"Constitutions as Ways of Life; Rights as Political Practices: Using Theory and History to Reframe American Constitutional Politics"
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Draft – please do not cite or circulate without permission.
This paper is a work-in-progress stemming from a larger book project examining the role of civic participation in constitutional theory and politics, with particular attention to the ways in which citizens have understood, argued about, practiced, and helped transform constitutional rights and liberty during critical historical periods. The broader project challenges dominant accounts of constitutional theory and seeks to excavate and reinvigorate the notion of a civic constitution in which engaged citizens play a pivotal role in defining and transforming constitutional principles. I call this distinctive form of civic engagement public guardianship of liberty, the beliefs and activities that treat the Constitution and rights as res publicae – public things and matters of public concern and shared responsibility. I argue that this form of constitutional politics is not only a recurring mechanism for constitutional interpretation and change, but it bears witness to a more powerful -- and more empowering -- view of constitutional rights and liberty. My goal, in part, is to reorient the way we think and talk about constitutions and the relationship between people and constitutions, encouraging us to recognize the ways in which constitutions are defined by the “ways of life” of the people, as Aristotle urged, and the ways in which rights are defined by political practices, including the beliefs and actions of ordinary people.
At first glance, these ideas that citizens participate actively and creatively in shaping Constitutional rights and commitments -- the meaning and institutionalization of the fundamental principles of the political community -- may seem indisputable. Some may even wonder how anyone could reasonably think otherwise. Yet the vast body of modern constitutional theory gives little attention to popular constitutional debates, judgments, and activities. As a result, Aristotle’s classical notion of a civic constitution, or the perception that constitutions and citizens are interdependent and that constitutions are as much shaped by citizens as citizens are shaped by constitutions, seems all but lost. Citizens are rarely recognized as creative and influential constitutional thinkers and actors. Instead, people remain ghostly figures, appearing as passive spectators to constitutional politics and rights developments spearheaded by judges and presidents (Wolin, Fugitive Democracy 1996). Ironically, some of the most prominent scholarship on popular constitutionalism gives surprisingly little attention to the constitutional ideas and actions of engaged citizens and civic groups (Ackerman 1993, 1998; Kramer 2004). These failings leave us with a constitutional system whose legitimating principles of popular sovereignty and participation in self-rule seem to have been rendered empty or fictional. Moreover, it prevents us from recognizing the multiple stages on which rights play out, and appreciating the extent to which public involvement in constitutional politics helps define and reform our constitutional rights and commitments.
To demonstrate how the concept of public guardianship improves our understanding of the United States Constitution, and of constitutional democracy, the book project revisits several historical periods of constitutional conflict and development, illuminating the ways in which citizens’ constitutional arguments and activities have contributed to revolutionary reinterpretations – even re-foundings – of the constitutional order. Drawing on a range of primary and secondary literature, particularly the letters, petitions, publications, and accounts of the political activities of a range of activists and groups, I show that popular constitutional judgments and actions have played a dramatic and creative role in four revolutionary shifts -- constitutional founding and adoption of the Bill of Rights, abolition of slavery, women’s suffrage, and passage of national civil rights legislation. I advance a combination of conceptual, normative, analytic, and descriptive claims to make a case for conceiving of the American constitutional project as a story of changing constitutional understandings and rights arguments and activities spun as much from the minds of engaged citizens as from political leaders.
Along the way, I challenge some mainstream currents in constitutional theory, arguing that failure to recognize the role of the public in shaping the constitutional order is not merely an empirical flaw that can be addressed by including a wider range of voices. The deeper problem is theoretical and normative. It has as much to do with how we conceive of the American constitutional project today as it has to do with how we view the Constitution in history. If constitutional democracy is to be more than a mirage that flickers and disappears on approach, we need a thicker account of the role of people and groups in defining the Constitution’s core public commitments, its principles of justice and legitimacy. And if constitutional liberty and rights are to exist as something more than parchment promises, we need to appreciate of the ways in which many relatively ordinary people have worked toward reimagining and realizing these ideals.
I am not arguing that public participation in shaping the meaning of fundamental Constitutional rights and principles always leads to wiser or more just constitutional settlements. Indeed, the competing constitutional visions asserted by engaged citizens during historical periods can be disheartening as well as inspirational. Civic participation in American constitutionalism has sometimes contributed to fairer, freer, and more egalitarian constitutional commitments and practices, but it can also contribute to oppressive and inegalitarian permutations of the constitutional order.
But even if public involvement in defining public constitutional commitments cannot guarantee outcomes with which wise moral philosophers would agree, I argue that this involvement is valuable because it upholds and embodies crucial elements of constitutional liberty: participation in meaningful self-government through what I call public guardianship of liberty. This liberty includes the creative power of the people to help define what it means to possess constitutional rights and to participate in directing our public purposes and influencing our shared national identity. Constitutional scholarship has not recognized or appreciated these aspects of constitutional liberty, or our ability to share in power over and responsibility for what we jointly, as a political community, express as our fundamental public commitments, and the ways in which we define and apply these public commitments in practice.
A project of this size and scope is not without its challenges. Tracing origins, specifying processes of social and political change, and conceptualizing emergent phenomena are all difficult tasks. I try to bypass some of these difficulties by avoiding the temptation of trying to offer a complete explanation or general theory of constitutional development. Rather, I seek to identify broad patterns of popular participation in important constitutional changes for which there is much compelling empirical evidence, and argue that this expanded vantage opens important windows on constitutional theory. The strength of this approach lies less in its causal claims than in its conceptual and normative contributions, and the ways in which it tries to illuminate the important notion of democratic or popular constitutionalism through careful conceptual treatment and empirical support.
Below, I turn to a well-known period of constitutional crisis – the abolition movement, Civil War, and Reconstruction (roughly 1830-1880) -- as a case study of the public face of constitutional rights and the role of many engaged citizens in redefining constitutional principles through their arguments and actions. The draft is preliminary, and I have large collection of examples of popular constitutional argument from primary sources that I have not yet been able to incorporate. But the paper begins to trace a set of general arguments about the role of anti-slavery activists in defining rights and reshaping fundamental constitutional commitments we now take for granted.
Abolition as a Constitutional Project
“[W]e all declare for liberty; but in using the same word we do not all mean the same thing.” - Abraham Lincoln, “Address at Sanitary Fair, Baltimore 1864
Draft: Please do not share or cite with permission from the author.
In combination, the Thirteenth, Fourteenth, and Fifteenth Amendments prohibit slavery and indentured servitude throughout the United States, establish national citizenship for all native-born and naturalized persons, prohibit states from depriving individuals’ liberty without due process of law, and equal protection under law, and prohibit racial discrimination in states’ voting laws. While these provisions are widely recognized as embodying a set of fundamental constitutional principles that transformed the original Constitution, disagreements over how we should understand these principles are a foremost problem in constitutional law and a central concern of American politics, from issues involving labor regulations (Lochner v. New York), uses of “grandfather clauses” and all-white primaries to restrict voting (Guinn v. United States and Smith v. Allwright ), and criminalization of homosexual intimacy (Bowers v. Hardwick and Lawrence v. Texas). For constitutional theorists across the political spectrum, understanding the Post-War Constitution and the “majestic generalities” of the Fourteenth Amendment’s due process, equal protection, and privileges and immunities clauses often hinges on the constructions of political leaders. The opinions of the Supreme Court typically take center stage, but some attention is given to the views of President Lincoln and leaders of the 39th Congress and the constructions of leaders that followed.1 Such conventional accounts of the Reconstruction Amendments offer valuable knowledge, but they also contribute to a limited and skewed perspective on constitutional meaning and change, preventing us from fully understanding the sources, scope, and substance of revolution of constitutional rights and principles reflected by the Civil War Amendments.
In this chapter, I argue that only by exploring the ways in which a broad range of anti-slavery activists theorized about the constitution and worked politically to redefine its meaning-- the meaning of fundamental constitutional commitments to a national political community characterized by active national citizenship and rights and institutions necessary for republican government, substantive personal liberty, equality under law -- can we fully understand the innovative constitutional principles that paved the way for the Reconstruction Amendments. Paying attention to the interactions between abolitionists’ constitutional work and that of state and national political institutions provides a more nuanced understanding of how large-scale participation in rights talk and practice shaped some of the most important principles of the U.S. Constitution. And we come to see many engaged citizens whose voices are generally overlooked by constitutional scholarship as constitutional theorists, agents, and actors participating in defining and transforming the constitutional order. The set of ideas that infused the Reconstruction Amendments, including the thinking of key political leaders who guided the amendment process, including Abraham Lincoln and important figures of the 39th Congress, were shaped by this popular constitutional movement. We can better understand what our constitution is and what it has become by recognizing how many of the animating principles we attribute to the Constitution itself -- or to the Founders, Supreme Court Justices, or other political leaders -- were first envisioned and then carefully crafted through public guardianship of rights.
By the 1830s, a growing number of abolitionists were engaging in a politics of rights that revolved around asserting creative, radical claims about constitutional principles, framing political debates over slavery in terms of these principles, and pressing political leaders and institutions to uphold these principles through their actions. For example, in 1837, the New England Anti-Slavery Convention rejected prevailing pro-slavery constitutional interpretations, arguing that the most fundamental constitutional principles are those protecting personal liberty, and the priority of these principles points to the impermissibility of slavery: “The whole system of slavery is unconstitutional, null and void… So far from the Constitution authorizing or permitting slavery, it was established to guard life, liberty, and property."
I contend that abolition should be understood as a constitutional project and that the pattern of broad civic involvement surrounding slavery exemplifies public guardianship of constitutional liberty, treating constitutional rights as public concerns and a focal point for political challenge and renewal. Indeed, many who participated in anti-slavery work explicitly recognized and defined their role as one of defining and defending the “fundamental principles of liberty” they considered founding national commitments and viewed as necessary for just, legitimate constitutional governance:
There is imminent danger that the fundamental principles of liberty will be lost even in the free states unless the minds of the people are aroused to consider them in their particular bearings on the subject of slavery. When our nation was founded, the truth of these principles was deeply felt by all, and there was an entire opposition between them and the system of slavery.…2
They called for serious national reflection on “great principles of freedom” warning that “unless as a nation we are aroused to consider them again,” the nation will be ruined, since even though many people talk about freedom, by failing to address freedom in light of on-going slavery, “we are losing the very elementary ideas of what freedom is…”(ibid). Anti-slavery activists like this saw themselves as rousing the nation to recognize the extent to which the public commitment to freedom represented by the Constitution was irrevocably violated under the reigning constitutional order.
Using various tools of communication and influence, anti-slavery advocates like this used rights talk and constitutional arguments as immanent criticism to challenge slavery, construing core constitutional principles in new and unorthodox ways and seeking to dramatically refashion dominant constitutional culture and practice.3 In voicing and acting on their constitutional judgments, those who participated in anti-slavery work sought to grow the movement, influence public opinion and set the terms of political debate, and pressure local, state, and national politicians to govern in accordance with these judgments. The anti-slavery constitutional vision became increasingly important in American politics, framing the major controversies of the era around their understandings of fundamental constitutional principles, influencing the views and actions of political leaders and parties, and ultimately providing the theoretical underpinnings of the new constitutional architecture embodied in the 13th, 14th and 15th Amendments.
To understand the ideas and influence involved in the rights claims and constitutional interpretations advanced by anti-slavery advocates, I consider some key elements of emerging anti-slavery constitutionalism. I then sketch some of the ways in which anti-slavery activists used these rights claims and practices to frame political debates and shift the opinions of ordinary citizens and leaders. Their web of arguments and actions challenged dominant constitutional norms and practices and sought to overthrow the pro-slavery constitutional ideology and remake the constitutional order. As hundreds of examples from the anti-slavery movement demonstrate, abolitionist activists were not simply appealing to judges, courts, or elected politicians to ask them to end slavery or to extend an existing corpus of national constitutional rights to Blacks. They were transforming, through word and deed, what it meant to possess constitutional rights, what it meant to be a citizen in a republic, what kinds of laws and political structures free institutions require, and who has authority to interpret, judge, and reimagine the constitutional order.
While the federalist constitutional ideology that surrounded adoption of the Bill of Rights centered on popular consent, state citizenship, negative liberty, common law rights and states’ rights– principles that stressed national non-interference in the customary rights of individuals and the political autonomy of state government, the anti-slavery constitutional ideas and actions that laid the groundwork for the Reconstruction Amendments redefined the Constitution’s public commitments. They articulated three overlapping principles they believed were required for a genuine constitutional republic. The first is rights of active national citizenship: the Constitution is not legitimated solely through an initial act of popular consent and ratification, it must guarantee national freedom and on-going republican government within and across states by protecting capacities for political speech, action, and influence of ordinary people throughout the national political community, including rights to political criticism (which could be punished as seditious libel under common law). The second is the priority of substantive personal liberty: the Constitution is not a guarantee of national non-interference with traditional common law rights or states’ rights, or solely a set of limitations on national government with respect to personal liberty. Rather, it is responsible for protecting the substantive liberty of individuals to direct their own lives and labor as free, autonomous persons (a principle lawyers would construe as “substantive due process”), and should prioritize and protect national freedom and personal liberty over other constitutional commitments . The third is racial equality under law: Black Americans must be recognized as citizens and members of the political community entitled to equal treatment under law, and states cannot maintain de facto slavery through discriminatory laws. (Notably, the abolitionist constitutional ideology stopped short of national voting rights or equal rights and equal opportunity.) These three anti-slavery principles framed the public backdrop of the Reconstruction Amendments as they were ratified, as well as guiding the views of key political leaders who shepherded the amendment process, including Abraham Lincoln and important figures of the 39th Congress.
I am not suggesting that this is the only lens through which we can understand the abolition movement, or that there was a clear constitutional consensus among the millions of people who participated in it to varying degrees, from attending an anti-slavery lecture or fair or buying anti-slavery literature to more intensive involvement and leadership that often involved personal risk and sacrifice. The anti-slavery movement was never a unified group, and remained highly decentralized and local, even after it developed national organizations and leadership. Those who participated in the movement operated from many motivations and pursued different goals and strategies that criss-crossed the abolitionist project for constitutional reform, from ending slave trade, to eliminating slavery within states and territories, to creating foreign colonies for free blacks, to improving the conditions of free blacks through assistance with jobs and education.4 Because my interest is in understanding how anti-slavery ideas and activism shaped constitutional theory and politics, I leave aside many other important aspects of the movement.5
Nor am I suggesting that abolitionists’ constitutional views have gone completely unnoticed. But while several scholars have explored abolitionists’ constitutional ideology, such as William Wiecek, they treat this as the largely formal, legally-oriented writing of a handful of prominent abolitionists, especially lawyers, rendering all but invisible the broader sets of voices and actions that helped give meaning to these constitutional ideas and worked for their political recognition. This contributes to a stunted understanding of the sources of what many now consider our most important constitutional principles, and ignores the extensive and creative civic action involved in engendering this new constitutional framework.
What I am suggesting is that abolitionism included a strong form of popular or democratic constitutionalism that is largely overlooked by most constitutional scholarship, that many relatively ordinary people were involved in the intersecting rights claims and constitutional activities that marked abolition as a constitutional movement, that as anti-slavery efforts grew, abolitionists’ articulated distinctive readings of the constitution’s fundamental commitments, and that the constitutional theory and action of abolitionists had dramatic implications for constitutional development, not only through its framing influence on political debates, including, ultimately, adoption of the Reconstruction Amendments, but through its lasting influence on patterns of constitutional reform and recognition of the authority of ordinary people to participate in judging the Constitution and defining and re-founding its public commitments.
Confronting the Pro-Slavery Constitutional Order
Small numbers of American colonists, especially Quakers, had worked to curtail or eliminate slavery since the Revolutionary era. Although early anti-slavery activists often relied on religious arguments and methods of moral suasion, issuing pleas for voluntary manumission of slaves, even this work had a political dimension – collective action aimed at broad social change. But as the movement and its goals expanded and its influence grew, and increasingly turned attention to the goal of ending slavery across the country, abolition became a full-fledged constitutional project – a project to redefine the Constitution. Throughout the early- to mid- 1800s, participants in anti-slavery work provoked and responded to a series of critical political events that turned abolition into a distinctively constitutional project, including the Missouri Compromise, the Gag Rule of 1836, the Wilmot Proviso (1846), and the Fugitive Slave Act of 1850. Participating in these controversies fractured the movement around constitutional questions, and persuaded many anti-slavery activists that the existing constitutional order – the dominant interpretations of its principles and the set of institutional arrangements and practices operating under it --was an obstacle to ending slavery. Many activists began to redefine fundamental constitutional principles around the many problems slavery raised for the political community, and began to see their own task as one of contributing to constitutional reform or revolution.
As the 19th century progressed, major veins of anti-slavery rhetoric and activism, as well as internal debates about the methods and strategy of the movement, focused on conflicts between slavery and constitutional rights and other principles. The public arguments and practices of a growing wave of anti-slavery advocates, particularly “radical abolitionists,” centered on critiquing or transforming the dominant constitutional order with respect to slavery.
As Frederick Douglass argued at an 1851 meeting of the Colored Citizens of Ohio, the Constitution was considered pro-slavery “by those who framed it,” and it has been generally “construed to that end ever since its adoption.”6 Anti-slavery activists recognized the thorough entrenchment of this constitutional order, noting that prior to the 1850s, “almost every person supposed the C[onstitution] of the U.S. guaranteed slavery.”7 And one common goal, increasingly, was to refound this constitutional order, though different wings of the movement often disagreed about the right strategies or methods for achieving this. Or, as those who supported the states-rights constitutional regime perceived it, well before the outbreak of military conflict, abolitionists had been “warring for years against the Constitution of the United States and the rights of the States under it” and they sought to eliminate slavery “regardless of the obligations of the Constitution, or the rights of the States, or of persons or property.”8
As we shall see, in undertaking a political battle against the pro-slavery constitutional order – long before the outbreak of national Civil War -- anti-slavery activists were not only challenging the status of slavery in the Constitution. They were identifying fundamental principles necessary for Constitutional justice and legitimacy: national rights of active citizenship protecting meaningful participation in republican government and the operation of free institutions, the priority of the substantive liberty of members of the national political community, as well as their right to fair and impartial legal processes, and racial equality under law.
So how and why was it that “almost every person” believed the United States Constitution “guaranteed slavery”? A powerful combination of constitutional text, historical beliefs, and on-going laws, practices, and culture supported this view. Both slavery and anti-slavery work pre-dated the national Constitution. Under British rule, slavery was protected by the Crown and legal in all colonies. During the Revolutionary era, anti-slavery groups were already at work to end slavery and provide some kinds of assistance to free blacks, contributing to slavery’s prohibition and demise in several Northern states and territories, encouraging other. Northern states to adopt laws for gradual abolition, and helping to persuade Congress to exclude slavery from the Northwest territories in 1784. Deviating from these trends, the Constitutional convention adopted several powerful protections for slavery that permeated the overall constitutional framework, shaping its mechanisms of representation and federalism.
The first of the Constitution’s slavery provisions is best known: The Enumeration Clause counted every slave as 3/5 of a person for purposes of representation and taxation9. The other three major slavery provisions tend to receive less scholarly attention, but they greatly influenced the trajectory of anti-slavery constitutional debates and actions. The Fugitive Slave Clause stated that the laws of one state could not release slaves from bondage in another and required that states in which escaped slaves are found must deliver them back to the owner upon a claim. The final two major slave provisions prohibited Congress from banning slave trade or limiting how highly slaves can be taxed until after 1808,10 and the special guarantee in Article V that the Constitution could not be formally amended before 1808 to change these restrictions on Congress’s ability to interfere with slave trade.
Today, the Constitution’s major provisions bearing on slavery are typically described as unfortunate but politically necessary compromises needed to gain needed Southern support for the new Constitution, but we can also read them as a backlash against the political power of anti-slavery ideology and activism. And, they can be read as provisions that seemed to render the whole Constitution a pro-slavery document – operating together to limit the power of national, state, and local governments to curtail or eliminate slavery, and giving slavery a preferred position or more extensive reach than any other substantive policy moral principle in the new Constitution. We can see the distinctive way in which slavery shaped the overall architecture of the federal Constitution by comparing it to the Articles of Confederation it replaced – a bare bones constitution that had included no provisions dealing with slavery and in which slavery played no overt role in structuring political institutions.11
Constitutional entrenchment of slavery was demanded precisely because Southern delegates were keenly aware of the political tide of anti-slavery sentiments to influence state and national government, and the threat this posed. The Constitution’s slavery compromises not only insulated slavery from national democratic politics, but they warped the moral-structural framework of the Constitution: slavery explicitly circumscribed the nature – and constitutional census -- of the political community and the structure of political institutions, limiting the power of Congress, state governments, and people to act against it. Not only were the people and their congressional representatives prohibited from banning slave trade or taxing it highly until 1808, methods that could restrict slavery’s growth and possibly cause its demise, but these prohibitions were also virtually the only constitutional provisions that could not be amended, for at least a generation. States were also differentially empowered and restrained by the Constitution’s slavery provisions. First, the Enumeration or 3/5 clause ensured that slave states held national political power vastly disproportionate to their eligible voting population through representation in the House. Second, the Fugitive Slave Clause prevented the laws of free states from releasing slaves who entered their states from bondage, b) required free states to return slaves to prior owners upon their claims, and c) indicates that, in this area, the laws of slave states, rights of slave owners, and the slave system permanently outweigh the laws of free states and the rights they grant to Blacks. Thus, these three issues, required return of fugitive slaves, slave states’ ability to wield political power in the House on the backs of slaves, and prohibitions on national interference with slave trade not only shielded slavery from the reach of state and national politics, but they came to form lynchpins of dominant 19th century constitutional understandings.
As one group of anti-slavery advocates noted in an 1857 “Address to the Electors of Connecticut,” the Supreme Court’s ruling in Dred Scott represents the pinnacle of pro-slavery constitutional construction. This construction, as announced by the Taney Court, held that blacks could never be citizens or members of the political community with equal rights, identified the Fifth Amendment property rights of slave-owners as paramount to any other constitutional principal, and denied the power of Congress, and perhaps all states as well, to prohibit slavery. Those who opposed to slavery condemned this decision as “based upon the assertion, that the Constitution recognizes and guarranties the right of property in man” and that interfering with this right “is beyond the power, both of Congress, and of the people of the territories themselves.12 And they viewed this constitutional order as a threat to national freedom and to “free institutions” throughout the United States, arguing that “Under this construction of the Constitution”, they urged, it is extremely difficult for “free institutions” to “exist at all.”
While the Revolutionaries had come to see the English Crown as exerting tyrannical power violating more fundamental constitutional principles of liberty, Radical Abolitionists came to recognize “the slave power” and the dominant constitutional norms through which it operated as similarly tyrannical – exerting unchecked power and violating what they took as fundamental constitutional principles. In pro-slavery renderings, the Constitution not only permitted property, trade, and commerce in “persons,” but it prioritized slavery over competing constitutional principles, removing an entire class of people from the constitutional boundaries of individual rights and national citizenship and permitting a caste system that violated substantive principles of liberty and republican government. As anti-slavery activists took up the question of how we should understand the Constitution, pro-slavery constitutional readings permeated the political backdrop against which they asserted their competing constitutional vision.