Sunday, May 30, 2021

The Antebellum Civil Rights Movement And The Antislavery Background Of The Fourteenth Amendment

Guest Blogger

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).

Michael Les Benedict

            Kate Masur’s Until Justice Be Done is a major contribution to the history of the conflict over rights in the United States.  It will be the standard account of African American’s struggle for equal rights from the turn of the nineteenth century through the ratification of the Reconstruction-era amendments to the Constitution.  As such, it provides a new perspective on the origins of the Civil War constitutional amendments and the intention of the American people in framing and ratifying them. 

            Masur’s account deepens historians’ understanding of the antislavery movement in several very significant ways.  First, Masur gives us a new account of the origins of the Civil War-era constitutional amendments.  The classic view has been that there were antislavery origins to those amendments.  The great works that recovered those origins were titled The Antislavery Origins of the Fourteenth Amendment and “The Early Antislavery Backgrounds of the Fourteenth Amendment.”[1]  Both harkened back to abolitionist arguments articulated by white abolitionists like Alvan Stewart, William Goodell, and Lysander Spooner that slavery itself was unconstitutional and unconstitutionally deprived Americans of the rights to free speech, free press, petition, assembly, and due process of law.  William Wiecek’s classic The Sources of Antislavery Constitutionalism in America likewise attended only to the white abolitionists who developed the antislavery constitutional argument.[2]  Frederick Douglass rated one mention, as newspaper editor rather than theorist.  The natural conclusion one draws after reading Until Justice Be Done is that the origins of the Fourteenth and Fifteen Amendments lie not so much in antislavery constitutionalism but in what she calls “the first civil rights movement”—the black-led movement for equal rights that ran from the Revolution through the Civil War and into Reconstruction  (I prefer “equal rights” to “civil rights” as a descriptor of the movement Masur chronicles). 

            This leads to Masur’s second contribution.  Masur implicitly but clearly distinguishes between the antislavery movement per se and the movement for equal rights.  This insight is one of those jaw-dropping ones that makes apparent what had been implicit in recent studies of antebellum black activism.  Until now, historians have conceived of the great crisis of the mid-nineteenth century in terms of the antislavery movement.  Most of the historiography has concentrated on abolitionism.  We have numerous accounts of the Garrisonians.  For a long time they were credited with creating the intellectual, moral, and political environment in which Northerners finally confronted slavery.  The Garrisonians famously eschewed politics in favor of “moral suasion” in their campaign against slavery, bitterly condemning the “political abolitionists” who disagreed with their approach. Historians have begun to argue that it was the political abolitionists rather than the Garrisonians, who brought slavery to an end.  All these accounts treat calls for equal rights as an element of the antislavery campaign, with the Garrisonians especially committed and political abolitionists more ambivalent. 

            In recent years scholars have chronicled the work of black activists, stressing their quest for recognition as citizens, their demand to be considered Americans rather than outsiders.[3]  But Masur’s is the first synthetic account, and the first to conceive of these activities as a civil rights movement complementing but separate from the antislavery movement.  While the campaign against slavery and the campaign against racially discriminatory laws were related, they were not the same thing.  The distinction was illustrated most clearly in 1865, when Garrison successfully called upon the American Anti-Slavery Society to disband and discontinued The Liberator, while his old co-agitator Wendell Phillips insisted that the struggle would not be over until black Americans had equal rights.   I had never understood how Garrison could be so obtuse until I read Masur’s work.  Now I understand that for Garrison, the issue was slavery not equal rights.  He sympathized with equal rights for everybody, and the Anti-Slavery Society took a firm stand for equal rights not only for blacks but for women.  Garrisonians regularly called for equality of rights for freed people among their resolutions condemning slavery.  But the issue was slavery.  Equal Rights was ancillary.  Get rid of slavery, and equal rights would follow.  That was not the view of the black leaders of the civil rights movement.  They were contesting racially discriminatory laws in the North.  Garrison might think that these would dissolve once they no longer were needed to buttress slavery.  Black northerners knew better. 

            Although white abolitionists sympathized, it was black northerners who drove the campaign for equal rights.  Whites dominated the antislavery movement, with black northerners giving important and often crucial support.  (African Americans accounted for three-quarters of the subscribers to The Liberator, for example.)  A few black Americans, most famously Frederick Douglass, were leaders in both movements.  But Masur’s work indicates that we will understand developments better if we conceive of the two movements separately rather than as one.  It is appropriate for historians to speak of abolitionists and their black allies.  In describing he civil rights movement, Masur speaks of African Americans and “their white allies.”  There is a logic to this.  The black movement for equal rights was aimed at discrimination in the North more than at slavery in the South.  It grew explosively in the 1840s and 1850s after black northerners initiated the black convention movement.  These conventions represented, as their titles demonstrated, the “colored citizens” of the northern states in which they were called.[4]  Their resolutions and addresses to white northerners complained about the humiliating legal discrimination they faced.  Of course, there would be a resolution or two denouncing slavery, but the focus was on equal rights in the North. The national conventions were called by the state conventions and reflected their concentration on securing equal rights in the states.  The Thirteenth Amendment was the culmination of the white-led antislavery movement.  The Fourteenth and Fifteenth Amendments were the culmination of the black-led equal rights movement.

      Within this framework, Masur recovers black voices to a degree unprecedented in Civil War-era historiography, her third contribution.  The classic studies of American abolitionism reproduced the white voices of the movement.[5]   Historians have acknowledged the important role blacks played in supporting the movement, but until quite recently only Douglass has received much attention.  There is a good reason for this concentration on the white voice.  Most abolitionists were white, and so were their theorists and propagandists.  Abolitionists were concerned with the suffering of black slaves but much of their concern centered on the sin of slavery, and how white northerners as well as southerners were implicated in that sin.  Political abolitionists stressed especially the ways that slaveowner control of the federal government—the so-called “slave power”—infringed the liberties of white northerners.  Most historians see concern for the rights of white northerners as more important than concern for the rights of blacks in the growth of antislavery sentiment in the North.  Masur discusses at length the way Black Seaman laws affected black mariners, for example.  Antislavery whites stressed the way South Carolina deprived white Massachusetts lawyer Samuel Hoar of the right to challenge the laws in court.  

            Masur misses an important opportunity to illustrate how the black-led equal rights movement intersected and informed the white-led antislavery movement.  She pays scant attention to the effect enforcement of the Fugitive Slave Act of 1850 had on white northerners, saying only that it “radicalized” some of them.  She says surprisingly little about it enabled the black leadership of the equal rights movement to attract white support.  Blacks resisted the enforcement of the law throughout the North, often with violent attacks on slavecatchers and even on federal officers aiding them.  They justified these efforts to rescue alleged fugitives by pointing out, accurately, that they would have no opportunity to prove their freedom in proceedings before fugitive slave commissioners, much less if slave catchers simply dragged them South with no proceedings at all.  In the most northern tier of states, whites overwhelmingly backed the rescues.  In the middle tier, there were bitter divisions among whites.  Whites condemned black resistance only along the border with the South, and even there a good number of whites dissented.  

            Historians have long known that the enactment of the Fugitive Slave Act backfired upon proslavery southerners, by sparking northern resistance and new personal liberty laws.  The events have been seen as part of the antislavery story, however, and not as part of the equal rights story.   Masur’s recovery of an equal rights movement related to but separate from the antislavery movement, encourages us to see the northern reaction in a different light:  the Fugitive Slave Act sensitized antislavery advocates who had concentrated primarily on northern white grievances to the issue of black rights.  It was the point where the two movements converged.  In the words of John Brooke, people discovered that “There Is a North,” and identified it not only with free soil for whites but personal rights for blacks.[6]   

            Another of Masur’s important contributions is that racially discriminatory laws related to the Poor Laws that were part of the common-law heritage of the United States.  The law had long recognized the right of local governments to restrict poor relief to members of the community.   Denial of poor relief to African Americans, like laws and constitutional provisions that banned their immigration, signaled their exclusion from the community.   The policies were buttressed by the legal recognition of the right of states and localities to exercise police powers to protect the community against “moral contagion.”  Nothing dismayed black Americans more than this denial that they were part of the community.  They vehemently and persistently protested against it.  When African Americans insisted that they were citizens, they meant that they were part of the community that was trying to exclude them.  Equal rights meant being treated like everyone else in the personal rights that all members of the community shared.  These were basic rights like legal protection of life, liberty, and property; contract rights; marital rights; parental rights; and the right to move freely from place to place.   The rights of citizenship were something else.  They were the political rights that belonged to all male citizens.  Black activists claimed these rights as well.  Their denial was also a mark of exclusion from the community, but they were a different category of rights. 

            Masur does not attend much to this distinction, if at all, but it is important for understanding how the definition of citizen’s rights changed during the Civil War and Reconstruction.   The Civil Rights Act of 1866 defined citizenship in a way that included black people born in the United States and subject to its jurisdiction.  Then it declared that all citizens were entitled to the same basic rights as white citizens.  As Masur points out, this formulation permitted states to deny basic rights to foreigners, especially Chinese immigrants, and Indians.  The law treated what had been the basic rights of all as the civil rights of citizens.   Moreover, the law pointedly omitted any allusion to the political rights of citizens.  This formulation was a distinct narrowing of the meaning of citizenship, which had always been understood as a political status.[7]  Republicans further muddled the conceptions when they changed the rights language in a law passed in 1870 to enforce the Fourteenth Amendment.   The new language gave all persons the same basic rights as white citizens.              

            Masur’s stress on the antebellum equal-rights sources of the Fourteenth Amendment leads to a new appreciation of how radical even a conservative interpretation of its provisions was.  That is particularly true of the state-action doctrine the Supreme Court articulated in the Civil Rights Cases.[8] The first civil rights movement was aimed at the state and local legislation that marked African Americans as outsiders.  Its underlying theme was that black Americans were part of the community.  The ultimate aspiration was complete acceptance, socially as well as in civil and political life.  The most symbolic action a community could take in , that regard was to repeal legislation that barred interracial marriage.  Private behavior was not the target of the movement Masur describes.  No one proposed to make it illegal to prefer spouses of the same race.  The black leaders of the equal-rights movement aimed at government action, and so did the Reconstruction amendments that were its culmination.  The accomplishment itself was a momentous change.  That is why Masur’s chief condemnation of later court decisions is that they sustained racial segregation, not that they limited the enforcement to state action.  Segregation laws were affirmations of the otherness of black Americans, exactly what the first civil rights movement condemned.  As Justice Harlan saw, the fact that they restrained both blacks and whites was irrelevant to the unconstitutional purpose of writing racial distinctions into law. 

            But in other ways, a too exclusive focus on the first civil rights movement as the foundation for the Reconstruction amendments leads to too narrow an interpretation of them.  Masur reads the spirit of inclusion into the Fourteenth Amendment’s Privileges and Immunities Clause.  It was “designed to protect individuals against injustices perpetrated by the states and their agents,” she says (345).  But her account makes clear that from the perspective of the black-led civil rights movement, it was aimed at a particular legal manifestation of otherness—the refusal to recognize black Americans as citizens with the right to enter states and be treated like other citizens.  It is the Equal Protection Clause that most clearly represents black demands that states stop making racial distinctions among their own citizens, and the Court has interpreted it that way since the 1950s. 

            The experience of white abolitionists provides another related-but-distinct heritage that informed the Reconstruction amendments.  Masur focuses on black claims.  Proslavery suppression of white rights does not play much of a role in her story.  She does not attend to the mobbing of white abolitionists, the burning of lecture halls that accommodated them, and the refusal of civil authorities to protect their free-speech, free-press, and freedom-of-assembly rights.  She barely mentions the murder of antislavery newspaper editor Elijah Lovejoy.  She understandably stresses the way anti-abolitionist mobs turned on black people rather than how local authorities refused to protect the mostly white abolitionists.  The story of the expulsion of Massachusetts lawyer Samuel F. Hoar from South Carolina is chronicled in terms of the way the law he intended to challenge affected black mariners and motivated black activism in New England, not in terms of South Carolina’s refusal to accord a white citizen of Massachusetts the rights promised by the Constitution’s Privileges and Immunities Clause.   (South Carolinians could plausibly argue that black citizens of New England states were not citizens of the United States entitled to the protection of that clause; they could not say that of Hoar.)  The refusal of southern states to protect northern white abolitionists who wanted to agitate in the South; their demand that northern legislators suppress abolition societies; the exclusion of abolitionist materials from southern post offices, efforts to extradite white abolitionists for inciting slave insurrection, failure to  protect southern white abolitionists—none of these are part of the story she tells about black agitation for equal rights in the North. 

            This is not a criticism of Masur’s outstanding and illuminating work.  All those violations of rights are part of the abolition story and have been told by the chroniclers of that movement.[9]  But they are important for understanding the meaning of the Fourteenth Amendment.  For white abolitionists the right to equal protection of the law did not mean the right to be subject to nondiscriminatory laws.  For them the key word was not “equal” but “protection.”  When they were mobbed, when their lecture halls were burned, when they were driven from the South, they were denied the protection that state laws were supposed to afford to all.  During Reconstruction, Republicans tried to provide the protection that the southern states were unwilling or unable to provide.  The Supreme Court refused to consider the legislation in these terms.  To do so would have required the Court either to defer to Congress’s judgment that such an intervention was necessary, or to insist on the absence of state protection as an element of the private conduct to be punished.  It should be no surprise that the justices instead chose to limit Congress’s power to offsetting state-mandated discriminations and crimes clearly motivated by race.[10]  

            It is doubtful that a fuller understanding of the Reconstruction constitutional amendments will affect court decisions.  Precedent remains more important in legal decisions than constitutional historians’ rediscoveries of original intent.  But if there is one more insight that emerges from Masur’s study, it is that judicial constructions of constitutional law can be overturned through popular constitutional politics.  Masur’s work is as much part of the constitutional politics of the present as a recovery of the constitutional politics of the past.  If the American people decide that the principles that underlay the equal rights movements of the past must be applied to the American Constitution of today, they will prevail.   Sooner or later, the decision made through constitutional politics will be reflected in constitutional law.


[1] Jacobus TenBroek, The Antislavery Origins of the Fourteenth Amendment (Berkeley: University of California Press, 1951); Howard Jay Graham, “The Early Antislavery Backgrounds of the Fourteenth Amendment,” in Graham, Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism (Madison: State Historical Society of Wisconsin, 1968): 152-241.

[2] William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848 (Ithaca, N.Y.: Cornell University Press, 1977).

[3] Stephen Kantrowitz, More That Freedom: Fighting for Black Citizenship in a White Republic, 1829-1889 (N.U.: Pnguin, 2012); Christopher James Bonner, Remaking the Republic: Black Politics and the Creation of American Citizenship (Philadelphia: University of Pennsylvania Press, 2020); Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (N.Y.: Cambridge University Press, 2019); Van Gosse, The First Reconstruction: Black Politics in America from the Revolution to the Civil War (Chapel Hill: University of North Carolina Press, 2021).

[4] For example, Minutes of the State Convention of the Colored Citizens of the State of Michigan, Held in the City of Detroit on the 26th and 27th of October, 1843 (Detroit: Wm. Harsha, 1843); Minutes of the Fifth Annual Convention of the Colored Citizens of the State of New York, Held in the City of Schenectady, on the 18th, 19th, and 20th of September, 1844 (Troy: J.C. Kneeland and Co., 1844).  See the Digital Records of the Colored Conventions Project (

[5] Louis Filler, The Crusade Against Slavery;, 1830-1860 (N.Y. Harper & Row, 1960); Dwight L. Dumond, Antislavery (Ann Arbor: University of Michigan Press, 1961); Aileen Kraditor, Means and Ends in American Abolitionism:  Garrison and His Critics on Strategy and Tactics, 1834-1850 (N.Y.: Pantheon Books, 1969); Merton Dillon, The Abolitionists:  The Growth of a Dissenting Minority (DeKalb: Northern Illinois University Press, 1974).

[6] John L. Brooke, “There is a North”: Fugitive Sales, Political Crisis, and Cultural Transformation in the Coming of the Civil War (Amherst: University of Massachusetts Press, 2019). 

[7] See Michael Les Benedict, “Membership of a Nation, and Nothing More”:  The Civil Rights Act of 1866 and the Narrowing of Citizenship in the Civil War Era,” in “The Greatest and Grandest Act”: The Civil Rights Act of 1866 from Reconstruction to Today, ed. Christian Samito (Carbondale: Southern Illinois University Press, 2018), 9-36.

[8] 109 U.S. 3 (183).

[9] Leonard L. Richards, Gentlemen of Property and Standing: Anti-Abolition Mobs in Jacksonian America (N.Y.: Oxford University Press, 1970); Dillon, The Abolitionists, supra note 6.

[10] Analysts have tended to stress the state-action requirement and to have failed to see that the justices sustained federal power to punish private actions that were racially motivated.  See Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (N.Y.: Cambridge University Press, 2011) and Michael Les Benedict, “Preserving Federalism: Reconstruction in the Waite Court,” Supreme Court Review 1978: 39-80.

Michael Les Benedict is Professor Emeritus, History, Ohio State University, and Visiting Scholar, Ohio State University Moritz College of Law. You can reach him by e-mail at

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