[I]n a Democracy, where all Men are equal, Slavery is contrary to the Spirit of the Constitution.Footnote 1
In early 1840, William Slade rose from his seat in the House of Representatives and began a wide-ranging speech on the right of petition, slavery, and the slave trade in the District of Columbia. Slade’s speech came in the midst of an eight-year battle over the gag rule in the House of Representatives. The gag rule sought to ensure that the House did not discuss the issue of slavery by automatically laying any petitions relating to slavery “on the table” – which meant putting them on the agenda for later, but with the firm – indeed, clearly stated – intention of never getting around to them. The gag rule had been initiated in 1836 and lasted until 1844 and during that time, William Slade was a key figure in resistance to it.Footnote 2
The crux of Slade’s speech in 1840 was that Congress had the constitutional right to abolish slavery and the slave trade in the District of Columbia. In taking this position, he echoed many of his colleagues who had opposed the gag rule since its establishment in 1836. But the way in which he made this argument is worthy of note. In 1840, to establish that Congress had the power to abolish slavery in the District of Columbia, Slade examined a mass of evidence from the early Republic, including the opinions of James Madison in the Federalist Papers, the ratification debates in Virginia, the 1789 and 1791 acts of cession that created the District of Columbia, and the practices of Congress since then. He took issue with what he labeled “the compromise which lies at the basis of our federal compact” – the possibility that the adoption of the Constitution contained within it an “implied faith” that Congress would not legislate upon slavery in the District of Columbia. Further evidence, including a common sense reading of the Constitution, the 1787 Northwest ordinance, Benjamin Franklin’s petitioning, and once again the testimony of Madison, “the very father of the Constitution,” was deployed to deny that “this Union was formed to perpetuate slavery.”Footnote 3
But then Slade changed tack. Thus far, he suggested, he had occupied a defensive ground, seeking only to show that claims that abolition in the District was unconstitutional were incorrect. He now intended to advance his argument in a positive direction. He would show:
Whoever will look into the history of the period when the Constitution was formed, will find that it was the universal expectation – an expectation excited by the slave States themselves, especially by Virginia and Maryland – that slavery would, at no distant day, be abolished by their own legislation. Abolition, as I have already intimated, and will now show, was emphatically the spirit of those times.
Slade then produced a litany of quotations from eminent figures from the founding era to show that antislavery “pervaded the Convention that formed the Constitution,” that it “was the prevalent feeling of the Revolution,” that a belief that slavery was destined for a “speedy death” was “the public opinion of that day.” Slade ransacked the history of the founding period to show that opinion at that time was in favor of abolition, that “Abolition … was emphatically the spirit of those times.” Which is to say that in 1840, Slade believed a – perhaps, the – key to showing that Congress had the power to abolish slavery in the District of Columbia was to show that the spirit of the period in which the Constitution was being drafted and ratified had been in favor of abolition.Footnote 4
William Slade’s speech was the culmination of the series of developments in the 1830s that had made argumentation about the spirit of the founding period a crucial component of debates over slavery in the District of Columbia and indeed over slavery more broadly. Over the process of that decade abolitionists, defenders of slavery, and a vast population that located itself between those two groups faced an unrolling of a constitutional issue to which neither the constitutional text nor their then established practices of navigating the issue of slavery could provide a solution. In the process of first articulating and then addressing this issue these Americans developed an understanding of the US Constitution that transcended the debates over expressed and implied powers that had animated constitutional debate in the early Republic. By the time Slade made his speech in 1840, abolitionists were attempting to occupy ground that opponents of abolition had been variously occupying since the mid-1830s. In arguing that Americans should understand the spirit of the 1780s as a basis for legitimating or restricting action in terms of constitutionality, Slade was acquiescing with a mode of constitutional construction developed by anti-abolitionists over the 1830s. Slade was appropriating and mobilizing the claim that a spirit of 1787 could define what was constitutional even if he sought to reach his own conclusions as to what that spirit actually was.
This book traces those developments to show how the spirit of the 1780s came to hold constitutional authority by the 1840s. It shows how the invocation of the concept of spirit was tied to the necessity of defending the institution of slavery from an abolitionist campaign that initially relied upon textual authority in order to seek abolition in the nation’s capital. In doing so, I highlight the way in which a mode of appealing to the spirit of the founding arose in a particular historical context, and through a contentious dialogue between abolitionists and defenders of slavery. Rather than being an inevitable or natural way of thinking about constitutional authority, this account suggests that recourse to a spirit of 1787–88 was prompted in the 1830s by the requirements of slavery. Facing an abolitionist challenge that pressed directly upon the Constitution’s equivocations as to the personhood of slaves, defenders of slavery sought to step outside the boundaries of the constitutional text while also retaining the rhetorical and political power of a constitutional argument against abolition. By invoking a spirit of the Constitution, and more precisely, a spirit of the time of the Constitution’s creation, defenders of slavery read the Constitution’s three-fifths clause as the entrenchment, in 1787, of a compromise to the institution of slavery.Footnote 5 In response to the pressure from abolitionists to acknowledge the humanity of slaves and to read the constitutional text as neutral with regard to slavery, defenders of slavery instead imbued it with historical significance. They refused the abolitionist proposition that the Constitution was an abstracted text and instead rendered it a record of a specific historical moment. It was, in short, to defend slavery and ensure its continuation that actors in the 1830s embraced the concept of a “spirit” of the founding.
Slavery and the Constitution
Recent scholarship has done much to enhance our understanding of the relationship between slavery and the Constitution. Scholars have shown how the creation and development of the US Constitution can only be fully understood against the backdrop of the “peculiar” institution.Footnote 6 Alongside these studies, other scholarly work has challenged the view of slavery as a premodern institution within the antebellum United States, such that contemporary assessments highlight the forward-looking vision of advocates of slavery.Footnote 7 Taken together, they present slavery as a robust institution in the mid-Antebellum period that shaped the politics surrounding it and which bent the Constitution to its own benefit. Comparatively, the study of the constitutional thought of abolitionists has been largely stable following the seminal work of William M. Wiecek in the 1970s.Footnote 8 Nonetheless, scholarship on the abolitionists as a body has remained constant, often joining the studies of slavery in presenting abolitionist constitutional thought within broader histories.Footnote 9 The result has been a greatly enhanced understanding of the Constitution and its relationship with the politics of slavery.
However, this burgeoning literature tends to be pulled in two directions at the expense of deeper understandings of the context in which a spirit of the Constitution arose in the 1830s. Positioned between the two historical landmarks of the founding era and the Civil War, studies of slavery and the Constitution often tend toward treating mid-Antebellum constitutional debates over slavery as legacies of the founding or precursors to the Civil War, or both. With respect to the legacy of the founding, the constitutional politics of slavery is presented as an unfolding of the ideological tensions, agreements, and institutional arrangements forged in the 1770s and 1780s. Slavery is a constitutional constant and the potentiality of division over it is always present until a decisive constitutional reordering becomes possible.Footnote 10 Here, the founding often becomes a moment of “original sin,” and slavery’s constitutionality is the consequence of a failure of the founding generation to adequately address it.Footnote 11 In the second instance of mid-Antebellum constitutionalism as precursor to the Civil War, which is not mutually exclusive with the first approach, the 1830s debates over slavery are positioned on a path to the 1860s, as further steps toward the sectional disunion that marks the beginning of the end of formal slavery in the United States.Footnote 12 Particularly with regard to the constitutional thought of the abolitionists, this approach seeks to understand the constitutional debates of the 1830s to 1850s as developments toward the constitutional amendments that followed the Civil War. Reading back into history, such approaches look for continuity and the endurance of ideas, placing actors and concepts in a narrative that could only be understood after the event.Footnote 13 In a parallel manner, both approaches inhibit recognition of the agency of actors in the 1830s, in terms of developing approaches to the Constitution within their own historical moment or informed by their own pressing contemporary concerns. For instance, such approaches often treat discussion over slavery in the District of Columbia in the 1830s as one among many concerns, despite being the very issue over which Congress ground to a halt in 1836 and in response to which the gag rules were initiated. Within the broad scope of 1787–1861, the District of Columbia may be one of a series of issues, but in the 1830s it is the issue around which innovative constitutional thought develops and petitioning of Congress mobilizes. Treating the 1830s as only part of a broader story obscures the theoretical and historical importance of that decade.
In treating the 1830s as the culmination of the founding, the beginnings of the Civil War, or a stop on the journey between them, the discursive and dialectical developments of abolitionist and proslavery constitutionalism in that decade are marginalized. As my analysis here will show, the understanding of the Constitution offered by William Slade in 1840 emerged from a rich and swirling brew of what might be labeled mezzo-constitutional thought. I borrow and adapt the concept of “mezzo” as applied by Daniel Carpenter in his study of bureaucratic innovation in between 1862 and 1928. Carpenter uses mezzo to identify administers positioned between executive level and subordinate administers who possessed “the ability to learn and the authority to innovate.”Footnote 14 Here, I use the prefix to denote actors who possess those similar traits within the field of intellectual production. Such actors – for example, newspaper editors, activists, pamphleteers, and, crucially for this study, politicians – occupy a space close enough to popular debate to respond to resonances and through reprints and quotations legitimate and organize embryonic ideas and concepts. At the same time, they are in a position to diffuse and popularize ideas offered in elite texts and debates through selective editing, translation, and the authoritative framing of reprints of debates and public events.Footnote 15 The notion of a constitutional spirit that tied actors back to the creation of the Constitution emerged from the interaction of disparate attitudes toward the Constitution, few of which reach the high levels of systematic constitutional thought contained within legal treatises.Footnote 16 Pamphlets, newspaper articles, debates between activists, and petitions provided spaces in which ideas could be developed, tested, and given coherence before percolating up into national debates and dispersing down into popular consciousness.
Seeing a constitutionalism centered on the historical moment of 1787–88 as emerging from a dialectical process centered on the 1830s has connotations for our understandings of constitutional development. At a first pass, the history traced here points to the contingency of constitutional development. As the structure of the book highlights (see below), the development of this constitutionalism was the result of a series of responses to the challenges and arguments being offered by actors within a political field. Black abolitionists responded to the challenges of the American Colonization Society (ACS), Southern supporters of slavery responded to the abolitionist pressures on the District of Columbia, and political abolitionists responded to the invocations of a founding spirit by the defenders of slavery. Each response was both a mobilization of political rhetoric to address a proximate goal and a further evolution of the political field itself, creating new frames of constitutional understanding and generating new challenges and options for responding to them. As a result of this complex process, it is difficult to maintain notions of constitutional development as the blossoming of seeds planted at the founding or even as the inevitable unraveling of institutions in the face of inherent tensions. The development of the constitutionalism traced here is, if not haphazard, then certainly incidental and somewhat self-generating.
This observation has implications for recent work on constitutional development and the relationship between slavery and the Constitution. Sean Wilentz’s recent account of the evolution of constitutional thought regarding slavery during the Antebellum period suggests that the absence of the words “slavery” or “slave” in the Constitution provided a basis for the ultimate excising of slavery from the constitutional order.Footnote 17 In this telling, Abraham Lincoln’s efforts at emancipation took hold of the potential of the Constitution of 1787, rendering the textual possibilities for antislavery real in the actualization of (some of) the framers’ refusal to fully countenance slavery.Footnote 18 Placing much emphasis on the constitutional text, Wilentz suggests that to “dismiss the delegates’ refusal to recognize the legitimacy of slavery as a linguistic technicality is to trivialize an important part of the convention’s work.”Footnote 19 In Wilentz’s history, the Constitution always then held a kernel of antislavery, which though waylaid and shrouded by the ambiguity of the Constitution’s relationship with slavery, ultimately came to fruition in the ending of slavery during the Civil War. But in light of the contingency of constitutional development over the decades of the mid-Antebellum period explored in this book, such a teleological account is hard to sustain. Where Wilentz argues that it is only “by evaluating the events of 1787 [that it is] possible to understand the struggles over the Constitution’s meaning that unfolded over succeeding decades,” the account offered here suggests that it is only through the struggles over the Constitution’s meaning for slavery in those decades that the heightened significance of 1787 within those very debates came to be.Footnote 20
Wilentz is not alone in viewing the textual product of 1787 as setting up a subsequent constitutional history that privileged that historical moment. Offering a very different argument in his The Second Creation, Jonathan Gienapp has argued that in navigating the ambiguities of the constitutional text, early American leaders came to “imagine the Constitution as fixed rigidly in place … as an authoritative text circumscribed in historical time.”Footnote 21 Gienapp shows convincingly that political actors in the 1790s grappled with a project of constitutional construction that gave rise to a novel way of seeing the constitutional text. Attempting to wrest from the text answers to questions not directly engaged by it, these actors came to see themselves as recovering meanings from the Constitution as “an archival object,” an “untouchable historical artifact lodged in the archives.”Footnote 22 As actors in the 1790s sought to “fix” the uncertainties and gaps in the text, they moved toward a project of “excavation” in which the reconstructed judgments of the original creators of the Constitution held greater authority than any contemporary actor.Footnote 23 Merging conceptions of the “textual constitution, the archival constitution, and the contingently authored Constitution,” these actors unwittingly worked to circumscribe the Constitution in time, gradually replacing “contemporary discretion” with “fixed historical meaning,” and “[t]he “people’s” Constitution” with the “framers’ Constitution.”Footnote 24
The account of constitutional development in this book resonates in important ways with Gienapp’s account. In foregrounding the contingent nature of constitutional development, contextualizing that development within a frame of actors navigating immediate political challenges, and in seeing a turn to the founding as motivated by a desire to bring stability to ambiguities contained within the Constitution, my own account and Gienapp’s contain theoretical overlaps. And in seeing the legacy of those developments in contemporary constitutionalism and as a weakening of democratic modes of constitutionalism, we share, I think, political concerns. But there is also a significant departure in the conception of how 1787 came to be privileged within the American constitutional tradition. For Gienapp, it was the desire to “fix” the textual constitution that drove actors in the 1790s to turn to the project of excavation and to a privileging of the intentions of the actors of 1787. The argument in The Second Creation takes as its basis, and as a structuring assumption, a desire to bring fixedness to an ambiguous text. In that account, as with Wilentz, the historical turn to the framers is motivated by an attempt to bring specific meaning to the constitutional text. But I suggest that the turn to 1787–88 was not in support of the text but despite it.Footnote 25 As is discussed in the pages ahead, the congressional authority over slavery within the District of Columbia was not a question of textual ambiguity. Until the 1830s, few actors regarded that authority as in question. Indeed, during the Missouri Crisis those opposing the restriction of slavery asked why, if restrictionists really opposed slavery, they did not act against it in the District of Columbia where “the power of providing for their emancipation rests with Congress alone.”Footnote 26 As I argue subsequently, the appeal to a spirit of the founding came not from a need to fix the constitutional text, but rather in an attempt to circumnavigate it. In the debates of the 1830s, it was not that the history of 1787 was holding as to the meaning of the textual constitution, it rather came to be the case that the history of 1787–88 illustrated a spirit that itself became holding as the Constitution.
This history also points to the centrality of slavery for constitutional development, but also for American political development more broadly. While the ideological tension between liberalism and republicanism has been presented in the past as the orientating battle within the early United States (and, indeed, in some cases across the entirety of its history), the centrality of slavery and antislavery to the evolving understanding of the US Constitution suggests Rogers Smith is correct in calling for greater attention to the “ascriptive Americanist” tradition within the United States.Footnote 27 However, the historical story depicted in this book points to a centrality for slavery that belies its containment to particular moments or even extended periods – compromise over slavery was central to the initial formation of the US Constitution in the late eighteenth century, but its influence over American constitutionalism did not end there or even in 1865–68.Footnote 28 Slavery shaped both the text of the Constitution and the subsequent understanding of it in popular and elite political culture. The very constitutionalism that we navigate today is inflected by the historical intertwining of slavery and the Constitution that left an imprimatur on the latter, which remained long after the legal ending of slavery. This legacy is all the more striking as it implicates a facet of American political life that is often closely associated with liberalism and republicanism. The American conception of constitutional government, understood as an attempt to place constraint on democratic excess and to act as a guarantor of individual liberty through the tying of politics back to an initial moment of heightened political agreement, has its roots in the societal institution of slavery that operated to deny individual liberty and political agency to millions of black men and women. 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.
The Rise of Constitutional Spirit
The argument of the book unfolds in several parts. The first part traces the various developments over the course of the 1820s and 1830s that formed the components of an emergence of a constitutional spirit of 1787–88. I begin by examining the manner in which the Missouri Crisis highlighted different concepts within competing constitutional imaginaries that would be important for the constitutional developments of the 1830s. As they debated Missouri’s admission to the Union, “restrictionists” and “antirestrictionists” offered ideas about constitutional time, the role of a founding spirit in constitution construction, and the constitutional value of “compromise” that were echoed in the debates of the 1830s and then 1840s. Although they would not consolidate into the robust appeal to a constitutional spirit that developed in the mid-1830s, the Missouri debates provided a context for those later developments, signaling their centrality to constitutional thought regarding slavery and the potentiality of the latter as a site for a reconfiguration of constitutional construction.
In the second and third chapters, attention is turned to the ways in which claims of black citizenship led to invocations of a constitutional spirit, drawn from the Declaration of Independence and utilized to enable an expansive reading of the constitutional text. Beginning in the constitutional theories being developed in free black communities in Northern cities during the 1820s, the Declaration of Independence was read into the Constitution to create a constitutional obligation of equality under law. These arguments were taken up by the broader interracial abolitionist movement of the 1830s that grew out of free black opposition to the ACS and the white supporters converted to that opposition. The third chapter explores the expansion of those ideas in the wider movement of the 1830s and the complications they created for abolitionists’ understandings of their relationship with the founding fathers and the generation of the Revolution.
The fourth chapter turns to the ways in which proslavery advocates defended the institution during and after the Virginia Debates in 1831–32. Just as shifts within antislavery circles in the 1820s and 1830s altered thinking about the Constitution, so too did the reaction to Nat Turner’s Rebellion have repercussions for proslavery attitudes toward the Constitution. These developments produced less apologetic and future-oriented defenses of slavery, and foregrounded an understanding of slavery as a form of property relationship supported by constitutional principles. The result was the articulation of a defense of slavery reliant upon a constitutional interpretation that was subsequently shown to be vulnerable to abolitionist challenge.
The second part of the book turns its attention to the particular case of slavery in the District of Columbia and the constitutional implications of the abolitionist and proslavery clashes over the District in the early and mid-1830s. Chapter 6 explores the ways in which slavery and the slave trade in the District of Columbia became increasingly significant to both abolitionists and the defenders of slavery in the 1830s. Home to between 4,500 and 6,200 slaves during most of this period, tens of thousands more slaves likely passed through the District during forced migrations to the South and West. As a result of the developments discussed in the previous chapters, as well as the changing international attitude toward slavery, the symbolism of slavery within the capital took on heightened significance in the 1830s, raising the political and constitutional stakes of abolition within the ten miles square. Chapter 7 details the consequences of this rising symbolism in terms of the heated congressional debates of 1836 and the pressures brought to bear on the District by the abolitionist petition campaigns. It shows how the congressional debate became an opportunity for elite articulations of a constitutional theory of “return to the founding” as a mechanism for addressing the abolitionist claims of an express textual constitutional power of abolition in the District.
Chapter 8 offers a theoretical account of the constitutional theory of “the Compact” developed in parallel to the congressional debates over the course of the 1836 presidential election. The culmination of these trends and debates was Martin Van Buren’s articulation of a constitutional theory that bound him – and the United States – back to 1787. The analysis highlights the ways in which the latter theory both departed from the theory of constitutional compact offered in 1798–99 and, at the same time, reinterpreted the notion of constitutional spirit so as to apply it to a specific historical moment.
In the final chapter, the book assesses the longer-term impact of these developments through an examination of the manner in which the abolitionists themselves adopted the theory of a constitutional spirit after the publication of Madison’s Notes. It then traces the transformation of constitutional spirit as developed in 1836 into the notion that 1787–88 marked a constitutional “recognition” of slavery that subsequent Americans were obliged to honor. Such recognition was central to Chief Justice Taney’s Dred Scott opinion in which Taney returned to the founding in order to resolve debates over the personhood of slaves by definitively rejecting their claims to citizenship. In conclusion, the book provides an overview of the development of constitutional spirit during the mid-Antebellum period, and considers what possibilities there might be for a constitutional politics that breaks free from the dead hand of the founding.
Constitutional Spirit in the Nineteenth and Twenty-First Centuries
In 2010, in the middle of his Dissent in the case of McDonald v. Chicago, Justice Stevens deviated from the immediate subject at hand (the Second Amendment’s right to bear arms) to offer criticism of Justice Scalia’s approach to the study of history. Justice Scalia, wrote Stevens, remained oblivious to the “malleability and elusiveness” of history and Scalia’s “defense of his method” was “unsatisfying on its own terms.”Footnote 29 Explaining the difficulties of historical research, Stevens offered:
Even when historical analysis is focused on a discrete proposition, such as the original public meaning of the Second Amendment, the evidence often points in different directions. The historian must choose which pieces to credit and which to discount, and then must try to assemble them into a coherent whole.
In place of Scalia’s historical approach, Stevens offered his own method, which “focused more closely on sources contemporaneous with the [Second] Amendment’s drafting and ratification,” and which consciously acknowledged the subjectivity of the judge’s use of history and thus allied it with a “transparency” that invited critique. Responding in his Concurrence, Scalia conceded, “Historical analysis can be difficult.” But he argued that despite such difficulties his “historically focused method” was “less subjective [than Stevens’] because it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor.” Stevens, wrote Scalia, sought not to “replace history with moral philosophy, but would have the courts consider both.”
This episode, on its face, should strike the observer as extremely odd. Why would two Justices of the Supreme Court, legal practitioners at the apex of their professional field, in the middle of a landmark case, interrupt their examination of the legal precedents and points of law to engage in a squabble over historical methodology? But anyone who has paid attention to constitutional debates in the United States in recent years might regard this exchange as wholly unexceptional.Footnote 30 For as Stevens noted in his Dissent, “When answering a constitutional question to which the text provides no clear answer, there is always some amount of discretion; our constitutional system has always depended on judges’ filling in the document’s vast open spaces” – and, as both Stevens and Scalia concede, judges have, in turn, depended upon history to help them fill in those “vast open spaces.”Footnote 31 To a significant extent, the modern Supreme Court Justice is expected to be an amateur historian, piecing together evidence to discern the underlying historical meaning of the Constitution.Footnote 32
The judicial reliance upon history reflects a broader societal willingness to turn to history, and particularly to the history of the founding period, as a guide to resolving constitutional disputes. Appeals to the attitudes present at the Constitution’s founding litter contemporary political discourse in the United States. Arguments for the constitutionality or unconstitutionality of particular policies that rest on a notion of what was intended or understood at the time of the Constitution’s creation are regularly heard in the modern United States. As a society we follow our Justices in looking to historical endeavors to fill in the “vast open spaces” of our constitutional life. In such a way, we today retread the steps taken by the political moderates of the 1830s, aping their attempts to settle the controversial but unavoidable constitutional issues “to which the text provides no clear answer,” by making recourse to the authority of a group of historical actors dubbed “founders.”Footnote 33 On issues as broad as freedom of religion, reproductive rights, and control of firearms, we take our unconscious lead from the debates over slavery in the 1830s and seek to tap the founding for constitutional guidance. But rarely, if at all, is the historical context that gives rise to such an approach to questions of constitutionality considered. Examining the emergence in the 1830s of the claim that the spirit of the founding provides the boundaries of legitimate politics can help us to think about what such practices entail.
In striking ways, the recourse to the founding for meaning emerged in that decade in a similar environment to the one that gave rise to originalism in the late twentieth century. In both instances, a broad societal turn to the history of the revolutionary period and questions concerning the position of the current generation in the history of the nation provided a receptive environment for a turn to the founding. Within such an environment, the emergence of issues to which the constitutional text provided no direct answer, but which progressive political forces sought to resolve constitutionally, spurred conservatives to pursue the development of a mode of constitutional interpretation that made recourse to the values of a founding generation. In the late twentieth century, the bicentennial of the Revolution drew Americans’ attention to an apparently simpler time when political debates were more starkly black and white – both metaphorically and literally. A seductive alternative to the “malaise” of the 1970s and the complex constitutional debates arising around racial equality and reproductive rights for which the constitutional text apparently provided no clear answers, the founding came to loom larger in constitutional theorizing than it had in the 1950s and 1960s. One dimension of this shift was the growth and success of constitutional originalism.Footnote 34
The constitutional thought of the 1830s, like the 1970s and 1980s, came on the back of a bout of nostalgia for the purity of a founding moment. For the generation that followed the revolutionaries of 1776 and the founders of 1787–88, history and historical memory proved a vital tool for navigating the pressures that their political inheritance bestowed upon them.Footnote 35 As François Furstenberg has noted, a political culture that prioritized “consent” could not embrace a historical legacy without some accommodation for autonomy. The result was an embrace of civic texts, and the veneration of them which saw “Americans … continually recur to the moment of founding, and choose to grant their consent, if only tacitly, to the nation.”Footnote 36 Through such recurrence, and in the development of a shared public memory of that moment, the second generation of Americans forged for themselves a role as the preservers of the social and political institutions that had secured liberty. At the same time, the political elites of the early Republic were highly conscious of the history of their Revolution and founding and the uses to which such a history could be put. Facing the release of a popular energy that risked destabilizing social order, they saw, and addressed, history as a theater within which the meaning of the Revolution could be shaped and contested.Footnote 37 Elites sought to preserve and spread a history that enhanced their own reputations and which aggrandized the roles they had played in the founding of the nation.Footnote 38 Making use of history as a didactic tool, political and social elites offered a history of the Revolution and founding that focused on the stories of high-status individuals and which linked republican virtue to submission to established governmental institutions.Footnote 39 The history of the Constitution itself was both colored by, and served as, an important site for this project. The early history of the Constitution “place[d] particular emphasis on the role played by the educated part of society” and tempered any democratic narrative through the use of Whiggish and classical modes of historical writing.Footnote 40 Motivated by a desire to unify the nation and secure reputations, such a practice of history left to the second generation of Americans a historiographical framework of great events undertaken by a great generation.Footnote 41 But in reality, the historical legacy of the founders did not leave their hands as a sacred and untouchable inheritance but was negotiated and reconceived through the interactions between generations.Footnote 42 Only with time and incrementally did the Revolution and the founding take on the mantle of a historical Golden Age and were its figures and exploits deemed worthy of veneration.Footnote 43
A crucial moment within this negotiated transition from founding to second generation came in the 1820s, and particularly 1826, as something of a symbolic changing of the generational guard took place. The deaths of Thomas Jefferson and John Adams, within hours of each other and fifty years to the day after the adoption of the Declaration of Independence, impressed heightened significance on the semicentennial.Footnote 44 Following Lafayette’s tour of the United States (1824–25), which had prompted American attention to the history and legacy of the founding era, the deaths in 1826 served to underline the distance between the contemporary generation and the events of the founding era and the need to come to terms with them.Footnote 45 Although the second generation’s efforts to understand their political inheritance did not begin in 1826, it marked a high point within an era of pointed and self-conscious consideration of history. It was this environment in which the developments within abolitionist and proslavery thought detailed in later chapters would evolve and take root. This history made the possibility of recourse to a spirit of the 1780s ideologically available to the actors of the 1830s. But it also made the preservation of that spirit a normatively significant commitment.
The parallels between the 1830s and today’s constitutional debates encourage us to think more critically about the alternatives to originalism offered in the current era. An appeal to an animating constitutional spirit is often a pivotal mechanism in constitutional theories that seek to break away from originalism and a commitment to interpreting the constitutional text in accordance with late eighteenth-century intentions, meanings, or expectations. Such theories often suggest that principles, rather than the text alone, allow for a constitutional interpretation that is forward-looking and broadly progressive. “Principle” is often offered in constitutional accounts as an alternative or addendum to text, often within a broader frame of “fidelity” to a constitutional settlement. While perhaps lacking the visceral and emotional attachment of “spirit,” to the extent that “principle” invariably seems to come down to being some constellation of values its supporters attach to the Constitution, I suggest here its function resembles that of the idea of spirit.Footnote 46 In 1985, Justice Brennan sketched an alternative to a jurisprudence of “fidelity to … ‘the intentions of the Framers.’”Footnote 47 In this alternative, Brennan argued for judges to oversee the application of the “fundamental principles” of the Constitution to contemporary situations so as to further the “ideals of human dignity” entrenched in the Constitution.Footnote 48 This “Living Constitutionalism,” with its concern for the unfolding of the principles of liberty and human dignity contained within the Constitution, was exemplified in Justice Kennedy’s opinion for the Court in Obergefell v. Hodges (2015), upholding a constitutional right to same-sex marriage.Footnote 49 Reviewing the changing historical understandings of marriage, Kennedy said:
These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.Footnote 50
Under this view of Living Constitutionalism, the Constitution evolves with society, updated to reflect new technologies or societal norms, but always in accordance to the fundamental values that had inspirited it.Footnote 51 As an approach to moving away from the rigidity of a constitutional text written in the late eighteenth century, the notion of a constitution that evolves with society has much to be said for it. However, the Living Constitution approach has been subject to the persistent critique that it gives to judges an unlimited power to idiosyncratically define those fundamental principles and apply them at will to the country at large.Footnote 52
Recent contemporary opponents of originalism have sought to mitigate the criticisms of the Living Constitution as overly empowering the judiciary by suggesting that an approach of “text-and-principle” offers a more anchored counter to the excesses of originalism. Critics of constitutional conservatism, including the American Constitutional Society in their 2009 Keeping Faith with the Constitution, have looked to “constitutional fidelity” and the principles of the Constitution to argue for more expansive constitutional interpretation than that allowed by the original expected applications or strict constructions of the constitutional text.Footnote 53 These constitutional theorists seek to guard the Constitution from devolving into “whatever a sufficient number of people think it ought to mean,” by paying due attention to the “fixed and enduring character of its text and principles.”Footnote 54 Balkin’s Living Originalism, which the authors of Keeping Faith with the Constitution draw upon, spells this idea out in terms of “framework originalism,” which requires fidelity to the “rules, standards and principles stated by the Constitution’s text,” but also that Americans remain “faithful to the principles that underlie the text.”Footnote 55 This approach seeks to empower not the judiciary but the people, offering space, in Balkin’s words, for each “generation [to] do its part to keep the plan going and to ensure that it remains adequate to the needs and values of the American people.”Footnote 56 Or as Liu, Karlan, and Schroeder put it, “the American people have kept faith with the Constitution because its text and principles have been interpreted in ways that keep faith with the needs and understandings of the American people.”Footnote 57
As positive as this “third way” between originalism and the Living Constitution sounds, the experience of the 1830s suggests that we ought to be wary of appeals to principle or reinterpretations of the latter to meet contemporary needs and understandings. One indicator that might induce concern for the critics of originalism is the extent to which erstwhile originalists seem to be willing to embrace the concept of principle.Footnote 58 Indeed, even the authors of Keeping Faith with the Constitution concede, “our view of constitutional fidelity is not at odds with originalism if originalism is understood to mean a commitment to the underlying principles that the Framers’ words were publicly understood to convey.”Footnote 59 As the debates of the 1830s discussed in this book illustrate, there is nothing inherently progressive or constitutionally expansive in the invocation of principle or spirit. Advocates of slavery and their anti-abolitionist allies saw in the spirit or principles of the Constitution a conceptual mechanism for foreclosing the emancipatory constitutional interpretation pushed by the abolitionists. Where abolitionists understood the Constitution’s grant of exclusive jurisdiction over the District of Columbia to be an opportunity, or even duty, to emancipate and acknowledge the citizenship of the District’s thousands of slaves, their opponents offered the spirit of the Constitution as a justification for rejecting that opportunity and reaffirming the constitutional politics that reduced the black population held in bondage to property rather than people. In the longer term, the development of this mode of constitutional thought would provide a basis for a Dred Scott decision that had broader territorial reach and which sought to collapse ascribed proslavery constitutional principles with an ambiguous text. We should be wary of a belief that spirit or principle offers the prospect of an easy or automatic corrective to any perceived excesses of originalism.
But if the history studied here pours some cold water on the progressive hopes of constitutional spirit, it should also prompt us to question whether the real issue is not, in fact, the broader willingness to turn to foundings per se. Despite Anne Norton’s warnings of the “temporal imperialism” of a founding generation whose “dead hand of the past … may weigh so heavily (or give so much assistance) to the living,” the view that the origin of constitutional legitimacy lies with the initial authority of the people is shared across different shades of political belief.Footnote 60 In the case of the United States, the process of drafting and then ratifying a constitution has become the moment in which the people themselves assent to a constitutional order and grant it democratic legitimacy.Footnote 61 Located during a moment of exceptional sovereign presence, much work on the democratizing of constitutional theory is concerned primarily with recapturing or reanimating that moment in subsequent chronological time.Footnote 62 Such is the reach of this framework, that David Singh Grewal and Jedediah Purdy have persuasively argued that neither originalism nor Living Constitutionalism have escaped from its grip, with each, albeit in different ways, laboring under the inability to reanimate the initial moment of sovereign power.Footnote 63 The experiences of the 1830s urge us to think in creative ways about the possibilities for a democratic constitutional politics that is not tied back to a moment of origin.Footnote 64 Indeed, this book seeks to guide us toward such an approach by turning at the end to Thomas Jefferson and Thomas Paine and examining the loose threads of a constitutional history not taken up. In the conclusion, I pick up some of those threads in the pursuit of a constitutional politics that offers a separation of chronology and authority. In place of the responses offered by contemporary political theory of subsequent tapping of a founding, or later contestation over the founding, Paine and Jefferson instead conceive of a popular sovereign unmoored to a particular moment in secular time.Footnote 65 In a polity in which policies regarding the regulation of weapons, the provision of healthcare, and reproductive rights are beholden to a constitution originally authored over 225 years ago and well before the creation of the technologies governed by these policies, the discussion of a constitutional politics rooted in the present seems, at the very least, a timely endeavor.Footnote 66 If we are to create a truly democratic polity, it is perhaps time for us to leave 1787–88 behind. But first I turn to the story of constitutional spirit that begins in the late 1810s.
