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Feb 17, 2017

Can Abolitionists Vote or Take Office Under the United States Constitution?

Smith discusses the arguments of Wendell Phillips that abolitionists should not vote or hold political office.

I previously discussed some preliminary aspects of the important booklet (1845) by Wendell Phillips, Can Abolitionists Vote or Take Office Under the United States Constitution? I shall now consider his arguments in more detail.

The “No-Voting Theory” of Phillips is based on relatively simple premises. First is the oath of office. Phillips wrote:

The President swears “to execute the office of president,” and “to preserve, protect, and defend the Constitution of the United States.” The judges “to discharge the duties incumbent upon them agreeably to the Constitution and laws of the United States.”

Second is the nature of an oath.

All executive, legislative, and judicial officers, both of the several States and of the General Government, before entering on the performance of their official duties, are bound to take an oath or affirmation, “to support the Constitution of the United States.” This is what every office-holder expressly promises in so many words. It is a contract between him and the whole nation.

It is interesting that Phillips did not invoke the religious feature of oaths, since this would surely have struck a chord with the many abolitionists who were evangelical Christians of one sort or another. (The unorthodoxy of some abolitionists, especially Garrisonians, earned them the condemnation of traditional Protestant denominations.) An oath is a promise to God, so to violate an oath, or to swear an oath insincerely or with mental reservations, was typically viewed as a serious sin. Nevertheless, Phillips confined himself to the secular aspect of oaths. To swear an oath of office is to engage in a contract between oneself and the rest of the nation.

Phillips stressed that an office-holder is more than a mere citizen. If we may say that citizens are obligated to submit to laws, the office-holder has promised to enforce those laws. An oath of office is “more than an oath of allegiance; more than a mere promise that we will not resist the laws. For it is an engagement to ‘support them’; as an officer of government, to carry them into effect.” Phillips—who, unlike William Lloyd Garrison, was no anarchist—continued:

Without such a promise on the part of its functionaries, how could government exist? It is more than the expression of that obligation which rests on all peaceable citizens to submit to laws, even though they will not actively support them. For it is the promise which the judge makes, that he will actually do the business of the courts; which the sheriff assumes, that he will actually execute the laws.

Let it be remarked, that it is an oath to support the Constitution—that is, the whole of it; there are no exceptions. And let it be remembered, that by it each one makes a contract with the whole nation, that he will do certain acts.

The third leg of Phillips’s argument is his agency theory of voting. In voting for a candidate, a voter authorizes an office-holder to act in his behalf. This is what we mean when we say that an elected politician represents his constituents.

The voter, who, by voting, sends his fellow citizen into office as his representative, knowing beforehand that the taking of this oath is the first duty his agent will have to perform, does by his vote, request and authorize him to take it. He therefore, by voting, impliedly engages to support the Constitution. What one does by his agent he does himself. Of course no honest man will authorize and request another to do an act which he thinks it wrong to do himself! Every voter, therefore, is bound to see, before voting, whether he could himself honestly swear to support the Constitution.

The fourth premise is the pro-slavery nature of the original Constitution. This was the really the crux of Phillips’s entire case, the main point of contention between Garrisonians and political abolitionists of the Liberty Party. The most detailed and influential arguments for the unconstitutionality of slavery were presented by William Goodell (Views of American Constitutional Law in its Bearing upon American Slavery, 1844) and Lysander Spooner (The Unconstitutionality of Slavery, 1845) Phillips, pressed by friends to reply to Spooner, replied in 1847 with Review of Lysander Spooner’s Essays on the Unconstitutionality of Slavery. These and similar exchanges between the pro-political and anti-political wings of abolitionism are fascinating for their different methods of understanding and interpreting the Constitution. I shall have much more to say about this controversy later in this series.

In the initial part of Can Abolitionists Vote or Take Office Under the United States Constitution? Phillips did not present detailed arguments for his belief that the Constitution is a pro-slavery document.. Instead, he quoted the major slave clauses in the Constitution (listed in a previous essay), and then quoted John Quincy Adams (former President and later a Senator and member of the House of Representatives) that the Constitution made “the preservation, propagation, and perpetuation of slavery the vital and animating spirit of the National Government.”

Phillips also quoted Art. 4, Sect. 4 of the Constitution: “The United States…shall protect each [State] against invasion and, on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” (Emphasis by Phillips.) This clause, though “perfectly innocent” in itself, pledges “the whole national force against the unhappy slave if he imitate our fathers and resist oppression—thus making us partners in the guilt of sustaining slavery.” In other words, according to the pro-slavery view of the Constitution, the national government was obligated to suppress slave revolts, which, in the pattern of the American Revolution, were efforts to fight oppression and achieve individual freedom. References to the American Revolution and the Declaration of Independence were commonplace among abolitionists of all stripes.

Phillips concluded his basic case against voting and office-holding as follows:

These are the clauses which the abolitionist, by voting or taking office, engages to uphold. While he considers slaveholding to be sin, he still rewards the master with additional political power for every additional slave that he can purchase. Thinking slaveholding to be sin, he pledges to the master the aid of the whole army and navy of the nation to reduce his slave again to chains, should he at any time succeed a moment in throwing them off. Thinking slaveholding to be sin, he goes on, year after year, appointing by his vote judges and marshals to aid in hunting up the fugitives, and seeing that they are delivered back to those who claim them! How beautifully consistent are his principles and his promises!

Most of Can Abolitionists Vote or Take Office Under the United States Constitution? consists of replies to seventeen objections to Phillips’s no-voting theory. These objections were apparently culled from the arguments of members of the Liberty Party (“Liberty Men,” as they were often called), which was the major pro-political abolitionist organization from 1840 to 1848. I shall now turn to those objections and how Phillips answered them. I obviously cannot consider all of the points in the remainder of this essay, so this discussion will continue for at least one more essay.

Phillips characterized the first objection as follows:

Allowing that the clause relating to representation and that relating to insurrections are immoral, it is contended that the article which orders the return of fugitive slaves was not meant to apply to slaves, but has been misconstrued and misapplied!

Although Phillips did not mention Lysander Spooner by name, he was probably thinking of Spooner’s strict textualist argument that, since the Constitution nowhere explicitly mentions “slaves” or “slavery,” we should interpret clauses that have been interpreted as pro-slavery in a manner most favorable to individual freedom. We should therefore understand the so-called fugitive slave clause as referring to indentured servants, not to slaves. What the framers may or may not have intended to say is irrelevant; only the literal text of the Constitution is relevant.

According to the constitutional theory of Phillips, the intent of the framers is crucial to how we should understand the Constitution. And drawing upon Madison’s notes of the Constitutional Convention (published five years earlier) and transcripts of state ratification conventions, Phillips had little trouble demonstrating that the Constitution was pro-slavery, even though “slaves” and “slavery” are never mentioned by name. For example, Phillips quoted these remarks by James Madison at the Virginia Convention:

Another clause secures to us that property which we now possess. At present, if any slave elopes to any of those States where slaves are free, he becomes emancipated by their laws. For the laws of the States are uncharitable to one another in this respect. But in this Constitution, “no person held to service, or labor, 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 labor; but shall be delivered up on claim of the party to whom such service or labor may be due.” This clause was expressly inserted to enable owners of slaves to reclaim them. This is a better security than any that now exists.

In addition to other sources, Phillips also quoted General Charles Pinckney, a delegate from South Carolina to the Constitutional Convention: “We have obtained a right to recover our slaves, in whatever part of America they may take refuge, which is a right we had not before.” And James Iredell (one of the first justices on the Supreme Court) removed all doubt about why the word “slave” was never mentioned in the Constitution. The minutes of the ratification convention in North Carolina report Iredell’s remarks about the fugitive slave clause as follows:

Begged leave to explain the reason of this clause. In some of the Northern States, they have emancipated all their slaves. If any of our slaves, said he, go there and remain there a certain time, they would, by the present laws, be entitled to their freedom, so that their masters could not get them again. This would be extremely prejudicial to the inhabitants of the Southern States, and to prevent it, this clause is inserted in the Constitution. Though the word slave be not mentioned, this is the meaning of it. The Northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.

These and many similar passages by framers and others active in the ratification of the Constitution left no wiggle room for those who regarded original intent as essential to how we should understand the Constitution. The battle between the pro-political and anti-political abolitionists, which hinged on the constitutionality of slavery, would be fought along different lines.

This is part of a series