The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding
By Simon Gilhooley.
Cambridge University Press, 2020.
Paperback, 283 pages, $29.99.
Slavery and Sacred Texts: The Bible, the Constitution, and Historical Consciousness in Antebellum America
By Jordan Watkins.
Cambridge University Press, 2021.
Paperback, 398 pages, $29.99.
Reviewed by Jason Ross.
The first modern scholar of the Federal Convention of 1787, Max Farrand, complained that our understanding of its debates regarding slavery was “sadly distorted.” This distortion, he reasoned, resulted from the fact that James Madison’s notes on the debates of the Convention—the first and only full record of the deliberations that produced the Constitution—were published in 1840, at “just the time when the slavery question was becoming the all-absorbing topic in our national life….” As a result of this coincidence, Farrand concluded, historians of the Constitution tended to “overemphasize the slavery questions in the Convention.” Exasperated, he complained, “Is it not time to break away from the traditions that have been handed down to us from the days of the slavery struggle?”
Farrand’s effort to marginalize slavery as a political and moral issue at the founding has, justly, long since been abandoned, not least due to the work of historian and activist Staughton Lynd. Through a series of articles in the late 1960s, Lynd resurrected the fervent moral critique of the Constitution and of the intent of its framers that had been leveled in the nineteenth century by radical abolitionist William Lloyd Garrison. Subsequent works in this vein by Paul Finkelman, George William Van Cleve, and David Waldstreicher, among others, extended the Garrisonian claim that the delegates at the Federal Convention created what Waldstreicher called “a proslavery constitution, in intention and effect,” and that Madison’s notes proved it. Recent works by James Oakes and Sean Wilentz, following older scholarship by William Wiecek and Don Fehrenbacher, have sought to temper the withering moral critique of the Garrisonians, contending that there were at least some influences of antislavery sentiment present in the debates in the Federal Convention, and documenting ways in which these antislavery arguments were developed up to, and through, the Civil War and Reconstruction. For this Wilentz and Oakes have been accused by younger scholars of “whitewashing the central role of race and slavery in the history of the US Constitution.”
Since Farrand, there has been a tension between capturing the moral intensity and significance of debates about slavery and documenting the complicated mix of ideals, interests, and intents at play in the dynamic political process of framing and contesting the meaning of the Constitution. This tension helps provide the context for two recent contributions to scholarship on the founding era’s debate about slavery: The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding by Simon Gilhooley and Slavery and Sacred Texts: The Bible, the Constitution, and Historical Consciousness in Antebellum America by Jordan Watkins. Both works accept the Garrisonian moral critique by which the Constitution was indelibly and irreparably stained by its treatment of slavery. Gilhooley acknowledges Wilentz’s account of how antislavery sentiments and arguments were asserted at the Convention and later more fully developed but dismisses it as “teleological.” By contrast, he contends, “Even after the constitutional text was altered to forbid slavery, the constitutional grammar of the United States has remained modulated by its engagement with slavery.” Watkins, whose work was published in 2021 following a summer of riots prompted by the death of George Floyd, began with the statement, “Black Lives Matter,” before asserting that the true meaning of the Constitution is found in Chief Justice Roger Taney’s infamous assertion in Dred Scott that blacks “had no rights which the white man was bound to respect.” Watkins contends that the repudiation of this sentiment by the Fourteenth Amendment “did not expunge the racist ideas that had shaped America’s institutions….”
Though both Gilhooley and Watkins suggest, in these ways, that the antislavery constitutional argumentation they detail was ultimately futile, they nevertheless offer interesting insights about the development of these arguments. Gilhooley’s chief contribution is to detail the way in which abolitionists appealed to the antislavery “spirit” of the Constitution. Gilhooley traces this argument back to African Americans including Lemuel Haynes, James Forten, and David Walker who found that spirit in the principle of equality stated in the Declaration of Independence and used it to assert a claim to equal citizenship with white Americans. Here Gilhooley adds to recent literature placing African Americans alongside, and ahead of, figures like Garrison at the forefront of the abolitionist movement.
Gilhooley demonstrates that these arguments “provided a bridge between the citizenship claims of the free black abolitionists of the 1820s and Garrison.” Another bridge was provided by evangelical ministers in the early 19th century who began to view the Declaration of Independence as a divine moral law. Against it, human laws permitting slavery could be “weighed in the balances, and… found wanting.” Garrison revered at least one of these ministers, George Bourne, as “one of the most extraordinary men of the age,” extending the progress promoted by heroes of the Protestant Reformation including Martin Luther, John Knox, and George Whitfield. The Garrisonians accepted this emerging view of the Declaration as a divine moral law. But review of their constitutional arguments at an early stage of their movement reveals that they saw the Constitution, with specific exceptions, as consistent with this view. At the first meeting of the New England Antislavery Society, antislavery ideals were announced as “the very genius of our country. The whole American people ought to be an Anti-Slavery Society. This is the very first principle upon which our government is built. The spirit of civil and religious liberty requires it. The Declaration of ’76 requires it.” Confirming and extending Gilhooley, they closed, “The spirit and letter of our Constitution require it.” (Emphasis added.)
A related contribution Gilhooley makes is to show how arguments about the antislavery spirit of the Constitution developed alongside a proslavery argument about the Constitution as a sectional compact. This is not quite the same as the compact theory most clearly identified with John Calhoun, by which the states were presented as the parties to the Constitution, with all of the rights and powers that implied. Instead, Gilhooley details an underappreciated view of the Constitution— against which the abolitionists fought vigorously —as a solemn agreement between free and slave states by which free states were pledged not to interfere with the right to property in slaves asserted by Southern states. Perceptively, Gilhooley points out that this proslavery argument was itself an appeal to some imputed spirit of the Constitution, and that abolitionists recognized this at the time. Indeed Garrison’s close collaborator Samuel May complained that this understanding of the Constitution as a sectional compact requiring the silent acceptance of slavery “is flippantly iterated by thousands, who never read the Constitution of the United States.” May and his colleagues went so far as to print copies of the Constitution so as to combat arguments about the proslavery spirit of the Constitution by directing citizens not only to the Constitution’s spirit, but also to its text.
Finally, while Gilhooley sketches the view of the Constitution as a proslavery compact to the Missouri Crisis, Wilentz and others have documented an earlier, and likely the first, such appeal. This occurred in the First Congress, in a debate about whether Congress had the constitutional power to respond to petitions for the regulation of the slave trade submitted by the Pennsylvania Antislavery Society. These petitions were protested by South Carolina Representative William Loughton Smith who claimed they appealed for unconstitutional action and as such should not be heard. Instead, Smith argued, the Constitution represented “an implied compact between the Northern and Southern people, that no step should be taken to injure the property of the latter, or to disturb their tranquility.” Smith had not been present at the Federal Convention which framed the Constitution. By contrast, Benjamin Franklin, who signed the petitions and was the president of the society which submitted them, had been. So had been James Madison, who advocated for the Congress to receive and debate them, advocating a broad construction of the Constitution’s powers: “If any thing is within the Federal authority to restrain such violation of the rights of nations and of mankind…, it will certainly tend to the interest and honor of the community to attempt a remedy, and is a proper subject for our discussion.” If the notion of the Constitution as a sectional compact requiring silence on slavery was invoked in the First Congress by a member who had not been present in the Federal Convention, and if it had been dismissed by multiple members who had been present in the Convention and who assumed that the Constitution permitted certain antislavery powers, which view is more authoritative as to the intent of the framers? Gilhooley’s interest in antislavery constitutional arguments points him toward the conclusion that these arguments made, in many cases, stronger appeals to the Constitution’s text and documentary history than did proslavery arguments. This historical insight is overshadowed by an emphasis on the Garrisonian moral critique of the Constitution.
Gilhooley does an admirable job of highlighting arguments about the spirit of the Constitution. Watkins has interesting insights regarding interpretations of its text, exploring the ways that some antislavery actors drew from modern techniques of biblical criticism and hermeneutics in the early 19th century. As with Gilhooley, Watkins attempts to draw attention away from Garrison. Emphasizing the confluence of scriptural and constitutional exegesis in the debate about slavery, Watkins spotlights the transcendentalist theologian and abolitionist Theodore Parker. In Watkins’s account, Parker demonstrates how Americans were forced to “rethink their relationship to favored pasts and to reinterpret sacred texts” and to develop a sense of “historical distance” based on the complications of directly applying the words of a historical text to present circumstances. Parker serves as a contrast in Watkins’s narrative to those, symbolized by Chief Justice Roger Taney, who sought to keep the union fixed in the historical moment established and dominated by the founding fathers.
Watkins argues that as America’s founders passed into memory, the Constitution they framed increasingly became “sacralized.” Through the nation’s confrontation with slavery, Watkins continues, the historical exegesis performed by Parker and others on the Constitution worked in the opposite direction, to desacralize that document. Still, Watkins’s argument also suggests how in desacralizing the Constitution, Parker sacralized abolitionism as a political movement. Treating Parker’s reflections on the ongoing significance of the principle of equality stated in the Declaration of Independence, Watkins observes, “Parker was not nostalgic; he was not hoping to recover the past.” Instead, he praised the progress of abolitionism, a movement which saw itself as fighting a revolutionary battle even more significant than the one launched in 1776.
More, Watkins shows Parker attempting to read the events of his own time into a sacred future. Explaining his time as one, “[w]here sin abounded,” Parker (quoted by Watkins) concluded from scripture that “grace doth much more abound.” Here Parker suggested the abolitionist movement, in the person of William Lloyd Garrison, represented a new irruption of grace into the world. As Parker wrote (again quoted by Watkins), “There rose up one man, who would not compromise, nor be silent, — who would be heard.” Parker (playing the role of John the Baptist, it seems) presented Garrison as a figure, like Jesus, whose strength and purity of conscience was destined to be transformative in the history of the world. Watkins focuses on Parker’s contributions to the desacralization of the Constitution, but Parker also contributed to the de-divinization of Christ. Parker’s Jesus, like Garrison who followed him, became simply a profound moral teacher who created a transformative social movement. Abandoning a Christian view by which history was transformed by the singular moment of the incarnation of Christ, Parker and those who follow him begin to see the present as a permanent eschatological moment, with every political or social movement possessing transformative potential if only infused with sufficient purity and intensity of moral purpose.
As with Watkins, Gilhooley’s argument is also animated by the ideal of the revolutionary now, through appeals to Thomas Paine’s “understanding of constitutions and constitution-making as initial, original moments of popular sovereignty,” and to Thomas Jefferson’s musings about the need for constitutional change with each generation. By contrast, the Constitution, to both Watkins and Gilhooley, represents, in effect, the cold, dead hand of Roger Taney, continuing to choke us today through the doctrine of originalism. The difficulty with this argument as a historical matter is that, when it came to the conflict between antislavery and proslavery constructions of the Constitution, the ones with a better claim to the name “originalists” were those who opposed slavery by appealing not only to an antislavery spirit or construction of the Constitution, but also to the antislavery implications of its text, including the Bill of Rights.
This point became distorted when Garrison rejected the project of antislavery constitutionalism following the Taney Court’s notorious decision in the 1842 case Prigg v. Pennsylvania. The Prigg decision endorsed the proslavery notion of the Constitution as a compact requiring the silent acceptance of Southern slavery, asserting, “the complete right and title of ownership in their slaves, as property, in every state in the Union… constituted a fundamental article without the adoption of which the Union could not have been formed.” Upon reading the ruling, Garrison reluctantly and resentfully accepted the legal positivism of the Taney Court. He insisted to fellow abolitionists that the Constitution “is not a ball of clay to be moulded into any shape that party contrivance or caprice may choose it to assume. It is not a form of words, to be interpreted in any manner, or to any extent, or for the accomplishment of any purpose, that individuals in office under it may determine. It means precisely what those who framed and adopted it meant—NOTHING MORE, NOTHING LESS, as a matter of bargain and compromise…. No just or honest use of it can be made, in opposition to the plain intention of its framers, except to declare the contract at an end.” This is what modern day scholars sympathetic to Garrison remember about Garrison’s constitutionalism—his rejection of political action as futile, his revolutionary denunciation of the Constitution, and his call for a dissolution of the union. Garrison’s resounding moral clarity appeals to those who grow impatient with injustices that are resolved only slowly and incompletely through ordinary constitutional politics.
Still, Garrison’s critique of the Constitution was based on the Taney Court’s contested and contorted view of the Constitution as a sectional compact requiring the silent acceptance of the right to property in slaves. And while the Taney Court claimed to appeal to the intent of the Constitution’s framers, careful review of their opinions reveals that they did not actually document their claims about the intent of the framers using historical sources. Gilhooley rightly charges that Taney Court with “[i]gnoring all manner of evidence” and Watkins comes close to acknowledging what evidence the Taney Court willfully ignored, namely James Madison’s notes from the debates in the Federal Convention of 1787. Indeed, the counsel for Pennsylvania in the Prigg case, Thomas Hambly, appealed directly to Madison’s notes to assert that the Convention as a whole refused to accept South Carolina’s proposal that fugitive slaves “be delivered up like criminals,” and indicated instead that the fugitive slave clause should be constrained by some guarantee of due process. The Taney Court left this argument unacknowledged. In this way, Hambly joined several other antislavery figures, including Garrison’s one-time ally Gerrit Smith, in embracing Madison’s notes as a source for antislavery intent within the Convention. Garrison went to great lengths to refute (and to ridicule) Smith’s argument. History remembers the argument made by Taney and Garrison but has forgotten the argument made by Hambly and Smith.
Somewhere along the way—in 1842, to be specific—Roger Taney became identified by Garrison as the spokesperson for the intent of the Constitution’s framers with respect to slavery. In fairness to those who continue to present Taney as the avatar for the project of originalism, Taney also identified himself in this way. And to the extent that one might loosely define originalism as unthinking fealty to some imputed intent of the Constitution’s framers, grounded in certain historical assumptions but not in relevant historical sources, one might make a (contestable) case for continuing to identify Roger Taney in this way. But if the project of originalism commits one to studying the Constitution’s text and the political context out of which that text developed, while also appealing to rules of construction that understand and honor constitutionalism as a project grounded upon certain foundational moral principles, then those who advocated for antislavery constructions of the constitution had a better claim to the title of originalists than does Taney.
Even so, it is not simply the Taney Court’s Constitution of 1842 or even the Philadelphia Constitution of 1787 to which Gilhooley and Watkins object. It is the reconstructed Constitution of the 13th, 14th, and 15th Amendments—which repudiates the Taney Court’s construction and rejects the founders’ compromises regarding slavery—which Gilhooley and Watkins reject. In this light, these works by Gilhooley and Watkins might be better framed not simply as critiques of the Philadelphia Constitution or of the original intent of its framers, but as critiques of the American experiment with popular constitutionalism itself. Both authors do an admirable job of illustrating the story of how, over time, antislavery constitutional arguments came to represent what Madison might have called the “deliberate sense of the community,” and of fulfilling the vision of the early Garrisonians that “the whole American people ought to be an Anti-Slavery Society.” Yet both authors also raise an inescapable question at the center of the American experiment of whether constitutions are capable of breaking and controlling the violence of majority faction, especially when that faction is grounded on what Madison called “the mere distinction of color.” If not, then, for better or worse, the American experiment is at an end.
Jason Ross is Associate Dean of the Helms School of Government at Liberty University.
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