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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Abolitionist Power
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Thursday, June 03, 2021
The Abolitionist Power
Mark Graber
For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021). The
antebellum Senate was stocked with far more abolitionists committed to both the
abolition of slavery and racial equality than support for abolition and racial
equality in northern states might suggest.
Benjamin Wade, Salmon Chase, John Hale, and Charles Sumner were among
the committed abolitionists that repeatedly excoriated slavery, the slave
power, and racial inequality on the floor of the Senate. This abolitionist presence in the upper house
of Congress during the 1850s did not reflect popular support for abolitionism. With the possible exception of Massachusetts,
popular majorities in all antebellum states were dedicated to more or less
virulent strains of white supremacy. Free
Soilers and their sympathizers nevertheless gained prominence in the national
legislature by striking deals in state legislatures closely divided between
Jacksonian Democrats and Whigs. The
relatively small number of racial egalitarians in the state legislature consistently
agreed to vote as a block for the local platform of whatever party agreed to
send a confirmed opponent of slavery to distant Washington, DC. Many state legislators who belonged to the
major parties, far more concerned with the roads in their hometown than the
status of often faraway African-Americans, accepted this bargain. The end result was far more publicity and
prominence for fights for emancipation and racial equality than persons
familiar with the rules of the game and popular racial sentiments in antebellum
America might have predicted. American
abolitionists and racial egalitarians rose to power in this and otherwise by playing
constitutional politics rather than devoting themselves exclusively to
constitutional law or moral suasion. Until
Justice be Done: America’s First Civil Rights Movement, from the Revolution to
Reconstruction
is a magnificent account of the fight for formal racial equality that took
place in the United States from the late eighteenth century until the
ratification of the post-Civil War Amendments.
Professor Kate Masur lovingly and meticulously details how most American abolitionists were as
concerned with the status of African-Americans in the free states as they were
to prevent the spread of slavery in the West and the existence of slavery in
the South. For every petition to
Congress decrying the existence of human bondage in Washington, DC, there was a
petition to a state legislature urging local officials to provide schools for persons
of color, permit persons of color to testify in state courts and, in the
Midwest, permit persons of color to become state citizens or even state residents. These abolitionists were not content to rely
solely on the power of their constitutional or legal arguments. They played politics and often played politics
well. Until
Justice be Done
spectacularly achieves the author’s purpose.
Professor Masur sheds welcome, richly documented, brilliantly conceived,
and accessibly written light on the debates over racial equality that took
place in antebellum America. That most
northern states established black codes before the Civil War is well know. What is less well known is that those black
codes were vigorously contested by African-Americans and their white
abolitionist allies. The common view
that the Civil Rights Act of 1866 and Section One of the Fourteenth Amendment
were directed only at southern black codes is wrong. The commitment to racial equality that drove
Republicans after the Civil War was forged as much in fights against Ohio and
other state laws limiting the civil rights of black persons as in fights to
keep slavery out of western territories.
To repeat what others have said, Until Justice be Done is a must
read for anyone interested in nineteenth century American history or racial
politics in the United States. Until
Justice be Done as
spectacularly achieves this reviewer’s purposes. Professor Mazur sheds welcome, richly
documented, brilliantly conceived and accessibly written light on the
constitutional politics of racial equality that took place in antebellum
America. Progressive reform, she
demonstrates, does not take place without progressive politics. That
progressive politics, in turn, does not always play by the Marquis de
Queensbury rules. The too common tendency
of contemporary progressives to denigrate politics (calling someone a “politician”
is not a complement), often in comparison to what is perceived to be the higher
sphere of law, Until Justice be Done teaches, is an attitude that promotes
constitutional failure. Professor
Masur highlights how the political activists who fought for racial equality in
the free states engaged in constitutional politics. They sought to manipulate existing constitutional
texts, legal precedents, and governing institutions so as to make their
constitutional vision the official law of the land or at least of their home state. The activists who fought to repeal Ohio’s
Black Code or Pennsylvania’s ban on voting by persons of color did not think
they could afford the luxury of burning the national or state constitution. They understood that acknowledging the
Constitution as “a covenant with death and an agreement with Hell” was an act
of political defeatism. Their attitude
towards constitutionalism was purely instrumental. Constitutional analysis consisted of
manipulating text and precedent in ways that expressed an aspiration toward
racial equality. Constitutional politics
consisted of manipulating the legal rules for staffing the government and
making laws in ways that maximized the power of those who were opposed to
slavery and favored racial equality. Professor
Masur’s emphasis on the antebellum politics of racial equality leads her to
focus on a different cast of characters than the conventional accounts of
American abolition that focus on William Lloyd Garrison. Until Justice be Done begins with a
convention of African-American activists in Ohio, introduces most readers to
John Jones, the African-American activist who led the fight in Illinois for the repeal of black laws, and describes at great length African-American lobbying
for legal equality. Garrison thought in
abstractions. He would heal racism
through moral suasion alone.
African-Americans, the victims of racism, acted in politics. They would heal racism using whatever means
existing politics and law made available.
Rather than despair that “the master’s tools will never dismantle the master’s
house,” African-American activists and their white political allies understood
that the master’s tools were the only tools available to dismantle the master’s
house, that any new tools could be forged only by using the old tools. Proponents
of abolitionism recognized the constitutional rules were stacked against
them. The three-fifths clause, in
particular, gave the slave power far more political strength than was warranted
by pure numbers. Nevertheless,
constitutional failings were understood as means for mobilizing an outraged
public. With important exceptions,
American abolitionists understood that the road to racial equality was through
political mobilization rather than through adjudication or constitutional
reform. In taking this road, American
abolitionists did not always play constitutionally nice. If rules could be manipulated to increase the
political power of abolitionism, those rules were manipulated. Mitch McConnell would understand (and might
learn from) abolitionist constitutional politics. I fear Charles Schumer would be aghast. Abolitionists in politics often wielded the available tools of constitutional politics in
ways that demonstrated much better skill and arguably less commitment to
majority rule than the contemporary Republican Party (with the extraordinarily
important proviso that these tools were being wielded in order to ensure the
political inclusion of African-Americans in the polity). As noted above, they manipulated state
legislative politics to place committed abolitionists in the Senate. They forced northern politicians to adopt
more racially egalitarian positions by forming one-issue political
parties. They took advantage of the
peculiarities of the electoral college to elect an antislavery president with less
than two-fifths of the popular vote (Donald Trump obtained a much higher
percentage of the popular vote in 2016 and 2020 than Abraham Lincoln). They admitted grossly underpopulated western states
to increase their capacity for passing legislation and ratifying constitutional
amendments. They refused to seat
delegations from the former confederate states until they had passed the Thirteenth Amendment, the Civil
Rights Act of 1866 and Fourteenth Amendment. This
constitutional politics was animated by an attitude toward power that is
antithetical to much contemporary liberal thought. Abolitionists believed power was a good thing
in the hands of the right people. Rather
than attempt to persuade their fellow citizens to engage in a constitutional
politics that minimized power, they sought to find ways to place power in the
hands of those who opposed slavery and racial equality. Thaddeus Stevens captured the abolitionist
spirit when he described the purpose of postwar abolitionist reform as “secur[ing]
perpetual ascendancy to the party of the Union.” Abolitionist principles
limited what abolitionists could do politically to gain power, but every good abolitionist
knew the more African-Americans were empowered, the more secure would be party
of the Union, which in turn would further empower African-Americans. Reviews
of extraordinary works have three elements.
First, they point out just how extraordinary the work is. Check (I
hope). Second, they use that work as a
vehicle to support their concerns in the hope the virtues of the work being
reviewed will rub off on their opus.
Check. Third, they make trivial
criticisms in the hope of further using the extraordinary work to advance their
more pedestrian concerns. Here goes. Professor
Masur’s repeated treatment of the Fourteenth Amendment as the culmination of
the antebellum struggle for racial equality is problematic in light of her
emphasis on the constitutional politics of racial equality. One problem is that most Republicans thought
the Thirteenth Amendment, which empowered Congress to prohibit race
discrimination as a badge and incident of slavery, and the Civil Rights Act of
1866, which prohibited race discrimination in basic civil rights, were the
legal culmination of the antebellum movement for racial equality. Their Fourteenth Amendment was centered
around Sections Two, Three and Four, which restructured constitutional politics
rather than constitutional law. That awaits my longstanding unpublished work,
which Professor Masur had and has no reason to take into account. The larger problem is that, as Professor
Masur documents, the Fourteenth Amendment was merely an episode in the long ongoing
struggle for racial equality rather than an end and a new beginning. The
Fourteenth Amendment provided racial egalitarians with a new tool to wield in
constitutional politics, but the consequences of that amendment depended on who
wielded that tool and how that tool was wielded. Legal authorities in several former slave
states, noting that the Fourteenth Amendment did not explicitly bar race
discrimination, concluded that real differences between black and white
citizens as justified laws restricting the rights of persons of color as real
differences between men and women continued to justify laws restricting the
rights of women. Republicans by legislation
and judicial decree nipped that line of jurisprudence in the bud, but racial
egalitarians for the next ninety years were unable to engage in the
constitutional politics necessary to make any broader understanding of racial
equality the official law of the land. Professor
Masur’s conclusion that “much remains to be done” acknowledges that constitutional
reform was an episode in the struggle for racial equality, but only an
episode. The fight black activists began
in eighteenth century America to end white supremacy continues to rage in
constitutional politics and constitutional law.
That fight will be culminated, not by the passing of better
constitutional language, but when the opponents of racial equality leave the
field because they have been slaughtered, have been persuaded, or no longer have
the will to promote white supremacy.
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