Conservative Confusion About Constitutional Originalism

Until recently, the conservatives who supported Donald Trump agreed on one main point in their conservative case for Trump:  Trump's appointment of federal judges recommended by the Federalist Society would promote the conservative legal movement by appointing only judges who adhere to the original meaning of the Constitution and the clear textual meaning of the laws.  That 28% of those actively serving on the federal bench today--including three of the nine Supreme Court Justices--were appointed by Trump must therefore be a great success for conservative jurisprudence.  But now Trumpian conservatives cannot agree about this.

The problem began in June of last year when Neil Gorsuch wrote the majority opinion (six justices) in Bostock v. Clayton County, holding that the Civil Rights Act of 1964 forbids employment discrimination against homosexuals and transgender people, because Title VII of that Act makes it unlawful "to discriminate against any individual . . . because of . . . sex."  Conservatives were shocked that Trump's first Supreme Court appointee, who filled the vacancy created by Antonin Scalia's death, would write such an opinion.  They were particularly shocked that Gorsuch justified his opinion as grounded in a strict Scalian textualist interpretation of the law: according to the literal meaning of the text of the law, discriminating against individuals because they are homosexual or transgender discriminates against them because of their sex, which therefore violates Title VII.  

Some religious conservatives (like Senator Josh Hawley) declared that this showed that their bargain with Trump and the conservative legal movement had failed, because a textualist originalism was supporting liberal policies.  (I have written previously about Gorsuch's opinion in Bostock.)

BEYOND ORIGINALISM?

Some conservatives (like Adrian Vermeule) say that this shows the failure of originalist jurisprudence to support conservative morality.  Instead of originalism, Vermeule argues, conservatives should embrace a "common good constitutionalism" or "substantive moral constitutionalism."  "This approach should take as its starting point substantive moral principles that conduce to the common good," Vermeule explains, "principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution."  This would mean a recognition of the fact that those who have social authority--including judges--must "legislate morality."

Vermeule acknowledges that in making this argument he is following the lead of Ronald Dworkin, who was well known for claiming that we need "moral readings of the Constitution"--that interpreting the Constitution is an exercise in moral philosophizing.  But while common-good constitutionalism is "methodologically Dworkinian," Vermeule observes, it "advocates a very different set of substantive moral commitments and priorities from Dworkin's, which were of a conventionally left-liberal bent."  But some conservatives will object: if we are going to allow conservative judges to develop conservative "moral readings of the Constitution," how can conservatives deny the freedom of liberal judges to read the Constitution as teaching a liberal morality?

A BETTER ORIGINALISM?

This objection has led some conservatives to contend that while we should agree with Dworkin in finding moral philosophy in the Constitution, we should insist that this be the original moral philosophy of the Founders who framed and ratified the Constitution, with the assumption that this original moral philosophy of the Founders was a conservative moral philosophy.  This seems to be the position of Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker in their essay "A Better Originalism," who argue for a "common good originalism."

They recognize that textualist originalism can correctly interpret the literal meaning of the legal texts, as Gorsuch did in Bostock.  But this mistakenly ignores the moral meaning of the laws by assuming a narrow positivist jurisprudence, according to which the validity of the law as whatever the lawmaker says it is has nothing to do with its morality.

Against such positivist originalism, they affirm four principles of an originalism based on moral and natural law:

1. We hold that moral truth is inseparable from legal interpretation.

2. We hold that the Anglo-American legal order is inherently oriented toward human flourishing, justice, and the common good.

3. We reject literalist legal interpretation and hold to the common sense jurisprudence of the founders.

4. We believe in a jurisprudence that is, in the truest and most profound sense of the term, conservative, in preserving the moral ground of a classic jurisprudence.

They believe that these principles are implicitly affirmed in the Declaration of Independence and in the Preamble of the Constitution.  The Declaration appealed to "the Laws of Nature and of Nature's God."  That provided a moral ground for a shared commitment to natural rights secured by government, so that the "just powers" of government are directed to the "Safety and Happiness" of the people, for whom law is "wholesome and necessary for the public good."

The Preamble enumerated the substantive ends of the Constitution: "a more perfect Union," "Justice," "domestic Tranquility," "the common defence," "the general Welfare," and "the Blessings of Liberty."  Consequently, a constitutional originalist must interpret the clauses of the Constitution as directed to these substantive moral ends as "the telos, or purpose, for which those clauses have been formed."

They recognize the most common conservative objection to their position, mentioned above, that affirming the moral meaning of the Constitution will allow liberal judges to find liberal morality in the Constitution.  They respond: "If our friends claim that judges on the Left will take this as a new license for moral reasoning untethered, our answer is: why do we suppose that we cannot tell the difference between arguments that are plausible or specious?  The answer to the Left is to show why their reasoning is false; it is not to end all moral reasoning and disarm conservative judges."  

So like Vermeule, their constitutional jurisprudence is "methodologically Dworkinian," in looking for a moral reading of the Constitution, but they are confident that correct moral reasoning will persuasively support a conservative morality for the Constitution and refute the left-liberal morality that Dworkin claimed to find in the Constitution.

Arkes and his colleagues seem to be speaking for the Claremont Institute in their critique of positivist originalism.  After all, their arguments sound a lot like those made by Harry Jaffa against Rehnquist, Bork, and Scalia.  

But that creates a problem for the Claremont Institute's support for Trump.  If Trump's judicial appointees belong to the positivist jurisprudence championed by the Progressives (such as Oliver Wendell Holmes), doesn't this mean that Trump has promoted the overturning of the Founders' Constitution?  Doesn't this contradict the Claremont Institute's claim that it supports the natural rights/natural law tradition of the Founding against the positivism of the Progressives?  (That Scalia's positivist jurisprudence was rooted in the progressive legal tradition of Holmes has been well argued by George Anastaplo.)

DEFENDING POSITIVIST ORIGINALISM

The best conservative critique of this conservative moral originalism has been written by John Grove for the Liberty Fund's Law & Liberty website.  Josh Hammer--one of the coauthors of "A Better Originalism"--has identified Grove's essay as "the most thorough response" to their argument.

Grove makes two general claims.  First, the text of the Constitution enumerates and organizes the powers of government, but it "neither answers nor empowers judges to answer the great moral questions of public life for us."  Second, Burkean conservatives should know that it would be dangerous to allow judges to act as moral arbiters, because to allow powerful people to impose on society their personal conceptions of morality would lead to tyranny.

While Arkes and his colleagues assert that "the Constitution's preamble enumerates substantive ends," Grove quotes from the Constitutional Convention's Committee of Detail's Report the statement that the Preamble was "not for the purpose of designating the ends of government and human polities."  Moreover, Grove notes that this was no recorded debate on the language of the Preamble--"a silence that would be shocking if any of the delegates thought the passage infused a great moral telos into the document."  Hammer admits: "Grove scores some clever points in his favor, especially with respect to the Constitutional Convention's Committee on Style, which drafted the Preamble without leaving behind any notes or recorded debate."

Nevertheless, Hammer insists that "Grove outright misses the mark," when he says that the Constitution does not "authorize the importation by judges of moral content . . . on which the Constitution is not indeterminate but utterly silent."  Hammer says that this begs the question at issue, which is "whether the Constitution is actually silent on the matter if it is properly understood and construed."  But isn't this a remarkably weak argument--to say that if the Constitution "is properly understood and construed," we can read moral language into the Constitution, although the Constitution never actually uses moral language?

THE ORIGINAL MEANING OF THE CONSTITUTIONAL AMENDMENTS

It is surprising that while both sides in this debate refer to the Constitution as ratified in 1789, both sides are silent about the Constitution of 1791 (with the ratification of the first ten amendments) and the Constitution of 1870 (with the ratification of the13th, 14th, and 15th amendments).  And it's in those amendments that one sees the moral language of rights, including those rights "retained by the people" prior to government.

The Constitution of 1789 uses the word "right" only once, in enumerating the power of Congress to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Art. I, section 8, clause 8).  In the amended Constitution, the word "right" appears 12 times in the amendments.

To show that Alexander Hamilton recognized the "limited purpose" of the Constitution that did not require moral principles, Grove quotes Hamilton's observation that the long bills of rights often included in the state constitutions "would sound much better in a treatise of ethics than in a constitution of government."  This remark is from Federalist number 84, in which Hamilton defended the Constitution of 1789 against the objection that it had no bill of rights.  But Grove says nothing about the decision of James Madison and other founders in 1789 to amend the Constitution by adding a bill of rights.  Did this make the Constitution sound like a "treatise of ethics"?

In his speech to the House of Representatives explaining his proposed amendments, on June 8, 1789,  James Madison argued that although the Constitution had been ratified without a bill of rights, it would be good to satisfy that great body of the people that wanted such a bill of rights in the Constitution.  "We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution."  He indicated that the proposed list of rights included both "natural rights" such as freedom of speech and "positive rights" such as trial by jury.

"If they are incorporated into the constitution," he explained, "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."

He thought that such a bill of rights would guide judges in protecting the rights of the minority from being violated by a powerful majority:

"In a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body.  The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power.  But this is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority."

That this list of rights included natural rights that existed prior to government was indicated by the 9th Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

That this idea of rights "retained by the people" pointed to natural rights in the state of nature before the establishment of government was clear in Roger Sherman's draft of the Bill of Rights: "The people have certain natural rights which are retained by them when they enter into Society."

So what would Grove say about the 9th Amendment?  Since he quotes approvingly from Robert Bork, I wonder whether he would agree with what Bork said in his 1987 testimony before the Senate Judiciary Committee that was considering his nomination to the Supreme Court by President Reagan:

"I do not think you can use the Ninth Amendment unless you know something of what it means.  For example, if you had an amendment that says 'Congress shall make no' and then there is an inkblot, and you cannot read the rest of it, and that is the only copy you have, I do not think the court can make up what might be under the inkblot."

Would Grove agree that the 9th Amendment is a meaningless inkblot that should be ignored? 

I also wonder how Grove would read Section 1 of the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This language was originally drafted by Congressman John Bingham from Ohio.  In his final speech in support of the 14th Amendment in May of 1866, he said that its purpose was to provide a check against the "many instances of State injustice and oppression" and "to protect by national law the privileges or immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State."

This is the moral language of Lockean classical liberalism--affirming natural human rights that must be secured by any just government.  That neither Arkes and his colleagues nor Grove acknowledge this language in the Constitution's amendments suggests their agreement in their rejection of this Lockean constitutional morality.

GORSUCH'S ORIGINALISM IN BOSTOCK

Returning to Gorsuch's opinion in the Bostock case, which prompted this whole debate over conservative originalist jurisprudence, I have to wonder whether a Scalian originalist like Grove would agree with Gorsuch's reasoning.  Gorsuch's credentials as a Scalian textualist are unimpeachable.  And in this case, Gorsuch relies on the strict meaning of the legal text in Title VII of the Civil Rights Act of 1964 to conclude that discrimination against homosexuals or transgender people is illegal because it is discrimination against them because of their sex.  Would Grove say that this is good positivist originalism, because it adheres to the literal meaning of the law as written by the lawmakers, without invoking Gorsuch's personal beliefs in any "moral truth" or "natural law" behind or above the legal text?

Perhaps Grove would agree with Justice Alito that Gorsuch's textualism is fraudulent.  In his dissenting opinion in the Bostock decision, Alito warns that Gorsuch's opinion is legislation disguised as a judicial opinion interpreting a statute, and therefore it is not really anything like Scalia's textualism.

"The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled.  The Court's opinion is like a pirate ship.  It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated--the theory that courts should 'update' old statutes so that they better reflect the current values of society." 

Gorsuch emphatically asserts that he is following Scalia's textualist approach in grounding his legal interpretation in the text of the law and nothing else.  "When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest.  Only the written word is the law, and all persons are entitled to its benefit."

Remarkably, Justice Kavanaugh concedes that "as a very literal matter," Justice Gorsuch's interpretation of the legal text is correct! But Kavanaugh argues that as a sound principle of judicial interpretation, the "ordinary meaning" of a legal phrase is to be preferred over the "literal" meaning.  So while Gorsuch is right that the literal meaning of discrimination because of sex includes discrimination against homosexuals and transgender people, the ordinary meaning accepted by reasonable people--legislators, judges, and citizens--is that prohibiting discrimination because of sex means equal treatment for men and women, which does not require prohibiting discrimination based on sexual orientation or gender identity.  Kavanaugh says that Scalia would not have accepted Gorsuch's literal interpretation of "because of sex."  After all, Scalia himself once said that "the good textualist is not a literalist."  

And yet Gorsuch relies heavily on a crucial interpretation of Title VII by Scalia in his opinion, writing for a unanimous court, in Oncale v. Sundowner Offshore Services (1998).  Joseph Oncale alleged that he was forced to quit his job working on an oil platform in the Gulf of Mexica because he had been sexually harassed by other men in the crew.  Oncale said that he would not have been harassed by these men if he had been a female, and therefore he had been discriminated against because of his sex, which was prohibited by the language of Title VII.

When the Congress wrote and approved Title VII in 1964, probably no one anticipated that the language of the text would prohibit the sexual harassment of men by other men in the workplace.  This was not part of Congress's original intent.  But still, Scalia concluded, if the literal interpretation of Title VII protected men from such harassment, then this was part of the original meaning of the statute, even if that meaning was not understood in 1964.

The same literal reading of "because of sex" applied here, Gorsuch observes, also applies to employment discrimination based on the homosexuality or transgender status of employees.

This is what Walter Olson at the Cato Institute calls a "surprise plain meaning" reading of the law.  Sometimes a strict textualist reading of the law can turn up a meaning that surprises the jurisprudential textualists, a meaning that might even contradict the conservative policy preferences of the textualists.

Isn't that good for textualism, because it refutes the claim of textualism's critics that textualists use the supposed objectivity of textualism to read their own conservative ideology into the text of the law?  If textualism reveals in an unbiased way what the law really says, then one should expect that what is found in the law will sometimes surprise or even disappoint the conservative textualists.

That is the case with Gorsuch's reading of Title VII as expanding LGBT rights, against the desire of religious conservatives that those rights should be narrowed.  Similarly, as I have argued in a previous post, one can make a good textualist argument for concluding that the original meaning of the 14th Amendment supports same-sex marriage, which would provide a textualist justification for Justice Kennedy's opinion in Obergefell.  That argument has been well made by William Eskridge and Steven Calabresi in their amici curiae brief in the Obergefell case.  Eskridge and Andrew Koppelman made a similar textualist argument supporting Gorsuch's opinion in Bostock in their amici curiae brief in that case.

Now a positivist originalist like Grove might object that a decision like Bostock allows the Supreme Court to usurp the lawmaking powers of Congress.  But we should keep in mind that the Congress has the power to overturn or revise the Supreme Court's interpretation of the law in Bostock by legislating a congressional interpretation of Title VII.  Congress has all the constitutional powers to be the supreme branch of the national government, even if it often refuses to exercise those powers.

Black Armed Rebellion Against the Fugitive Slave Laws

An 1872 Depiction of the Shooting of Edward Gorsuch at the "Christiana (Pennsylvania) Riot," in 1851

The Fugitive Slave Law of 1850 was passed by the United States Congress on September 18, 1850, as part of a package of laws called the Compromise of 1850, which was an attempt to mediate the conflict between proslavery interests in the South and abolitionists and free-soilers in the North so as preserve the Union.  Over the next ten years, the violent resistance to the law in the North and the anger of Southerners who complained that the law was not fully enforced contributed to the polarization over slavery that provoked the Civil War.  The violent rebellion against the law--by both black and white people--was justified as both a natural right and a constitutional right to use armed violence in defense of life and liberty.  Proslavery Southerners objected that this violated their constitutional right to have their runaway slaves returned to them.

Throughout the history of slavery over thousands of years, slaves have run away from their enslavement; and they have used violence to defend themselves against slave catchers.  But this had never led to the abolition of slavery as a system, because while runaway slaves don't want to be enslaved themselves, they do not necessarily object to the enslavement of others.

But in the black violent resistance to the fugitive slave laws, many of the runaway slaves--people like Frederick Douglass and Harriet Tubman--helped other slaves to escape through the Underground Railroad.  So, these slaves were seeking freedom not just for themselves but for all slaves; and they were justifying this by appealing to the abolitionist principle that all human beings are naturally entitled to equal liberty.

                                                    Harriet Tubman Always Carried a Gun

TWO FUGITIVE SLAVE LAWS

The abolitionists were challenging the constitutional authority for the fugitive slave laws supposedly rooted in a clause in Article IV, Section 2, Clause 3, of the Constitution:

"No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

The Fugitive Slave Act of 1793 was the first legislative enforcement of this clause.  Fugitive slaves in free states could be seized or arrested by the slave owner or his agent and taken before a federal judge or a local magistrate.  The slave catcher would then have to prove to the judge or magistrate through oral testimony or an affidavit that the person seized or arrested was indeed a slave who owed service or labor to the person claiming him or her.  It would then be the duty of the judge or magistrate to issue a certificate that would warrant the return of the slave to the state or territory from which the slave had escaped.  Anyone who obstructed or hindered the claimant in taking the slave could be fined five hundred dollars.

To prevent or restrict the enforcement of this law, many of the state governments in the North passed "personal liberty laws" to impede the capture and return of fugitive slaves.  Some of the most common of these laws allowed jury trials for escaped slaves and prohibited state authorities from cooperating with the slave catchers.  In jury trials, juries often refused to convict fugitive slaves and thus nullified the fugitive slave law (Morris 2010).

Armed black violence also obstructed the enforcement of the 1793 fugitive slave law.  Here are a few examples.  In 1806, Ned Page and his wife had escaped from slavery in Kentucky; and they were traveling near Dayton, Ohio.  They were in a tavern.  Two armed men entered, and they were ready to take the Pages back south as slaves.  Ned pulled a pistol and threatened to kill them.  Some friends came to his support.  The two slave catchers were arrested and charged with breach of the peace.

In 1810, in Jefferson, Ohio, slave catchers captured a family of fugitive slaves, tied them up, and started marching them south.  They were stopped by a group of twenty black men armed with guns and other weapons.  Under the threat of a fight, the Southerners agreed to present their claim to a local magistrate, who ruled that the black fugitives should be freed.  The slave hunters were charged with assault.  After posting bail, they rode away.

In 1820, John Reid was a fugitive slave living in Kennett Township, Pennsylvania.  Armed slave catchers broke through the door of his cabin.  Reid grabbed his gun.  He shot dead Samuel Griffith, who had been his owner.  His single-shot gun was now spent.  So, he used a club to kill Peter Shipley, who had been his overseer.  Although Reid was charged with murder, the jury acquitted him on the murder of Griffith and convicted him of a lesser charge in the killing of Shipley (Johnson 2014: 39-40; Harrold 2010: 25-27, 32, 95).

There were hundreds of similar cases in which armed fugitive slaves successfully resisted slave catchers with the help of sympathetic local magistrates and juries.  That is why proslavery Southerners demanded a new more effective fugitive slave law in 1850.

The Fugitive Slave Law of 1850 did indeed favor the slave catchers.  Enslavers needed only to provide an affidavit stating their claim on a fugitive slave to a federal marshal to capture the fugitive.  Federal circuit courts were to appoint commissioners who would hold hearings to determine whether someone was a fugitive slave based only on the sworn testimony of a slave catcher.  The person charged as a fugitive slave had no right to testify in his defense, no right to trial by jury, and no right to a writ of habeas corpus.  A commissioner was paid ten dollars if he found that an individual was a fugitive slave, but only five dollars if he found that this was a false charge.  Anyone helping fugitive slaves to escape could be charged with a crime and subject to a fine of up to one thousand dollars and imprisonment up to six months.

Shortly after the passage of this new fugitive slave law, libertarian abolitionist Lysander Spooner published A Defence for Fugitive Slaves.  He argued that since slavery was both unjust and unconstitutional, people held as slaves had the right to run away, and other people had the right and the duty to help them.  Therefore, the fugitive slave laws of 1793 and 1850 were unjust and unconstitutional.

SPOONER'S ATTACK ON THE FUGITIVE SLAVE LAWS

For Spooner, the unconstitutionality of slavery and fugitive slave laws is indicated by the simple fact that the words "slave" and "slavery" never appear in the Constitution.  What has been called the "Fugitive Slave Clause" of the Constitution says nothing about "fugitive slaves."  Rather, it says, "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another" shall be discharged from their service or labor.  A "person held to service or labour" is standard legal language for a person who has a contractual obligation as a servant to someone, and such a servant is not a slave.  "Now a slave is not 'held' by any legal contract, obligation, duty, or authority, which the laws will enforce," Spooner observed.  "He is 'held' only by brute force" (46).

Spooner noted that at the Constitutional Convention, Pierce Butler and Charles Pinkney (delegates from South Carolina) proposed clear language "to require fugitive slaves and servants to be delivered up like criminals."  But the delegates never agreed to this language that would have expressly identified "fugitive slaves" along with "servants" (Farrand 2:443). 

Spooner pointed out that, at the Virginia Ratification Convention in 1788, James Madison quoted the language in the final text of the Constitution about "no person held to service, or labour"; and he asserted: "This clause was expressly inserted to enable owners of slaves to reclaim them" (Bailyn 1993, 2:707).  But actually this clause did not "expressly" mention "slaves," as had been proposed by Butler and Pinkney.

Even if Madison was expressing the original intent of many people at the Constitutional Convention and the Ratifying Conventions, he was not expressing what Spooner identified as the original meaning of the text of the Constitution.  Spooner thus became the earliest proponent of the constitutional jurisprudence of textualist originalism.

Spooner also insists that this original meaning of the constitutional text must be known to the people who ordained and established the Constitution: "We the People."  Consequently, the common assertion that the judiciary has the right to decide all constitutional questions authoritatively for the people is mistaken.  Nowhere in the Constitution is it stated that the judiciary is the final authoritative interpreter of the Constitution.  The people must decide for themselves whether a judicial decision has correctly interpreted the original meaning of the Constitution.  

"In the very nature of things, nothing but the law can be binding upon anyone," Spooner explained.  "An unconstitutional judicial decision is no more binding, than an unconstitutional legislative enactment--and a man has the same right to resist, by force, one as the other, and to be tried for such resistance by a jury, who judge of the law for themselves."  Since juries have the right to judge both the constitutionality of the law and the justice of the law, juries can nullify the fugitive slave laws if they judge them to be unconstitutional and unjust.

That Spooner was right about the unconstitutionality of the fugitive slave laws was confirmed by the framing of the Constitution of the Confederate States of America in 1861.  As I have indicated in a previous post, the Confederate Constitution is largely a word-for-word copy of the U.S. Constitution (as it existed in 1861), except that while the U.S. Constitution never uses the words "slave" or "slavery," the Confederate Constitution uses those words nine times.  This is the case for the clause about returning fugitives.  While the U.S. Constitution says, "No Person held to Service or Labour . . .", the Confederate Constitution says, "No slave or other person held to service or labor."  Thus, the text of the Confederate Constitution has an expressly stated fugitive slave clause, while the text of the U. S. Constitution does not.

But even if, for the sake of argument, we assumed that the U. S. Constitution did have a fugitive slave clause, we could still argue, as Spooner did, that the fugitive slave laws were unconstitutional.  He gave various reasons for this.  These laws deny the slave's rights to trial by jury and to the writ of habeas corpus, although these rights are guaranteed by the Constitution.  The Fugitive Slave Law of 1850 authorizes cases to be decided wholly by ex parte testimony, because it requires a judge or commissioner to decide a dispute through testimony by one side only--the slave catcher--while prohibiting the alleged fugitive from testifying in his own defense or confronting his accusers.  The law declares: "In no trial or hearing, under this act, shall the testimony of such alleged fugitive be admitted."  This is unconstitutional because excluding testimony is an exercise of the judicial power vested by the Constitution in the courts.  This legislation is thus a usurpation by Congress of the judicial power.

Having shown that the fugitive slave laws were unconstitutional, Spooner argued, he could then conclude that the people have a constitutional and natural right to resist those laws--even violent resistance.  Without any constitutional authority, the officers appointed to execute these laws are "mere ruffians and kidnappers," who may be lawfully resisted like any other ruffians and kidnappers.  Everyone is legally and morally obligated to rescue anyone assaulted or restrained by them.

    An April 24, 1851, Poster Warning about Boston Policemen Acting as Kidnappers of Fugitive Slaves

Spooner saw a constitutional right to armed resistance to the fugitive slave laws stated in the Second Amendment: "The right of the people to keep and bear arms shall not be infringed."  When the government goes beyond, or contrary to, the textual meaning of the Constitution, and there is no peaceful remedy for this usurpation of power, then the people have the constitutional and natural right to resort to armed resistance as the only remedy.

Frederick Douglass expressed this thought in blunt terms:  "The true remedy for the Fugitive Slave Bill is a good revolver, a steady hand, and a determination to shoot down any man attempting to kidnap" (Frederick Douglass's Paper, June 9, 1954).  One of the most famous examples of that harsh remedy occurred in a small town in Pennsylvania.

THE CHRISTIANA RIOT

As dawn broke on the morning of September 11, 1851, William Parker was in his farmhouse outside of Christiana, in Lancaster County, Pennsylvania, preparing for the arrival of Edward Gorsuch, a slaveholder from Maryland who was coming with a federal warrant to recover his four runaway slaves.  What happened on that morning would be reported in newspapers across the United States with big headlines such as "CIVIL WAR, FIRST BLOW STRUCK" (Slaughter 1991).

Parker had been born a black slave in Maryland.  When he was seventeen, he ran away to the free state of Pennsylvania and settled in Christiana, only twenty miles from the Maryland border.  In 1851, he was 29 years old.

Slave catchers often came to this part of Pennsylvania looking for fugitive slaves.  Sometimes, the slave catchers kidnapped free blacks that they could sell into slavery in the South.  For at least twenty years, there had been a mutual protection society of blacks in the area, who alerted their neighbors when slave catchers were around, and they would retrieve any blacks taken captive before they could be taken back across the state line to Maryland.  Parker joined this group, and he became an active conductor for the Underground Railroad.

When Gorsuch in Maryland discovered that four of his twelve slaves had run away, he found out that they had likely gone to Lancaster County.  On September 9th, he was in Philadelphia, where he obtained a federal warrant under the Fugitive Slave Act for the arrest of the four runaway slaves.  Henry Kline, a deputy Federal Marshall, was authorized to make the arrest.  In Philadelphia, there was a Special Secret Committee of people who were organized to watch the federal courthouse, looking for slave catchers getting federal warrants.  One member of the group followed Gorsuch and Kline, and he warned the black community around Christiana that they were coming.

Gorsuch's posse entering Christiana included Kline, Gorsuch's son Dickinson, two nephews of Gorsuch, and two other men.  This party of Gorsuch's men were led at night on September 11 by a hired white guide, who led them to Parker's house just before dawn and then left.  Parker was in the house with his wife, her sister, three other men, and two of Gorsuch's slaves.  Parker and his household moved to the second floor of the house with their guns so that they would be in the best position to defend themselves.

Gorsuch's party surrounded the house, and Kline shouted that he was a Federal Marshall with a warrant for seizing the slaves.  Parker and his household argued with Gorsuch and his men.  Parker's wife blew a horn that was a signal that they needed help from local blacks.

Someone fired shots, but no one was injured.  Some of those in the posse recommended that they retreat and then recruit a larger group of men.  But Gorsuch refused.  Parker asked for time so that he and his household could talk about whether to give up the runaway slaves.  Parker might have been delaying to allow time for reinforcements to arrive.  Over the next 30 minutes, several unarmed white neighbors arrived, along with 75 to 150 armed blacks.  Kline identified himself to the white men as a Federal Marshall, and he asked them to join in arresting the fugitive slaves.  One of the white men--Caster Hanway--said that they would not help in the arrest, and he told Kline and his men to leave to avoid bloodshed.  Kline warned that they were committing a federal crime by refusing to help with the arrest.

One of Gorsuch's slaves came out of the house.  When Gorsuch challenged him, he clubbed Gorsuch until he fell to the ground.  Gorsuch was then shot multiple times, and he died.  When Gorsuch's son jumped in to help, he too was shot multiple times, but he later recovered.  As soon as the violence started, Kline and others in the posse ran away.

Parker, Gorsuch's four fugitive slaves, and some other blacks fled north to Rochester, New York, to the home of Frederick Douglass.  Parker and Douglass had known one another when they were both slaves in Maryland.  Douglass arranged for the group to catch a ferry to Canada.  Parker gave Douglass a revolver that he said had been used to kill Gorsuch.  Douglass cherished it for the rest of his life as a trophy.

Some white slave owners had been killed prior to 1850 in attempts to enforce the Fugitive Slave Act of 1793.  But Gorsuch was the first white slave owner to be killed since the passage of the Fugitive Slave Act of 1850.  This created public pressure on the federal government to show that violent resistance to the new fugitive slave law would be severely punished.  President Millard Fillmore--who had been instrumental in passing the Compromise of 1850--called out the marines to search the area around Christiana.  41 men (36 blacks and 5 whites) were arrested and charged with treason.  Parker and the four fugitive slaves in Canada were charged in absentia.

Caster Hanway--one of the five white men charged--was the first to be indicted.  The trial in Philadelphia lasted from November 24 until December 11, 1851.  The lead judge in the case--Supreme Court Justice Robert Grier--instructed the jury that treason would have to be a conspiracy of a public nature to overthrow the government or hinder the execution of the law.  He suggested that the Christiana resisters were acting for purely personal motives.  "A number of fugitive slaves may infest a neighborhood, and may be encouraged by the neighbors in combining to resist the capture of any of their number; they may resist with force and arms. . . . Their insurrection is for a private object and connected with no public purpose."  Perhaps influenced by this instruction from the judge, the jury took on 15 minutes of deliberation to vote for acquittal.  However, the jury might also have been moved by Spooner's idea that juries can rightly nullify laws that they regard as unconstitutional or unjust.

After Hanway's acquittal, the federal prosecutors dropped the treason prosecutions.  They could have charged the remaining black defendants with riot and murder, but they worried that remanding them for trial on these state offenses would probably result in lenient treatment by county court and juries.  Ultimately, then, no one was convicted of a crime.

This case evoked some public sentiment in support of the armed resistance to what many regarded as an unconstitutional and unjust fugitive slave law.  But there was also popular scorn (in both North and South) for abolitionist violence that violated the constitutional right of slaveowners to have fugitive slave laws enforced.

This one dramatic example of armed black resistance to the Fugitive Slave Law of 1850 raises three kinds of questions.

The constitutional question is, Did the resisters have a constitutional right to use armed violence to resist the Fugitive Slave Law as being unconstitutional?

The moral question is, Did they have a natural right to resist that law with armed violence to defend their life and liberty?

The political question is, Was this a politically prudent way to advance popular support for the abolitionist cause?

It should also be noted that, at least by historian Thomas Slaughter's reckoning, the Fugitive Slave Law of 1850 as it was enforced really did favor the slaveowners.  During the first 15 months after the law was passed, 84 alleged fugitive slaves were sent back South by federal commissioners, and only 5 were set free.  Over 10 years, 332 blacks were sent back to slavery, and only 11 were released by federal commissioners.

REFERENCES

Bailyn, Bernard, ed.  1993.  The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification.  2 vols.  New York: Library of America.

Farrand, Max, ed.  1937.  The Records of the Federal Convention.  4 vols.  New Haven, CN:  Yale University Press.

Harrold, Stanley.  2010.  Border War: Fighting over Slavery before the Civil War.  Chapel Hill: University of North Carolina Press.

Johnson, Nicholas.  2014.  Negroes and the Gun: The Black Tradition of Arms.  Amherst, NY: Prometheus Books.

Morris, Thomas.  2010.  Free Men All: The Personal Liberty Laws of the North, 1780-1861.  Baltimore, MD: Johns Hopkins University Press.

Slaughter, Thomas.  1991.  Bloody Dawn: The Christiana Riot and Racial Violence in the Antebellum North.  New York: Oxford University Press.

Spooner, Lysander.  1850.  A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850.  Boston:  Bela Marsh.