The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover

by Timothy Sandefur

  Southerners were not the only ones to endorse the Blackstonian model of sovereignty. One of its most outspoken advocates was a Pennsylvanian, Jeremiah Sullivan Black, who, as the state’s Chief Justice, wrote the 1853 decision in Sharpless v. Mayor of Philadelphia.40 That case upheld the constitutionality of an ordinance that transferred money from taxpayers to a private corporation to build a railroad. The plaintiffs argued that this was an abuse of power, inconsistent with the basic premises of constitutional rule, but Black disagreed. States possess absolute, Blackstonian sovereignty, he declared, and can do whatever they like with citizens’ money. When the United States declared itself independent of Britain, Parliament’s “tran-scendant [sic] powers” were transferred to the states, who therefore enjoyed “supreme and unlimited” power.41 This meant that, “[i]f the people of Pennsylvania had given all the authority which they themselves possessed, to a single person, they would have created a despotism as absolute in its control over life, liberty, and property, as that of the Russian autocrat.”42 Although Black conceded that the states had given up some of this limitless power to the federal government, he believed they retained “a vast field of power . . . full and uncontrolled,” and their use of that power “can be limited only by their own discretion.”43 States could do anything not expressly prohibited by their own constitutions, without regard to principles of justice or the purposes for which the people entrust government with power.44

  Justice Ellis Lewis dissented: the idea that states possess “all the powers of sovereignty not expressly withheld from them” was a legacy of the “absolute despotisms of the old world,” and deserved no respect in a free state where government exercised delegated powers. Despots alone thought that government was limited only by “the arbitrary will of usurping tyrants.” A constitution, by contrast, imposed laws on rulers in order to protect individual rights. Those rights took precedence over the majority’s authority to rule. The legislature could not claim unlimited power to redistribute property or restrict other individual rights because this would contravene the very reasons for establishing government in the first place. Black’s analogy to the Russian czar was singularly wrongheaded, Lewis wrote. The state “has no more right to abandon the liberty and prosperity of any portion of her citizens to the will of others than she would have to transfer them to a Russian or an Austrian Despot.”45

  But such arguments went unheeded, as defenders of state’s rights continued to assert that government had a basic right to rule and that freedom was essentially a privilege given to the individual by the all-powerful state. “Order is a moral duty,” wrote Henry Hughes in his 1854 Treatise on Sociology. No person has a “right to use his mind and body as he will”; people are given that right as a “social use only . . . to use it as a social being ought.”46 William Harper attacked the Declaration of Independence section by section in his Memoir on Slavery, arguing that “no man was ever born free” and that freedom was “no matter of natural right.” Instead, freedom is “settled by convention as the good and safety of society may require.”47 Calhoun, the arch champion of states’ rights, agreed. It was, he said, “a great and dangerous error to suppose that all people are equally entitled to liberty.”48 Building on Blackstone’s premise that government has a basic right to rule, which does not depend on the consent of the governed or the fundamental liberty of individuals, Calhoun argued that rights are privileges given by states as “a reward reserved for the intelligent, the patriotic, the virtuous and deserving.”49 The Declaration’s propositions about equality and liberty were falsehoods, and were “inserted” into the Declaration “without any necessity.”50 The truth was that mankind was created inherently unequal, with the superior race ruling over the inferior, and the American Revolution was not fought to vindicate the basic right of each person to be free but to protect the “chartered privileges” of colonial governments. Each colony broke from Britain as a separate unit to preserve its autonomous power, and that autonomy remained when they became states. Each state therefore had full power to dictate the terms of citizenship, expand or contract the sphere of individual freedom,51 and, if necessary, to defend its sovereignty by seceding from the union.52

  Alarmed at the growing popularity of these anti-liberty doctrines,53 the elderly James Madison wrote in 1835 that “the sovereignty of the society” was inherently limited; the majority or the legislature had power to do only things “that could be rightfully done,” which meant that “the reserved rights of individuals” were “beyond the legitimate reach of sovereignty.”54 States had no right to trample on individual freedom or to defy federal law. But Southern leaders paid little heed. Instead, Madison’s strongest supporters were Massachusetts politicians, including Edward Everett, Daniel Webster, and former President John Quincy Adams, now a Congressman and a pivotal but often overlooked figure in American constitutional law.55 Like Madison, Adams believed that no sovereign was entitled to intrude on natural rights, and this meant that state authority was limited by the principles of justice articulated in the Declaration of Independence. In his 1848 pamphlet The Jubilee of the Constitution, he emphasized that Americans’ rights were protected not because they were citizens of states, but because they were citizens of the union, which originated in the Declaration.56 The colonies declared independence collectively, Adams contended, so that on July 4, 1776, Parliament’s authority over American subjects—and its duty to protect their rights—was transferred to the union, not to each individual state.57 And this was not the absolute parliamentary sovereignty Blackstone postulated: the same terms by which the Americans declared their independence also limited government power. The nation was justified in exercising authority only insofar as it respected the primary value of individual liberty. Americans were “proclaimed to be one people, renouncing . . . all claims to chartered rights as Englishmen. Thenceforth their charter was the Declaration of Independence. Their rights, the natural rights of mankind. Their government, such as should be instituted by themselves, under the solemn mutual pledges of perpetual union, [was] founded on the self-evident truths proclaimed in the Declaration.”58

  The Declaration was therefore not just a call to arms, but part of the binding, organic law of the United States; it separated the American from the British nation, by pledging to protect individual rights from government. American national identity was not an ethnic or historical happenstance but the product of a covenant to respect individual liberty. The Declaration “proclaims the natural rights of man, and the constituent power of the people to be the only sources of legitimate government. State sovereignty is . . . a mere reproduction of the omnipotence of the British parliament in another form, and therefore not only inconsistent with, but directly in opposition to, the principles of the Declaration of Independence.”59 Blackstone’s idea “that sovereign must necessarily be uncontrollable, unlimited, despotic power”60 stood “in direct contradiction to the Declaration of Independence, and [was] incompatible with the nature of our institutions.”61 If that “hallucination” were not promptly discarded, he warned, it would render the Declaration’s promise “a philosophical dream,” and “uncontrolled, despotic sovereignties” would then “trample with impunity, through a long career of after ages, at interminable or exterminating war with one another, upon the indefeasible and unalienable rights of man.”62 Adams thus took literally Daniel Webster’s famous phrase, “Liberty and Union . . . one and inseparable!”63 Political union and protection for individual rights reinforced each other.64

  Adams exerted a lasting influence on the rising generation of antislavery politicians and lawyers. His leading protégé, Charles Sumner, became the greatest of all abolitionist political leaders.65 William Seward published the first biography of Adams before becoming the leading anti-slavery presidential candidate and eventually secretary of state in the Lincoln administration.66 And Lincoln himself was a devotee of Adams’s writings and served with him in Congress.67 Like Adams, these men believed that the Declaration had created th
e American nation, a nation whose sovereign identity depended upon the truth of the principles articulated in the Declaration.

  The connection between national sovereignty and the limits that natural rights imposed on government power was never more clearly expressed than by another Adams admirer, Ohio lawyer Salmon P. Chase, whom Lincoln later named chief justice. In 1847, Chase joined William Seward to argue before the Supreme Court in Jones v. VanZandt68 that the Fugitive Slave Law was unconstitutional because it deprived people of due process, a jury trial, and other rights. But it was unconstitutional for another, deeper reason: the Constitution was

  mainly designed to establish as written law, certain great principles of natural right and justice, which exist independently of all such sanction. [It] rather announce[s] restrictions upon legislative power, imposed by the very nature of society and of government, than create[s] restrictions, which, [if] erased from the constitution, the Legislature would be at liberty to disregard. No Legislature is omnipotent. No Legislature can make right wrong; or wrong, right. No Legislature can make light, darkness; or darkness, light. No Legislature can make men, things; or things, men. Nor is any Legislature at liberty to disregard the fundamental principles of rectitude and justice. Whether restrained or not by constitutional provisions, there are acts beyond any legitimate or binding legislative authority. There are certain vital principles, in our national government, which will ascertain and overrule an apparent and flagrant abuse of legislative power. The Legislature cannot authorize injustice by law; cannot nullify private contracts; cannot abrogate the securities of life, liberty, and property, which it is the very object of society, as well as of our constitution of government, to provide; cannot make a man judge in his own case; cannot repeal the laws of nature; cannot create any obligation to do wrong, or neglect duty. No court is bound to enforce unjust law; but, on the contrary, every court is bound, by prior and superior obligations, to abstain from enforcing such a law.69

  Unsurprisingly, Chase failed to persuade Chief Justice Taney and his colleagues. But over the next two decades, the ideas he expressed continued to gain adherents. Sovereign power limited by natural rights, national sovereignty superseding state autonomy, and a paramount national citizenship which entitled all Americans to protection of their common law and natural rights—these were the basic principles of anti-slavery constitutionalism that would eventually find expression in the Fourteenth Amendment.

  Citizenship

  Before the Civil War, Congress usually sought compromises to evade, rather than resolve, touchy debates over states’ rights and sovereignty. These attempts were not limited to matters of slavery and race. Until 1872, for example, the federal government never used the power of eminent domain to take property for federal needs.70 This was because eminent domain—government’s power to force people to sell property to the government for public uses—is considered a fundamental attribute of sovereignty, and although the Constitution itself implicitly allows the federal government to use eminent domain, any attempt to do so would have triggered a showdown over whether the union was sovereign and rouse the suspicion of Southern leaders, who could foresee the power being used to take slave property. Thus, until almost a century after the Constitution was written, the federal government depended upon state officials to use eminent domain and then transfer the land for federal uses.

  Another power inherent in sovereignty is the power to determine citizenship. Here, again, a critical vagueness afflicted the Constitution of 1787. Although it gave Congress power to enact naturalization laws, and made passing references to national citizenship,71 nothing in the document defined the word “citizen.” Congress enacted naturalization laws to enable immigrants to become citizens, but the citizenship status of the native-born was left unaddressed, and states assumed authority to determine who was eligible. States’ Rights partisans saw this as proof that the states, and not the federal government, were the real sovereigns. Republicans answered that the federal government had, even if it had not yet used, its own independent power to determine citizenship for federal purposes. Neither side could point definitively to constitutional language to resolve this dispute. And since the qualifications for citizenship differed from state to state, a person eligible for citizenship in, say, Massachusetts, might not be eligible for citizenship in South Carolina. Article IV of the Constitution declared that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” meaning ostensibly that a Massachusetts citizen—even a free black man—was entitled to travel to South Carolina and do business or reside there unmolested. Yet state laws made clear that they were not welcome.

  In 1820, Missouri sought admission to the union and asked Congress to approve a state constitution that would give the legislature power to bar the immigration of free black citizens of other states. Slavery’s opponents in Congress, particularly Adams, denounced this as a violation of the Privileges and Immunities Clause. To allow a state to close its borders to American citizens, Adams said, would be “a dissolution of the Union. If acquiesced in, it will change the terms of the federal compact—change its terms by robbing thousands of citizens of their rights. And what citizens? The poor, the unfortunate, the helpless, already cursed by the mere color of their skin.”72

  After an angry debate, Congress dodged the issue again, adopting a euphemistic resolution that admitted Missouri into the union on the condition that its constitution not be interpreted as allowing it to violate the Privileges and Immunities Clause. What this meant, nobody knew. But it sufficed to postpone debate on the question of whether blacks could be citizens of the United States. Disgusted, Adams confided to his diary that slavery’s advocates had “threatened and entreated, bullied and wheedled, until their more simple adversaries have been half coaxed, half frightened into a surrender of their principles for a bauble of insignificant promises.”73 Eighteen years later, Tennessee’s highest court upheld that state’s law barring free blacks. This did not violate the Privileges and Immunities Clause, the court ruled, because they could not be citizens. The logic was, to say the least, remarkable: “either the free negro is not a citizen in the sense of the Constitution; or, if a citizen, he is entitled to ‘all the privileges and immunities’ of the most favored class of citizens. But this latter consequence, will be contended for by no one. It must then follow, that they are not citizens.”74

  Conflict over the question of citizenship flared up again shortly after the Missouri crisis, when, in 1822, South Carolina passed a law called the “Negro Seaman’s Act,” or the “Police Bill.” It required all black sailors on ships landing in the state’s ports to be jailed at the captain’s expense, and released only when the ship returned to sea. If the captain failed to pay the costs of their detention, the sailors would be “deemed and taken as absolute slaves.”75 Supreme Court Justice William Johnson declared the law unconstitutional in 1823,76 and the following year President Monroe’s attorney general, William Wirt, agreed.77 But the state defied these decisions and continued to enforce the law.78 Foreign countries, particularly the British, protested that the act violated American treaty obligations, and their complaints were echoed by Northern states. Free blacks could legally become citizens of Massachusetts, a state whose economy depended heavily on shipping. This meant that Massachusetts sailors were liable to be imprisoned and sold into slavery when their ships stopped at Charleston or in the ports of other Southern states that enacted similar laws. But, thanks to the rise of the States’ Rights doctrine, Andrew Jackson’s attorney general, Roger Taney, rejected Wirt’s and Johnson’s opinions and proclaimed the act valid.79 In language that eerily presaged the Dred Scott decision that he would write 16 years later, Taney wrote that members of the “African race” were

  a degraded class—& exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness & benevolence rather than of right. They are the only class of persons who can be held
as mere property—as slaves. And where they are nominally admitted by law to the privileges of citizenship, they have no effectual power to defend them, & are permitted to be citizens by the sufferance of the white population & hold whatever rights they enjoy at their mercy. They were never regarded as a constituent portion of the sovereignty of any state. But as a separate and degraded people to whom the sovereignty of each state might accord or withhold such privileges as they deemed proper. They were not looked upon as citizens by the contracting parties who formed the constitution. They were evidently not supposed to be included by the term citizens. . . .

  This view of the subject is illustrated by that article of the constitution which gives to citizens of each State the “privileges & immunities of citizens in the several States.[”] Was this intended to include the coloured race? Did the slave holding states when they adopted the constitution intend to give within their own limits to a free coloured person residing in Massachusetts or Connecticut all the rights and privileges which they allowed to the white citizens of those states? The article has never been so construed. . . . Every slave holding State . . . has prohibited their migration & settlement within their limits. . . . Did the slaveholding states mean to surrender their right to enact such Laws? It is impossible to imagine they could have so intended, and the uniform course of their legislation since the adoption of the Federal Constitution shows that they did not so understand that instrument. The slave holding states could not have surrendered this power, without bringing upon themselves inevitably the evils of insurrection & rebellion among their slaves, & the non slave holding states could have no inducement to desire its surrender.80