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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