American Enterprise Institute

Slavery, Equality, and the American Revolution

Freedom and Federalism Notes

  1. G. Edward White, Law in American History, vol. 1, From the Colonial Years Through the Civil War (Oxford University Press, 2012), 397. See also Pekka Hämäläinen, The Comanche Empire (Yale University Press, 2009); and William S. Kiser, Borderlands of Slavery: The Struggle over Captivity and Peonage in the American Southwest (University of Pennsylvania Press, 2021), 1.
  2. Kiser, Borderlands of Slavery.
  3. See, for example, “Virginia Slave Code (1705),” in The Reconstruction Amendments: The Essential Documents, ed. Kurt T. Lash, vol. 1 (University of Chicago Press, 2021). See also Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation’s Founding (Harvard University Press, 2018), 27.
  4. Wilentz, No Property in Man, 25. This organization continued after the Revolution and eventually elected Benjamin Franklin as its president. See Edward Needles, An Historical Memoir of the Pennsylvania Society: For Promoting the Abolition of Slavery; The Relief of Free Negroes Unlawfully Held in Bondage, and for Improving the Condition of the African Race (Merrihew & Thompson, 1848), 29.
  5. See “1777 Constitution of Vermont,” in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, ed. Francis Newton Thorpe, vol. 5, New Jersey—Philippine Islands (Government Printing Office, 1909), 3739.
  6. Wilentz, No Property in Man, 5.
  7. Wilentz, No Property in Man, 5. Vermont officially became a state in 1791.
  8. See “The Northwest Ordinance (July 13, 1787),” in Lash, The Reconstruction Amendments, 1:10.
  9. Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 3rd ed. (Routledge, 2014), 34.
  10. The territory eventually became the states of Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.
  11. US Const. pmbl.
  12. Federalist, no. 45 (James Madison). “Publius” was the common pseudonym used by the papers’ three authors, James Madison, Alexander Hamilton, and John Jay.
  13. US Const. art. IV.
  14. “Debates in the Philadelphia Constitutional Convention (June, July, Aug. 1787),” in Lash, The Reconstruction Amendments, 1:184.
  15. See US Const. amend. IX (“The enumeration in the constitution of certain rights shall not be construed to deny or disparage other rights retained by the people.”).
  16. See US Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
  17. Federalist, no. 39 (James Madison).
  18. See generally Federalist, no. 51 (James Madison).
  19. See Federalist, no. 46 (James Madison).
  20. Federalist, no. 44 (James Madison).
  21. See “The Alien and Sedition Acts (July 6, July 14, 1798),” in Lash, The Reconstruction Amendments, 1:36.
  22. “The Alien and Sedition Acts (July 6, July 14, 1798),” in Lash, The Reconstruction Amendments.
  23. See “The Kentucky Resolutions of 1798 (Nov. 10, 1798),” in Lash, The Reconstruction Amendments, 1:37; and “The Virginia Resolutions (Dec. 24, 1798),” in Lash, The Reconstruction Amendments, 1:38.
  24. See “James Madison, Report on the Virginia Resolutions,” in Lash, The Reconstruction Amendments, 1:41, 51.
  25. “James Madison, Report on the Virginia Resolutions (Jan. 7, 1800),” in Lash, The Reconstruction Amendments, 1:42.
  26. See Dred Scott v. Sandford, 60 US 393 (1857).
  27. See Jack N. Rakove, ed., James Madison: Writings (Library of America, 1999), 608.
  28. See Ralph Ketcham, James Madison: A Biography (University of Virginia Press, 1990), 406.
  29. Madison’s “Report of 1800” and the Federalist Papers dominated American political rhetoric in the early 19th century. See Kurt T. Lash, “James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment,” George Washington Law Review 74, no. 165 (2006); and Kurt T. Lash, “The Federalist and the Fourteenth Amendment—Publius in Antebellum Public Debate, 1788–1860,” Brigham Young University Law Review 48, no. 6 (2023): 1831. Meanwhile, the first American constitutional treatise, St. George Tucker’s View of the Constitution of the United States, expressly relied on the Federalist Papers, the Virginia Resolutions, and Madison’s Report. See, for example, “St. George Tucker, A View of the Constitution (1803),” in Lash, The Reconstruction Amendments, 1:63–64, 74–75.
  30. US Const. art. IV, § 2, cl. 3.
  31. “Fugitive Slave Act (Feb. 12, 1793),” in Lash, The Reconstruction Amendments, 1:188.
  32. “Fugitive Slave Act (Feb. 12, 1793),” in Lash, The Reconstruction Amendments.
  33. See Prigg v. Pennsylvania, 41 US 550 (1842), which references “an Act to give effect to the provisions of the constitution of the United States relative to fugitives from labor, for the protection of free people of color, and to prevent Kidnapping.”
  34. See Wilentz, No Property in Man, 226.
  35. Prigg, 41 US at 539.
  36. Prigg, 41 US at 542.
  37. For examples of this resistance and its religious motivation, see Stephanie H. Barclay and Kurt T. Lash, “A Crust of Bread: Religious Resistance and the Fourteenth Amendment,” Vanderbilt Law Review 71, no. 4 (2025): 1203–64.
  38. Ten of the first 12 presidents owned slaves (John Adams and John Quincy Adams being the exceptions), and every president before Lincoln enforced the Fugitive Slave Acts.
  39. See “US House of Representatives, the ‘Gag’ Rules, (May 26, 1836),” in Lash, The Reconstruction Amendments, 1:216.
  40. See “Letter of Postmaster General Amos Kendall Regarding the Delivery of Anti-Slavery Literature, Richmond Whig (Aug. 11, 1835),” in Lash, The Reconstruction Amendments, 1:210.
  41. See 10 Stat. 277 (1854).
  42. Dred Scott, 60 US at 393.
  43. See, for example, “Wendell Phillips, The Constitution: A Pro-Slavery Compact (1844),” in Lash, The Reconstruction Amendments, 1:227; and “‘No Union with Slaveholders,’ Liberator (July 7, 1854),” in Lash, The Reconstruction Amendments, 1:259.
  44. See Randy E. Barnett, “Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment,” Journal of Legal Analysis 3, no. 1 (2011): 165.
  45. “Liberty Party Platform (Aug. 30, 1843),” in Lash, The Reconstruction Amendments, 1:225.
  46. “Free Soil Party Platform (Aug. 9–10, 1848),” in Lash, The Reconstruction Amendments, 1:236.
  47. “Republican Party Platform (May 17, 1860),” in Lash, The Reconstruction Amendments, 1:320.
  48. See “US Congress, the ‘Corwin Amendment’ (Mar. 2, 1861),” in Lash, The Reconstruction Amendments, 1:343.
  49. “Abraham Lincoln, First Inaugural Address (Mar. 4, 1861),” in Lash, The Reconstruction Amendments, 1:347.
  50. See, for example, “South Carolina, Declaration of the Causes Which Justify Secession (Dec. 24, 1860),” in Lash, The Reconstruction Amendments, 1:327.
  51. See, for example, “John C. Calhoun, A Discourse on the Constitution (I)(1851),” in Lash, The Reconstruction Amendments, 1:144.
  52. See, for example, “South Carolina, Declaration of the Causes Which Justify Secession (Dec. 24, 1860),” in Lash, The Reconstruction Amendments, 1:328. The protection of slavery through provisions like the fugitive slave clause “was so material to the compact, that without it the compact would not have been made.”
  53. See James M. McPherson, Battle Cry of Freedom: The Civil War Era (Oxford University Press, 1988), 771.
  54. The fall of Atlanta to Union forces in early September 1864 was particularly important. For a discussion of the battle for Atlanta and its political significance, see McPherson, Battle Cry of Freedom, 774.
  55. For a general discussion of the amendment’s drafting and passage, see Kurt T. Lash, “Introduction to Part 2A,” in The Reconstruction Amendments, 1:373.
  56. “The Northwest Ordinance (July 13, 1787),” in Lash, The Reconstruction Amendments, 1:10.
  57. US Const. amend. XIII (1865); and “The Northwest Ordinance (July 13, 1787),” in Lash, The Reconstruction Amendments, 1:10.
  58. See, for example, “Liberty Party Platform (Aug. 30, 1843),” in Lash, The Reconstruction Amendments, 1:225. “RESOLVED, That the fundamental truths of the Declaration of Independence, that all men are endowed by their Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness, was made the fundamental law of our national government, by that amendment of the constitution which declares that no person shall be deprived of life, liberty, or property, without due process of law.”
  59. See Kurt T. Lash, “The State Citizenship Clause,” University of Pennsylvania Journal of Constitutional Law 25, no. 5 (2023): 1097, 1147, https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1863&context=jcl.
  60. US National Archives, “14th Amendment to the U.S. Constitution: Civil Rights (1868),” https://www.archives.gov/milestone-documents/14th-amendment.
  61. Abraham Lincoln, “Fragment on the Constitution and the Union,” ca. January 1861, in The Collected Works of Abraham Lincoln, ed. Roy P. Basler, vol. 4, 1860–1861 (Rutgers University Press, 1953), 169.
  62. See “John C. Calhoun, A Discourse on the Constitution (I) (1851),” in Lash, The Reconstruction Amendments, 1:142. Madison himself rejected the idea of state secession and its only slightly less radical sibling, state nullification. See “James Madison to Daniel Webster (Mar. 15, 1833),” in Lash, The Reconstruction Amendments, 1:115.
  63. See Lash, “The Federalist and the Fourteenth Amendment.”
  64. Texas v. White, 74 US 700, 725 (1869).
  65. See Cong. Globe, 37th Cong., 2nd Sess. 737 (1862). According to Sumner: “Any votes of secession or other act by which any State may undertake to put an end to the supremacy of the Constitution within its territory is inoperative and void against the Constitution, and when sustained by force it becomes a practical abdication by the State of all rights under the Constitution, while the treason which it involves still further works an instant forfeiture of all those functions and powers essential to the continued existence of the State as a body politic, so that from that time forward the territory falls under the exclusive jurisdiction of Congress as other territory, and the State being, according to the language of the law, felo-de-se, ceases to exist.”
  66. In the opening days of the 38th Congress, for example, Representative Lovejoy proposed “a bill to give effect to the Declaration of Independence” and the Fifth Amendment’s due process clause, which would abolish slavery throughout the United States. See “US House of Representatives, Proposed Abolition Amendments (Ashley Wilson) and Abolition Bill (Lovejoy) (Dec. 14, 1863),” in Lash, The Reconstruction Amendments, 1:385.
  67. John A. Bingham, One Country, One Constitution, and One People [. . .] (Congressional Globe Office, 1866), 7.
  68. Bingham, One Country, One Constitution, and One People.
  69. Bingham, One Country, One Constitution, and One People.
  70. Cong. Globe, 39th Cong., 2nd Sess. 250–51 (1867).
  71. Cong. Globe, 39th Cong., 2nd Sess. 504 (1867).
  72. Civil Rights Cases, 109 US 3, 20–21 (1883).
  73. See Brown v. Board of Education of Topeka, 347 US 483 (1954); Parents Involved in Community Schools v. Seattle School District No. 1, 551 US 701 (2007); and Students for Fair Admissions v. University of North Carolina, 600 US ___ (2023).
  74. New York v. United States, 505 US 144 (1992); and United States v. Lopez, 514 US 549 (1995).
  75. Bond v. United States, 564 US 211 (2011).
  76. Bond, 564 US at 8–9.
  77. Federalist, no. 45 (Madison).
  78. Kurt T. Lash, “Becoming the ‘Bill of Rights’: The First Ten Amendments from Founding to Reconstruction,” Virginia Law Review 110, no. 2 (2024): 474–75. For an explanation of how the 14th Amendment incorporates all of the Bill of Rights, including the 10th Amendment, see Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge University Press, 2014).
  79. “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people.” Federalist, no. 51 (Madison).
  80. James Hershman, “Massive Resistance,” Encyclopedia Virginia, December 7, 2020, https://encyclopediavirginia.org/entries/massive-resistance/.
  81. James Madison, “Notes on Nullification, December 1834,” Founders Online, https://founders.archives.gov/documents/Madison/99-02-02-3190.