Skip to main content Accessibility help
×
Home
Hostname: page-component-8bbf57454-w5vlw Total loading time: 0.307 Render date: 2022-01-23T19:39:03.641Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

“Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism

Published online by Cambridge University Press:  02 July 2019

Abstract

This essay considers how the cultural authority of the constitutional Founding became legal authority in antebellum America. Examining a series of cases implicating the constitutional politics of slavery, it illustrates how legal professionals grasped the public power of constitutional origin stories. To produce meanings and legitimate rulings, lawyers and judges wrote and reproduced narratives about slavery at the Founding, converting ascriptions of original constitutional visions in formal constitutional law. This power derived from the ongoing popular construction of the Founding as a venerated and authoritative moment containing unwritten intentions, understandings, and promises binding upon subsequent generations. The essay argues that these developments belong to the deep history of originalism. By approaching originalism as a form of constitutional politics integrating public memory culture and legal reasoning, the essay locates the central public and juridical dynamics of originalism emerging in struggles over the constitutional identity of slavery.

Type
Invited Article
Copyright
Copyright © the American Society for Legal History, Inc. 2019 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

He thanks Karen Tani, Robin Einhorn and an anonymous reader with Law and History Review for insightful comments on a prior draft of this article, and is likewise grateful for helpful remarks by participants in a session of the New York University Law School Legal History Colloquium devoted to related research.

References

1. Etting, Frank M., An Historical Account of the Old State House of Pennsylvania Now Known as the Hall of Independence (Boston: James R. Osgood, 1874), 164–65Google Scholar. “The Late Christiana Riots – Commencement of the Trials,” New York Herald, November 25, 1851, 3.

2. United States v. Hanway, 2 Wall. Jr. 139 (1851), 155; and Slaughter, Thomas P., Bloody Dawn: The Christiana Riot and Racial Violence in the Antebellum North (New York: Oxford University Press, 1991)Google Scholar.

3. Judge Kane's Charge to the Grand Jury,” in Report of the Trial of Castner Hanway for Treason, in the Resistance of the Execution of the Fugitive Slave Law of September, 1850, ed. Robbins, James J. (Philadelphia: King & Baird, 1852), 268Google Scholar.

4. “Charge of Judge Kane to the Grand Jury,” in ibid., 267.

5. U.S. Const. Art. 3 § 3.

6. Robbins, Report of the Trial of Castner Hanway for Treason, 49.

7. Ibid., 221.

Ibid

8. Ibid., 195.

Ibid

9. Johnson, William Henry, Autobiography of Dr. William Henry Johnson (Albany, NY: Argus Company, 1900), 118Google Scholar

10. Robbins, Report of the Trial of Castner Hanway for Treason, 54.

11. Ibid., 246.

12. A Member of the Philadelphia Bar, A History of the Trial of Castner Hanway and Others, for Treason, at Philadelphia in November, 1851 (Philadelphia: Uriah Hunt & Sons, 1852), 4Google Scholar; Brent, Robert, Report of Attorney General Brent, to His Excellency, Gov. Lowe, in Relation to the Christiana treason trials, in the Circuit Court of the United States, Held at Philadelphia (Annapolis, MD: Thomas E. Martin, 1852)Google Scholar.

13. Mires, Charlene, Independence Hall in American Memory (Philadelphia: University of Pennsylvania Press, 2002)Google Scholar.

14. Tucker, St. George, Blackstone's Commentaries: With Notes of Reference […], vol. 1 (Philadelphia: William Young Birch and Abraham Small, 1803), appendix 151–55Google Scholar; Story, Joseph, Commentaries of the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution, vol. 3 (Boston: Hilliard, Gray, and Co., 1833), 382442Google Scholar; Sedgwick, Theodore, A Treatise on the Rules which Govern the Interpretation and Application of Statutory and Constitutional Law (New York: John S. Voorhies, 1857)Google Scholar; and D. A. Jeremy Telman, “John Marshall's Constitution: Distinguishing Originalism from Ipse Dixit in Constitutional Adjudication,” Valparaiso University Legal Studies Research Paper No. 18–9, September 14, 2018. https://ssrn.com/abstract=3249726 (last accessed May 23, 2019).

15. Historical literature in the United States at this time was inherently “popular” as opposed to professional in character, although differing in erudition and accessibility. The first full-fledged monographic treatment of the Constitution was an epic narrative by George Ticknor Curtis, a leading New England lawyer and conservative politician. Curtis, George Ticknor, History of the Origin, Formation, and Adoption of the Constitution of the United States; with Notices of its Principal Framers, 2 vols. (New York: Harper and Brothers, 1857–61)Google Scholar.

16. Sawyer, Logan E. III, “Principle and Politics in the New History of Originalism,” American Journal of Legal History 57 (2017): 198222CrossRefGoogle Scholar; Segall, Eric, Originalism as Faith (New York: Cambridge University Press, 2018)CrossRefGoogle Scholar; Post, Robert and Siegel, Reva, “Originalism as a Political Practice: The Right's Living Constitution,” Fordham Law Review 75 (2006): 545–74Google Scholar; Mary Ziegler, “Originalism Talk: A Legal History,” Brigham Young University Law Review (2014): 869–926; and Rogers, Daniel T., The Age of Fracture (Cambridge, MA: Belknap Press of Harvard University Press, 2011), 232–42Google Scholar.

17. Greene, Jamal, “On the Origins of Originalism,” Texas Law Review 88 (2009): 189Google Scholar; and Balkin, Jack M., “The New Originalism and the Uses of History,” Fordham Law Review 82 (2013): 641719Google Scholar.

18. Greene, Jamal, “Selling Originalism,” Georgetown Law Journal 97 (2009): 657721Google Scholar; and Zietlow, Rebecca E., “Popular Originalism? The Tea Party Movement and Constitutional Theory,” Florida Law Review 64 (2012): 483511Google Scholar.

19. Compare Kessler, Jeremy K. and Pozen, David E., “Working Themselves Impure: A Life Cycle Theory of Legal Theories,” University of Chicago Law Review 83 (2016): 1886Google Scholar. The popular face of originalism complicates any effort to treat it as a teetering legal theory.

20. Gienapp, Jonathan, “Historicism and Holism: Failures of Originalist Translation,” Fordham Law Review 84 (2015): 935–56Google Scholar; Balkin, “The New Originalism and the Uses of History,” 653; and Fallon, Richard H. Jr., “Legitimacy and the Constitution,” Harvard Law Review 118 (2005): 1787–853Google Scholar.

21. On transformative congressional debates on the nature of the “unfinished” Constitution during the Early National Period, see Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge, MA: Belknap Press of Harvard University Press).

22. These themes and related arguments are explored in greater depth in Aaron Hall, “Claiming the Founding: Slavery and Constitutional History in Antebellum America” (PhD diss., University of California, Berkeley, 2019); compare Kammen, Michael, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1986), 43124Google Scholar.

23. Chipman, Nathaniel, Principles of Government: A Treatise on Free Institutions, Including the Constitution of the United States (Burlington, VT: Edward Smith, 1833), 254, 264Google Scholar.

24. Chipman, Nathaniel, Sketches of the Principles of Government (Rutland, VT: J. Lyon, 1793)Google Scholar.

25. Lupu, Ira C., “Time the Supreme Court and The Federalist,” George Washington Law Review 66 (1998): 1324–36Google Scholar; and Corley, Pamela C., Howard, Robert M., and Nixon, David C., “The Supreme Court and Opinion Content: The Use of the Federalist Papers,” Political Research Quarterly 58 (2005): 329–40CrossRefGoogle Scholar.

26. Horwitz, Morton J., The Transformation of American Law, 1780–1860 (Cambridge, MA: Harvard University Press, 1977)Google Scholar.

27. Speech by Charles Lenox Remond,” in The Black Abolitionist Papers, vol. 3, ed. Ripley, C. Peter (Chapel Hill: University of North Carolina Press, 1991), 442–45Google Scholar (reprinted from National Anti-Slavery Standard, July 18, 1844).

28. Chase, Ezra B., Teachings of Patriots and Statesmen; or, the ‘Founders of the Republic’ on Slavery (Philadelphia: J. W. Bradley, 1860), 6Google Scholar.

29. Williams, Charles Richard, ed., Diary and Letters of Rutherford Birchard Hayes, vol. 1 (Columbus: F. J. Heer Printing, 1922), 159Google Scholar.

30. Ibid., 131.

31. Commonwealth v. Griffith, 2 Pick. 11 (1823), 18; and Grover, Kathryn, The Fugitive's Gibraltar: Escaping Slaves and Abolitionism in New Bedford (Amherst: University of Massachusetts Press, 2001), 9497Google Scholar.

32. The American Farmer, October 8, 1824, 230–31.

33. The Madison Papers,” The American Jurist 52 (1842): 393Google Scholar. Documentary productions, as revised, curated, and edited, were politically influenced constructions. See Bilder, Mary Sarah, Madison's Hand: Revising the Constitutional Convention (Cambridge, MA: Harvard University Press, 2015)CrossRefGoogle Scholar; and Powell, H. Jefferson, “The Principles of ‘98: An Essay in Historical Retrieval,” Virginia Law Review 80 (1994): 689743CrossRefGoogle Scholar.

34. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842); and Baker, H. Robert, Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution (Lawrence: University Press of Kansas, 2012)Google Scholar.

35. “Correspondence of the Inquirer & Courier,” Pennsylvania Inquirer and Daily Courier, May 29, 1840, 2.

36. Prigg, 41 U.S. (16 Pet.), 564–65.

37. Ibid., 572, 575–76.

38. Ibid., 575.

39. Ibid., 593–94.

40. Ibid., 606–7 (emphasis added).

41. Story, Commentaries of the Constitution of the United States, 676–78.

42. Prigg, 41 U.S. (16 Pet.), 611.

43. Ibid., 638–39.

44. Liber, Cleveland Herald, July 22, 1846, 2.

45. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), 409.

46. Reflecting, in part, the continued importance afforded to the original intentions and values of “Founding Fathers,” the relative proslavery or antislavery character of the Constitution remains a subject of debate. See, for example, Wilentz, Sean, No Property in Man: Slavery and Antislavery at the Nation's Founding (Cambridge, MA: Harvard University Press, 2018)CrossRefGoogle Scholar; and Waldstreicher, David, Slavery's Constitution: From Revolution to Ratification (New York: Hill and Wang, 2009)Google Scholar.

47. Chase, Salmon P., Reclamation of Fugitives from Service: Mr. Chase's Argument, in Defence of John Vanzandt, Before the Supreme Court of the United States (Cincinnati: R. P. Donogh, 1847), 75, 82Google Scholar.

48. Lubet, Steven, Fugitive Justice: Runaways, Rescuers, and Slavery on Trial (Cambridge, MA: Harvard University Press, 2010), 229–93Google Scholar.

49. Unconstitutionality of the Fugitive Slave Act: Decisions of the Supreme Court of Wisconsin in the Cases of Booth and Rycraft (Milwaukee: Rufus King & Co., 1855), 88Google Scholar.

50. Shipherd, Jacob R., comp., History of the Oberlin-Wellington Rescue (Boston: John P. Jewett, 1859), 8Google Scholar.

51. Ibid., 63–64, 66, 110.

52. Ibid., 165.

53. Ibid., 177.

54. Ibid., 212.

55. Ibid., 224.

56. Ibid., 226.

57. Ibid., 228.

58. “Nullification in Ohio,” Omaha Nebraskian, June 11, 1859, 2.

59. “Schoolmaster on the Constitution,” Banner of Liberty, June 15, 1859, 1.

60. “The Supreme Court of Ohio and the Fugitive Slave Law,” Charleston Mercury, June 4, 1859, 3.

61. Shipherd, History of the Oberlin-Wellington Rescue, 255; and “Great Mass Meeting,” Daily Cleveland Herald, May 25, 1859, 3.

62. Baude, William, “Constitutional Liquidation,” Stanford Law Review 71 (2019): 170Google Scholar.

63. Akerman, Bruce A., We the People, Vol. 2: Transformations (Cambridge, MA: Belknap Press of Harvard University Press, 2000)CrossRefGoogle Scholar.

64. Rana, Aziz, “Constitutionalism and the Foundations of the Security State,” California Law Review 103 (2015): 335386Google Scholar.

1
Cited by

Send article to Kindle

To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

“Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism
Available formats
×

Send article to Dropbox

To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

“Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism
Available formats
×

Send article to Google Drive

To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

“Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism
Available formats
×
×

Reply to: Submit a response

Please enter your response.

Your details

Please enter a valid email address.

Conflicting interests

Do you have any conflicting interests? *