"Constitutions as Ways of Life; Rights as Political Practices: Using Theory and History to Reframe American Constitutional Politics"

Elizabeth Beaumont

University of Minnesota

Draft – please do not cite or circulate without permission.

Introduction

This paperis a work-in-progress stemming from a larger book project examining the role of civic participation in constitutional theory and politics, with particular attention to the ways in which citizens have understood, argued about,practiced, and helped transformconstitutional rightsand liberty during critical historical periods. The broader project challenges dominant accounts of constitutional theory and seeks to excavate and reinvigorate the notion of a civic constitution in which engaged citizens play a pivotal role in defining and transforming constitutional principles. I call this distinctive form of civic engagement public guardianship of liberty, the beliefs and activities that treat the Constitution and rights as res publicae – public things and matters of public concernand shared responsibility. I argue that this form of constitutional politics is not only a recurring mechanism for constitutional interpretation and change, but it bears witness to a more powerful -- and more empowering -- view of constitutional rights and liberty. My goal, in part, is to reorient the way we think and talk about constitutions and the relationship between people and constitutions, encouraging us to recognize the ways in which constitutions are defined by the “ways of life” of the people, as Aristotle urged, and the ways in which rights are defined by political practices, including the beliefs and actions of ordinary people.

At first glance, these ideas that citizens participate actively and creatively in shaping Constitutional rights and commitments -- the meaning and institutionalization of the fundamental principles of the political community -- may seem indisputable. Some may even wonder how anyone could reasonably think otherwise. Yet the vast body of modern constitutional theory gives little attention to popular constitutional debates, judgments, and activities. As a result, Aristotle’s classical notion of a civic constitution, or the perception that constitutions and citizens are interdependent and that constitutions are as much shaped by citizens as citizens are shaped by constitutions, seems all but lost. Citizens are rarely recognized as creative and influential constitutional thinkers and actors. Instead, people remain ghostly figures, appearing as passive spectators to constitutional politicsand rights developments spearheaded by judges and presidents (Wolin, Fugitive Democracy 1996). Ironically, some of the most prominent scholarship on popular constitutionalism givessurprisingly little attention to the constitutional ideas and actions of engaged citizens and civic groups (Ackerman 1993, 1998; Kramer 2004). These failings leave us with a constitutional system whose legitimating principles of popular sovereignty and participation in self-rule seem to have been rendered empty or fictional. Moreover, it prevents us from recognizing the multiple stages on which rights play out, and appreciating the extent to whichpublic involvement in constitutional politics helps define and reform our constitutional rights and commitments.

To demonstrate how the concept of public guardianship improves our understanding of the United States Constitution, and of constitutional democracy, the book project revisits several historical periods of constitutional conflictand development, illuminating the ways in which citizens’ constitutional arguments and activities have contributed to revolutionary reinterpretations – even re-foundings – of the constitutional order. Drawing on a range of primary and secondary literature, particularly the letters, petitions, publications, and accounts of the political activities of a range of activists and groups, I show that popular constitutional judgments and actions have played a dramatic and creative role in four revolutionary shifts -- constitutional founding and adoption of the Bill of Rights, abolition of slavery, women’s suffrage, and passage of national civil rights legislation. I advance a combination of conceptual, normative, analytic, and descriptive claims to make a case for conceiving of the American constitutional project as a story of changing constitutional understandings and rights arguments and activities spun as much from the minds of engaged citizens as from political leaders.

Along the way, I challenge some mainstream currents in constitutional theory, arguing that failure to recognize the role of the public in shaping the constitutional order is not merely an empirical flaw that can be addressed by including a wider range of voices. The deeper problem is theoretical and normative. It has as much to do with how we conceive of the American constitutional project today as it has to do with how we view the Constitution in history. If constitutional democracy is to be more than a mirage that flickers and disappears on approach, we need a thicker account of the role of people and groups in defining the Constitution’s core public commitments, its principles of justice and legitimacy. And if constitutional liberty and rights are to exist as something more than parchment promises, we need to appreciate of the ways in which many relatively ordinary people have worked toward reimagining and realizing these ideals.

I am not arguing that public participation in shaping the meaning of fundamental Constitutional rights and principles always leads to wiser or more just constitutional settlements. Indeed, the competing constitutional visions asserted by engaged citizens during historical periods can be disheartening as well as inspirational. Civic participation in American constitutionalism has sometimes contributed to fairer, freer, and more egalitarian constitutional commitments and practices, but it can also contribute to oppressive and inegalitarian permutations of the constitutional order.

But even if public involvement in defining public constitutional commitments cannot guarantee outcomes with which wise moral philosophers would agree, I argue that this involvement is valuable because it upholds and embodies crucial elements of constitutional liberty: participation in meaningful self-government through what I call public guardianship of liberty. This liberty includes the creative power of the people to help define what it means to possess constitutional rights and to participate in directing our public purposes and influencing our shared national identity. Constitutional scholarship has not recognized or appreciated these aspects of constitutional liberty, or our ability to share in power over and responsibility for what we jointly, as a political community, express as our fundamental public commitments, and the ways in which we define and apply these public commitments in practice.

A project of this size and scope is not without its challenges. Tracing origins, specifying processes of social and political change, and conceptualizing emergent phenomena are all difficult tasks. I try to bypass some of these difficulties by avoiding the temptation of trying to offer a complete explanation or general theory of constitutional development. Rather, I seek to identify broad patterns of popular participation in important constitutional changes for which there is much compelling empirical evidence, and argue that this expanded vantage opens important windows on constitutional theory. The strength of this approach lies less in its causal claims than in its conceptual and normative contributions, and the ways in which it tries to illuminate the important notion of democratic or popular constitutionalism through careful conceptual treatment and empirical support.

Below, I turn to a well-known period of constitutional crisis – the abolition movement, Civil War, and Reconstruction (roughly 1830-1880)-- as a case study of the public face of constitutional rights and the role of many engaged citizens in redefining constitutional principles through their arguments and actions. The draft is preliminary, and I have large collection of examples of popular constitutional argument from primary sources that I have not yet been able to incorporate. But the paper begins to trace a set of general arguments about the role of anti-slavery activists in defining rights and reshaping fundamental constitutional commitments we now take for granted.

Abolition as a Constitutional Project

“[W]e all declare for liberty; but in using the same word we do not all mean the same thing.” - Abraham Lincoln, “Address at Sanitary Fair, Baltimore 1864

Draft: Please do not share or cite with permission from the author.

In combination, the Thirteenth, Fourteenth, and Fifteenth Amendments prohibit slavery and indentured servitude throughout the United States, establishnational citizenship for all native-born and naturalized persons, prohibit states from depriving individuals’ liberty without due process of law, and equal protection under law, andprohibit racial discrimination in states’ voting laws. While these provisions are widely recognized as embodying a set of fundamental constitutional principles that transformed the original Constitution, disagreements over how we should understand these principles are a foremost problem in constitutional law and a central concern of American politics, from issues involving labor regulations (Lochner v. New York), uses of “grandfather clauses” and all-white primaries to restrict voting (Guinn v. United States and Smith v. Allwright ), and criminalization of homosexual intimacy (Bowers v. Hardwick and Lawrence v. Texas). For constitutional theorists across the political spectrum,understanding the Post-War Constitution and the “majestic generalities” of the Fourteenth Amendment’s due process, equal protection, and privileges and immunities clausesoften hinges on the constructions of political leaders. Theopinions of the Supreme Court typically take center stage, but some attention is given to the views of President Lincoln and leaders of the 39thCongress and the constructions of leaders that followed.[1] Such conventionalaccounts of the Reconstruction Amendments offer valuable knowledge, but they also contribute to a limited and skewed perspective on constitutional meaning and change, preventing us from fully understanding the sources, scope, and substance of revolution of constitutional rights and principles reflected by the Civil WarAmendments.

In this chapter, I argue that only by exploring the ways in whicha broad range of anti-slavery activists theorized about the constitution and worked politically to redefine its meaning-- the meaning of fundamental constitutional commitments to a national political community characterized by active national citizenship and rights and institutions necessary for republican government, substantive personal liberty, equality under law-- can we fully understand the innovative constitutional principles that paved the way for the Reconstruction Amendments. Paying attention to the interactions between abolitionists’ constitutional work and that of state and national political institutions provides a more nuanced understanding of how large-scale participation in rights talkand practiceshaped some of the most important principles of the U.S. Constitution. And we come to see many engaged citizens whose voices are generally overlooked by constitutional scholarship as constitutional theorists, agents, and actors participating in defining and transforming the constitutional order. The set of ideas that infused the Reconstruction Amendments, including the thinking of key political leaders who guided the amendment process, including Abraham Lincoln and important figures of the 39th Congress, were shaped by this popular constitutional movement. We can better understand what our constitution is and what it has become by recognizing how many of the animating principles we attribute to the Constitution itself -- or to the Founders, Supreme Court Justices, or other political leaders -- were first envisioned and then carefully crafted through public guardianship of rights.

By the 1830s, a growing number of abolitionists were engaging in a politics of rights that revolved around asserting creative, radical claims about constitutional principles, framing political debates over slavery in terms of these principles, and pressing political leaders and institutions to uphold these principles through their actions. For example, in 1837, theNew England Anti-Slavery Convention rejected prevailing pro-slavery constitutional interpretations, arguing that the most fundamental constitutional principles are those protecting personal liberty, and the priority of these principles points to the impermissibility of slavery: “The whole system of slavery is unconstitutional, null and void… So far from the Constitution authorizing or permitting slavery, it was established to guard life, liberty, and property."

I contend that abolition should be understood as a constitutional project and that the pattern of broad civic involvement surrounding slavery exemplifies public guardianship of constitutional liberty, treating constitutional rights as public concerns and a focal point for political challenge and renewal. Indeed, many who participated in anti-slavery work explicitly recognized and defined their role as one of defining and defending the “fundamental principles of liberty” they considered founding national commitments and viewed as necessary for just, legitimate constitutional governance:

There is imminent danger that the fundamental principles of liberty will be lost even in the free states unless the minds of the people are aroused to consider them in their particular bearings on the subject of slavery. When our nation was founded, the truth of these principles was deeply felt by all, and there was an entire opposition between them and the system of slavery.…[2]

They called for serious national reflection on “great principles of freedom” warning that “unless as a nation we are aroused to consider them again,” the nation will be ruined, since even though many people talk about freedom, by failing to address freedom in light of on-going slavery, “we are losing the very elementary ideas of what freedom is…”(ibid). Anti-slavery activists like this saw themselves as rousing the nation to recognize the extent to which the public commitment to freedom represented by the Constitution was irrevocably violated under the reigning constitutional order.

Using various tools of communication and influence, anti-slavery advocates like this used rights talk and constitutional arguments as immanent criticism to challenge slavery, construing core constitutional principles in new and unorthodox ways and seeking to dramatically refashion dominant constitutional culture and practice.[3] In voicing and acting on their constitutional judgments, those who participated in anti-slavery work sought to grow the movement, influence public opinion and set the terms of political debate, and pressure local, state, and national politicians to govern in accordance with these judgments. The anti-slavery constitutional vision became increasingly important in American politics, framing the major controversies of the era around their understandings of fundamental constitutional principles, influencing the views and actions of political leaders and parties, and ultimately providing the theoretical underpinnings of the new constitutional architecture embodied in the 13th, 14th and 15th Amendments.

To understand the ideas and influence involved in the rights claims and constitutional interpretations advanced by anti-slavery advocates, I consider some key elements of emerging anti-slavery constitutionalism. I then sketch some of the ways in which anti-slavery activists used these rights claims and practices to frame political debates and shift the opinions of ordinary citizens and leaders. Their web of argumentsand actions challenged dominant constitutional norms and practices and sought to overthrow the pro-slavery constitutional ideology and remake the constitutional order. As hundreds of examples from the anti-slavery movement demonstrate, abolitionist activists were not simply appealing to judges, courts, or elected politicians to ask them to end slavery or to extend an existing corpus of national constitutional rights to Blacks. They were transforming, through word and deed, what it meant to possess constitutional rights, what it meant to be a citizen in a republic, what kinds of laws and political structures free institutions require, and who has authority to interpret, judge, and reimagine the constitutional order.

While the federalist constitutional ideology that surrounded adoption of the Bill of Rights centered on popular consent, state citizenship, negative liberty, common law rights and states’ rights– principles that stressed national non-interference in the customary rights of individuals and the political autonomy of state government, the anti-slavery constitutional ideas and actions that laid the groundwork for the Reconstruction Amendments redefined the Constitution’s public commitments. They articulated three overlapping principles they believed were required for a genuine constitutional republic. The first is rights of active national citizenship: the Constitution is not legitimated solely through an initial act of popular consent and ratification, it must guarantee national freedom and on-going republican government within and across states by protecting capacities for political speech, action, and influence of ordinary people throughout the national political community, including rights to political criticism (which could be punished as seditious libel under common law). The second is the priority of substantive personal liberty: the Constitution is not a guarantee of national non-interference with traditional common law rights or states’ rights, or solely a set of limitations on national government with respect to personal liberty. Rather, it is responsible for protecting the substantive liberty of individuals to direct their own lives and labor as free, autonomous persons (a principle lawyers would construe as “substantive due process”), and should prioritizeand protect national freedom and personal liberty over other constitutional commitments . The third is racial equality under law: Black Americans must be recognized as citizens and members of the political community entitled to equal treatment under law, and states cannot maintain de facto slavery through discriminatory laws. (Notably, the abolitionist constitutional ideology stopped short of national voting rights or equal rights and equal opportunity.) These three anti-slavery principles framed the public backdrop of the Reconstruction Amendments as they were ratified, as well as guiding the views of key political leaders who shepherded the amendment process, including Abraham Lincoln and important figures of the 39th Congress.

I am not suggesting that this is the only lens through which we can understand the abolition movement, or that there was a clear constitutional consensus among the millions of people who participated in it to varying degrees, from attending an anti-slavery lecture or fair or buying anti-slavery literature to more intensive involvement and leadership that often involved personal risk and sacrifice. The anti-slavery movement was never a unified group, and remained highly decentralized and local, even after it developed national organizations and leadership. Those who participated in the movement operated from many motivations and pursued different goals and strategies that criss-crossed the abolitionist project for constitutional reform, from ending slave trade, to eliminating slavery within states and territories, to creating foreign colonies for free blacks, to improving the conditions of free blacks through assistance with jobs and education.[4] Because my interest is in understanding how anti-slavery ideas and activism shaped constitutional theory and politics, I leave aside many other important aspects of the movement.[5]