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The Constitution of Black Abolitionism: Reframing the Second Founding

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THE CONSTITUTION OF BLACK ABOLITIONISM: REFRAMING THE SECOND FOUNDING James W. Fox Jr.* ABSTRACT Eric Foner has observed that historians of the Thirteenth Amendment have struggled “to find ways to get the voice of African Americans into discussions of the Amendment’s original meaning, scope, and limitation.” This article is part of a project to answer Professor Foner’s challenge to recover nineteenth- century African American constitutionalism. While there are many sources for accessing the views of African American writers, speakers, and activists, this article focuses on the rich contributions of the Black Convention Movement. Despite its importance in helping to set the terms for Reconstruction, the Black Convention Movement and the Black public sphere more generally have been under-utilized and under- studied as a part of our constitutional history. The documents from the state and national conventions of African Americans that took place from 1831 through the 1860s provide evidence of how African Americans understood constitutional ideals, principles, interpretations, and text in the period of time when significant constitutional change was about to take place. As we will see, the conventions included debates and statements about a range of constitutional ideas, from the meaning of freedom in a society infused with slavery and race prejudice, to complex views about the meaning of national citizenship, to fundamental questions about the validity and morality of the constitution itself. By the 1860s, as the Civil War revealed the possibility of an America freed from slavery, African American Conventions began to present a broad vision of civil society where constitutionally protected freedom and citizenship encompassed everything from suffrage to employment to property to education. This vision, while shared intermittently by some white abolitionist allies, was both more insistent and more encompassing than those ideas of freedom most often articulated in the white public sphere. This vision, I argue, is the lost meaning of African American constitutionalism and is one well worth exploring as we consider how and whether American constitutionalism in the twenty-first century can speak to us. TABLE OF CONTENTS INTRODUCTION ........................................................................................ 268 I. BLACK CONVENTION MOVEMENT: AN OVERVIEW ............................. 272 II.FORMATION OF A BLACK PUBLIC: THE 1830S NATIONAL CONVENTIONS............................................................................... 277 * Professor of Law, Stetson University College of Law. An early version of this article benefitted from comments and feedback from participants at the 2016 University of Wisconsin Midwest Law and Society Retreat and the 2017 University of San Diego Originalism Works-in-Progress Conference. I also received excellent research assistance from Jessica Cahoon and Will Casey in my early research into the Black Convention Movement. This research was supported by generous research support from the Stetson University College of Law. 267 268 JOURNAL OF CONSTITUTIONAL LAW [Vol. 23:2 III. CONSTITUTIONALISM IN THE BLACK COUNTERPUBLIC: CONVENTIONS OF THE 1840S AND 1850S ..................................... 291 A. 1843 National Convention at Buffalo ...................................... 292 B. 1847 National Convention, Troy ............................................ 301 C. 1848 National Convention, Cleveland .................................... 305 D. Ohio State Convention, 1851 .................................................... 313 IV.ANTICIPATING RECONSTRUCTION: NATIONAL CONVENTION (SYRACUSE) OF 1864 ...................................................................... 320 V.IMPLICATIONS FOR CONSTITUTIONALISM: METHOD AND SUBSTANCE ....................................................................................................... 335 A. The Conflicted Constitution and a Constitution of Aspiration 336 B. Meaning and Method .............................................................. 339 C. Constitutional Directions ........................................................ 344 1. Thirteenth Amendment as a Civil Rights Amendment ..... 344 2. The Fourteenth Amendment, Citizenship, and Access to Civil Society ....................................................................... 346 3. Suffrage as a Fundamental Right ....................................... 347 4. Race Consciousness and Equality ...................................... 348 CONCLUSION ............................................................................................ 350 INTRODUCTION As we struggle to apply constitutional principles to the challenges of the twenty-first century, several scholars have recently urged us to look to the freedom struggles of the nineteenth century to help rethink contemporary constitutional law. In her powerful article, Abolition Constitutionalism, Dorothy Roberts argues that a re-engagement with a critical perspective on contemporary applications of the Reconstruction Amendments as a source for constitutional tools for prison abolitionism and criminal justice reform.1 According to Roberts, “[t]he abolition struggle profoundly shaped not only the specific language of the Reconstruction Amendments but also the very meaning of those constitutional principles.”2 While the dominant versions of antebellum constitutionalism helped to secure slavery, abolitionism “forged a radically divergent . constitutionalism” and provides an “alternative public 1 Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 HARV. L. REV. 1, 9–10 (2019). 2 Id. at 54 (citation omitted). April 2021] BLACK ABOLITIONISM 269 meaning of the Constitution” for today’s efforts to reclaim principles of equality and freedom in constitutional law.3 Several other scholars, including Rebecca Zietlow, Alexander Tsesis, Lea VanderVelde, and James Gray Pope, have pressed us to consider the authors and supporters of the Reconstruction Amendments as framers of the Constitution much as we do with the Founding era.4 The mining of abolitionist writings has been an important step for contemporary constitutional scholarship. Nonetheless, as Eric Foner has observed in discussing the Thirteenth Amendment, historians have struggled “to find ways to get the voice of African Americans into discussions of the Amendment’s original meaning, scope, and limitations.”5 This is changing. The shift is partly evident in the New York Times’s 1619 Project, which seeks to “place the consequences of slavery and the contributions of [B]lack Americans at the very center of the story we tell ourselves about who we are as a country.”6 From the perspective of legal history, historian Martha Jones’ remarkable recent book, Birthright Citizens: A History of Race and Rights in Antebellum America, presents a deeply researched and vibrant exploration of the legal consciousness, activism, and meaning of African Americans in antebellum Baltimore, and reclaims ideas of constitutional and democratic citizenship from the actions and arguments of antebellum African Americans.7 In Jones’ telling, rights for antebellum free Black Baltimoreans were less about 3 Id. 4 Rebecca E. Zietlow, The Ideological Origins of the Thirteenth Amendment, 49 HOUS. L. REV. 393, 393 (2012) (describing how drafters of the Thirteenth Amendment reframed the Constitution as an antislavery document); see also Rebecca E. Zietlow, James Ashley’s Thirteenth Amendment, 112 COLUM. L. REV. 1697, 1697 (2012) (demonstrating the antislavery constitutionalist view that slavery was unconstitutional prior to the Thirteenth Amendment because it violated constitutional provisions protecting fundamental natural rights); ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM: A LEGAL HISTORY 2 (2004) (arguing that the Thirteenth Amendment “changed the fundamental structure of U.S. law” by abolishing the “political structure that was linked to slavery.”); Lea VanderVelde, Henry Wilson: Cobbler of the Frayed Constitution, Strategist of the Thirteenth Amendment, 15 GEO. J.L. & PUB. POL’Y 173, 174 (2017) (comparing Henry Wilson’s constitutional import to that of Madison, Hamilton, and Jefferson); James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude,” 119 YALE L.J. 1474, 1474 (2010) (expanding the scope of the Thirteenth Amendment to protect labor rights); KURT T. LASH, THE FOURTEENTH AMENDMENT AND THE PRIVILEGES AND IMMUNITIES OF AMERICAN CITIZENSHIP 2 (2014) (suggesting that the ultimate goal of the Fourteenth Amendment was “repairing and reconstructing the United States”). 5 Eric Foner, Remarks at the Conference on the Second Founding, November 14, 2008, 11 U. PA. J. CONST. L. 1289, 1290 (2008). 6 Jake Silverstein, Why We Published the 1619 Project, N.Y. TIMES (Dec. 20, 2019), https://www.nytimes.com/interactive/2019/12/20/magazine/1619-intro.html. 7 MARTHA S. JONES, BIRTHRIGHTS CITIZENS: A HISTORY OF RACE AND RIGHTS IN ANTEBELLUM AMERICA 13–14 (2018). 270 JOURNAL OF CONSTITUTIONAL LAW [Vol. 23:2 statutes, court opinions, and legal treatises (although those were also relevant) and more about day-to-day actions and claims—to the rights to travel, own property, sue in court, bear arms—by people asserting citizenship in the face of the formal legal denial of that citizenship.8 Jones’ work very intentionally shifts the focus away from constitutional law to a deeper study of legal consciousness where the law functions within social and political contexts. While
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