Jonathan Richie

Nov 12, 2021

6 min read

The Birth and Development of Antislavery Constitutionalism

Today the nature and origins of the founding of America constitute perhaps the most significant historical questions being asked today which bear heavily upon issues of education, public policy, and culture as a whole. Popular curriculum such as the 1619 Project published by the New York Times in conjunction with the Pulitzer Center advocate for a version of history which condemns the Revolutionary War, the Constitution, and the Founding of America writ large as irreparably stained by the issue of slavery, going so far as to suggest that America was created for the explicit purpose of maintaining, perpetuating, and expanding the institution.[1] Although expression of such a sentiment like those by the New York Times is largely derivative from scholarship which better argues such stances, it has nevertheless been radically influential in the national dialogue.[2] But such arguments, in addition to getting a host of things plainly wrong, largely ignore the fact that there existed a different tradition entirely in America regarding the institution of slavery especially as it regards the nature and function of the US Constitution. Often, the only time that antislavery constitutionalism receives any attention is in reference to abolitionists in the 1840s and 1850s such as the Liberty Party, Lysander Spooner, and Frederick Douglass.[3] However, to do this ignores the long and significant heritage upon which their views were founded. The underrepresentation and deliberate disregard to the rich heritage of antislavery constitutionalism which appeared in the nation from the early colonial period provides an expansive area of inquiry.

Although vast oceans of ink have been spilled in debates over whether or not the Constitution in realty promotes slavery or antislavery, the historiography on the origins of antislavery constitutionalism remains relatively scant. Indeed, even in the texts which at least partially investigate the antislavery interpretation of the constitution, by in large they consider the proponents of this ideology, such as Douglass and Spooner, to largely be innovators and the genesis of a distinctly new theory of constitutional interpretation rather than the inheritors of an older tradition. For example, the best book available on the history of specifically antislavery constitutionalism is William Wiecek’s 1977, Sources of Anti-Slavery Constitutionalism in America, 1760–1848.[4] Wiecek practically coins the phrase “antislavery constitutionalism” and sets out to identify the influences which immediately led to the creation of the constitutional theories proposed by Douglass and others. However, he does not consider antislavery constitutionalism to be the continuation of any kind of older tradition which existed in America from the early colonial period. Nor does Wiecek engage with sources prior to the buildup to the American War for Independence, effectively denying that one hundred years of colonial constitutional development has any significant bearing upon the eventual arguments of the antislavery constitutionalism which matured in the 1840s and 1850s.

Even after Wiecek’s important book, studies of antislavery constitutional ideology have continued to be few and far between with almost no attention devoted to its early origins and later development. Outside of direct references or bibliographical annotations to Wiecek’s book specifically, the term “antislavery constitutionalism” appears in only a small company of scholarly texts during the intervening years from 1777.[5] Although some of these texts do an admirable job of investigating pieces and portions of the matured ideological position none of them offer a developed investigation or evaluation of the movement’s beginning. This lacuna of scholarship promises to be full of many new observations and discoveries which will show that the constitutional theories proposed by the Liberty Party and Douglass-style of abolitionists did not represent a significant change in American constitutionalism but rather a continuity with some of the oldest foundational theories in American jurisprudence tradition.

A careful study of the surviving legal codes, court cases pertaining to slavery, and other unique documentary evidence such as religious sermons undoubtedly will show that their existed in America from the earliest period the seeds of a robust antislavery constitutionalism. It will be seen that when African slaves were brought to Jamestown in 1619, the inherently antislavery English system of law most likely absorbed them as indentured servants on the same level as indentured whites as laws permitting slavery did not exist and had to be created at a later date. Furthermore, various restrictions, and regulations seeking the suppression of slavery and the slave trade pervaded the legal codes and legislative halls of the colonies even in contradiction to the dictates of England.[6] By the mid eighteenth century patriot forerunners such as James Otis expressed a developed antislavery constitutionalism explaining that, “The Colonists are by the law of nature free born.…Does it follow that tis right to enslave a man because he is black?”[7] The English King vetoed many legislative attempts to explicitly limit slavery which served as a significant motivating factor for major Revolutionary leaders who explained that, “It was one of the great causes of our separation from Great Britain.”[8] By the time the Constitutional Convention meets in Philadelphia there already existed a deep heritage of antislavery legal thought which arose out of the earlier charters, covenants, and constitutions of the various colonies.[9] Therefore, when Frederick Douglass rejects the constitutional formulations of William Lloyd Garrison in the 1850s he does not stand upon a newly discovered country, but instead on the cumulative product of over two hundred years of jurisprudence development.

Certainly, throughout the course of the dissertation process hundreds of new and additional evidences will be uncovered further showing a rich heritage of antislavery constitutionalism. The absence of any intensive or dedicated scholarship on the long development of the American antislavery legal tradition means that an open field of exciting inquiry lays ready for research. The fruit of such labors will undoubtedly be beneficial to the wider field as it will reframe some of the discussions surrounding the nature of the American founding and the characteristics of its major documents.

[1] Nikole Hannah-Jones, “Our Founding Ideals of Liberty and Equality Were False When They Were Written,” The New York Times Magazine: The 1619 Project (August 18, 2019), 18.

[2] For examples of more scholarly treatment of the themes advanced by the 1619 Project, see, Larry E. Tise, Proslavery: A History of the Defense of Slavery in America, 1701–1840 (Athens: The University of Georgia Press, 1987); George William Van Cleve, A Slaveholders’ Union: Slavery, Politics, and the Constitution in the Early American Republic (Chicago: The University of Chicago Press, 2010); Robert G. Parkinson, Thirteen Clocks: How Race United the Colonies and Made the Declaration of Independence (Chapel Hill: University of North Carolina Press, 2021).

[3] Cf., Frederick Douglass, Oration, Delivered in Corinthian Hall, Rochester, by Fredrick Douglass, July 5th, 1852 (Rochester: Lee, Mann & Co., 1852); Lysander Spooner, The Unconstitutionality of Slavery (Boston: Bela Marsh, 1853); Reinhard O.Johnson, The Liberty Party, 1840–1848: Antislavery Third-Party Politics in the United States (Baton Rouge: LSU Press, 2009).

[4] William Wiecek, The Sources of Anti-Slavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977).

[5] Outside of bibliographical mentions of Wiecek’s book itself, the term appears in few scholarly texts, among which are, H. Jefferson Powell, The Moral Tradition of American Constitutionalism: A Theological Interpretation (Durham: Duke University Press, 1993); Elizabeth Beaumont, The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy (Oxford: Oxford University Press, 2014); David W. Blight and Jim Downs, eds., Beyond Freedom: Disrupting the History of Emancipation (Athens: The University of Georgia Press, 2017); Rebecca E. Zietlow, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction (Cambridge: Cambridge University Press, 2018); Simon J. Gilhooley, The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding (Cambridge: Cambridge University Press, 2020); Jordan T. Watkins, Slavery and Sacred Texts: The Bible, the Constitution, and Historical Consciousness in Antebellum America (Cambridge: Cambridge University Press, 2021); James Oakes, The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution (New York: W. W. Norton & Company, 2021).

[6] For a list of many of these laws see Chapter 1 in, Arthur Zilversmit, The First Emancipation: The Abolition of Slavery in the North (Chicago: The University of Chicago Press, 1968).

[7] James Otis, The Rights of the British Colonies Asserted and Proved (Boston: Edes and Gill, 1764), 29.

[8] George Mason, in Jonathan Eliot, The Debates, Resolutions, and Other Proceedings in Convention, on the Adoption of the Federal Constitution (Washington: Printed by the Editor, 1828), 2.335.

[9] Examples will be found in, James Madison, Journal of the Federal Convention (Chicago: Scott, Foresman and Co., 1898); Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: Jonathan Elliot, 1836).