Abolitionist Constitutional Theory

Author:William M. Wiecek

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American abolitionists developed comprehensive but conflicting theories about the place of slavery in the American constitution. Though these ideas did not positively influence political and legal debate until the 1850s, they exercised profound influence over subsequent constitutional development, merging with constitutional aspirations of nonabolitionist Republicans after the CIVIL WAR to provide the basis for what one writer has called the "Third Constitution": the THIRTEENTH through FIFTEENTH AMENDMENTS. From abolitionist constitutional ideals embedded in section 1 of the FOURTEENTH AMENDMENT, there emerged some principal trends of constitutional development in the century after the Civil War: SUBSTANTIVE DUE PROCESS, equality before the law, protection for the privileges of national and state CITIZENSHIP.

By the time abolitionists began systematically to expound constitutional ideas in the 1830s, the constitutional aspects of the controversy over slavery were well developed. Even before American independence, Quakers in the Middle Colonies and some Puritan ministers in New England had attacked slavery on religio-ethical grounds. In SOMERSET ' SCASE (1772) WILLIAM MURRAY (Lord Mansfield), Chief Justice of King's Bench, suggested that slavery could be established only by positive law and that, as a legal institution, it was "odious." The American Revolution witnessed the total abolition, exclusion, or disappearance of slavery in some northern jurisdictions (Vermont, Massachusetts and Maine, New Hampshire, the Northwest Territory) and its gradual abolition in the rest (Pennsylvania, New York, New Jersey, Connecticut, Rhode Island). Early antislavery groups, federated as the American Convention of Abolition Societies, worked in legal and paternalistic ways to protect freed blacks and provide them jobs and education. Yet these Revolutionary-era inhibitions on slavery were offset by gains slavery made in the drafting of the United States Constitution, in which ten clauses promoted slavery's security, most notably in the federal number clause (Article I, section 2, clause 3), the slave trade clause (Article I, section 9, clause 1), and the fugitive slave clause (Article IV, section 2, clause 3).

Constitutional controversy flared over slavery in several early episodes: the federal abolition of the international slave trade and its incidents, the Missouri crisis (1819?1821), the disputes over federal aid to colonization of free blacks, Denmark Vesey's slave revolt (Charleston, 1822), and the Negro Seamen's Acts of the southern coastal states (1822?1830). But not until the ideas of immediate abolition rejuvenated the antislavery movement did abolitionists begin a systematic constitutional assault on slavery. When they organized the American Anti-Slavery Society (AASS) in 1833, abolitionists, in a document drafted by WILLIAM LLOYD GARRISON, pledged themselves to tolerate the continued existence of slavery in the states and rejected the possibility that the federal government could abolish it there. But...

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