The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.