The Forgotten Emancipator #2: Antislavery Constitutionalism

In an 1860 speech to Congress, James Ashley said "I do not believe that the Constitution of my country recognizes property in man."  How could Ashley have made this statement four years after the United States Supreme Court declared a constitutional right to own slaves in the infamous decision of Dred Scott v. Sanford?  The 1860 Constitution contained many provisions that seemed to authorize slavery, most notably including the Fugitive Slave Clause, which required states to cooperate with the retrieval of fugitive slaves.  Yet Ashley was far from alone when he argued that the Constitution prohibited slavery, well before he led the movement to amend the Constitution to abolish it.  

Many leaders in the 1840s and 1850s political antislavery movement argued that slavery was not immoral, but also unconstitutional.  these leaders included James Birney, a journalist and founder of the Liberty Party; Theodore Dwight Weld, a leaded in the American Anti-Slavery Society; Joel Tiffany, an Ohio lawyer who wrote an influential Treatise on the Unconstitutionality of Slavery; and Lysander Spooner, a Massachusetts journalist who also wrote an influential treatise.  Leaders in the Reconstruction Congress, including James Ashley, were influenced by the antislavery constitutionalists and their theories of rights.  During Reconstruction, they sought to enshrine those rights indelibly into constitutional law with the Reconstruction Amendments and statutes enforcing those amendments.

Antislavery constitutionalists  claimed that slavery violated the Due Process Clause of the 5th Amendment because it deprived slaves of liberty without due process of law, and the Guaranty Clause because a state government which sanctioned slavery was not a republican form of government.  Some argued that slavery violated the privileges and immunities of citizenship of free Blacks.  Many also claimed that slavery violated natural rights recognized by the Declaration of Independence, which they claimed was enforceable via the Preamble to the Constitution.   Ashley was influenced by the antislavery constitutionalists and their theories of rights.  Well before the 13th and 14th Amendments became law, Ashley insisted that slaves and free Blacks had a right to due process, liberty, and the equal protection of the laws.  

The Supreme Court rejected the arguments of the antislavery constitutionalists in the Dred Scott decision.  But in the antebellum era, political activists did not assume that the Court had the monopoly on constitutional meaning.  Moreover, Ashley and the other antislavery activists knew that making their political arguments in constitutional terms gave those arguments added weight and force.  They engaged in popular constitutionalism, as have numerous advocates for rights throughout the history of our country.  Thus, the antislavery constitutionalists are a prime example of constitutional politics affecting constitutional development.

I first published this blog entry on TheFacultyLounge.org on December 4, 2017.