? What about the fact that they came charging with clubs in their hands swinging clubs? Do they have any problem? I think they do,

                      Trump lied … shamefully — to defend Nazi and racist assaults.
                      Alt-left initiated violence – Alt-right
                      Wearing black helmets – Alt-right.
                      Charged with clubs. – Alt-right
                      Says he saw it personally on TV – Obama born in Kenya. (smirk)

                      The KKK felt no shame either.

                    3. And, considering the black (and brown) abortion rate, I wouldn’t exactly call them pro those folks either!!!

                      OMG!! Now he says white racists get black and brown abortions!! Another right-wing bigot who denies that WOMEN also have an unalienable right to Liberty …. same as men!

                      Theses are the Trumptards, folks. (vomit)

            1. As you have refused to condemn all racism, it does not surprise me that YOU judge black voters stupid.

              *yawn* I’m the real racist because I recognize that the system itself is distorted in racial ways, and that racial policies are the least we can do to address that until that’s fixed.

              You’re call black voters stupid for voting based on false consciousness. Glad you’re smart enough to see the full perspective they don’t.

              I guess all those whites voting for the GOP are just smarties.

              1. Self-righteous piece of shit — GTFOOHWTBS

                Racism is wrong — PERIOD. Full stop … end of the conversation.

                The Democrat party was the author of that damn system

                1. And I LOVE how you crouch your white supremacy in that sanctimonious, condescending “white man’s burden” bullshit.

                  As if black folk were somehow “other” or children that need your stewardship — slave days are over dude … let ’em go.

                  Dude defends racial discrimination and thinks others racist. Projection is a HELL of a drug.

                2. The Democrat party was the author of that damn system

                  Which THEY had the guts to abandon.
                  Trump is NOT a Democrat, Sluggo.

                  1. And Trump is a fairly middle of the road 1980’s Democrat (his party for most of his life)

                    1. LIAR

                      Now Trump’s totally shameless lie about Charlottesville, sucking up to white supremacists and neo-nazies. Bad enough that he said both sides were to blame. But he also went bat-shit crazy, saying the counter-protesters charged the nazis, swinging clubs. TOTAL psycho.

                      Initial assault, Charlottesville– Nazis and white supremacists attacking ith clubs, against peaceful protesters
                      “Alt-Left” standing peacefully, no visible clubs or bats.
                      Alt-Right Fascists/Racists crash into them en masse, swinging clubs.
                      Fascists are carrying the same shields as cops in riot gear. The motherfuckers CAME for violence.

                      cont’d

                    2. Part 2

                      The actual video …Trump’s own voice … stating a PROVEN kie … as a snotty punk.

                      https://youtube.com/watch?v=xgOfyqy1r2o
                      “What about the alt left that came charging at, as you say, at the alt right? Do they have any assemblage of guilt? What about the fact that they came charging with clubs in their hands swinging clubs? Do they have any problem? I think they do,

                      Trump lied … shamefully — to defend Nazi and racist assaults.
                      Alt-left initated violence – Alt-right
                      Wearing black helmets – Alt-right.
                      Charged with clubs. – Alt-right
                      Trump saw it personally – Obama born in Kenya

                      Trump went GOP because he’d NEVER get the Dem nomination!
                      What a pack of pathetic losers.

          2. “voting for FDR was not exactly a vote for lynching.”

            Just concentration camps.

            1. Not many argue about the concentration camps these days. Except Michelle Malkin.

              1. You’re the only one arguing here.
                And you’re wrong/

    2. ‘Democrats are today’s real racists’ is among my favorite desperate blurts from Republican clingers.

      No wonder young people find conservatism repulsive.

      1. *sniffs … smells shit*

        The “Rev” must be around.

        1. The alleged civility standards of the Volokh Conspiracy are working, and being enforced, precisely as predicted.

          Carry on, clingers . . . I mean, Conspirators.

  3. This strikes me as an odd and flawed argument. The author argues that there is an interpretation of the Constitution under which slavery was always unconstitutional. This is a perfectly valid legal theory, but not really responsive to the point being made by those who say that the purpose of the clauses of the constitution such as the fugitive slave clause was to support slavery. While it is true as a legal matter that one could argue otherwise, as an historical matter it is not. The constitution contains a number of compromises between free and slave states. Those compromises allowed slavery to continue. Responding to an historical argument with a legal one is unconvincing.

    1. The very fact of free states proves that — whatever faults were in the original text — they were NOT based on racism.

        1. WHOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOSH

    2. By the time Frederick Douglass switched his own advocacy, and started arguing that slavery was unconstitutional, you have an interesting historical argument as well as a legal one.

  4. It wasn’t just abolitionists who thought Dred Scott contained illegal and unreasoned dicta, was it? I thought pretty much everyone who knew any law thought that. It’s a matter of history, though. Did southern lawyers defend the decision? Did any anti-abolitionist northern lawyers defend the decision?

    1. Not only did Northerners defend the decision, they defended it because Supreme Court decisions were the law of the land. Here’s Stephen Douglas on Lincoln’s criticism of Dred Scott:

      “The Constitution of the United States provides that the Supreme Court is the ultimate tribunal, the highest judicial tribunal on earth; and Mr. Lincoln is going to appeal from that. To whom? I know he appealed to the Republican State Convention of Illinois, and I believe that Convention reversed the decision; but I am not aware that they have yet carried it into effect. How are they going to make that reversal effectual? Why, Mr. Lincoln tells us in his late Chicago speech. He explains it as clear as light. He says to the people of Illinois that if you elect him to the Senate he will introduce a bill to reenact the law which the Court pronounced unconstitutional. [Shouts of laughter, and voices, “Spot the law.”] Yes, he is going to spot the law. The court pronounces that law, prohibiting slavery, unconstitutional and void, and Mr. Lincoln is going to pass an act reversing that decision and making it valid. I never heard before of an appeal being taken from the Supreme Court to the Congress of the United States to reverse its decision. I have heard of appeals being taken from Congress to the Supreme Court to declare a statute void. That has been done from the earliest days of Chief Justice Marshall, down to the present time.”

      https://teachingamericanhistory.org/library/document/speech-at-springfield-illinois/

      1. (Douglas was not only a lawyer, he was an ex-judge)

      2. Methinks there is more nuance than you imply.
        Douglas may have had an agenda in speaking against Lincoln, who was hardly an abolitionist at the time.

        1. I had assumed the reader would recognize that Douglas was running against Lincoln, but OK, if I need to be more specific – Douglas was running against Lincoln.

          I don’t think I said Lincoln was an abolitionist.

          I do think that Douglas, unlike Lincoln, was a judicial supremacist.

          1. I’m saying Douglas may not be the right person to cite as an examplar of northern philosophy on the issue.

            1. “Did any anti-abolitionist northern lawyers defend the decision?”

              Yes.

              If he’d asked if any Northern lawyers had *opposed* the decision, I’d have quoted Lincoln, as in his First Inaugural:

              “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

            2. “Douglas may not be the right person to cite as an examplar of northern philosophy on the issue.”

              Examplar? The question was

              “Did any anti-abolitionist northern lawyers defend the decision?”

              1. Except, as discussed, that’s a degenerate case with circumstances that make Douglas idiosyncratic to the set being inquired about.

                Look to the purpose of the question; you don’t address that.

                1. “It wasn’t just abolitionists who thought Dred Scott contained illegal and unreasoned dicta, was it? I thought pretty much everyone who knew any law thought that. It’s a matter of history, though. Did southern lawyers defend the decision? Did any anti-abolitionist northern lawyers defend the decision?”

                  I’m not going to play interpretive games with an Internet post. Textualism, originalism, whatever, I gave the question its most natural interpretation.

            3. Sarcast0, if you concede multiple flavors in northern philosophy, Douglas was a fairly popular flavor. The aftertaste deviled Lincoln through most of his presidency.

  5. I would also come at this from another angle…let’s look at the Constitutional shortcuts the South and its Northern appeasers were willing to make before the Civil War. These examples show that establishing a truly proslavery government meant allowing trampling of essential civil-liberties principles encoded in the Constitution:

    There’s the 10th Amendment, which the South treated as protecting their states only. As for the Northern states, they were not allowed to pass laws protecting the right of their black inhabitants to a fair trial if accused of being slaves – indeed, slave-catchers could remove fugitive slaves from the North without due process, according to the Supreme Court.

    There’s the explicit guarantee of habeas corpus, but the 1850 fugitive slave statute said habeas corpus protect alleged fugitives.

    There’s the Article III guarantee that the U. S. judicial power would be exercised by courts, but in 1850 Congress allowed nonjudicial commissioners to send Northern blacks into slavery (and there’s the different fee depending on whether they ruled for or against the alleged slave).

    Don’t get me started on trial by jury.

    The First Amendment provided freedom the press, but according to federal practice, this didn’t include the right to send antislavery newspapers through the U. S. mail.

    I probably missed some things.

    If slavery is truly reconcilable with even the pre-Civil-War Constitution, why did the slavers have to keep disobeying these fairly important constitutional guarantees?

    1. “There’s the explicit guarantee of habeas corpus, but the 1850 fugitive slave statute said habeas corpus *did not* protect alleged fugitives.”

    2. The 9th (“libertarian”) Amendment is far more applicable here.

      1. Who knows, though I’m not sure that was the direction I was trying to go.

  6. After looking a bit, I am probably wrong. See footnote 42 of the 1997 paper at: https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1357&context=fac_pubs

    1. Mark Graber’s book on Dred Scott makes the point convincingly I think — the decision was not a fluke or ungrounded in US law. https://www.amazon.com/exec/obidos/ASIN/0521861659/reasonfoundation-20/

  7. I know little about the debate over slavery during the Constitution’s formulation. My general sense is many Founders found slavery distasteful, but that description includes many a southerner committed to the institution & dependent on its economic benefits. Jefferson’s ambivalence on slavery is famous, but he still needed slave labor to build his beautiful houses and finance the extravagant luxuries of a cultured gentleman. For all that ambivalence, the partial limitation of slavery’s expansion in the Missouri Compromise still enraged him as an old man.

    Which leads to these questions : If the U.S. Constitution was uniquely formulated to lead to slavery’s ultimate demise, why was the United States one of the last countries to eliminate slavery? Why was it the last major country still pushing slavery’s expansion into new territory? Why did ending slavery require such a brutal war? Some people see slavery’s end as hardwired in our country’s constitutional founding. But considered historically, weren’t we pretty late to the game?

    1. VERY GOOD! Even Mexico abolished slavery long before we did … which is WHY Texas left. England also before we did.

      But in all fairness, we likely took longer because slavery was embedded in our Constitution.

    2. why was the United States one of the last countries to eliminate slavery?

      The cotton gin had something to do with it. That made cotton production with slave labor very profitable and created a much stronger slaveholding class.

      1. Article I Sec. 9 Clause 1 was ratified four years before Eli Whitney patented the cotton gin.

        1. Article 1 is NOT the 13th or 14th Amendments.
          And banning slave trade did NOTHING for slavery. — 50 years before the Civil War. It only banned importing any more.

        2. I don’t get your point.

          What i was saying, which I think is non-controversial, is that the cotton gin made slave-holding much more profitable than it would have been otherwise. Thus the economic and political forces for maintaining slavery were also stronger.

  8. “why was the United States one of the last countries to eliminate slavery?”

    The premise is incorrect. While it is certainly damning that the US failed to end slavery earlier, the US was only near last if you just consider Europe & the western hemisphere. But overall it was probably in the first half of countries.

    Even in the “western world”, some important countries like Spain, Portugal, Brazil, plus some smaller ones were after the US, while Poland and Netherlands were about the same time.

    But most of the rest of the world was well after the US – including most of east Asia (esp. China), most independent African countries, and most (possibly every) country in the muslim world including big countries like the Ottoman Empire, Persia, and Egypt. Some countries didn’t even legally end slavery until more than a century after the US.

    1. Of course you’re right, but the problem was careless wording of my question. I should have said western country or colony, because it was the western tradition I had in mind. Allowing that, I think it’s still a valid problem : Some reaction to the 1619 Project by the New York Times criticized the NYT for over-emphasizing the importance of slavery in U.S. history, missing that the real American exceptionalism was our constitutional origin which assured slavery’s eventual end. There were many variants of the argument that abolition movements built on the Founder’s ideals of freedom and equality. But all countries remotely close to the United State’s cultural tradition had abolition movements, and most were better received. Even in Spain, slavery was already in recession. As early as 1837 Spain abolished slavery outside of its the colonies. In Brazil slavery was a less rigid institution in some ways. There were massively more freed slaves, intermarriage was common between races, and a freed slave found class as much of a problem as race.

      In the U.S. there was a massive economic stake in slavery (invention of the cotton gin had halted signs of its decline), there was a strident & rigid emphasis on race superiority, and American expansionism gave slavery a future it didn’t have elsewhere. Those three factors combined (particularly the last) made slavery more a unique problem for the U.S. than other countries.

  9. Professor Barnett:

    Why isn’t the Supreme Court case about the 1866 Civil Rights Act a huge deal for you? Does Byron Allen’s position in this case fit with your conception of an anti-slavery Constitution?

    https://www.scotusblog.com/case-files/cases/comcast-corp-v-national-association-of-african-american-owned-media/

    Best,
    Dingo

    1. Your link has no relevance to … anything. It’s the home page for a current case, with 11 different links to details, and it deals EXPLICITLY with the 1866 Civil Rights Act – in the very first sentence of the earliest link. Within that Act, Section 1981 is THE relevant issue, so it’s mentioned …. everywhere … often.

      How does the opinion of one African-American billionaire have any importance at all?.

  10. As always, it is great to observe conservatives voluntarily precipitating a discussion concerning blacks, women, gays, Muslims, or any other targets of right-wing bigotry.

    1. In the New Age of McCarthyism, that’s how they “prove” their loyalty, and their subservience to their political elites.

  11. This post and Sandefur’s article do a good job of refuting the claim that the Pre-13th Amendment Constitution was a pro-slavery document, but they utterly fail to prove that it was an anti-slavery one. And there’s a good reason for that: The Constitution could not be an anti-slavery document, or a pro-slavery one, because in either event it could not have been ratified.

    And even if it were true that there were provisions of the Constitution that would have authorized Congress to abolish slavery, before the Civil War there was never a majority in Congress that would have exercised that authority. As for abolition by Constitutional interpretation, even if the abolitionists’ (pretty weak) Constitutional arguments were a lot stronger, before the Civil War there was never a Supreme Court majority that would have held slavery to be unconstitutional — as the Dred Scott case proved.

    There were only two ways that slavery could have been eliminated: changes in Southern economics and mores leading to voluntary abolition; or war.

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