Subordinate groups form social movements to contest societal norms and practices that sustain inequality. Social mobilization by subordinates can spark countermovements by privileged classes who perceive egalitarianism as a threat to their economic, political, and social power. Privileged-group countermovements often seek to suppress speech that challenges oppression, known as liberation speech. In the nineteenth century, defenders of enslavement suppressed “liberation speech” by legal and extralegal means in order to maintain Whites’ social dominance. Abolitionist resistance to speech suppression helped foster a culture of free speech that created a foundation for First Amendment doctrines developed in the twentieth century. Drawing from this history, legal scholars counsel against any restrictions on speech—including racist speech. These arguments, though powerful, tend to submerge the ultimate goal of abolitionism. Abolitionists struggled to achieve emancipation and full citizenship for Blacks, not simply freedom of speech. If abolitionist views on speech should influence First Amendment interpretation, then this same history should have even greater importance for contemporary equality theories. Two abolitionist concepts have particular relevance for contemporary equality debates and the exercise of speech by subordinate groups. First, abolitionists defined the attainment of full citizenship in concrete or material terms—not simply as a matter of formal equality. Second, abolitionists argued that citizenship obligated the state to provide important social resources for human flourishing—particularly formal education and land. Abolitionist conceptions of equality conflict with prevailing legal equality norms, including Supreme Court doctrine, which construes the Fourteenth Amendment as compelling formal equality, instead of substantive justice, and securing negative, rather than positive, rights. Although the Roberts Court attempts to situate its equality doctrine within a civil rights tradition, the Court’s conception of equality has no support in abolitionism or subsequent antiracism movements. On the contrary, the Court’s equality framework contradicts the vision of equality that Blacks deem essential for freedom and full citizenship.
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Introduction
During his second term in office, President Donald Trump has implemented numerous policies that threaten liberty—especially freedom of speech.[1] Some of these measures invade academic freedom, a value protected by the First Amendment. For instance, the Trump administration has enforced Title VI of the Civil Rights Act of 1964—which bans racial discrimination in federally funded programs[2]—with strong-arm agreements between institutions like colleges and universities, and the Department of Education (DOE). The agreements, made under threat of massive funding cuts to the schools, permit the DOE to micromanage an array of campus administrative practices protected by academic freedom, including disciplinary procedures, diversity initiatives, and academic departments.[3] President Trump contends that these strict, arguably coercive agreements combat antisemitism on college and university campuses.[4]
Because Title VI forbids racial discrimination in federally funded programs, President Trump’s antisemitism policies function—at least in formal legal terms—as antiracist remedies.[5] While the federal government has aggressively enforced Title VI to prevent religious bigotry, the Trump administration has acted with greater vigor to dismantle a wide range of policies that redress discrimination against racial subordinates, women, and LGBTQ persons.[6] The broadscale weakening of civil rights provisions by the Trump administration calls into question the credibility of the President’s contention that his aggressive enforcement of Title VI pursues legitimate antidiscrimination goals. At the very least, the disparate approaches suggest that the Trump administration has prioritized certain categories of discrimination over others. If so, the federal government has created an enforcement hierarchy that strongly correlates with partisan political agendas, particularly on matters related to Israel and Gaza.[7] Purposeful removal of civil rights protection for racial minorities also overlaps with racial resentment or cultural norms, which deny the ongoing significance of racism and portray persons of color as undeserving beneficiaries of remedial policies.[8]
The types of antiracism policies President Trump has prohibited suggest a pattern of animus toward racial minorities and opposition to an essential tenet of contemporary antiracism: that systemic racism exists and sustains inequality.[9] The government has eliminated policies proven effective for increasing diversity of background in workplaces, educational institutions, and other settings.[10] These practices also seek inclusion—or respect for differences in perspectives and experiences that flow from membership in diverse communities. Conservatives contend that these policies, commonly described as diversity, equity, and inclusion (DEI) practices, discriminate against White men.[11] The Supreme Court validated this assertion in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) by describing affirmative action as a “zero-sum” proposition that necessarily harms Whites—rather than a remedy or societal good.[12] President Trump and partisan politicians in state and local government have also banned critical race theory in schools and other publicly funded programs.[13] The underlying intent of these measures was to silence speech contesting Whites’ social dominance. Consider, for example, President Trump’s Executive Order “Ending Radical Indoctrination in K-12 Schooling,” which prohibits instruction claiming that “the United States is fundamentally racist, sexist, or otherwise discriminatory.”[14] The order makes discussion of these fundamental claims about society unlawful in public schools and other covered settings.[15] Legal measures that prohibit speech advocating for social progress raise serious First Amendment concerns, and several courts have enjoined portions of President Trump’s anti-DEI orders and similar provisions implemented by states.[16]
Federal and state government suppression of antiracist and other speech has sparked widespread criticism among academics who fall roughly into two camps. One side—the racial equity camp—offers an antiracist critique, arguing that the policies are intended to harm persons of color.[17] Some scholars have compared President Trump’s speech-restrictive directives to the use of legal and extralegal means to silence Black activists in the past.[18] Other scholars—speech libertarians—analyze contemporary restrictions on antiracism and all other forms of speech restriction from the standpoint of free speech. They argue that prohibiting curriculum and workplace policies that promote antiracist theories deprives individuals of the right to speak and receive information.
Only a few scholars have approached the matter of restraints on antiracist speech by analyzing speech and equity as interrelated concepts, with important implications for equality and liberty. The insufficiency of works employing this integrated approach reflects a broader problem of legal scholars treating equality and speech as opposing or conflicting values.[19] The equality-speech conflict often arises in research regarding restrictions on speech, like hate speech, that injures subordinate groups.[20] Racial equity scholars contend that Court doctrine has traditionally devalued and withdrawn protection from certain types of speech or expression that has the capacity to cause harm.[21] These scholars argue that the harm-based exceptions can apply in the context of racist speech.[22] However, speech-liberty scholars contend that the free market can rectify any harm from racist speech. “More speech” allows the public to evaluate and choose the most rational ideas, leading to the erosion of bigoted speech and resulting harms.[23] Speech-liberty scholars also argue that the historical censorship of antiracist speech counsels against any type of speech restrictions (even those taken to advance antiracism).[24]
The history of social and political activism to contest inequality demonstrates the interconnectedness of speech and equality. Despite their relative lack of power, subordinate groups have accomplished societal change in social movements. A social movement involves sustained collective action that challenges the status quo and seeks egalitarian reform.[25] Speech and expression are essential qualities of social movements. Social movements employ “frames” that articulate claims of injustice and demands for redress.[26] Social movements communicate their messages through diverse means, such as protests, marches, petitions, print and online publications, membership organizations, lobbying, music, and visual arts.[27] Subordinate classes produce and distribute messages of liberation—or liberation speech—in social movements.[28] Social movement criticism of hierarchy-enhancing cultural norms promotes egalitarianism, thereby harmonizing speech and equality.
The importance of speech to social movements validates the concerns of the speech-liberty scholars who oppose censorship due to its historical role in silencing subordinates, such as Blacks during abolition and the Civil Rights Movement. In the 1830s, abolitionism expanded beyond the Northeast and took more progressive stances, like advocating immediate emancipation and full equality for Blacks.[29] This sparked legal and extralegal suppression of abolitionist speech. Abolitionists fought suppression in courts, legislatures, newspapers, and public debates. Although their arguments in defense of speech did not reach the Supreme Court, their resistance set a foundation for the rigorous protection of speech and assembly in twentieth-century precedent.[30]
This Article charts a new path for speech-equality scholarship. While existing literature richly examines the speech implications of social equality movements, that research has not substantially discussed how the historical dynamic of speech and speech suppression in social movements and countermovements should impact equality practice.[31] Scholars make persuasive claims for an exceptionally strong First Amendment doctrine, given the historical role of speech in antiracist movements. This scholarship, however, can lose sight of the reality that for most abolitionists, freedom of speech served mainly as an instrument or tool to attain freedom: It was not the goal of abolitionism. This point need not diminish the importance of speech. Protection of speech was a goal of abolition because laws severely restrained the ability of Blacks—enslaved or nominally free—to exercise freedom of speech. This history, however, does not warrant prioritizing speech over equality or treating them as conflicting values. The continued impasse in the speech-equality debates presents an opportunity to scrutinize abolitionism for themes that could inform efforts to redress contemporary forms of racial exclusion. These barriers include unequal access to a range of important resources and interests, including speech.
This Article contributes to a growing body of works that analyzes the potential impact of abolitionist perspectives on citizenship and equality for contemporary interpretations of the Constitution.[32] Many of these works examine abolitionists in Congress or other political offices. This Article draws from arguments of abolitionist social movement actors—not members of Congress or other political officeholders. This approach permits a more accurate understanding of Black abolitionist perspectives, including the views of enslaved and formerly enslaved persons.
Part I analyzes the strategic employment of speech by abolitionists. Part I also examines how abolitionists’ social movement success sparked a proslavery countermovement that employed legal and extralegal means to suppress Black liberation speech in order to preserve the racial hierarchy. Part II examines the substantive content of Black liberation in order to uncover the themes that animated abolitionist conceptions of equal citizenship. Abolitionists conceptualized equality in substantive or material terms, not as the product of formal racial neutrality. Abolitionists also contended that citizenship obligated the state to provide resources for human flourishing and to prevent exploitation of subordinate groups. Blacks specifically prioritized formal education and land distribution as resources the federal government needed to provide in order for them to enjoy full or entire freedom. Part III contends that predominant theories of equality utilized in contemporary doctrines and law directly contradict abolitionist conceptions of equality and citizenship. Present-day equality practice promotes formal equality and negative liberty. Although the Roberts Court attempts to situate its equality doctrine within a civil rights tradition, the Court’s conception of equality has no support in abolitionism or subsequent antiracism movements. On the contrary, the Court’s conception of equality sustains profound racial inequality and rejects the vision of equality articulated by abolitionists and other Black liberationists. Finally, Part III examines how abolitionist conceptions of equality could transform contemporary equality practice to serve antisubordination purposes rather than legitimizing racial domination.
I. Speech and Liberation Movements
A. Freedom and Speech
Speech and expression have advanced the interests of subordinate classes as individuals and as a collective. The attainment of Black antiracist goals through individual advocacy or in broader social movements demonstrates the mutually reinforcing relationship between liberation speech and equality.
1. Liberation Speech: The Story of Lunsford Lane
The freedom stories of enslaved persons—including relatively obscure historical figures like Lunsford Lane—readily demonstrate the importance of speech to antiracism. Born in 1803, Lane fought for his freedom by taking advantage of precious moments of autonomy denied to enslaved persons. Lane engaged in self-hiring and earned money by providing services and selling products, including smoking tobacco and pipes made using a method his father developed.[33] After several years, Lane saved enough money to purchase his freedom, even though this status had no basis in law.[34] Fearful of remaining in North Carolina where he retained the legal status of a slave, Lane traveled to New York City with his nominal owner, who formalized Lane’s manumission.[35]
Back in Raleigh, Lane worked to manumit his wife and children. His earnings allowed him to acquire a home and establish a household for his family. Though legally a slave, Lane described this moment of his life as a “joyful situation.”[36] Legal authorities soon quashed his fragile freedom and contentment. North Carolina banned migration by “free [N]egroes and [M]ulattoes.”[37] Acting on this law, local officials gave Lane twenty days to leave the state or suffer severe penalties, including enslavement for a maximum of ten years.[38] He marshaled all available resources to defend his freedom and status as a resident of North Carolina. Lane’s primary tool of resistance was speech.
2. Advocating Freedom
Facing the choice of leaving his family or re-enslavement, Lane sought assistance from an influential network of potential supporters, including the governor’s secretary that he met performing tasks and selling products at the state capitol. Lane leveraged these contacts to obtain a postponement of the notice to depart the state. He and his allies then lobbied legislators, hoping to gain their support of a petition allowing him to remain in state until he could secure his family’s freedom. Lane described his advocacy in a published narrative. He “went round” to members of the legislature—“many of whom” he already knew; Lane “urg[ed] them,” “for humanity’s sake” and “for the sake of” his “wife and little ones,” to grant the petition.[39] Twenty-five prominent Whites signed the position, and the governor’s secretary submitted a separate plea of his own—all to no avail.[40] After the vote, a lawmaker retired from the chamber and delivered a curt, racist message: “Well, Lunsford, they have laid you out; the nigger bill is killed.”[41]
Accepting his fate, Lane moved to Boston, where his life was transformed. He met a network of abolitionists, including nominally free Blacks, who convinced him to discuss his struggle for freedom with public audiences. Abolitionists also wrote and published Lane’s narrative under his direction. Philanthropists often donated money to assist formerly enslaved persons with their resettlement in the North and purchase freedom for family members. Within a year, Lane had raised enough money to manumit his family.[42]
3. Punishing Liberation Speech
Lane returned to North Carolina after receiving assurances from his White allies that he would be safe. They misread the situation, however. Once Lane returned to Raleigh, officers arrested him on suspicion of “delivering abolition lectures in the State of Massachusetts.”[43] A trial proceeded at a local grocery store (city hall was unavailable on Sundays). A large crowd of Whites gathered to watch the proceedings. If Lane admitted to his involvement in abolitionist causes, he would have faced incarceration, re-enslavement, or even death. Lane deftly recounted his expressive activities in Boston, admitting to discussing his experiences in slavery, but denying the conversations discussed abolition. Lane averred that the topic of abolition did not matter to him: “[I] considered that the money coming from [listeners] would accomplish the object I had in view.”[44] Persuaded by the testimony, the magistrate—likely known by Lane or his allies—acquitted him of the charge.[45]
Lane still faced danger, however. As he boarded a train to leave North Carolina, a mob confronted him, insisting upon retrying the situation by vigilantism. Lane was jailed, while the vigilantes ransacked his luggage frantically looking for contraband. Even though the search produced nothing incriminating, the mob seized Lane after he was released from jail and dragged him into the woods. They demanded that he account for his activities in Boston. Lane answered the question, in fear of his impending death. After cross-examining their witness, the mob tarred and feathered Lane—inflicting one final act of violence and indignity before Lane’s final departure from North Carolina.[46]
B. Abolitionist Mobilization and Speech
Abolitionism was one of the earliest social movements in the United States.[47] Although many historians identify the early-nineteenth century as the advent of the abolitionist movement, antislavery activism also occurred during the colonial era and American Revolution.[48] From its inception, abolitionism encompassed a diverse set of actors, goals, and strategies, reflecting the movement’s broad social, political, and moral ambitions.
Abolitionists advanced these ambitions through a range of rhetorical frames designed to challenge slavery’s legitimacy and mobilize public opposition. Abolitionist frames included claims that the subordination of Blacks through enslavement and other forms of racial domination violated religious morality and doctrines;[49] contradicted ideas of personal liberty expressed in Founding-era documents[50] and influential philosophers’ ideas of personal liberty;[51] subjected Blacks to cruel and inhumane treatment;[52] undermined values of industriousness and self-reliance;[53] and threatened the civil liberties of all persons, including Whites.[54] The abolitionist movement made opposition to slavery an act of virtue in their campaign of moral suasion.[55] Abolitionists believed that airing these messages of freedom in the marketplace of ideas would expose the inhumanity of enslavement and persuade Whites to support emancipation.[56] Abolitionists disseminated their message through the specialized press, membership organizations, mailings, government petitions, and slave narratives.
1. Abolitionist Press
Abolitionists relied extensively on the press to communicate with supporters and the general public.[57] Many prominent abolitionists regarded the press as their most potent resource.[58] In an 1835 issue of the Liberator, founder William Lloyd Garrison asserted: “It is a conceded point, on the part of the southern slaveholders, that slavery and the freedom of the press cannot exist together. One or the other must be given up—and that, too, speedily!”[59] Garrison argued that an “enlightened, consolidated, and wisely-directed public opinion,” “secured” by “disseminating LIGHT” and “preaching TRUTH,” could “overthrow the present system of slavery.”[60] Specialty newspapers allowed abolitionists to compensate for the general press’s hostility or neglect.[61] Specialty newspapers became a vital, though certainly biased, conduit for abolitionist speech.[62]
Blacks held similar views regarding the press. In 1827, John Brown Russwurm and Samuel Eli Cornish founded Freedom’s Journal—the first Black-owned newspaper in the United States.[63] They contended that the press was the most “economic and convenient method” to uplift “our injured race.”[64] In addition to advocating emancipation, the Black press pursued unique goals and commitments, such as community autonomy. Russwurm and Cornish argued that publishing newspapers would allow Blacks to take ownership of their freedom struggle: “We wish to plead our own cause. Too long have others spoken for us.”[65] Black abolitionists contended that they could analyze racial subordination more accurately than White allies.[66] They criticized White abolitionists, whom they “love[d] and admire[d],” for portraying Blacks inaccurately and “disadvantageously” due to racial prejudice and ignorance of “the true state of things.”[67] Blacks believed their first-hand experiences as victims of racism made their analysis of White supremacy more knowledgeable than Whites’ and gave them unique perspectives that could improve abolitionism. Blacks’ assertion of epistemic authority challenged White control over abolitionist speech and foreshadowed later conflicts over the substantive content of freedom and the extent to which abolition should press for equal citizenship.
The Black press also promoted the uplift—or self-improvement—of nominally free Blacks.[68] Russwurm and Cornish asserted that successful management of the press by Blacks would counter the racist assumption that Blacks lacked the capacity for intellectual and professional life.[69] In order to combat racism and uplift their race, the editors reserved most of the space in Freedom’s Journal for content that encouraged Blacks to pursue education and industriousness.[70] The Black press also facilitated community-building by providing a medium for Blacks to address issues of particular concern to them.[71]
2. Other Conduits for Abolitionist Speech: Membership Societies, Mailings, Slave Narratives, and Governmental Petitions
Beyond the press, abolitionist messaging occurred in membership societies, mailings, slave narratives, and government petitions. Abolitionists formed societies throughout the nation to recruit members and amplify their messaging.[72] The societies held meetings, sponsored conventions, and distributed literature.[73]
The postal service provided the abolitionists with another method for distributing their published materials. During the nineteenth century, abolitionists took advantage of technological advancements that accelerated rail transportation and the printing process in order to broaden their geographical reach.[74] During the Great Postal Campaign of 1835, the American Anti-Slavery Society (AASS) used the postal service to inundate the country with abolitionist materials.[75] Although the campaign generated more interest in abolitionism, it also provoked severe hostility, including violence and censorship—especially, though not exclusively, in the South.[76]
Abolitionists relied upon two additional platforms to influence public attitudes regarding enslavement: slave narratives and governmental petitions. Autobiographical and biographical works documenting the plight of enslaved persons ignited public interest and robust sales.[77] Firsthand accounts of slavery’s brutality and inhumanity reduced the emotional distance between northern Whites and enslavement, sparking cross-racial empathy and support for emancipation.[78] Slave narratives did more than describe the horrors of enslavement. They also conveyed a positive message of Black courage, talent, and intelligence that shattered stereotypes of Blacks as biologically inferior to Whites.[79]
Abolitionists petitioned Congress, as well as state and local governments, demanding policies to contain or abolish enslavement. Many abolitionists accepted the then-prevailing view that individual states—not Congress—had the power to regulate slavery within their borders.[80] Abolitionists petitioned Congress on matters that clearly implicated national concerns—such as banning interstate slave markets, prohibiting enslavement in U.S. territories, and emancipating enslaved persons in the District of Columbia.[81] Research on abolitionist petitions to state and local governments is scarce, but recent compilations of abolitionist petitions have made thousands of records accessible for historical research.[82] Many state and local petitions implored legislatures to abolish slavery generally or to grant manumission for specified individuals.[83]
Nineteenth-century abolitionists employed a variety of mediums to contest the racial hierarchy and to delegitimize the brutal institution of enslavement. These activists communicated with broad audiences. Abolitionists hoped that their messaging would alter public opinion and cause support for enslavement to implode. The potency of abolitionist speech did not go unnoticed. On the contrary, the aggressive messaging abolitionists launched in the 1830s triggered a striking backlash from anti-abolitionists in the South and North.
C. Anti-abolitionism: A Countermovement of Censorship to Preserve White Power
In the antebellum South, anti-abolitionists leveraged their political power to secure laws that suppressed antislavery speech. The proslavery activists did not simply disagree with abolitionists. Instead, they censored abolitionism in order to defend White supremacy. Some anti-abolitionists acted outside of the legal process and committed acts of violence, harassment, and vandalism. Although proslavery activists failed to garner support for censorship in northern state legislatures, some of the bloodiest street battles over abolitionism occurred in the North. Abolitionists defended freedom of speech in legislatures, courts, and town halls. The abolitionist defense of free speech—which predated the ratification of the Fourteenth Amendment and the subsequent incorporation of the First Amendment—paved the way for constitutional doctrines the Supreme Court developed in the twentieth century.
1. Legal Suppression of Abolitionist Speech
a. State-Level Criminalization and Censorship
Anti-abolitionists sought to suppress abolitionism by lobbying state and federal officials to enact laws and regulations banning speech opposing enslavement. Southern states enacted criminal laws to punish and deter abolitionism. At the federal level, conflicts over abolitionist materials circulated through the postal system, and antislavery petitions sent to Congress sparked debates about censorship, federal power, and free expression. From the 1820s until the Civil War, proponents of slavery organized a multipronged attack on abolitionism. They pursued censorship, engaged in mob violence, and recharacterized abolitionists as reckless extremists.[84] In response to the spread of abolitionism to the South, southern legislatures enacted an array of statutes intended to punish and prevent abolitionism. One category of regulations prohibited speech intended to incite Blacks to rebellion.[85] An Alabama version of this law permitted the state to execute offenders.[86] Following the Great Postal Campaign of 1835, Virginia prohibited members of abolitionist societies from advocating the view that enslavers did not have property interests in enslaved persons. Abolitionists also could not circulate materials with the intent of causing “persons of colour” to rebel against an enslaver’s property interests.[87] Other states categorized abolitionist materials as seditious libel. Prosecutors often charged abolitionists with violating these libel laws,[88] leading to controversial cases like that against Garrison and his mentor Benjamin Lundy.[89]
States also enacted measures to prevent conditions that would foster abolitionist speech. States passed antiliteracy laws that criminalized teaching an enslaved person how to read or write.[90] If enslaved persons remained illiterate, this would decrease the likelihood of them accessing and discussing abolitionist texts. States also prohibited nominally free Blacks from migrating into their borders or imposed onerous conditions on those who were residents.[91] Southern lawmakers believed that they needed to police nominally free Blacks in order to prevent slave rebellions and escapes.[92] No northern state imposed restrictions on abolitionist speech, and debates in the North involved vigorous defenses of First Amendment liberties.[93]
b. Federal Postal Controversy and Congressional Debate Over the “Gag Rule”
Abolitionist campaigns directed toward the South and congressional movement led to conflict over censorship and the morality of enslavement in the federal government. Two abolitionist strategies—use of the postal service to disseminate antislavery literature in the South and the submission of antislavery petitions to Congress—were the primary factors motivating federal officials to debate censoring abolitionist speech. Amos Kendall, the postmaster general during the Jackson administration, made conflicting statements regarding the appropriateness of intercepting abolitionist mailings. Kendall argued that he lacked the authority to “exclude” abolitionist newspapers from shipment or delivery based on content; however, he also proclaimed, without reading the newspapers, that disregarding the law and blocking distribution of incendiary newspapers demonstrated “patriotism.”[94] Kendall contended that the duty to the “communities in which we lived” was a “higher” authority than law.[95] He later concluded that states could criminalize possession of abolitionist materials.[96]
With only a few exceptions, the national media condemned abolitionists for meddling in the affairs of southern states.[97] President Jackson, an enslaver, entered the debates, criticizing violent resistance to the mailings. Though his alliances rested firmly with the anti-abolitionists, President Jackson contended that he could not halt the mailings without congressional authorization.[98] President Jackson, however, contradicted his speech-supportive stance by recommending that the postal service limit delivery of abolitionist texts to known subscribers and publicly expose the recipients as supporters of “this wicked plan of exciting the [N]egroes to insurrection and to massacre.”[99]
President Jackson’s willingness to punish abolitionists deepened, and during an address to Congress in December 1835, he recommended federal legislation that would have “prohibit[ed], under severe penalties, the circulation in the Southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection.”[100] Abolitionists vigorously defended civil liberty and criticized President Jackson for condoning mob violence.[101]
Professor Michael Kent Curtis thoroughly analyzed the congressional debates on bills that would have banned the shipment of abolitionist materials in the mail.[102] His research demonstrates that these measures failed due to concerns over the First Amendment and federalism. Opponents likened the bills to the Sedition Act, which created deep divisions during the early republic but which a consensus later condemned.[103] Members of Congress also questioned whether the federal government had authority over this matter, as slavery was often viewed as a matter of state prerogatives.[104]
Congressional debates regarding censorship of abolitionist speech also ensued after abolitionists began petitioning the lawmakers to abolish slavery. Opponents of abolitionists scored a significant victory on December 21, 1837, when the House approved a resolution that barred consideration of abolitionist petitions.[105] The so-called “gag rule” tabled—effectively denying—all “petitions, memorials, resolutions, or propositions” concerning “the subject of slavery, or the abolition of slavery.”[106] Subsequent renewals extended the rule for seven years.[107] The House resolution might have backfired, however, because abolitionists protested the ban by accelerating the pace of their petitions—a move that temporarily shifted public attention from slavery and towards the widely endorsed concept of free speech.[108] One particularly tense moment of House debate over the gag rule occurred when John Quincy Adams requested instruction on how to address petitions submitted by enslaved persons.[109] Adams’s suggestion that enslaved persons could petition and be heard by Congress outraged southerners, who demanded his expulsion, censure, and prosecution.[110] None of the proposals advanced.[111]
2. Extralegal Suppression of Abolitionist Speech
In addition to using the legal process, opponents of abolition committed numerous acts of mob violence and vandalism in order to intimidate and silence abolitionists.[112] Some historians situate these attacks within the broader setting of the Jacksonian era, when acts of political violence surged.[113] In 1836, a mob of about twenty men from among Cincinnati’s elite White community vandalized the equipment used to publish The Philanthropist—an abolitionist newspaper operated by James Birney, a wealthy former slaveholder.[114] Birney resided in Kentucky and Alabama before moving to Cincinnati, Ohio, to escape virulent anti-abolitionist sentiment in the South.[115] Birney’s presence in Cincinnati angered anti-abolitionists, who began to organize resistance against Birney (and abolition generally) soon after his arrival.[116] A defiant Birney resumed operations after the Ohio Anti-Slavery Society funded the repair of the press.[117] Birney ignored multiple warnings from the anti-abolitionists that he would face violence unless he discontinued the press.[118] Local media published articles damning the abolitionist movement as a force of violence and mischief.[119] During a second attack, the mob removed the press and dumped it into the Mississippi River.[120]
Extralegal violence by anti-abolitionists often led to more dire consequences, including murder. The killing of Elijah Lovejoy—a Presbyterian minister and the founder of the St. Louis Observer—is one of the most widely discussed and condemned acts of violence against abolitionists. In 1836, Lovejoy faced increasing harassment and threats of violence in Missouri, a slaveholding state. He relocated his family and newspaper to Alton, Illinois, where enslavement was prohibited.[121] The situation in Missouri grew particularly ominous after a St. Louis judge, Luke E. Lawless, ruled that a fair prosecution in a lynching case was “beyond the reach of human law” due to the enormity of the mob and the difficulty distinguishing the innocent from the guilty.[122] The mob burned Francis McIntosh, a nominally free Black man, based on allegations that he killed a White police officer and injured another.[123] Judge Lawless stated that he opposed violence, but he expressed sympathy for the lynch mob because the men had watched the murder of a law enforcement officer: “Is it not . . . to be allowed for human sympathies in those appalling circumstances?”[124] Although he absolved members of the lynch mob, Judge Lawless, himself an enslaver, blamed abolitionists for inciting McIntosh to violence and hatred against Whites.[125] He specifically accused Lovejoy of instigating the officer’s death because the St. Louis Observer published articles denouncing enslavement as a sin.[126] By framing abolition as the source of violence, anti-abolitionists obscured racial subordination along with the brutality and inhumanity of enslavement, but justified legal and extralegal suppression of abolitionists.
Lovejoy faced even greater hostility in the free state of Illinois than he encountered in Missouri. Mobs destroyed three presses during acts of vandalism.[127] Intent on destroying a fourth press, a crowd gathered outside the building that housed the press and where Lovejoy and other abolitionists stood on guard.[128] The abolitionists feared for their lives after one member of the mob set fire to the roof and tried to ignite another section.[129] Lovejoy and his friend Royal Weller left the building to prevent the arsonist from killing its occupants.[130] As soon as the door opened, members of the mob fired a hail of bullets, five of which struck Lovejoy. He died at the scene.[131]
As Lovejoy’s death demonstrates, anti-abolitionists engaged in mob violence even in states that did not permit enslavement. Whites in those states opposed abolition for several reasons, including racism, economic self-interest, beliefs that abolitionists sought anarchy, and a desire to prevent the deepening of sectionalism.[132]
3. Speech and Censorship: Instruments of Liberation and Oppression
Censorship and violence against abolitionists caused widespread anger. Abolitionists capitalized on their opponents’ overreach to reframe the proslavery movement as a universal evil that threatened the liberty of Blacks and Whites.[133] Although the abolitionist and anti-abolitionist clashes over speech have important implications for liberty, this reality should not detract from the broader goals of both movements. Abolitionists utilized speech to achieve emancipation and establish full citizenship for Blacks. These goals included freedom of speech—a liberty that Blacks deemed important—but the movement pursued matters beyond speech. These goals also included many issues unique to Blacks’ historical experiences, such as emancipation and full citizenship. Universalizing these injuries can mask the specific harms of racism to Blacks. Anti-abolitionist suppression of abolitionism clearly implicated freedom of speech as well, and legal scholars have compiled extensive research documenting the importance of this history to contemporary regulation of speech. This fact, however, does not justify treating free speech as the most important historical lesson of nineteenth-century censorship. Anti-abolitionists silenced abolitionists to defend and maintain Whites’ social dominance. Abolitionists used speech to contest and eliminate Whites’ social dominance. The movements waged battles over the meaning of liberty, oppression, and full citizenship—matters that include but extend far beyond speech.
4. Abolitionism and the Devaluation of Whites’ Economic, Political, and Social Status
Social scientists find that collective action by subordinate classes triggers countermobilization by privileged groups if they believe that their socially dominant status is threatened.[134] This research helps explain anti-abolitionist suppression of speech as a form of racism.
The “power devaluation” theorists contend that dominant groups mobilize to counter actual or perceived diminution of their economic, political, and social power.[135] Collective action by privileged classes also utilizes framing strategies to disparage subordinate group claims that challenge cultural norms and practices that empower them.[136] Privileged-class movements also exploit political opportunities to influence social change.[137] Proslavery mobilization to counter abolition illustrates each element of the power-devaluation theory.
a. Economic Power
Whites, particularly aristocrats, derived tremendous economic and political power from enslavement.[138] The U.S. economy also benefited from slavery. The labor of enslaved persons spearheaded economic growth in the South and North, comprising a significant share of the gross national product in the nineteenth century.[139] Enslaved persons provided critical labor for cotton production—even after technological innovations simplified processing.[140] Economic historians contend that cotton and textile industries contributed to the rapid pace of industrialization in Britain and the United States.[141] Protection of these economic interests led many northern Whites to oppose abolition. The economics of slavery also contributed to secession and the Civil War. The growth of antislavery public sentiment, influenced in large part by abolitionism, subsequently caused secession and the Civil War. Considering these historical factors reveals that the stakes at issue in the censorship of abolitionist speech extended far beyond the First Amendment and free expression; they included issues such as justice, racial order, economic power, and national stability.
b. Political Power
Slavery also increased southern Whites’ political power. The Constitution created the “Slave Power” by giving southern states overrepresentation in the House of Representatives and disproportionate influence in the Electoral College.[142] A political compromise among the Founders mandated that three-fifths of the enslaved population counted toward the allocation of House seats—even though enslaved persons were treated as property and excluded from the polity.[143] Because the Electoral College depends on congressional representation, the Three-Fifths Clause also distorted the power of southern states in presidential elections. Emancipation threatened the Slave Power, particularly if it included full citizenship, as the abolitionists had begun to advocate. If Blacks could vote and hold office, they could form political alliances with northern Republicans and form a powerful voting bloc. Blacks would also gain the opportunity to hold office in state and local governments and influence regional politics. Viewed in this light, the suppression and advocacy of abolitionism represented much more than a debate about speech as a civil liberty. Instead, abolitionism posed a threat to the Whites’ economic and political domination.
c. Social Power of Whiteness
Beyond economics and politics, Whites derived immense social privileges from the enslavement of Blacks. Whiteness determined whether people were enslaved or not, free or nominally free, rights-bearing individuals, or members of a subordinated race. In terms of criminal law, slave status and race determined the severity of sentences, the right to due process, and whether conduct constituted a crime.[144] Race also dictated the terms of political citizenship—as the Supreme Court held in Dred Scott v. Sandford[145]—and naturalization.[146] The ability to testify,[147] serve on juries, vote, hold office,[148] attend school, learn to read and write,[149] exercise bodily autonomy, and enjoy numerous other rights depended upon race (as well as gender and class).
Although race is socially constructed, it has material consequences. Whiteness confers substantial capital,[150] whereas non-Whiteness imposes substantial burdens on racial subordinates. Poor Whites derived power from race as well, though not to the same extent as wealthy Whites. Being White meant that poor Whites—and their children—were not enslaved. This status spared them of the physical and emotional torture associated with enslavement, as well as the intergenerational effects of inherited inequality. Whiteness made poor Whites citizens with legal rights, rather than articles of merchandise devoid of any “rights which the [W]hite man was bound to respect.”[151] Enslavement likely harmed many poor Whites by reducing employment opportunities, but they still derived benefits from the racial hierarchy.[152] Accordingly, Whiteness functioned as a form of privilege that shielded less powerful Whites from denial of their humanity.
Because abolitionism, in its broadest terms, challenged anti-Black racism—which justified enslavement and denial of citizenship—the movement threatened Whites’ economic, political, and social privileges. Proslavery forces mobilized to defeat abolitionism in order to preserve the racial order that reduces Blacks to a subordinate class.
5. Proslavery Frames: Extremism, Racial Amalgamation, Slavery’s Benevolence, and Constitutional Rights
The anti-abolitionist countermovement constructed proslavery frames to justify its condemnation of abolitionism and defend White social dominance. The counterframing of abolition by White supremacists represents a strategic move by dominants to preserve their power against perceived threats—a reaction consistent with power-devaluation theory.[153] Defenders of slavery portrayed abolitionists as “ignorant, infatuated barbarians”;[154] extremists intentionally inciting violence and discontent among Blacks;[155] “fanatics”;[156] causes of sectionalism; and catalysts for a civil war.[157]
Another common frame branded abolitionists as supporters of racial amalgamation or miscegenation.[158] Fear of interracial intimacy sparked one of the most egregious incidents of anti-abolitionist violence. In 1838, a mob of Whites harassed and physically assaulted persons who attended an abolitionist convention held in Pennsylvania Hall—by all accounts a grand, newly constructed meeting hall in Philadelphia.[159] On the fourth day of the event, the mob returned and torched the building, completely destroying it.[160] The rioters continued their attacks for several more days, burning down an orphanage for Black children, and substantially damaging a church that served Black parishioners.[161] Contemporaneous reporting and analysis of the riots faulted abolitionists, claiming they incited the violence by promoting racial amalgamation.[162] Abolitionists allegedly committed this offense when they failed to separate the conventioneers by race or sex.[163] A report by the Philadelphia police contended that the abolitionists should have known that social intercourse between the races and sexes—especially Black men and White women—would offend the sensibilities of reasonable Whites.[164]
Proslavery advocates also portrayed enslavement as a benevolent institution in which more advanced Whites assisted hapless barbarians who could not survive on their own.[165] Enslavers claimed they helped Blacks by giving them food, shelter, clothing, and exposure to Christianity. In return, enslaved persons expressed their gratitude through labor supposedly suited for their degraded capacity. This humanitarian frame—rooted in religion—challenged abolitionists who described enslavement as a moral and human-rights violation. But it also provided “divine” support for the cause of enslavers, just as the religiously coded phrase “Manifest Destiny” justified the domination of Indigenous populations in the United States.[166]
6. Anti-abolitionist Resistance and Implications for Law
Nineteenth-century censorship of abolitionism provoked ideological, philosophical, and legal debates concerning competing claims regarding speech and the limits of state power. That these claims were not aired in the Supreme Court does not render them irrelevant to the free-speech tradition in the United States.[167] The articulation and evolution of constitutional law occur as people advocate for particular understandings of rights and liberties. Social movements have influenced the development of constitutional norms through appeals to courts and political branches of government, the constituencies they represent, and the broader public. Constitutional lawmaking is therefore a societal process.[168]
The political, legal, and extralegal battles over abolitionist speech and suppression contain insights relevant to debates outside of the First Amendment context, but courts and scholars have not sufficiently analyzed or applied abolitionist thought to modern concepts of equality. As Part II argues, however, abolitionists developed a thorough critique of racism and the use of law to enforce racial hierarchy—even as the nation projected an identity of freedom and equality. Abolitionist arguments regarding Black liberation contain themes that remain highly relevant in present-day antiracist activism and legal practices regarding race.
II. Speaking Freedom: Abolitionism and Black Liberation
Early historical research attributed radical abolitionism in the 1830s to White male radicals such as William Lloyd Garrison. A new wave of research reveals the inaccuracy of this traditional perspective and exposes the racial and gender biases that informed it. Historians now recognize that Black abolitionists developed an expansive conception of freedom before their White counterparts.[169]
A. Black Abolitionists’ Progressive Agenda
A growing body of previously unavailable or neglected advocacy by Black abolitionists informs current scholarship on Black influence on abolitionist theory and strategy. These newly examined materials demonstrate that Blacks actively participated in and led efforts to emancipate enslaved persons and secure full citizenship for all Blacks. Four broad themes emerged in their advocacy: Blacks opposed (1) colonization; (2) gradual emancipation; (3) emancipation without full citizenship, which included suffrage, publicly funded education, and economic justice; and (4) measurement of racial justice by formal equality measures and not by actual conditions in which Blacks lived.
1. Emancipation—Not Colonization
The American Colonization Society (ACS) was formed in 1816 to encourage and assist the emigration and resettlement of nominally free Blacks from the United States to other parts of the world.[170] The ACS received funding to create a colony of Black émigrés in Liberia—a country in West Africa.[171] The ACS appealed to ideas of Black autonomy and freedom to generate support among Blacks.[172] Colonization had many supporters, including some Blacks; however, the weight of historical evidence indicates that most Blacks found the idea of colonization racist and repulsive.[173] The African Repository—the ACS newsletter—confirmed Blacks’ negative view of the organization by publishing a deeply racist essay asserting that Blacks’ natural inferiority precluded them from coexisting with Whites except as slaves. Nature had made Blacks “notoriously ignorant, degraded and miserable, mentally diseased, broken-spirited, acted upon by no motives to honourable exertions, [and] scarcely reached in their debasement by the heavenly light.”[174] Most Blacks dismissed colonization as a racist plot to remove them from the United States—their homeland.[175]
2. Immediatism—Not Gradual Emancipation
Black abolitionists were among the earliest proponents, along with Quakers, of immediate emancipation (or “immediatism”).[176] Eighteenth-century activists—Black and White—pressed governments in northern states to abolish enslavement. By the mid-1800s, all northern states had abolished enslavement. Some did so gradually.[177] Hoping to replicate the strategies employed to abolish northern slavery, nineteenth-century Whites adhered to gradualism as abolitionism expanded nationwide. The involvement of Blacks in abolitionism, however, catalyzed more aggressive stances, such as immediatism.[178]
Historical research offers several explanations for Blacks’ embrace of radical positions regarding abolition.[179] First, Blacks’ desire for an immediate end to enslavement was personal. The horrors they suffered as enslaved and nominally free persons made abolition and full citizenship goals to pursue fervently rather than gradually. In his appeal for Black resistance, David Walker argued that the brutality of enslavement and racial domination mandated urgency. Walker contended that enslavement made Blacks “the most wretched, degraded and abject set of beings that ever lived since the world began” and that White Christians treated Blacks harsher “than any heathen nation did any people whom it had reduced to our condition.”[180] The depravity of racism meant that Blacks had no other option to reclaim their humanity.[181]
While Blacks supported immediatism due to their own experiences as racial subordinates, many Whites, even those who opposed enslavement, held racist attitudes regarding Blacks and other persons of color. Racial prejudice explains a general ambivalence among Whites, including those who opposed slavery, regarding the pace of emancipation and, especially, toward granting full citizenship to Blacks.[182] This ambivalence predisposed many Whites toward gradual abolition. By contrast, Blacks lived under a legally compelled and sustained subordination. Their experiences caused them to hold less hope in the inevitability of emancipation.[183] The legality of slavery also meant that nominally free Blacks, friends, and family members remained vulnerable to abduction by slave traders.[184] This problem was acute in states close to the Mason-Dixon line, such as Maryland, Pennsylvania, and Delaware.[185] The problem of abductions made emancipation a high priority for Black abolitionists.
3. Full Citizenship—Not Emancipation Alone
While the issue of full citizenship often divided antislavery Whites, Blacks overwhelmingly endorsed full citizenship. The elevation of nominally free Blacks and emancipation of the enslaved were “interrelated,” occupying “opposite sides of the same coin.”[186] That coin was the dismantling of a despotic, White supremacist social order that justified Blacks’ enslavement and noncitizenship. Black newspapers frequently published editorials advocating full citizenship rights. The Colored American endorsed this expanded view of abolition in 1837:
We seek nothing less than the overthrow of despotism by the principles of freedom; the termination of oppression. . . . the establishment of liberty by the supremacy of law—the conformity of law to the spirit of liberty.[187]
Blacks rejected conceptions of abolition that separated citizenship rights from emancipation.[188] This would constitute an incomplete and intolerable outcome.[189]
Although “citizenship” is a vague concept,[190] during the nineteenth century, it encompassed three categories of rights: civil, political, and social.[191] The descriptive content of these categories varies,[192] but scholars widely accept the following delineation. Civil rights included the right “to make contracts, own, lease, and convey property, sue and be sued, and, according to some formulas, the rights of freedom of speech and free exercise of religion.”[193] Political rights meant “the right to vote, serve on juries, and hold office.”[194] Social rights, the “more amorphous” category, referred to activities involving “interaction produced through the preferences and behavior of private individuals.”[195] Social rights (or equality) implied a zone of personal, intimate, or private activities that existed beyond the reach of the law.[196]
Blacks articulated a vision of citizenship that proclaimed their entitlement to political and civil rights on equal terms with Whites. Without full citizenship, Blacks would remain oppressed by the same structure of racial domination and have no political power to overturn the regime. Among all the rights that Black abolitionists advocated for, they considered the following four interests vital: suffrage, education, economic justice, and substantive (or material) equality. Blacks deemed these conditions essential for the firm establishment of freedom.
a. Suffrage
Enfranchisement is a salient marker of citizenship.[197] Black abolitionists understood the high status that enfranchised persons held in the republic. They fought for equal access to this political right and as a symbol of their inclusion in the polity. Other factors made Black male suffrage a top goal of abolitionists. First, abolitionists hoped that Black male suffrage would shatter the constitutionalized “slave power”—that is, the outsized political representation of the South in the federal government resulting from, among other things, the disenfranchisement of Blacks and the inclusion of three-fifths of the enslaved population in the apportionment of House members.[198] Enfranchising Black men could reshape southern and national politics. Second, Republicans could exercise their expanded political power to ensure the protection of Blacks’ citizenship rights.[199] In the absence of Black male suffrage, Whites would regain control of southern political institutions and use state power to reinforce White dominance.
Black abolitionists also prioritized suffrage for a third reason: Many movement participants were women or allies simultaneously fighting for women’s suffrage.[200] Racial and gender equity in suffrage rested on the same principle of citizenship.[201] Fourth, Black abolitionists in the North concurrently fought for voting rights in states that disenfranchised them outright or through obstacles, such as property ownership requirements, that excluded them disproportionately.[202] Fighting for universal suffrage was already part of their freedom struggle, which made the linkage of enfranchisement to abolition somewhat inevitable.
b. Education
Blacks also considered education an integral component of full citizenship.[203] Slave narratives frequently included commentary regarding the indignity of illiteracy and the elevation enslaved persons experienced once they received an education.[204] Southern states criminalized teaching an enslaved person how to read or write:[205] Slave law and underlying social constructs deemed Blacks unsuited for liberty and equality due to a biologically determined incapacity for intelligence.[206] Because denying Blacks literacy and education “became a cornerstone of the southern slave regime, reading, writing, and education in general were highly valued among free and enslaved African Americans.”[207]
Nominally free Blacks, especially a budding middle- and upper-class segment, saw education as a central component of social uplift—or Blacks’ self-improvement.[208] Education, industriousness, temperance, thriftiness, and employment could benefit Blacks directly and prove their worthiness for equal citizenship.[209] Blacks also believed that education would open doors to professional employment—teaching, nursing, ministering, practicing medicine, and practicing law—and improve their economic and social status.[210]
This viewpoint, however, sometimes drew criticism from Whites who were concerned that professional life would give Blacks too much power.[211] Although antiliteracy laws did not exist in the North, these states offered, at most, limited and subpar education for Blacks.[212] Northern Whites vigorously opposed Blacks’ demands for equal educational opportunity, resorting, in many instances, to violence and vandalism.[213] White opposition to educational opportunities for Blacks did not stem simply from a racist distaste of integrated schools. Northern Whites resisted the construction and operation of racially segregated schools and colleges for Black children and adults, worrying that Blacks would migrate to northern states and cities for educational opportunities.[214]
The centrality of education in Blacks’ conception of citizenship and advancement pervaded abolitionist advocacy during Reconstruction. Blacks pressed Congress and Presidents Abraham Lincoln and Lyndon B. Johnson to establish and fund public schools for Black children and adults.[215] By demanding federal provision of education as an essential element of citizenship, Black abolitionists rejected traditional conceptions of liberty exclusively as a negative right: a bar to state intrusion.[216] Their advocacy also departed from the now-established legal treatment of education as a state and local concern.[217] To Blacks, liberty and equality were compatible with the recognition of positive citizenship rights and a federal role in securing them.
c. Economic Justice
Blacks’ conception of full citizenship also included economic justice—or state provision of resources for human flourishing—in addition to the enactment of formal antidiscrimination measures.[218] The material conditions of life, including level of autonomy, determined well-being and equal status.[219] Blacks especially supported land distribution in order to prevent recurrence of the same oppressive master-slave economic relations that defined their experiences as enslaved persons.[220] Blacks believed that true freedom would not exist unless they controlled their economic destiny. Land ownership would have made this possible.[221]
Economic justice was a high priority among abolitionists due to the nature of the southern economy. The agrarian South did not provide many opportunities for economic advancement outside of farming. This was especially true for a population of potential workers who lacked basic literacy and training for work outside of farming. Because aristocratic plantation owners monopolized southern land, abolitionists feared that without land, Blacks would become vulnerable to economic coercion by the “slavocracy.”[222] Their fear became a reality, however, because Reconstruction did not redress the economic harms of enslavement, or even deliver formal equality.[223] Frederick Douglass contended that the federal government’s refusal to provide land to southern Blacks was a primary cause of Reconstruction’s failure and Blacks’ continued subordination—an outcome he and other abolitionists predicted.[224]
d. Substantive Equality
Support for economic justice relates to a fourth theme in Black abolitionist thought: a rejection of formal equality as the sole measure of racial justice. Black abolitionists often expressed freedom and equality in substantive or material terms. During an 1888 speech, Frederick Douglass issued a stinging indictment of the status of Blacks in the United States, focusing at great length on the abhorrent conditions of “tiller[s] of the soil” in oppressive sharecropping contracts.[225] Douglass argued that life for many Blacks had worsened in some respects since emancipation and Reconstruction.[226] He did not fault Blacks for their plight, however, as did many southern and northern Whites. Douglass instead placed blame with the federal government and especially blamed the Supreme Court. The government failed to protect Blacks who encountered oppression from private and state sources.[227] Court decisions added to the problem by invoking federalism and state action to constrain Congress’s authority to enforce the Reconstruction Amendments and federal civil rights statutes.[228] The Supreme Court’s rulings made it necessary for Blacks to seek redress in state governments, “well knowing that those states are, in effect, the very parties that deny them justice.”[229]
Douglass rendered judgment against the United States by evaluating the Blacks’ status in material or substantive terms. He analyzed policies, such as laws that legitimized southern plantation owners’ exploitation of sharecroppers, which entrenched systemic racial hierarchy. That these laws were facially neutral did not mean they were nonracist or that they did not impede freedom for Blacks. Even though the United States enshrined equal citizenship in the Constitution and federal statutes, Blacks remained an oppressed class due to historical and ongoing practices:
In law, free; in fact, a slave. In law, a citizen; in fact, an alien; in law, a voter; in fact, a disfranchised man. In law his color is no crime; in fact, his color exposes him to be treated as a criminal. Toward him every attribute of a just government is contradicted.[230]
Formalizing antidiscrimination as a constitutional norm could not eradicate staggering racial inequality caused by past and contemporaneous practices. Meaningful freedom for Blacks required states and the federal government to undertake affirmative efforts to secure their economic footing, education, voting rights, and protection from state and private violence.[231] While the validation of explicit discrimination by the Court in Plessy legitimized Jim Crow, Whites’ racial domination of Blacks survived the Civil War and Reconstruction due, in significant part, to the profound racial effects of colorblind legal enactments and practices.
The failure of Reconstruction to address the systemic nature of racism made emancipation “a stupendous fraud . . . upon [Blacks and] the world.”[232] Coercive business practices that proliferated throughout the South after emancipation, including sharecropping, debt peonage, and convict leasing, effectively re-enslaved Blacks and secured a supply of low-cost labor for the planter class.[233] Racially neutral criminal laws did not protect Blacks from the harsh realities of racism. The discriminatory enforcement of facially neutral laws exposed Blacks to criminal and civil liability, which, in turn, justified coerced labor.[234] Convict leasing, lynching, racist use of capital punishment, and glaring denials of due process subjugated Blacks despite constitutional provisions requiring equal protection and due process.[235]
Black abolitionist activism for land redistribution, along with demands for schools, evinces their belief that full citizenship imposed positive obligations on the state to create opportunities for flourishing—even if those policies necessarily benefitted particular racial groups.[236] Although the federal government refused to provide land for Blacks or poor Whites, powerful entities like railroad companies, state governments, and former Confederates benefitted from policies that vastly expanded their property holdings or shielded their land from redistribution.[237] These policies exacerbated wealth disparities.
Black activists helped to transform abolition into a radical movement that pursued emancipation, full citizenship, economic justice, and substantive equality for Blacks. The movement successfully fought to eradicate formal inequality and enslavement, but societal racism, economic deprivation, and law combined to preserve White supremacy against efforts to disestablish racial hierarchy. Abolitionism, however, has greatly influenced First Amendment doctrine. Legal and extralegal silencing of abolitionists sparked political debates in which proponents described freedom of speech in expansive terms. These debates established a foundation for subsequent judicial elaboration of First Amendment doctrine in the twentieth century. The radical views of abolitionists, and Blacks in particular, have not made a substantial impact on judicial interpretation of the post-Civil War amendments, even though this was the greatest legal accomplishment of abolition. Legal scholars have begun to articulate abolition constitutionalism.[238] This project, however, remains aspirational. The next Section of this article considers how serious engagement with Black abolitionist thought could build a theory of constitutional law that secures full justice to racially oppressed classes.
III. Implications of Old and New Suppression for Constitutional Theory
There are several ways in which abolitionism, including the linkage to speech concerns, might implicate equality doctrines. Due to space constraints, this Article examines two implications of this research for equality practice.
First, because abolitionists measured the attainment of full citizenship in concrete or material terms, an abolitionist equality practice would strive to remove barriers to racial equality, regardless of intent. Similarly, policies that remove these barriers would not offend the Constitution because they classify on the basis of race or some other suspect category. Legal remedies normally identify the class entitled to redress. This categorization does not harm other groups. Second, because speech has great importance for antisubjugation movements, equality practice should function as a method for ensuring that vulnerable classes have equal access to resources related to the exercise of speech, such as education.
A. Substantive Justice
The operation of Black abolitionist thought to post-Reconstruction racial discrimination contains lessons relevant to ongoing equality debates in law. The post-Reconstruction era provides an early demonstration of formal equality norms hindering racial justice. Specifically, Whites invoked colorblindness in order to block concrete gains for Blacks and to remedy their exclusion from social and political life. The World’s Fair of 1893 provides a surprising example of the use of colorblindness to validate racial inequality.
During the nineteenth century (and deep into the twentieth century), countries convened at World’s Fairs in order to market their national brand—“a specific, separate character or profile in the eyes of the world.”[239] The World’s Fair was “the main platform for the global dissemination of nation-ness” during the nineteenth century.[240] The construction of identity—for example, national, racial, sexual, and gender—that defines and represents large groups of people raises questions of power and exclusion.[241] Dominant class members or interests will likely dictate the content of group identity while disregarding input from and experiences of subordinates.[242] Race has consistently operated as a source of inclusion and exclusion in the United States. Racial politics around planning the 1893 World’s Fair provides an historical example of the exclusion of Black perspectives and the inadequacy of formal equality theories.
1. Racial Machinations at White City
Conflict over the White-normative portrayal of national identity erupted during the planning stages of the 1893 World’s Fair hosted by the United States. The exposition, sometimes described as the Columbus or Columbian Exposition because it marked the four-hundred-year anniversary of Columbus’s voyage to the Americas,[243] was held in Chicago from May through October.[244] The U.S. government, corporations, and financiers invested in the fair. They anticipated robust returns from use of the fair’s transnational platform to market a national image of preeminence in industrialization, innovation, and global capitalism.[245] The fair attracted over twenty-seven million visitors who explored sixty-five thousand exhibits, lectures, musical performances, and other cultural offerings carefully curated to craft a narrative of extraordinary national progress.[246] The United States had only recently faced severe challenges, including the Civil War, financial collapse, and deep sectional division.[247] Despite these formidable obstacles, domestic factions reconciled and unified, and the United States emerged as a leader of industry and international commerce.[248]
This sanitized and essentialist representation of national identity masked an awful truth—White supremacy remained a constituent element of economic, political, and social power in the United States. The reality of racial fragmentation and disenfranchisement collided with the whitewashed national identity on display in Chicago. Without any apparent irony, planners named the sprawling fairgrounds “White City”[249]—inspired by the extravagant, white neoclassical buildings constructed for the event:
The Fair was projected on an enormous scale. Where London’s Crystal Palace had covered over twenty acres, and Philadelphia’s Centennial over two hundred, Chicago dwarfed them with over six hundred. Its vistas of ivory colonnades against the blue of sky and lake stretched the imaginations of Americans unused to such magnificence. . . . Undoubtedly the uniform whiteness added to an effect of unreality and other-worldliness in this period when streets of alabaster and gates of pearl were familiar hymn-book images.[250]
President Benjamin Harrison ignited racial and gender tensions when he appointed White men to fill every position on the World’s Columbian Commission (WCC).[251] The WCC, together with an exposition corporation, oversaw all activities of the fair.[252] Congress allocated two commissioners per state, territory, and the District of Columbia, as well as eight at-large members.[253] The selection process, though facially neutral, strongly indicated race and sex biases. The commissioners’ homogeneity sparked concerns that the WCC would overlook Black contributions to the United States—a mere twenty-eight years after emancipation.[254] Antiracists also believed that any exhibition of Black achievements required contextualization. Measuring Black accomplishments against a history of exclusion and violent subjugation would evince resilience, extraordinary progress, and great capacity for excellence. Past mistreatment of Blacks by officials at international festivals in the United States did not inspire confidence that the WCC would respond favorably to the antiracists’ concerns.[255] In response to criticism from the Black press and civil rights organizations, President Harrison named Hale G. Parker, a Black St. Louis school principal, as an alternate commissioner.[256] Perceiving Hale’s appointment as naked tokenism, Black frustration worsened.
2. Abolitionist Responses to Exclusion at White City: The Reason Why
Blacks who fought for inclusion at the 1893 exposition included Frederick Douglass working alongside a rising generation of antiracists who carried the abolitionist project into the twentieth century. Four of the critics—Douglass, Ida B. Wells, Irvine Garland Penn, and Ferdinand L. Barnett—published their objections in an important historical document, The Reason Why the Colored American Is Not in the World’s Columbian Exposition.[257] The Reason Why has received significant analysis in humanities and social science research.[258] These works, though incredibly insightful regarding racial and gender politics of the event, do not examine the legal and political implications of colorblindness and the early use of this principle to resist antiracism. With just a few exceptions, legal scholars have virtually ignored the pamphlet.[259] This oversight is problematic for several reasons. The Reason Why represents a critical period of transition for Black liberation and legal equality debates. After the demise of Reconstruction, many—though certainly not all—White abolitionists turned to other pursuits or, given their advanced ages, settled into retirement.[260] Black abolitionists (and many Whites), however, continued working on racial justice concerns because they never viewed emancipation and Black citizenship as separate struggles.[261] Since Blacks did not emerge from Reconstruction as full citizens, their abolitionist struggle continued. The coauthorship of The Reason Why evinces the longevity of abolitionism and its connectivity to subsequent antiracist mobilization, including activism during the Progressive Era, the Civil Rights Movement, and the Movement for Black Lives.[262] Although it would be unwise to conflate mobilizations across long historical periods, participants in these movements certainly pursued the general goal of abolition (or Black liberation), adapted to the needs, challenges, and resources of each successive generation. Douglass died almost two years after the publication of The Reason Why, but Wells, Penn, and Barnett made important contributions to antiracism during the twentieth century.[263]
Legal scholars should also interrogate The Reason Why because the coauthors made and encountered arguments that have tremendous import for contemporary equality debates. By criticizing the exclusion of Blacks from the official leadership, the authors were not simply contesting racially discriminatory committee selections. They contended that including Blacks during the planning stages would fundamentally transform the decision-making process, resulting in a more accurate portrayal of national identity. In other words, the coauthors believed that racial diversity would expand the viewpoints and social networks among the planners and positively transform the exposition.
3. Race as Remedy
Barnett, the only lawyer among the authors, elaborated the significance of diversity with remarkable savvy. He first recognized the historical importance of the 1893 exposition, observing that the United States wanted to host the “greatest Exposition the world has ever known.”[264] Before it could accomplish this lofty goal, the nation needed to answer one question: “How shall America best present its greatness to the civilized world?”[265] The lawyer Barnett shrewdly answered this question by situating Blacks within a broad national citizenship, while simultaneously asserting Black identity. Barnett contended that Blacks shared the collective national enthusiasm for the exposition, but they “especially” welcomed “their first opportunity to show what freedom and citizenship can do for a slave.”[266] Black contributions would serve a dual purpose—promotion of progress as a national (or universal) theme and as a racial-justice concern (or Black uplift).[267] Blacks positioned themselves as members of the nation state, contending that national progress necessarily included Black advancement.
In writings and speeches, Blacks argued that race mattered, not biologically, but socially. Blacks still endured substantial hardships and had only attained emancipation less than thirty years prior to the exposition; still, they had accomplished so much. Including Blacks in the planning of the exposition would allow them to share their racial perspectives on progress. Blacks could draw from their social networks in community organizations to provide an accurate assessment of the status of the United States on the eve of the twentieth century. Taking race into consideration for the composition of committees would lead to a better depiction of national identity. Historical materials related to the exposition do not evince Black dissent on the matter of racial viewpoints even if they disagreed on strategy. On the contrary, abolitionists have already accepted the reality that race affects one’s perspective.[268]
4. Multidimensionality: Exclusion Through Colorblindness and Gender Consciousness
Black leaders quickly realized that they could not persuade President Harrison to alter the composition of the WCC, so they pursued another route—lobbying White women for inclusion in planning exhibits documenting the success of women. Congress explicitly provided for essentialized gender diversity by requiring the WCC to create a “Board of Lady Managers” (BOLM) “to perform such duties as may be prescribed by [the WCC].”[269] The all-White-male WCC chose only White women to serve on the BOLM.[270] The exposition plans included the construction of a building (the “Women’s Building”) to display exhibitions and host events documenting the accomplishments of women.[271] Based on past experiences in women’s organizations, Black women believed they might have a more empathetic reception from White women than men.[272] The BOLM’s initial reaction to the entreaties of Black women appeared positive. The BOLM subsequently appointed Mary Cecil Cantrill—a White Kentuckian—to lead the effort on Black inclusion.[273] However, before Cantrill could make her first report to the BOLM regarding the recruitment of Black women, the Board dissolved Cantrill’s duties, assigned the work to state committees, and asserted a commitment to colorblind processes.[274] The ostensibly racially egalitarian decision demonstrates how formal equality fails to deliver complete justice to Blacks and how it can operate as a weapon against antiracism. The BOLM invoked colorblindness as it dissolved a formal remedy Blacks sought to redress their complete exclusion from roles as commissioners and managers:
In this Exposition there is to be no color or racial divisions. Citizenship will be considered. A man does not by color cease to be a loyal Virginian, Georgian, or Kentuckian. The colored people are urged to respond and take part in the great movement toward advancement in education and industry. We should be judicious in dealing with this interesting subject, and stretch out a helping hand of encouragement.[275]
This statement contains so much to unpack. A group of White women managers appealed to race neutrality in order to dash the hopes of Blacks who, despite ongoing racial subjugation, wanted U.S. national identity to include their contributions. BOLM members must have experienced cognitive dissonance in this moment because race and sex unquestionably factored into their selection on the Board. Yet they invoked race neutrality to defeat a remedy for Blacks. Congress, not Blacks, created a formal legal division (or classification) by sex when it created the BOLM. Race was embedded in the sex division because the BOLM completely excluded Black women, just as the WCC did not appoint Black men. Ignoring their own racial privileges and disregarding the operation of discrimination against Black men and women, the BOLM invoked colorblindness to justify their refusal to remedy the lack of Black representation. On the surface, colorblindness might sound like a hallmark of fairness. But in a social context of White privilege and material inequality, race neutrality can function as an instrument of racial injustice.[276]
Barnett revealed the pretextual nature of colorblindness by focusing on the very broad exclusion of Blacks at White City and the history of racism in the United States. He denied that Blacks wanted a separate standard for determining whether their exhibits merited inclusion.[277] Even if they did, however, they were differently situated from Whites due to a legacy of racism: “[It] was certainly not equitable to compel the colored people who have been emancipated but thirty years to stand on the same plane with their masters who for two and one half centuries had enslaved them.”[278] Barnett attributed the disparate capacities for particular measures of success to racism:
[W]hen it is remembered that only a few years ago laws the statutes of many of the states made it a misdemeanor to teach a colored person to read, it must be conceded that no competition with the [W]hite man is it possible for the former slave to stand upon the same plane.[279]
Furthermore, Barnett found the White women’s assertion of racial egalitarianism suspicious, given the numerous other ways that Blacks faced discrimination at White City.[280] Antiracist educator Hallie Quinn Brown, whose statement to the BOLM was reprinted in Barnett’s chapter, also illuminated how colorblindness validated historical and ongoing discrimination by excluding Blacks and empowering Whites: “Considering the peculiar relation that the Negro sustains in this country, is it less than fair to request for him a special representation? Presuming that such action would be had, several colored men and women, including the writer, have endorsement.”[281]
5. Colorblindness as Legal Norm in the United States
Antebellum and post-Reconstruction Black advocacy demonstrate that the Supreme Court’s equality doctrine does not align with a Black’s conception of racial justice. On the contrary, modern equal protection jurisprudence closely resembles the advocacy of the BOLM—who offered colorblindness as a shield against Black inclusion caused by past and current racism. For the BOLM, race consciousness was off limits. In contemporary equal protection litigation, the Supreme Court similarly imposes colorblindness as a standard when assessing the constitutionality of race-based remedies and institutional diversity policies. This approach, like the sterile formal equality invoked at White City, leaves racism unremedied and normalized.
The Court has held that the Equal Protection Clause prohibits all racial classifications.[282] Until the ruling in Students for Fair Admissions v. President and Fellows of Harvard College, which invalidated affirmative action policies at Harvard University and the University of North Carolina at Chapel Hill,[283] Court doctrine allowed some flexibility for remedial uses of race-conscious policies. In the context of higher education, for example, universities could consider race as a factor in admissions in order to foster diversity of perspectives, experiences, and viewpoints.[284] Viewpoint diversity allowed for class discussions to operate as a marketplace of ideas, and the diversity rationale explicitly rested on First Amendment principles.[285] Additionally, the Court previously held that diversity in higher education—a pathway to leadership—would engender pluralistic leadership, thus legitimizing important social institutions such as corporations, government, and the military.[286]
6. Justice Roberts Is Not a Racial Justice Hero
SFFA closed the small window for the permissible usage of race. The Court followed anti-affirmative action precedent and held that all racial classifications cause dignity harms.[287] Furthermore, the Court held that the universities’ contention that race correlates with certain ideas or perspectives rested on racial stereotypes.[288] The Court attempted to situate SFFA within a racial justice tradition that began with Justice Harlan’s lone dissent in Plessy v. Ferguson.[289] Harlan disagreed with the Court’s exclusion of social equality from the purview of the Fourteenth Amendment.[290] Harlan advanced equality before the law as an equal protection principle:
In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.[291]
The Court also connected SFFA to the advocacy of participants in the Civil Rights Movement. To establish this link, the Court quoted statements made by the plaintiffs’ counsel during oral argument in Brown v. Board of Education, as well as the plaintiffs’ briefs.[292] The Court held that the legal arguments of the plaintiffs in Brown supported its decontextualized application of colorblindness. The abolitionist tradition against racism began almost a century before Harlan’s dissent in Plessy. This activism, and particularly the work of nineteenth-century abolitionists, could shape the understanding of equality. Although the Court did not cite abolitionists in SFFA, Justice Thomas previously relied upon the words of Frederick Douglass to defend colorblindness and invalidate diversity-enhancing higher education policies.[293] In SFFA, Thomas did not attempt to interpret Black abolitionist viewpoints. Nevertheless, because Thomas previously invoked Frederick Douglass, wrongly or otherwise, and since the Court relied upon arguments made by twentieth-century civil rights lawyers, the justices have opened the door for legal scholars, lawyers, and judges to consider the words and deeds of abolitionists for possible insight on the matter. Abolitionist thought is at issue, to borrow from evidentiary concepts, because the Court chose to situate its doctrine within an antiracist tradition.
In SFFA, for example, the Court invoked the words of Justice Harlan and Robert Carter to frame its ruling as a moment of racial progress, but abolitionism provides no support for the decision. In the nineteenth century, advocates of Black liberation developed a conception of equality that measured outcomes, not simply inputs. Although they advocated for antidiscriminatory legal norms, they measured the success of those provisions by considering whether they led to tangible equality. They also believed that to remedy racism and establish full citizenship, Blacks needed resources—like education and land—which the government should provide. To abolitionists, the extension of these resources to Blacks did not constitute invidious discrimination against Whites, even if Whites needed resources too. The abolitionists knew that absent these resources, Blacks would remain at the bottom of racial and class hierarchy—unowned, but penniless and disenfranchised.
Considering instead the opinion of the Justice with the strongest connection to antiracist social movements exposes the weakness of SFFA’s analysis. Justice Thurgood Marshall was the architect of the legal strategy to overturn Plessy and end segregation. Later, Marshall served as Associate Justice on the Supreme Court, like Harlan, and he authored and joined a body of decisions analyzing race and equal protection. Marshall seems just as—or even more—relevant than Robert Carter (who was not a Supreme Court justice) and Justice Harlan (who never lived to see affirmative action in higher education or the litigation strategy culminating in the overruling of Plessy).[294] In earlier cases, Justice Marshall condemned the “hollow, race-ignorant conception of equal protection”—the very logic applied in SFFA—for conflating legal remedies and harms.[295] The elimination of context produces an equality doctrine that, as stated by Justice Stevens, “disregards the difference between a ‘No Trespassing’ sign and a welcome mat.”[296]
Long before Marshall opined on affirmative action or Justice Harlan dissented in Plessy, abolitionists created an intellectual record that remains relevant to contemporary analysis of racial justice. The abolitionists measured equality in concrete terms, not simply as an exercise in legal formalism. They understood that formal egalitarianism could exclude Blacks. They also believed that specific remedies tailored to Blacks’ status as victims of racial oppression were necessary for equal citizenship. Because the Court rejects this line of reasoning today, it cannot legitimately claim to occupy the same historical space as the antiracists of the past.
B. Economic Justice and Positive Liberty
Blacks considered education an essential interest for them to exist as full and autonomous citizens. They also believed that the federal government and states had a positive obligation to make educational opportunities available for everyone regardless of race. The lack of opportunities for Blacks, enslaved or unenslaved, to achieve literacy before the Civil War caused stigmatic and economic harm.
1. Persistence of Racial Inequality in Education
Racial and class hierarchies plague public education in the United States. Black and Latine students attend poverty schools—where these racial groups comprise most of the student body and most students are poor. Whites also attend schools where they comprise the majority of the student body. Students in majority-White schools, however, hail from wealthier families.[297] Seventy-one years after the Brown decision, most students attend separate but unequal schools—an outcome worse than what Plessy facially commanded.
Students in poverty schools underperform in metrics used to measure educational success and have fewer resources due to funding inequities.[298] These schools also have fewer resources due to funding laws that raise revenue using local property taxation. Contrary to the Supreme Court’s ruling in San Antonio Independent School District v. Rodriguez,[299] poor school districts face enormous burdens generating revenue from property taxes, while wealthier districts do not. Comparatively lower property values in poverty-stricken neighborhoods explain why property-tax funding of schools by district causes extreme disparities in resources across neighborhoods.[300] Because Blacks and Latines tend to reside in or near areas of concentrated poverty, neighborhood-based school funding harms their education outcomes by depriving their schools of the resources to recruit the highest performing teachers, give students access to innovative technology, reduce class size, and provide other resources positively correlated with students’ upward performances.[301]
Poor students and students of color perform better in wealthier, racially integrated schools. They also have access to social networks that are lacking in poor schools. Social networks relate to student success, enthusiasm for learning, desire for higher education, and ability to find jobs.[302] Furthermore, studies find that majority-poor and predominantly Latine and Black schools suffer because lawmakers lack empathy for the students. Due to racial and class biases, politicians do not prioritize the enactment of remedies, like additional funding, to improve performance for these poor students of color.[303] These same biases could make lawmakers believe that these students simply cannot achieve educational success due to cultural or biological reasons.
2. Validating Educational Inequality: Rodriguez
The importance of speech for oppressed classes can also influence equality practice just as scholars have argued in the First Amendment context. Because speech is such a vital asset, access to resources related to the exercise of speech should enjoy special protection in an equality context, just as it does in a First Amendment context. This conclusion has doctrinal roots in a dissenting opinion by Justice Marshall, a twentieth century antiracist and abolitionist. Marshall dissented in Rodriguez and recommended an alternative formula for determining when the Court should protect an asserted interest within an equality framework. Marshall argued that the Court had abandoned its “historic commitment to equality of educational opportunity” and had acquiesced “in a system which deprives children in their earliest years of the chance to reach their full potential as citizens.”[304] Marshall’s argument contained elements of abolitionism. He believed that the attainment of full citizenship required equal educational opportunity, which made it an important resource provided by the state.[305]
In his dissent, Justice Marshall discussed the importance of state-funded education to full citizenship relying on language in Brown regarding the significance of education:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. . . .[306]
Marshall also quoted a passage from Wisconsin v. Yoder, in which the Court found that “[p]roviding public schools ranks at the very apex of the function of a State.”[307] Thus, Marshall’s contention that education constituted an essential element of citizenship advanced an abolitionist conception of equality.
Marshall’s analysis demonstrates how the importance of speech to antiracist movements might inform interpretation of the Fourteenth Amendment—rather than serving primarily to advance First Amendment absolutism. Like the abolitionists, Marshall linked education to full citizenship—a concept that includes the enjoyment of important rights such as the freedom of speech. Enslaved persons saw this connection too. The work of abolitionists demonstrated that enslaved persons believed that literacy was a critical component of freedom. Learning to read and write would have allowed them to escape illiteracy—a condition of enslavement mandated by law and a source of stigma for all Blacks.[308] Literacy allowed Blacks to learn about abolition and to express their experiences in writing. Abolitionists appreciated the connectedness of education and democracy. Marshall followed a similar approach by proposing a nexus test for evaluating the fundamentality of an unenumerated interest. Marshall argued that
[t]he task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly.[309]
Marshall specifically linked education with speech, arguing that “[e]ducation directly affects the ability of a child to exercise his First Amendment rights, both as a source and as a receiver of information and ideas, whatever interests he may pursue in life.”[310] Borrowing from the philosophical theories of free speech, Court precedent has “described the classroom as the ‘marketplace of ideas.’”[311] Even if the exercise of speech and association rights do not necessarily require formal education, schooling “may enhance the individual’s enjoyment of those rights, not only during but also following school attendance.”[312] Marshall concluded that the “essential role” of education “in opening up to the individual the central experiences of our culture” made it undeniably valuable and worthy of more vigorous protection by courts.[313] Even though the Supreme Court has rejected this approach, some state courts have utilized the nexus test to find a fundamental right to education.[314]
3. De Facto Discrimination in Education
Black abolitionists conceived of equality in substantive, rather than formal, terms. Douglass, for example, condemned the attainment of a hollow freedom for Blacks that made them free in law but slaves in fact. Douglass’s analysis has linguistic and substantive relevance for debates over the constitutionality of de facto school segregation. Supreme Court equality doctrine departs sharply from Douglass’s approach because it finds de facto racial segregation in public schools constitutionally permissible.[315] The Court demands that plaintiffs challenging school segregation must show proof of intentional discrimination, and, even more narrowly, remedying segregation with explicit consideration of race requires a prior adjudication finding racial isolation caused by explicit racial policies.[316] The Court’s validation of de facto discrimination aligns with the requirement that equal protection plaintiffs must prove purposeful discrimination. In the absence of facts indicating explicit discrimination, the Court attributes racially homogeneous schools to housing patterns, location of schools within neighborhoods, and other supposedly nonracial and nongovernmental factors.
Scholars and jurists have criticized Court doctrine regarding de facto discrimination on several grounds. First, what the Court describes as de facto discrimination often results from intentional policies of state and local governments. Governmental decisions regarding the location of schools, level of school funding, placement of affordable housing, construction of new schools in response to population shifts, and other facially neutral policies can influence the racial composition of schools.[317] These intentional governmental policies contribute to de facto segregation. Additionally, early precedent enforcing Brown ordered defendants to integrate student populations even after the repeal of statutes mandating racial segregation.[318] Furthermore, from an empirical perspective, intent and state action do not determine whether full citizenship exists. Staggering inequalities in schools attended by Whites and students of color deny full citizenship to racial subordinates.
* * *
Black antiracist conceptions of justice do much more to challenge White supremacy than current legal equality norms—including Supreme Court precedent. Black abolitionists pushed abolitionism to advocate a comprehensive vision of liberty that included emancipation, full citizenship, economic justice, and substantive equality. They believed that the government had an obligation to provide land, education, and protection to Blacks. They also assessed progress towards freedom using metrics that considered the actual circumstances of Black life, rather than the enshrinement of emancipation and equality in constitutional and statutory law. The Roberts Court claims the mantle of antiracism in cases applying colorblindness to racial-equality remedies. Court doctrine, however, represents an almost complete rejection of Black abolitionism because precedent disregards the positive or negative impact of challenged actions on the subordinate status of Blacks and, instead, enforces an empty view of justice that makes Blacks free in law—but slaves in fact. Constitutional law is flexible enough to allow some discretion for judges.[319] Presently, the Court exercises this discretion in favor of White supremacy.
Conclusion: The Failure of Abolition or the Success of Racism
Abolitionists mobilized to achieve emancipation and full citizenship for Blacks. They demanded immediate emancipation, political freedoms, civil rights, government provision of education, and economic justice. After Reconstruction, however, Blacks remained largely disenfranchised. Constitutional law validated Jim Crow, and poor Blacks found themselves back on plantations due to economic exploitation by the planter class that previously held them in bondage. Some scholars describe this outcome as a “failure” of abolitionism.[320] That framing, however, suggests a fundamental flaw, weakness, or bad choice by Black liberationists (and their allies) who waged a war against oppression with an army consisting of the most destitute and disempowered people in the United States—the enslaved and formerly enslaved. This movement faced terrible odds. Deeply held beliefs in the natural inferiority of Blacks imposed staggering barriers to sustained and meaningful racial progress. Proslavery and racist members of the polity held exaggerated political power. They used their dominant status to defeat Black liberation and preserve White supremacy. White allies had short attention spans and an enduring tolerance of racial injustice. They readily abandoned ship when social change proved too difficult or divisive, required extended attention, or threatened their own political interests. Under these circumstances, racism prevailed. Abolitionists themselves learned the depth of White supremacy as their opponents forced compromise and defeat.
Racism is resilient and persistent. The Supreme Court, however, demands expiration dates for racial redress such as affirmative action and the Voting Rights Act. The requirement that racial redress come with time limits rests on an understanding of racism as largely an institution of the past with temporally limited effects. Currently, the President and numerous states have enacted policies that prohibit speech that demonstrates the continuing nature of racism and other forms of inequality. These laws, like those that disrupted abolition, preserve Whites’ social dominance. Understanding the stakes involved with contemporary censorship of antiracist speech requires a complex approach that interrogates speech, equality, and other dimensions of citizenship. Legal scholars and activists whose work advances social egalitarianism should canvass abolitionist literature for insights that could justify the use of transformative practices today.
Copyright © 2026 Darren Lenard Hutchinson, John Lewis Chair for Civil Rights and Social Justice & Professor of Law, Emory University School of Law; Director of the Emory Center for Civil Rights and Social Justice. This Article has benefitted from the input of many colleagues, including Susan Carle, Martin Sybblis, Tim Lovelace, Fred Smith, and attendees at the 2022 Law & Society Annual Meeting. I am forever grateful for the outstanding work of my research assistants: Siji Deleawe, Gjerji Nikolaj, Shannon Pickrell, Nia Roberts, and Kyle Sung.
[1]. See generally Mahdawi v. Trump, 136 F.4th 443 (2d Cir. 2025) (finding that agency review of an immigration detainee’s First Amendment claim was likely insufficient to protect freedom of speech); Smith v. Trump, 791 F. Supp. 3d 90 (D. Me. 2025) (preliminarily enjoining an executive order penalizing the provision of services to the International Criminal Court over an alleged disagreement with Israel-related rulings); Perkins Coie v. U.S. Dep’t of Just., No. CV 25-716 (BAH), 2025 WL 1276857 (D.D.C. May 2, 2025) (permanently enjoining an executive order restricting law firm work with the federal government after finding a violation of the First Amendment); Khalil v. Joyce, 780 F. Supp. 3d 476, 487 (D.N.J. 2025) (finding that agency review of an immigration detainee’s First Amendment claim was insufficient to protect freedom of speech), motion to certify appeal denied, No. 25-cv-01963 (MEF)(MAH), 2025 WL 1262349 (D.N.J. May 1, 2025), vacated and remanded sub nom. Khalil v. President, U.S., 164 F.4th 259 (3d Cir. 2026); Ozturk v. Trump, 779 F. Supp. 3d 462 (D. Vt. 2025) (finding that the district has authority to review an immigrant detainee’s habeas claim based on the defendant’s alleged retaliation for the exercise of First Amendment rights), stay denied and amended sub nom. Ozturk v. Hyde, 136 F.4th 382 (2d Cir. 2025); Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, 767 F. Supp. 3d 243 (D. Md.), opinion clarified, 769 F. Supp. 3d 465 (D. Md. 2025) (holding that anti-diversity, equity, and inclusion policies likely violate the First Amendment).
[2]. 42 U.S.C. § 2000d.
[3]. Alan Blinder, How Universities Are Responding to Trump, N.Y. Times (Feb. 5, 2026), https://www.nytimes.com/article/trump-university-college.html [https://perma.cc/MP38-X7WT]; Laura Meckler, Danielle Douglas-Gabriel & Justine McDaniel, Columbia Agreed to a Monitor, Stoking Fears about Independence, Wash. Post (July 26, 2025), https://www.washingtonpost.com/education/2025/07/26/columbia-university-settlement-monitor/ [https://perma.cc/32RU-B2JH] (“Columbia University agreed to pay more than $200 million to settle allegations of civil rights violations from the Trump administration. It agreed to a long list of changes on campus. But one concession struck some observers as particularly troubling: an outside monitor to ensure the school complies.”); Elissa Nadworny & Jordan Owens, What We Know About Columbia’s $221 Million Settlement with the Trump Administration, NPR (July 25, 2025), https://www.npr.org/2025/07/25/nx-s1-5479240/columbia-trump-administration-settlement-details [https://perma.cc/2TKF-6NBB]; Joseph Ax & Jonathan Allen, Columbia University Agrees to Some Trump Demands in Attempt to Restore Funding, Reuters (Mar. 21, 2025), https://www.reuters.com/world/us/columbia-research-takes-immediate-hit-trump-funding-cuts-2025-03-21/ [https://perma.cc/WM4H-HJ4P].
[4]. Blinder, supra note 3 (“President Trump and his allies have focused their attacks on elite universities, which they say are bastions of antisemitism and ideological indoctrination.”).
[5]. Congress enacted Title VI, in part, to accelerate desegregation of public schools, which southern states had largely resisted. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, 813 (1991) (discussing the impact of Title VI on school segregation); E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d 332, 354–55 (S.D.N.Y. 2014) (citing Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987) (holding the plaintiffs may assert a claim under Title VI based on antisemitic discrimination)); Dear Colleague Letter from Catherine E. Lhamon, Assistant Sec’y for C.R., U.S. Dep’t of Educ. Off. for C.R., Protecting Students from Discrimination, Such as Harassment, Based on Race, Color, or National Origin, Including Shared Ancestry or Ethnic Characteristics (May 7, 2024), https://www.ed.gov/sites/ed/files/about/offices/list/ocr/letters/colleague-202405-shared-ancestry.pdf#page=4 [https://perma.cc/KN56-R85G].
[6]. See, e.g., Exec. Order No. 14281, Restoring Equality of Opportunity and Meritocracy, 90 Fed. Reg. 17537 (Apr. 23, 2025) (ending disparate impact enforcement); Exec. Order No. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, 90 Fed. Reg. 8615 (Jan. 20, 2025) (defining sex in biological terms, which could broaden discrimination against LGBTQ individuals and cisgender women); Exec. Order No. 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, 90 Fed. Reg. 8339 (Jan. 20, 2025) (eliminating diversity, equity, and inclusion programs).
[7]. Republicans have generally supported Israel’s policy in Gaza, although some fractures in that support have occurred as reports of a humanitarian crisis emerge. Rebecca Schneid, Republican Divide Over Gaza Grows in Wake of Trump’s Calls for More Aid, Time (July 30, 2025), https://time.com/7306578/gaza-republicans-marjorie-taylor-greene-genocide/ [https://perma.cc/4M2Y-VH24]. Many Republican-led state legislatures have passed laws that enact President Trump’s policies on diversity, equity, and inclusion, alongside civil rights matters. See, e.g., Erin Gretzinger, Maggie Hicks, Christa Dutton, Jasper Smith, Sonel Cutler & Aisha Baiocchi, Tracking Higher Ed’s Dismantling of DEI, Chron. Higher Educ. (Jan. 13, 2026), https://www.chronicle.com/article/tracking-higher-eds-dismantling-of-dei [https://perma.cc/QJ78-QXDN].
[8]. Steven A. Tuch & Michael Hughes, Whites’ Racial Policy Attitudes in the Twenty-First Century: The Continuing Significance of Racial Resentment, 634 Annals Am. Acad. Pol. & Soc. Sci. 134, 135–36 (2011).
[9]. During the 2020 presidential campaign, President Trump denied the existence of systemic racism. Erin Burnett, “I Don’t Believe That:” Trump Denies Systemic Racism in US, CNN (Sep. 1, 2020), https://www.cnn.com/videos/politics/2020/09/01/trump-systemic-racism-ebof-vpx.cnn [https://perma.cc/VR8D-U85D].
[10]. Exec. Order No. 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, 90 Fed. Reg. 8339 (Jan. 20, 2025).
[11]. Press Release, Am. First Legal, America First Legal Files Federal Civil Rights Complaint Against the Walt Disney Company for Illegal Race and Sex Discrimination (Feb. 14, 2024), https://aflegal.org/press-release/america-first-legal-files-federal-civil-rights-complaint-against-the-walt-disney-company-for-illegal-race-and-sex-discrimination/ [https://perma.cc/HNH6-WSFF] (announcing the filing of a lawsuit against Disney and claiming that a document found on Disney’s website strongly suggests the company is intentionally discriminating against White American men); Darren J. Beattie (@DarrenJBeattie), X (Oct. 4, 2024, 12:23 PM), https://x.com/darrenjbeattie/status/1842239185203151053?s=42 [https://perma.cc/Q25J-6GUK] (“Competent [W]hite men must be in charge if you want things to work. Unfortunately, our entire national ideology is predicated on coddling the feelings of women and minorities, and demoralizing competent [W]hite men.”) (Beattie is the former Assistant Secretary of State for Educational and Cultural Affairs, appointed Feb. 4, 2025).
[12]. See 600 U.S. 181, 218–19 (2023) (“College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”).
[13]. See, e.g., Ark. Code Ann. § 6-16-156 (2025) (requiring review and amendment of DOE rules, policies, materials, or communications that are considered “prohibited indoctrination” and defining the phrase by way of example using critical race theory and declaring the phrase to refer to communications that compel a person to “adopt, affirm, or profess an idea” that violates Titles IV and VI).
[14]. Exec. Order No. 14190, 90 Fed. Reg. 8853, 8854 (Jan. 29, 2025).
[15]. Many states implemented similar measures, prohibiting antiracist, feminist, and LGBTQ-affirming curricula, literature, or discussions in public schools. See, e.g., Ark. Code Ann. § 6-16-156 (2025); Fla. Stat. § 1000.05(4)(a) (2022) (banning instruction on racial and sexual oppression and privilege).
[16]. See, e.g., Honeyfund.com Inc. v. Governor, 94 F.4th 1272 (11th Cir. 2024) (affirming a preliminary injunction against the enforcement of a Florida anti-DEI law on First Amendment grounds); Jerry C. Edwards, Federal Funding Restrictions, Academic Research, and the First Amendment, 114 Geo. L.J. Online 30, 46 & n.2 (2025) (discussing and citing lawsuits challenging federal anti-DEI policies).
[17]. Katheryn Russell-Brown, “The Stop Woke Act”: HB 7, Race, and Florida’s 21st Century Anti-Literacy Campaign, 47 N.Y.U. Rev. L. & Soc. Change 338, 357 (2023) [hereinafter Russell-Brown, The Stop Woke Act] (arguing that state law banning critical race theory was enacted in response to Black empowerment).
[18]. Id.
[19]. See, e.g., Catharine A. MacKinnon, Only Words 71 (1993) (“The law of equality and the law of freedom of speech are on a collision course in this country.”); Nan D. Hunter, Escaping the Expression-Equality Conundrum: Toward Anti-Orthodoxy and Inclusion, 61 Ohio St. L.J. 1671, 1714 & n.222 (2000) (arguing that scholars accept the speech-equality dichotomy “virtually without challenge” (citations omitted)); John A. Powell, Worlds Apart: Reconciling Freedom of Speech and Equality, 85 Ky. L.J. 9, 19 (1997) (asserting that speech and equality are conflicting values); John M. Blim, Undoing Our Selves: The Error of Sacrificing Speech in the Quest for Equality, 56 Ohio St. L.J. 427, 429 & n.13 (1995) (observing that many legal scholars treat “the Free Speech and Equal Protection Clauses as potentially competing interests”); Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 434 (1990) (“At the center of the controversy [surrounding regulation of racist speech] is a tension between the constitutional values of free speech and equality.”); Marcy Strauss, Sexist Speech in the Workplace, 25 Harv. C.R.-C.L. L. Rev. 1, 4 (1990) (“While I recognize and feel the horror of sexist speech, I cannot minimize the value of free speech for society in general and for feminists in particular.”).
[20]. Richard Delgado & David Yun, The Neoconservative Case Against Hate-Speech Regulation—Lively, D’souza, Gates, Carter, and the Toughlove Crowd, 47 Vand. L. Rev. 1807, 1811–12 (1994); Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2375 (1989); Lawrence, supra note 19, at 477; Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 Wm. & Mary L. Rev. 267, 268 & n.8 (1991) (listing numerous sources); Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 175–79 (1982).
[21]. Ronald Turner, Regulating Hate Speech and the First Amendment: The Attractions of, and Objections to, an Explicit Harms-Based Analysis, 29 Ind. L. Rev. 257, 292 (1995).
[22]. Id. at 324.
[23]. Amy Adler, What’s Left?: Hate Speech, Pornography, and the Problem for Artistic Expression, 84 Calif. L. Rev. 1499, 1504 (1996) (“Most of these traditional arguments go something like this: ‘The problem of hate speech can be solved only by more speech. . . .’”).
[24]. Nadine Strossen, The Interdependence of Racial Justice and Free Speech for Racists, 1 J. Free Speech L. 51, 56–57 (2021) (discussing censorship of social justice advocacy and the use of free speech to help progressive causes including antiracism as a basis for protecting all speech); Paul Finkelman, Speech, Press, and Democracy, 10 Wm. & Mary Bill Rts. J. 813, 821–22 (2002) (arguing that history of suppression of abolitionist speech demonstrates that censorship usually serves no useful purpose but that successful employment of speech by abolitionists supports strong First Amendment protection); Marjorie Heins, Banning Words: A Comment on “Words That Wound,” 18 Harv. C.R.-C.L. L. Rev. 585, 592 n.39 (1983) (“The civil rights movement of 20 and 25 years ago would have been crippled, if not crushed, without the protection of the first amendment, protection that was won through litigation involving, in some instances, the speech of right-wing demagogues and racists. Tolerating ugly, vicious speech is a small but necessary price to pay for the freedom to advocate social change and justice.”).
[25]. Kevin Gillan, Social Movements: Sequences vs Fuzzy Temporality, in The Cambridge Handbook of Social Theory, Volume 2: Contemporary Theories and Issues 407, 408–18 (Peter Kivisto ed., 2020) (discussing disagreement and consensus in social movement theory); Sarah A. Soule, Contention and Corporate Social Responsibility 29, 31–34 (2012) (discussing social movement literature); Charles Tilly & Sidney Tarrow, Contentious Politics 26 (2015) (formulating a definition of social movement theory); David A. Snow, Sarah A. Soule, Hanspeter Kriesi & Holly J. McCammon, Introduction: Mapping and Opening Up the Terrain, in The Blackwell Companion to Social Movements 1, 6–11 (David A. Snow, Sarah A. Soule & Hanspeter Kriesi eds., 2004) (conceptualizing social movements).
[26]. Robert D. Benford & David A. Snow, Framing Processes and Social Movements: An Overview and Assessment, 26 Ann. Rev. Socio. 611, 614 (2000); William K. Carroll & Robert S. Ratner, Master Frames and Counter-Hegemony: Political Sensibilities in Contemporary Social Movements, 33 Can. Rev. Socio. 407, 410–11 (1996).
[27]. Tilly & Tarrow, supra note 25, at 26; Michael McCann, Law and Social Movements: Contemporary Perspectives, 2006 Ann. Rev. Law & Soc. Sci. 17, 24; Timothy Shortell, The Rhetoric of Black Abolitionism: An Exploratory Analysis of Antislavery Newspapers in New York State, 28 Soc. Sci. Hist. 75, 83 (2004) [hereinafter Shortell, Rhetoric of Black Abolitionism] (discussing the range of speech activities that social movements employ).
[28]. In this Article, “liberation speech” describes the emancipatory frames progressive social movements utilize to mobilize participants, contest unjust social relations, and describe a transformational alternative to the status quo.
[29]. See infra Part II.A.2.
[30]. See infra Part I.C.6.
[31]. Of the scholars who have integrated speech and equality, William Carter has done the most sustained research. See generally William M. Carter, Jr., The Second Founding and the First Amendment, 99 Tex. L. Rev. 1065 (2021) (discussing implications of Reconstruction on interpretation of First Amendment); William M. Carter, Jr., The Thirteenth Amendment and Pro-Equality Speech, 112 Colum. L. Rev. 1855 (2012) (discussing implications of antislavery legal changes on pro-equality speech). His work examines Reconstruction in a First Amendment context, however. See also Daniel P. Tokaji, First Amendment Equal Protection: On Discretion, Inequality, and Participation, 101 Mich. L. Rev. 2409, 2410 (2003) (developing concept of “First Amendment Equal Protection,” or the “democratic ideal that all citizens should have an equal opportunity to participate in public discourse”).
[32]. See generally Rebecca E. Zietlow, Freedom Seekers: The Transgressive Constitutionalism of Fugitives from Slavery, 97 Notre Dame L. Rev. 1375 (2022); Brandon Hasbrouck, The Antiracist Constitution, 102 B.U. L. Rev. 87 (2022); James W. Fox Jr., The Constitution of Black Abolitionism: Reframing the Second Founding, 23 U. Pa. J. Const. L. 267 (2021); Dorothy E. Roberts, Foreword, Abolition Constitutionalism, 133 Harv. L. Rev. 1 (2019); Paul Finkelman, Frederick Douglass’s Constitution: From Garrisonian Abolitionist to Lincoln Republican, 81 Mo. L. Rev. 1 (2016); Rebecca E. Zietlow, Free at Last! Anti-Subordination and the Thirteenth Amendment, 90 B.U. L. Rev. 255 (2010); Rebecca E. Zietlow, Congressional Enforcement of Civil Rights and John Bingham’s Theory of Citizenship, 36 Akron L. Rev. 717 (2003).
[33]. See generally Lunsford Lane, The Narrative of Lunsford Lane, Formerly of Raleigh, N.C. (1834) [hereinafter Lane, Narrative], https://docsouth.unc.edu/neh/lanelunsford/lane.html [https://perma.cc/6F2Y-EA66].
[34]. Id. at 16.
[35]. Id. at 17.
[36]. Id. at 24.
[37]. See N.C. Rev. Stat. ch. 111, § 65 (1837), https://digital.ncdcr.gov/Documents/Detail/revised-statutes-of-the-state-of-north-carolina-passed-by-the-general-assembly-at-the-session-of-1836-7-including-an-act-concerning-the-revised-statutes-and-other-public-acts-passed-at-the-same-session-v.1/2691254?item=2847772 [https://perma.cc/CR65-YNJ5].
[38]. See id.
[39]. Lane, Narrative, supra note 33, at 29.
[40]. Id. at 29–31.
[41]. Id. at 31 (emphasis added).
[42]. Id. at 34–35.
[43]. Id. at 38.
[44]. Id. at 40 (quoting Lane).
[45]. Id. at 41 (discussing his “discharge” after no one produced evidence against him).
[46]. Id. at 41–49.
[47]. Andrea L. Dennis, Black Contemporary Social Movements, Resource Mobilization, and Black Musical Activism, 79 Law & Contemp. Probs. 29, 36 (2016); Michael P. Young, Confessional Protest: The Religious Birth of the U.S. National Social Movements, 67 Am. Soc. Rev. 660, 667 (2002); Marissa D. King & Heather A. Haveman, Antislavery in America: The Press, the Pulpit, and the Rise of Antislavery Societies, 53 Admin. Sci. Q. 492, 493 (2008).
[48]. See Manisha Sinha, The Slave’s Cause: A History of Abolition 10–33 (2016) [hereinafter Sinha, The Slave’s Cause] (discussing abolition during the seventeenth and eighteenth centuries).
[49]. See Oleta Prinsloo, “The Abolitionist Factory:” Northeastern Religion, David Nelson, and the Mission Institute Near Quincy, Illinois, 1836-1844, 105 J. Ill. State Hist. Soc. 36, 50 (2012) (citing Lewis Perry, Radical Abolitionism: Anarchy and the Government of God in Antislavery Thought xi, 16–91 (1973)). See generally James Brewer Stewart, Holy Warriors: The Abolitionists and American Slavery (1976) (discussing religious origins of abolitionism); Anne C. Loveland, Evangelicalism and “Immediate Emancipation” in American Antislavery Thought, 32 J. S. Hist. 172, 172–88 (1966). Religion, however, did not compel an antislavery viewpoint. On the contrary, the issue divided churches. See John R. McKivigan, The War against Proslavery Religion: Abolitionism and the Northern Churches, 1830–1865 74–92 (2018); Charles Reagan Wilson, Introduction to Religion in the South: Essays 3 (2009). Also, many proslavery advocates invoked religion to justify enslavement. See John Patrick Daly, When Slavery Was Called Freedom: Evangelicalism, Proslavery, and the Causes of the Civil War 30–57 (2002).
[50]. Mark Graber, The Declaration of Independence and Contemporary Constitutional Pedagogy, 89 S. Cal. L. Rev. 509, 517 (2016).
[51]. See, e.g., John T. Cumbler, From Abolition to Rights for All: The Making of a Reform Community in the Nineteenth Century 9 (2008).
[52]. Margaret Abruzzo, Polemical Pain: Slavery, Cruelty, and the Rise of Humanitarianism 147 (2011).
[53]. Jonathan A. Glickstein, American Exceptionalism, American Anxiety: Wages, Competition, and Degraded Labor in the Antebellum United States 36–37, 49–50, 71–72, 77–78 (2002).
[54]. William Ellery Channing, Slavery 149 (1835). Abolitionists used this frame with great frequency after anti-abolitionists mobs used violence—including murder—to disrupt antislavery advocacy.
[55]. Adam Chamberlain, Moral Suasion and Political Action, 7 Am. Pol. Thought 57, 78–79 (2018) (discussing moral suasion, an abolitionist method to change attitudes and politics); Tunde Adeleke, Afro-Americans and Moral Suasion: The Debate in the 1830’s, 83 J. Negro Hist. 127, 128 (1998).
Moral suasion espoused a moral definition of slavery and racism. . . . It was an integrative and optimistic ideology, informed by faith in the potency of universal values-values that supposedly impacted humanity equally. It advanced a world view that defined progress as the result of the triumph of universal moral ideals, deemed sufficiently potent, if properly cultivated, to transform blacks into accepted and integral members of the human family.
Adeleke, supra, at 128.
[56]. Adeleke, supra note 55, at 128; Chamberlain, supra note 55, at 78–79.
[57]. Scholars have written prolifically on the antislavery press, including newspapers published by Black people. See, e.g., Amy Reynolds, William Lloyd Garrison, Benjamin Lundy and Criminal Libel: The Abolitionists’ Plea for Press Freedom, 6 Comm. L. & Pol’y 577, 582–83 (2001) (discussing press and abolitionism); Carmen E. Clark, Abolitionist Press, in Encyclopedia of American Journalism 4 (Steven L. Vaughan ed., 2008); Shortell, Rhetoric of Black Abolitionism, supra note 27, at 83–84; Jacqueline Bacon, The History of Freedom’s Journal: A Study in Empowerment and Community, 88 J. Afr. Am. Hist. 1, 8 (2003) (discussing emancipation as an important, though not exclusive, subject covered by Black newspaper Freedom’s Journal); Fox, supra note 32, at 301–05; Lionel C. Barrow, Jr., “Our Own Cause:” ‘Freedom’s Journal’ and the Beginnings of the Black Press, 4 Journalism Hist. 118, 119, 121 (1977) (discussing emancipation as subject of Black press).
[58]. Ford Risley, Abolition and the Press: The Moral Struggle Against Slavery 10 (2008) [hereinafter Risley, Moral Struggle].
[59]. William Lloyd Garrison & Isaac Knapp, Prospectus, Liberator, Dec. 12, 1835, at 199, https://www.digitalcommonwealth.org/book_viewer/commonwealth:8k71pz63t#?xywh=-5873%2C-446%2C17288%2C8911 [https://perma.cc/5ALV-QJNM].
[60]. William Lloyd Garrison & Isaac Knapp, Retrospection, Liberator, Jan. 4, 1834, at 2, https://www.digitalcommonwealth.org/book_viewer/commonwealth:9w032j90b#?xywh=-5805%2C-446%2C17268%2C8900 [https://perma.cc/66WV-AUET]) (capitalization in original).
[61]. Risley, Moral Struggle, supra note 58, at ix.
[62]. Sandeep Soni, Lauren F. Klein & Jacob Eisenstein, Abolitionist Networks: Modeling Language Change in NineteenthCentury Activist Newspapers, 6 J. Cultural Analytics 1, 1–2 (2021).
[63]. Timothy Patrick McCarthy, “To Plead Our Own Cause”: Black Print Culture and the Origins of American Abolitionism, in Prophets of Protest: Reconsidering the History of American Abolitionism 163 (Timothy Patrick McCarthy & John Stauffer eds., 2006) [hereinafter McCarthy, Black Print Culture].
[64]. John Russwurm & Samuel Cornish, Prospectus, Freedom’s J., Mar. 16, 1827, at 4, [hereinafter Prospectus], https://dh.howard.edu/cgi/viewcontent.cgi?article=1000&context
=freedoms_journal1827 [https://perma.cc/58XN-6UG6].
[65]. Id. at 1.
[66]. Id. (arguing that “[f]rom the press and the pulpit” we have been “incorrectly represented”; some “[m]en, whom we equally love and admire” have “represent[ed] us disadvantageously” because they lacked knowledge of “the true state of things” or, blinded by racist stereotypes, could not distinguish the “virtue and vice among us”).
[67]. Id.
[68]. Matthew Peeples, Creating Political Authority: The Role of the Antebellum Black Press in the Political Mobilization and Empowerment of African Americans, 34 Journalism Hist. 76, 81–82 (2008).
[69]. Prospectus, supra note 64, at 1 (“Too long has the public been deceived by misrepresentations, in things which concern us dearly . . . .”).
[70]. Id. (describing education as “an object of the highest importance” and discussing the importance of informing Blacks of the “necessity and expediency of” instilling the value of industry in children).
[71]. Id. (expressing a desire to make Freedom’s Journal “a medium of intercourse between our brethren in the different states” and an outlet to express positions and debate issues that “concern us”).
[72]. For a survey of works on abolitionist societies, see generally Paul J. Polgar, “To Raise Them to an Equal Participation”: Early National Abolitionism, Gradual Emancipation, and the Promise of African American Citizenship, 31 J. Early Republic 229 (2011) (analyzing eighteenth century abolitionist societies); Amy Reynolds, Through the Eyes of the Abolitionists: Free Association and Anti-Slavery Expression, 11 Commc’n. L. & Pol’y 449 (2006) (analyzing work of abolitionist societies and influence on subsequently recognized right of association); Frederick W. Pfister, In the Cause of Freedom: American Abolition Societies, 1775-1808, 1 (1980) (Ph.D. dissertation, Miami University) (on file with University Microfilms International and California Law Review) (discussing work of abolitionist societies in early US history); David Scholfield and Edmund Haviland, The Appeal of the American Convention of Abolition Societies to Anti-Slavery Groups, 6 J. Negro Hist. 200 (1921) (compilation of original statements by delegates to American Convention of Abolition Societies); Edward Raymond Turner, The First Abolition Society in the United States, 36 Pa. Mag. Hist. & Bio. 92 (1912) (analyzing earliest formal abolitionist society).
[73]. Richard Newman, American Convention of Abolitionist Societies, in Abolition and Antislavery: A Historical Encyclopedia of the American Mosaic 16, 16–17 (Peter Hinks & John McKivigan eds., 2015) (discussing meetings and conventions); Jennifer Rose Mercieca, The Culture of Honor: How Slaveholders Responded to the Abolitionist Mail Crisis of 1835, 10 Rhetoric & Pub. Aff. 51, 54 (2007) (discussing the distribution of literature).
[74]. Calvin Schermerhorn, Arguing Slavery’s Narrative: Southern Regionalists, Ex-slave Autobiographers, and the Contested Literary Representations of the Peculiar Institution, 1824–1849, 46 J. Am. Stud. 1009, 1016 (2012).
[75]. Jennifer Rose Mercieca, The Culture of Honor: How Slaveholders Responded to the Abolitionist Mail Crisis of 1835, 10 Rhetoric & Pub. Aff. 51, 54 (2007) (discussing the AASS decision to conduct mass mailings); Susan Wyly-Jones, The 1835 Anti-Abolition Meetings in the South: A New Look at the Controversy over the Abolition Postal Campaign, 47 Civ. War Hist. 289, 290–91 (2001) (discussing the AASS mailing strategy); Bertram Wyatt-Brown, The Abolitionists’ Postal Campaign of 1835, 50 J. Negro Hist. 227, 227 (1965) (discussing the AASS decision “to flood the country with antislavery literature”).
[76]. See infra Part II.C.
[77]. See Michaël Roy, Fugitive Texts: Slave Narratives in Antebellum Print Culture 7 (2022) (discussing the high volume of sales for slave narratives); Dwight A. McBride, Impossible Witnesses: Truth, Abolitionism, and Slave Testimony 153 (2001) [hereinafter McBride, Impossible Witness] (same).
[78]. Charles H. Nichols, Who Read the Slave Narratives?, 20 Phylon Q. 149, 153 (1959) (discussing the power of narrative over theoretical discussions to convert Whites).
[79]. See McBride, Impossible Witness, supra note 77, at 130–35 (discussing the refutation of anti-Black stereotypes in slave narratives).
[80]. Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History 127 (2000) [hereinafter Curtis, Darling Privilege].
[81]. Id.
[82]. The Race and Slavery Petitions Project, hosted by the University of North Carolina at Greensboro, houses petitions to southern legislatures and county courts filed between 1775 and 1867. The petitions relate to slavery, but they also include a very broad range of topics, including abolition and legal disputes. See Race and Slavery Petitions, Digital Library on American Slavery, https://dlas.uncg.edu/petitions/ [https://perma.cc/RA2Q-7LU2].
[83]. See, e.g., id., Petition No. 11282405 (summarizing a general abolition petition submitted to the North Carolina state legislature in 1824 by the president of the Manumission Society of North Carolina); id., Petition No. 11083005 (summarizing an 1830 Mississippi legislative petition for the manumission of a wife and daughter already purchased by the petitioner, a nominally free Black man).
[84]. See, e.g., Sinha, The Slave’s Cause, supra note 48, at 229–39; Curtis, Darling Privilege, supra note 80, at 131.
[85]. Curtis, Darling Privilege, supra note 80, at 136.
[86]. Id. at 136–37.
[87]. Id. at 137.
[88]. Slavery, Race, and the American Legal System, 1700–1872, at 193–225, 327–429 (Paul Finkelman ed., 1988) (reprinted 2007) (compiling original document summaries of proceedings).
[89]. Reynolds, Plea for Press Freedom, supra note 57, at 583–602 (discussing the prosecution of Garrison and Lundy).
[90]. Russell-Brown, The Stop WOKE Act, supra note 17, at 346 & n.37 (citing numerous sources); J. Clay Smith, Jr., Justice and Jurisprudence and the Black Lawyer, 69 Notre Dame L. Rev. 1077, 1107 (1994); William Goodell, The American Slave Code In Theory and Practice: Its Distinctive Features Shown by Its Statutes, Judicial Decisions, and Illustrative Facts 297–302 (1853) (surveying state laws).
[91]. Carey H. Latimore IV, A Step Closer to Slavery? Free African Americans, Industrialisation, Social Control and Residency in Richmond City, 1850–1860, 33 Slavery & Abolition 119, 120 (2012) (discussing a requirement that nominally free Blacks obtain a permit to reside in states); Noah Smith-Drelich, The Anti-Discriminatory Right to Travel, 100 Ind. L.J. 1063, 1081–82 (2025) (discussing the onerous burdens states imposed on nominally free Blacks).
[92]. Llana Barber, Anti-Black Racism and the Nativist State, 42 J. Am. Ethnic Hist. 5, 17 (2023).
[93]. Curtis, Darling Privilege, supra note 80, at 191.
[94]. Id. at 155.
[95]. Id.
[96]. Id. at 158.
[97]. Id. at 156–58.
[98]. Letter from Andrew Jackson to Amos Kendall (Aug. 9, 1835) https://www.loc.gov/resource/maj.01091_0264_0264/?st=text [https://perma.cc/GMQ6-GZNM].
[99]. Id.
[100]. Andrew Jackson, Seventh Annual Message to Congress (Dec. 8, 1835) https://www.presidency.ucsb.edu/documents/seventh-annual-message-2 [https://perma.cc/9F2H-FBCN].
[101]. Curtis, Darling Privilege, supra note 80, at 158–61.
[102]. See id. at 161–75.
[103]. Id. at 163–64, 166 (discussing the Sedition Acts analogy in the Senate and the House).
[104]. Curtis, Darling Privilege, supra note 80, at 170–71, 175 (discussing state and federal authority).
[105]. The House “Gag Rule,” Hist., Art & Archives, U.S. House of Reps. (Dec. 21, 1837), https://history.house.gov/HouseRecord/Detail/25769811490#:~:text=Description,its%20eventual%20repeal%20in%201844 [https://perma.cc/T35Y-A83V].
[106]. Id.
[107]. Id.; see also Curtis, Darling Privilege, supra note 80, at 178.
[108]. Curtis, Darling Privilege, supra note 80, at 178.
[109]. Id. at 178–81.
[110]. Id.
[111]. Id. at 180.
[112]. Risley, Moral Struggle, supra note 58, at Chapter 3 (discussing anti-abolitionist violence).
[113]. See, e.g., David Grimsted, Rioting in Its Jacksonian Setting, 77 Am. Hist. Rev. 361, 362–64 (1972); Leonard L. Richards, “Gentlemen of Property and Standing”: Anti-Abolition Mobs in Jacksonian America 6–7 (1970).
[114]. Cathy Rogers Franklin, James Gillespie Birney, the Revival Spirit, and The Philanthropist, 17 Am. Journalism 31, 45 (2000) [hereinafter Franklin, Revival Spirit]; Michael Kent Curtis, The 1837 Killing of Elijah Lovejoy by an Anti-Abolition Mob: Free Speech, Mobs, Republican Government, and the Privileges of American Citizens, 44 UCLA L. Rev. 1109, 1124–26 (1997) [hereinafter Curtis, Killing of Elijah Lovejoy].
[115]. Curtis, Killing of Elijah Lovejoy, supra note 114, at 1124–26; Franklin, Revival Spirit, supra note 114, at 36–37.
[116]. Franklin, Revival Spirit, supra note 114, at 41.
[117]. Id. at 45.
[118]. Id. at 46.
[119]. Curtis, Killing of Elijah Lovejoy, supra note 114, at 1126–30; Franklin, Revival Spirit, supra note 114, at 41.
[120]. Franklin, Revival Spirit, supra note 114, at 46.
[121]. Ken Ellingwood, First to Fall: Elijah Lovejoy and the Fight for a Free Press in the Age of Slavery 103–04 (2021) [hereinafter Ellingwood, First to Fall].
[122]. Id. at 97–98.
[123]. Id. at 71–73, 97–99.
[124]. Id. at 98.
[125]. Id. at 98–99.
[126]. Id. at 99–100.
[127]. Id. at 289.
[128]. Id. at 279.
[129]. Id. at 289.
[130]. Id.
[131]. Id. Abolitionists endured many acts of violence and intimidation. See Richard B. Kielbowicz, The Law and Mob Law in Attacks on Antislavery Newspapers, 1833–1860, 24 Law & Hist. Rev. 559, 570 (2006). See generally William Lawless Jones, Mob Violence Against Abolitionists in the South, 7 Negro Hist. Bull. 134 (1944) (analyzing mob violence against abolitionists in Southern states).
[132]. See generally Lorman Ratner, Powder Keg: Northern Opposition to the Antislavery Movement, 1831–40 (1968) (analyzing multiple themes shaping antislavery viewpoints in Northern states).
[133]. Curtis, Darling Privilege, supra note 80, at 241–42.
[134]. Rory McVeigh, The Rise of the Ku Klux Klan: Right-Wing Movements and National Politics 38–41 (2009) [hereinafter McVeigh, Right-Wing Movements].
[135]. Id.
[136]. Id. at 44.
[137]. Id. at 46–47.
[138]. See Mark A. Yanochik, Bradley T. Ewing & Mark Thornton, A New Perspective on Antebellum Slavery: Public Policy and Slave Prices, 29 Atlantic Econ. J. 330, 332 (2001).
[139]. Mark Stelzner & Sven Beckert, The Contribution of Enslaved Workers to Output
and Growth in the Antebellum United States, 77 Econ. Hist. Rev. 137, 155 (2024) (finding slave labor as the source of 12.49 to 18 percent of per capita rise in the gross national product between 1839 and 1859).
[140]. Id. at 138–44.
[141]. Id.
[142]. Neal Allen, The Limits of Emancipation: Black Americans and White Southern Dominance of American Politics from the Founding to the Twenty-First Century, 18 Nat’l Pol. Sci. Rev. 111, 116 (2016); Akhil Reed Amar, America’s Constitution: A Biography 157–59 (2006); Paul Finkelman, The Proslavery Origins of the Electoral College, 23 Cardozo L. Rev. 1145, 1145 (2002).
[143]. U.S. Const. art. I, § 2, cl. 3.
[144]. See Jeffrey J. Pokorak, Rape as a Badge of Slavery: The Legal History of, and Remedies for, Prosecutorial Race-of-Victim Charging Disparities, 7 Nev. L.J. 1, 11–13 (2006); Dorothy E. Roberts, Crime, Race, and Reproduction, 67 Tul. L. Rev. 1945, 1954–55 (1993). See generally A. Leon Higginbotham, Jr., In the Matter of Color: Race and the American Legal Process: The Colonial Period (1978) (analyzing racist criminal law in colonial Virginia).
[145]. 60 U.S. (19 How.) 393, 481–82 (1857).
[146]. Gabriel J. Chin, A Nation of White Immigrants: State and Federal Racial Preferences for White Noncitizens, 100 B.U. L. Rev. 1271, 1279–80 (2020).
[147]. George McDowell Stroud, A Sketch of the Laws Relating to Slavery in the Several States of the United States Of America 94 (1856) (discussing testimony).
[148]. Peter Wallenstein, Blue Laws and Black Codes: Conflicts, Courts, and Change in Twentieth-Century Virginia 4–5 (2004) (discussing juries, voting, and holding office).
[149]. See infra Part I.C.1.a.
[150]. Social constructivist, rather than biological, theories of racism pervade social science literature. See Laura E. Gómez, Understanding Law and Race as Mutually Constitutive: An Invitation to Explore an Emerging Field, 6 Ann. Rev. L. & Soc. Sci. 487, 491 (2010) (discussing the social constructionist view of race that “has become pervasive in the social sciences over the past few decades”). Though most scholars understand race as a malleable and shifting social category, they also contend that race has concrete and substantial effects. Id. at 491.
[151]. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857).
[152]. See Jeff Forret, Slave-Poor White Violence in the Antebellum Carolinas, 81 N.C. Hist. Rev. 139, 149 (2004) (“Whiteness conferred upon even poor [W]hites certain social privileges, including the expectation of respect and deference.”); Charles Mills, The Racial Contract 59 (1997) (“No matter how poor one was, one was still able to affirm the whiteness that distinguished one from the subpersons on the other side of the color line.”); Jeffrey Prager, White Racial Privilege and Social Change: An Examination of Theories of Racism, 17 Berkeley J. Soc. 117, 137 (1972) (“Both the [W]hite capitalists and the [W]hite workers gained from this arrangement; both gained from racism.”); W.E.B. Du Bois, Black Reconstruction in America 20–34 (1935) (discussing the racist divide between poor middle-class Whites and Blacks during enslavement). Some scholars find that poor Whites did not enjoy racial privileges. Their arguments, however, tend to dismiss or minimize material distinctions between enslavement and poverty. See, e.g., Harriet Coombs, “Poor, deluded, ignorant masses”: Revisiting the Poor Non-slaveholding Whites of the Antebellum South, 23 Am. Nineteenth Century Hist. 285, 297 (2022) (“Yet poor [W]hites occupied a position at the bottom of the social order, only one rung removed from slavery. . . . [T]he privileges of whiteness were limited for poor [W]hites by the outbreak of the Civil War.”); Keri Leigh Merritt, Masterless Men: Poor Whites and Slavery in the Antebellum South 24–25 (2017) (arguing that enslavement harmed poor Whites without discussing the benefits of not being enslaved).
[153]. See McVeigh, Right-Wing Movements, supra note 134, at 46–47.
[154]. James Henry Hammond, Speech on the Justice of Receiving Petitions for the Abolition of Slavery in the District of Columbia., Feb. 1, 1836, in Selections from the Letters and Speeches of the Hon. James H. Hammond 15, 49 (1866), https://tile.loc.gov/storage-services/public/gdcmassbookdig/selectionsfromle01hamm/selectionsfromle01hamm.pdf [https://perma.cc/7JGQ-FPY2].
[155]. Manisha Sinha, Did the Abolitionists Cause the Civil War?, in The Abolitionist Imagination 93–94 (Andrew Delbanco ed., 2012).
[156]. Curtis, Darling Privilege, supra note 80, at 140.
[157]. Id. at 135–36.
[158]. Linda K. Kerber, Abolitionists and Amalgamators: The New York City Race Riots of 1834, 48 N.Y. Hist. 28, 38 (1967).
[159]. Ira V. Brown, Racism and Sexism: The Case of Pennsylvania Hall, 37 Phylon 126, 128–31 (1976).
[160]. Id. at 130–32.
[161]. Id. at 132.
[162]. Id. at 133.
[163]. Id.
[164]. Id.
[165]. See Christopher A. Luse, Slavery’s Champions Stood at Odds: Polygenesis and the Defense of Slavery, 53 Civil War Hist. 379, 380 (2007) (discussing southerners’ belief in the “paternalistic ideal of the master-slave relationship”); Elizabeth Fox-Genovese & Eugene D. Genovese, The Divine Sanction of Social Order: Religious Foundations of the Southern Slaveholders’ World View, 55 J. Am. Acad. Religion 211, 219 (1987) (discussing widespread belief among southerners that enslavement was “at once humane and stern, compassionate and firm, paternalistic and demanding”). For an extended effort to defend enslavement on paternalistic grounds, see generally Henry Hughes, Treatise on Sociology, Theoretical and Practical (1854) (discussing enslavement as a relationship between warrantors and warrantees).
[166]. Robert J. Miller, American Indians, the Doctrine of Discovery, and Manifest Destiny, 11 Wyo. L. Rev. 329, 332 (2011) (discussing Manifest Destiny, its religious linkages, and justification for “continental expansion and the displacement of native peoples” by the United States).
[167]. Curtis, Darling Privilege, supra note 80, at 417 (“The free speech tradition among the people was ahead of the courts, just as the popular effort to establish representative democracy had been ahead of existing legal structures.”).
[168]. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373, 374 (2007) (arguing that constitutional law is made in a democratic process, involving “traditions of popular engagement that authorize citizens to make claims about the Constitution’s meaning and to oppose their government—through constitutional lawmaking, electoral politics, and the institutions of civil society”).
[169]. Eric Foner, The Meaning of Freedom in the Age of Emancipation, 81 J. Am. Hist. 435, 452 (1994); see George A. Levesque, Black Abolitionists in the Age of Jackson: Catalysts in the Radicalization of American Abolitionism, 1 J. Black Studs. 187, 188 (1970) [hereinafter Levesque, Black Abolitionists].
[170]. Eric Burin, Slavery and the Peculiar Solution: A History of the American Colonization Society 1 (2005).
[171]. Id. at 1.
[172]. See Burin, supra note 170, at 68–70 (discussing recruitment of Blacks by the ACS); Dalila Scruggs, “The Love of Liberty Has Brought Us Here”: The American Colonization Society and the Imaging of African-American Settlers in Liberia 10 (2010) (Ph.D. dissertation, Harvard University) (discussing the utopian portrayal of Liberia by the ACS).
[173]. Paul Goodman, Of One Blood: Abolitionism and the Origins of Racial Equality 24 (1998) [hereinafter Goodman, Of One Blood].
[174]. American Colonization Society, 1 African Repository & Colonial J. 1, 68 (1825).
[175]. Black abolitionist David Walker’s appeal includes a letter he received from Bishop Richard Allen of the African Methodist Episcopal Church in the United States. Allen criticizes colonization by claiming Black citizenship: “[T]his land which we have watered with our tears and our blood, is now our mother country, and we are well satisfied to stay where wisdom abounds and the gospel is free.” David Walker, Appeal to the Coloured Citizens of the World art. IV (rev. ed. 1830) [hereinafter Walker, Appeal to the Coloured Citizens] https://utc.iath.virginia.edu/abolitn/abesdwa2t.html [https://perma.cc/2PWN-NWK2] (quoting Bishop Richard Allen).
[176]. Sinha, The Slave’s Cause, supra note 48, at 195 (discussing Black origins of immediate emancipation); see also Kelly Ross, Slavery: African American Vigilance in Slave Narratives of the 1820s and 1830s, in The Cambridge Companion to Nineteenth-Century Am. Literature and Pol. 161, 162–63 (John D. Kerkering ed., 2024); Michael Haspel, The Image of God and Immediate Emancipation: David Walker’s Theological Foundation of Equality and the Rejection of White Supremacy, 117 Harv. Theo. Rev. 138, 139 (2024).
[177]. Leon W. Litwack, North of Slavery: The Negro in the Free States, 1790–1860, at 3 (1961). Litwack discusses abolition by state constitutional provision in Vermont, Ohio, Illinois, and Indiana; by judicial opinion in Massachusetts; by statute construing state constitution in New Hampshire; and by gradual emancipation statutes in Pennsylvania, Rhode Island, Connecticut, New York, and New Jersey. Id. at n.1.
[178]. See Goodman, Of One Blood, supra note 173, at 40–44.
[179]. Sinha, The Slave’s Cause, supra note 48, at 195–215 (discussing Black radical tradition and abolitionism).
[180]. David Walker, Appeal to the Coloured Citizens, supra note 175, at 9.
[181]. Id. at 4 (rhetorically asking Blacks who might doubt the benefits of resistance: “Can our condition be any worse?--Can it be more mean and abject? If there are any changes, will they not be for the better, though they may appear for the worst at first? Can they get us any lower? Where can they get us?”).
[182]. See William H. Pease & Jane H. Pease, Antislavery Ambivalence: Immediatism, Expediency, Race, 17 Am. Q. 682, 695 (1965).
[183]. Levesque, Black Abolitionists, supra note 169, at 193–94.
[184]. Carol Wilson, Freedom at Risk: The Kidnapping of Free Blacks in America, 1780–1865, at 9 (1994).
[185]. Id.
[186]. Benjamin Quarles, Black Abolitionists 92 (1969); see also Elizabeth Beaumont, The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy 122 (2014) (discussing goals of emancipation and citizenship); Stephen Kantrowitz, More Than Freedom: Fighting for Black Citizenship in a White Republic, 1829–1889, at 4–5 (2012) [hereinafter Kantrowitz, More Than Freedom] (discussing Blacks’ battle for justice beyond emancipation).
[187]. Beaumont, supra note 186, at 123.
[188]. Kantrowitz, More Than Freedom, supra note 186, at 4–5 (discussing Blacks’ battle for justice beyond emancipation).
[189]. Blacks treated emancipation and citizenship as a single project of racial justice. See, e.g., Our Platform, New Orleans Trib., Mar. 5, 1865, at 2 (demanding “full justice” and “entire freedom”).
[190]. Kantrowitz, More Than Freedom, supra note 186, at 34 (arguing that the meaning of citizenship “remained vague, ambiguous, and often contradictory”).
[191]. Jack M. Balkin, Plessy, Brown, and Grutter: A Play in Three Acts, 26 Cardozo L. Rev. 1689, 1689–90 (2005) [hereinafter Balkin, A Play in Three Acts] (discussing a “tripartite theory of citizenship”); see also Reggie Oh, Black Citizenship, Dehumanization, and the Fourteenth Amendment, 12 ConLawNOW 157, 161–62 (2021) (contrasting tripartite citizenship categories from “formal citizenship,” which describes membership in a political state).
[192]. Balkin, A Play in Three Acts, supra note 191, at 1694.
[193]. Id.
[194]. Id.
[195]. Id.; see also Kantrowitz, More Than Freedom, supra note 186, at 383 (“The ‘social’ in ‘social equality’ was in no sense a coherent realm, but one characterized by ever shifting boundaries.”).
[196]. Balkin, A Play in Three Acts, supra note 191, at 1694.
[197]. See generally Joseph Fishkin, Equal Citizenship and the Individual Right to Vote, 86 Ind. L.J. 1289, 1341 (2011) (discussing the “older idea of citizenship in a democratic state, in which full citizenship entails a right to vote”); Adam Winkler, A Revolution Too Soon: Woman Suffragists and the “Living Constitution,” 76 N.Y.U. L. Rev. 1456, 1520 (2001) (discussing suffrage and women’s citizenship); Jenny Carroll & James Jeter, Reconstructing Citizenship, 110 Va. L. Rev. Online 341, 350 (2024) (analyzing the tradition of voting being seen “as a primary obligation of citizenship” alongside the tradition of denying franchise on the basis of race, poverty, and sex).
[198]. David A. Bateman, Partisan Polarization on Black Suffrage, 1785–1868, 18 Perspectives on Pol. 470, 470 (2020) (discussing Black enfranchisement as a means of ending slave power); Garrett Epps, The Antebellum Political Background of the Fourteenth Amendment, 67 Law & Contemp. Probs. 175, 189 (2004) (arguing that the Three-Fifths Clause, Fugitive Slave Clause, and Domestic Violence Clause empowered slaveholding states).
[199]. Frederick Douglass advocated “impartial suffrage” for several reasons, including that Black men had proven their worthiness by fighting for the Union; Black suffrage would promote good citizenship and noble conduct; Black suffrage was needed to prevent the South from overturning the war through the ballot box; and Black suffrage was needed to protect liberty. See Frederick Douglass, An Appeal to Congress for Impartial Suffrage, in The Frederick Douglass Papers: Series Four: Journalism and Other Writings, Volume 1 113, 116–22 (John R. McKivigan ed., 2021).
[200]. Inevitably, support for universal suffrage was particularly strong among Black women—although their positions were quite nuanced. See, e.g., C.C. O’Brien, The White Women All Go for Sex: Frances Harper on Suffrage, Citizenship, and the Reconstruction South, 43 Afr. Am. Rev. 605, 608 (2009) (discussing Blacks’ belief that Black suffrage could protect Black women from White men); Nancy Hoffman, Teaching about Slavery, the Abolitionist Movement, and Women’s Suffrage, 14 Women’s Stud. Q. 2, 2 (1986) (discussing Sojourner Truth’s call for Black women’s suffrage in the face of opposition from both abolitionists and White female suffragists).
[201]. Faye E. Dudden, Fighting Chance: The Struggle Over Woman Suffrage and Black Suffrage in Reconstruction America 4 (discussing Garrison’s view that Black and women’s suffrage were inseparable causes for human rights).
[202]. Sinha, The Slave’s Cause, supra note 48, at 316–25 (discussing Black suffrage efforts in the North prior to the Civil War, linking this struggle to abolitionism).
[203]. Kantrowitz, More Than Freedom, supra note 186, at 124–33; Derek W. Black, Freedom, Democracy, and the Right to Education, 116 Nw. U. L. Rev. 1031, 1040–48 (2022).
[204]. Henry Louis Gates, Jr., Figures in Black: Words, Signs, and the “Racial” Self 11 (1987).
[205]. See infra Part II.C.1.a.
[206]. McBride, Impossible Witness, supra note 77, at 75.
[207]. V. P. Franklin, Introduction—To Be Heard in Black and White: Historical Perspectives on Black Print Culture, 95 J. Afr. Am. Hist. 291, 291 (2010).
[208]. Frederick Cooper, Elevating the Race: The Social Thought of Black Leaders, 1827–50, 24 Am. Q. 604, 604 (1972) [hereinafter Cooper, Elevating the Race].
[209]. Id. at 604–05.
[210]. Hilary J. Moss, Education’s Inequity: Opposition to Black Higher Education in Antebellum Connecticut, 46 Hist. Ed. Q. 16, 29 (2006) [hereinafter Moss, Education’s Inequity].
[211]. Id. at 25.
[212]. Cooper, Elevating the Race, supra note 208, at 619.
[213]. Moss, Education’s Inequity, supra note 210, at 17–18 (discussing the violent response to the planned construction of a college for Blacks in New Haven, Connecticut); Miriam R. Small & Edwin W. Small, Prudence Crandall Champion of Negro Education, 17 New Eng. Q. 506, 525–27 (1944) (discussing the violent response to the operation of a school for Black girls in Canterbury, Connecticut).
[214]. Moss, Education’s Inequity, supra note 210, at 30–31.
[215]. See Donald R. Warren, The U.S. Department of Education: A Reconstruction Promise to Black Americans, 43 J. Negro Ed. 437, 440–41(1974) (discussing Black support for the DOE to create public schooling opportunities); see also Hilary Green, Educational Reconstruction: African American Schools in the Urban South, 1865–1890 at 38 (2016) (“The symbiotic relationship between black Mobilians and the Freedmen’s Bureau proved essential in the statewide development of African American schools.”); AnneMarie Brosnan, “To Educate Themselves”: Southern Black Teachers in North Carolina’s Schools for the Freedpeople During the Civil War and Reconstruction Period, 1862–1875, 20 Am. Nineteenth Century Hist. 231, 233 (2019) (discussing Black demands for education made to the state and federal governments); Lester C. Lamon, Black Public Education in the South, 1861–1920: By Whom, For Whom and Under Whose Control?, 18 J. Thought 76, 76 (1983) (“By their own actions, blacks forced the issues of freedom and education to the point of decision by federal authorities and other interested northern agencies.”); Eric Foner, Reconstruction Revisited, 10 Revs. Am. Hist. 82, 87 (1982) (discussing Black demands for education during Reconstruction).
[216]. See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989) (holding that the Fourteenth Amendment does not protect against the actions of private parties).
[217]. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 58–59 (1973) (holding that there is no positive right to education under the Equal Protection Clause).
[218]. Lynda J. Morgan, Known for My Work: African American Ethics from Slavery to Freedom 127 (2016) (“As former slaves well knew, specific policies addressing political and economic injustices are essential to achieving a lasting social harmony.”).
[219]. David H. Gans, “I Am Free but Without a Cent”: Economic Justice as Equal Citizenship, 93 Geo. Wash. U. L. Rev. 221, 240 (2025) (“Ensuring some measure of economic justice was necessary to make equal citizenship a reality.”).
[220]. Edward Royce, The Origins of Southern Sharecropping 86 (1993) [hereinafter Royce, Southern Sharecropping].
[221]. Benjamin T. Lynerd & Jack Wartell, “A Natural Right to the Soil”: Black Abolitionists and the Meaning of Freedom, 54 J. Black Stud. 62, 78 (2023) (arguing that “black abolitionists viewed emancipation as nothing short of full membership in the American republic, a membership which would rely directly upon access to productive land”).
[222]. Royce, Southern Sharecropping, supra note 220, at 58.
[223]. Susan D. Carle, Reconstruction’s Lessons, 13 Colum. J. Race & L. 734, 745–46 (2023).
[224]. Waldo E. Martin, Jr., The Mind of Frederick Douglass 72 (1984) (discussing Douglass’s view that failure to address economic needs left Blacks vulnerable to exploitation by wealthy Whites). Enslaved persons were particularly adamant about the need for land distribution. See, e.g., Karen Cook Bell, Claiming Freedom: Race, Kinship, and Land in Nineteenth-Century Georgia 53 (2018) (“Former slaves believed that securing their freedom was incompatible with continuing to work for their former masters. Freedom from White supervision implied land ownership and freedom to control their lives and the disposition of their labor.”); Milfred C. Fierce, Black Struggle for Land During Reconstruction, 5 Black Scholar 13, 13–14 (1974).
[225]. Frederick Douglass, In Law Free; In Fact, a Slave: An Address Delivered in Washington, D.C., on April 16, 1888, Frederick Douglass Papers Project [hereinafter Douglass, In Law Free], https://frederickdouglasspapersproject.com/s/digitaledition/item/18796 [https://perma.cc/YU3Y-VDUD].
[226]. Id.
[227]. Id. (“Take his relation to the national government and we shall find him a deserted, a defrauded, a swindled, and an outcast man.”).
[228]. Id.
[229]. Id.
[230]. Id. (emphasis added).
[231]. Id.
[232]. Id.
[233]. Id. (criticizing sharecropping); see Risa L. Goluboff, The Lost Promise of Civil Rights 51–80 (2007) (discussing exploitation of Black farm workers and legal struggle to redress it).
[234]. Frederick Douglass, West India Emancipation, Address in Elmira, N. Y. (Aug. 1, 1880), in Life and Times of Frederick Douglass, Written By Himself 612 (1892), https://docsouth.unc.edu/neh/dougl92/dougl92.html (copy on file with California Law Review) (criticizing failure to provide Southern Blacks the means to secure economic security, arguing that had the plan succeeded, the “negro to-day would not be on his knees . . . abjectly supplicating the old master class to give him leave to toil” or “leaving the South as from a doomed city, and seeking a home in the uncongenial North, but tilling his native soil in comparative independence”).
[235]. See, e.g., Darren Lenard Hutchinson, “With All the Majesty of the Law”: Systemic Racism, Punitive Sentiment, and Equal Protection, 110 Calif. L. Rev. 371, 383–94 (2022) (discussing criminal law, re-enslavement, capital punishment, and lynching); Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 900, 941–49 (2019) (discussing criminal law and re-enslavement).
[236]. Legal scholars have argued that the “citizenship clause” of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, obligates the government to make provisions for protection and human flourishing. See, e.g., Gans, supra note 219, at 253–77 (analyzing citizenship and positive rights); Goodwin Liu, Education, Equality, and National Citizenship, 116 Yale L.J. 330, 403 (2006) (“In securing national citizenship, the federal government must serve not merely as a facilitator of educational choices that reflect each state’s ambition and capacity, but as the ultimate guarantor of opportunity for every child to achieve equal standing and full participation in the national community.”).
[237]. Douglass, In Law Free, supra note 225.
[238]. Roberts, supra note 32, at 105–22 (encouraging prison abolitionists to employ the progressive views of antislavery abolitionists to reinterpret the meaning of Reconstruction Amendments).
[239]. Eric Storm & Joep Leerssen, Introduction, in World Fairs and the Global Moulding of National Identities 1, at 1 (Eric Storm & Joep Leerssen eds., 2021) [hereinafter Storm & Leersen, Global Moulding].
[240]. Id. at 4. Communication technologies, like radio, film, television, and the Internet have overshadowed the World’s Fair as a platform for national-identity formation. Id. at 7.
[241]. Stephen May, Multiculturalism, in A Companion to Racial and Ethnic Studies 124 (David Theo Goldberg & John Solomos eds., 2002).
[242]. Edgaras Klivis, National Identity, in The Oxford Handbook of Politics and Performance 179 (Shirin M. Rai, Milija Gluhovic, Silvija Jestrovic & Michael Saward eds., 2021).
[243]. Curtis M. Hinsley & David R. Wilcox, Introduction, in Coming of Age in Chicago: The 1893 World’s Fair and the Coalescence of American Anthropology 17 (Curtis M. Hinsley & David R. Wilcox eds., 2016) [hereinafter Hinsley & Wilcox, Introduction]; Bessie Louise Pierce, A History of Chicago: Volume III, The Rise of a Modern City, 1871–1893 501–12 (1957).
[244]. Hinsley & Wilcox, Introduction, supra note 243, at 15.
[245]. Robert W. Rydell, Self Becomes Nation: Sol Bloom and America’s World Fairs, 1893–1939, in Global Moulding, supra note 239, at 217; Alessandra Lorini, The Racial Ideology of National Reconciliation at the International Expositions of Chicago (1893) and Atlanta (1895), 28 Cahiers Charles V 91, 93–94 (2000) [hereinafter Lorini, The Racial Ideology].
[246]. The 1893 World Columbian Exposition in Chicago, Libr. of Cong., https://www.loc.gov/collections/songs-of-america/articles-and-essays/historical-topics/1893-World-Columbian-Exposition/ [https://perma.cc/3W5C-5BHV] (providing an overview of the exposition); World’s Columbian Exposition of 1893, PBS: Am. Experience, https://www.pbs.org/wgbh/americanexperience/features/chicago-worlds-columbian-exposition-1893/ [https://perma.cc/Q5AV-69JJ] (same).
[247]. Rosalyn R. LaPier & David R. M. Beck, City Indian: Native American Activism in Chicago, 1893–1934 17 (2015) (discussing theme of “progress” at Chicago World’s Fair).
[248]. Hinsley & Wilcox, Introduction, supra note 243, at 15–16; Lorini, Racial Ideology, supra note 245, at 93; Astrid Böger, Envisioning Progress at Chicago’s White City, in Space in America: Theory, History, Culture 269 (Klaus Benesch & Kerstin Schmidt eds., 2005) [hereinafter Böger, Chicago’s White City] (discussing the goal of projecting the “nation’s unity and renewed economic strength”).
[249]. Böger, Chicago’s White City, supra note 248, at 270.
[250]. Jessie Heckman Hirschl, The Great White City, 11 Am. Heritage (1960), https://www.americanheritage.com/great-white-city [https://perma.cc/RR9T-2TKW].
[251]. Bridgett R. Cooks, Fixing Race: Visual Representations of African Americans at the World’s Columbian Exposition, Chicago, 1893, 41 Patterns Prejudice 435, 444 (2007) [hereinafter Cooks, Fixing Race] (discussing racial composition of WCC); Judy Sund, Columbus and Columbia in Chicago, 1893: Man of Genius Meets Generic Woman, 75 Art Bul. 443, 446 (1993) [hereinafter Sund, Columbia in Chicago] (discussing the all-male composition of the WCC).
[252]. See Act of Apr. 25, 1890, ch. 156, § 6, 26 Stat. 62, 63, An Act to Provide for Celebrating the Four Hundredth Anniversary of the Discovery of America by Christopher Columbus by Holding an International Exhibition of Arts, Industries, Manufactures, and the Product of the Soil, Mine, and Sea in the City of Chicago, in the State of Illinois [hereinafter WCC Act] (providing powers and duties of the World’s Columbian Commission).
[253]. WCC Act § 2.
[254]. Cooks, Fixing Race, supra note 251, at 444 (discussing racial conflict regarding the exposition).
[255]. Robert W. Rydell, A Cultural Frankenstein? The Chicago World’s Columbian Exposition of 1893, in American Architectural History: A Contemporary Reader 249 (Keith L. Eggener ed., 2004) [hereinafter Rydell, A Cultural Frankenstein] (discussing police barring Douglass from the stage at the 1876 Philadelphia Centennial Exhibition and police excluding Douglass from the 1884–1885 New Orleans World’s Industrial and Cotton Exposition).
[256]. Cooks, Fixing Race, supra note 251, at 445; Rydell, A Cultural Frankenstein, supra note 255, at 249.
[257]. Ida B. Wells, Frederick Douglass, Irvine Garland Penn & Ferdinand Lee Barnett, The Reason Why the Colored American Is Not in the World’s Columbian Exposition (Ida B. Wells ed., 1893) [hereinafter Wells, et al., The Reason Why], https://digital.library.upenn.edu/women/wells/exposition/exposition.html [https://perma.cc/5X8Q-K6YW].
[258]. See Cooks, Fixing Race, supra note 251, at 444; Sund, Columbia in Chicago, supra note 251, at 443; Laura L. Behling, Reification and Resistance: The Rhetoric of Black Womanhood at the Columbian Exposition, 1893, 25 Women’s Stud. Comm. 173 (2010); Christopher Robert Reed, “All the World Is Here!” The Black Presence at White City (2000); Robert W. Rydell, All the World’s a Fair: Visions of Empire at American International Expositions, 1876–1916 (1999); David F. Burg, Chicago’s White City of 1893 (1976); Robert Muccigrosso, Celebrating the New World: Chicago’s Columbian Exposition of 1893 (1993); Thomas J. Schlereth, Columbia, Columbus, and Columbianism, 79 J. Am. Hist. 964 (1992); Elliot M. Rudwick & August Meier, Black Man in the “White City”: Negroes and the Columbian Exposition, 1893, 26 Phylon 354 (1965); Reid Badger, The Great American Fair: The World’s Columbian Exposition & American Culture (1979); Robert W. Rydell, The World’s Columbian Exposition of 1893: Racist Underpinnings of a Utopian Artifact, 1 J. Am. Culture 253 (1978) .
[259]. The few law review articles that cite The Reason Why focus mainly on lynching and other forms of subjugation. See, e.g., Martha S. Jones, Response to Professor Blight’s Frederick Douglass and the Two Constitutions: Proslavery and Antislavery, 111 Calif. L. Rev. 1929, 1940 & n.56 (2023); Roberts, Abolition Constitutionalism, supra note 32, at 31.
[260]. Debates regarding the need for abolitionism post-emancipation became quite heated and divisive. See James M. McPherson, The Struggle for Equality: Abolitionists and the Negro in the Civil War and Reconstruction 296–315 (2d ed. 1994) (discussing conflict over the role of abolition post-emancipation).
[261]. See infra Part II.A.1.b.
[262]. James W. Fox, Jr., Black Progressivism and the Progressive Court, 130 Yale L.J. Forum 398, 406 (2021) (arguing that Wells connects two generations of antiracism by offering “a Black progressive critique that rests in part on the older analysis of Douglass but also speaks to a more modern problem” of enslavement and U.S. economic strength).
[263]. Frederick Douglass’s Original New York Times Obituary From 1895, N.Y. Times (Feb. 14, 2019), https://www.nytimes.com/2019/02/14/obituaries/frederick-douglass-dead-1895.html [https://perma.cc/89ZL-CTBR]; Ida B. Wells, Crusade for Justice: The Autobiography of Ida B. Wells (2d ed. 1970); Joanne K. Harrison & Grant Harrison, The Life and Times of Irvine Garland Penn (2000); (1879) Ferdinand L. Barnett, Race Unity, Black Past (Jan. 28, 2007), https://www.blackpast.org/african-american-history/1879-ferdinand-l-barnett-race-unity/ [https://perma.cc/Q8ED-XR5X] (reprint of the speech with biographical information).
[264]. Barnett, The Reason Why, in Wells, et al., The Reason Why, supra note 257, at 63 [hereinafter, Barnett, The Reason Why (Book Chapter)].
[265]. Id.
[266]. Id. Undoubtedly, well-educated and professional Blacks (like the three younger coauthors) stood to gain the most. The removal of bias would potentially give them access to the nation’s mainstream institutions of power and middle-class success.
[267]. See Barnett, The Reason Why (Book Chapter), supra note 264, at 64 (“[The Black man] was anxious to respond to this interest by showing to the world, not only what America has done for the Negro, but what the Negro has done for himself.”).
[268]. See infra Part II.A.3.
[269]. WCC Act § 6.
[270]. At this time, sex discrimination did not presumptively violate the Constitution. See Craig v. Boren, 429 U.S. 190, 197 (1976) (applying intermediate scrutiny in a sex discrimination case for first time).
[271]. Sarah Wadsworth & Wayne A. Wiegand, Right Here I See My Own Books: The Woman’s Building Library at the World’s Columbian Exposition 8 (2012); Gayle Gullett, “Our Great Opportunity”: Organized Women Advance Women’s Work at the World’s Columbian Exposition of 1893, 89 Ill. Hist. J. 259, 261 (1994).
[272]. Barnett, The Reason Why (Book Chapter), supra note 264, at 66.
[273]. Official Record of the Board of Lady Managers of the World’s Columbian Commission, Minutes of Second Session—Second Day, Thursday, September 3, 1891, in The Official Manual of the Board of Lady Managers of the World’s Columbian Commission 188, 223 (1891), http://livinghistoryofillinois.com/pdf_files/Official%20Manual%20of%20the%20Board%20of%20Lady%20Managers%20of%20the%20Worlds%20Columbian%20Commission,%20Including%20Board%20Minutes.pdf [https://perma.cc/X2VG-CFZP].
[274]. Official Record of the Board of Lady Managers of the World’s Columbian Commission, Second Session, Seventh Day, Wednesday, September 9, 1891, in Official Manual of the Board of Lady Managers of the World’s Columbian Commission 284, 299 (1891) [hereinafter Official Record of the Board of Lady Managers]; Wanda A. Hendricks, Gender, Race, and Politics in the Midwest: Black Club Women in Illinois 4 (1998) (describing Cantrill as a White woman).
[275]. Official Record of the Board of Lady Managers, supra note 273, at 284, 299 (emphasis added).
[276]. See, e.g., Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1876 (2012) (“Colorblindness disregards the reparative motives that animate affirmative action and renders immaterial the larger context of continuing discrimination in a society otherwise struggling to get past racism.”).
[277]. Barnett, The Reason Why (Book Chapter), supra note 264, at 72.
[278]. Id. at 73.
[279]. Id.
[280]. Id. at 73–74.
[281]. Id. at 70.
[282]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (SFFA), 600 U.S. 181, 206–07 (2023).
[283]. Id. at 230.
[284]. See, e.g., Grutter v. Bolinger, 539 U.S. 306, 330 (2003).
[285]. See id. at 329 (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.”).
[286]. See id. at 330–33.
[287]. SFFA, 600 U.S. at 220 (“One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” (quoting Rice v. Cayetano, 528 U.S. 495, 517 (1999))).
[288]. Id. at 220–21.
[289]. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting); SFFA, 600 U.S. at 229–30.
[290]. Plessy, 163 U.S. at 561–64 (Harlan, J., dissenting) (discussing the full range of equality and revealing the unstable nature of the “social” equality category).
[291]. Id. at 559 (emphasis added).
[292]. SFFA, 600 U.S. at 204 (“[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” (quoting Tr. of Oral Arg. in Brown I, O.T. 1952, No. 8, p. 7 (Robert L. Carter, Dec. 9, 1952))); id. (quoting Supp. Brief for Appellants on Reargument in Nos. 1, 2, and 4, and for Respondents in No. 10, in Brown v. Board of Education, O.T. 1953, p. 65 (“That the Constitution is color blind is our dedicated belief.”)).
[293]. Grutter v. Bolinger, 539 U.S. 306, 350 (2003) (Thomas, J., dissenting) (“Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”). Thomas grossly misstates Douglass’s analysis by taking it out of context and by not considering history that undermines his interpretation. See Douglass, In Law Free, supra note 225 (discussing economic and substantive justice and condemning colorblind laws that oppress Black sharecroppers).
[294]. Justice Sotomayor questioned the majority’s failure to mention Marshall’s opinions on affirmative action. See SFFA, 600 U.S. at 330–31 (Sotomayor, J., dissenting). The Court dismisses Marshall’s relevance, because his view was a dissenting position (like Harlan’s). See SFFA, 600 U.S. at 226–28.
[295]. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 551–52 (1989) (Marshall, J., dissenting) (“A profound difference separates governmental actions that themselves are racist, and governmental actions that seek to remedy the effects of prior racism or to prevent neutral governmental activity from perpetuating the effects of such racism.”).
[296]. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 245 (1995) (Stevens, J., dissenting).
[297]. For a definition of “poverty schools,” see Charles Clotfelter, Helen F. Ladd, Jacob Vigdor & Justin Wheeler, High-Poverty Schools and the Distribution of Teachers and Principals, 85 N.C. L. Rev. 1345, 1351 (2007) (“We follow standard practice in the education literature and measure poverty at the school level by the percentage of students who applied for and were found eligible for the federally sponsored free lunch program (those with incomes below 130% of the poverty line).”). For analysis of the racial composition of poor and wealthier schools, see generally Mavis G. Sanders, Poverty, Families, and Schools, in Urban Ills: Twenty-First-Century Complexities of Urban Living in Global Contexts 310, 311 (Carol Camp Yeakey, Vetta L. Sanders Thompson & Anjanette Wells eds., 2015) (“High poverty schools have higher percentages of Black and Hispanic students and students who report always speaking a language other than English at home.”); Erica Frankenberg, Jongyeon Ee, Jennifer B. Ayscue & Gary Orfield, Harming Our Common Future: America’s Segregated Schools 65 Years After Brown, C.R. Project/Proyecto Derechos Civiles & Ctr. for Educ. & C. R. (May 10, 2019), https://civilrightsproject.ucla.edu/wp-content/uploads/2019/05/Brown-65-050919v4-final.pdf [https://perma.cc/K8V5-ZWQZ] (finding very high racial and economic isolation among White, Latine, Asian, and Black student populations). These schools are also low performing. See Sanders, supra 297, at 310–14; Richard Rothstein, The Racial Achievement Gap, Segregated Schools, and Segregated Neighborhoods: A Constitutional Insult, 7 Race & Soc. Prob. 21, 21–23 (2015).
[298]. See Sanders, supra note 297, at 310–14 (educational impact); Rothstein, supra note 297, at 21–23 (same); Victoria E. Sosina & Ericka S. Weathers, Pathways to Inequality: Between-District Segregation and Racial Disparities in School District Expenditures, 5 AERA Open 1, 12–13 (2019) [hereinafter Sosina & Weathers, Pathways to Inequality] (linking segregation of Black and Latine students with negative spending with limited exception).
[299]. 411 U.S. 1, 54–55 (1973).
[300]. Kimberly Jenkins Robinson, No Quick Fix for Equity and Excellence: The Virtues of Incremental Shifts in Education Federalism, 27 Stan. L. & Pol’y Rev. 201, 207 (2016) (“Disparities in funding raised from property taxes due to disparities in wealth between districts undoubtedly cause inequities in per pupil funding and in the educational opportunities provided to students. This weakness of state funding systems is well documented and has been noted repeatedly in research and case law.”).
[301]. The Supreme Court questioned this reality in Rodriguez. 411 U.S. at 57 (1973) (“Yet, recent studies have indicated that the poorest families are not invariably clustered in the most impecunious school districts. Nor does it now appear that there is any more than a random chance that racial minorities are concentrated in property-poor districts.”). This summary finding contradicts an abundance of research. See sources cited supra note 298 (discussing the concentration of Black and Latine students in poverty schools and the negative educational consequences).
[302]. Olatunde C.A. Johnson, The Missing Half: Revisiting Monetary Remedies to Redress Racial Segregation, 59 Harv. C.R.-C.L. L. Rev. 277, 284–86 (2024) (analyzing the social networking benefits of integration).
[303]. See Sosina & Weathers, Pathways to Inequality, supra note 298, at 12–13 (finding a correlation between funding decisions and racial concentration).
[304]. Rodriguez, 411 U.S. at 70 (Marshall, J., dissenting).
[305]. Id. at 71.
[306]. Id. at 111 (Marshall, J., dissenting) (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).
[307]. Rodriguez, 411 U.S. at 111 (Marshall, J., dissenting) (quoting Wisconsin v. Yoder, 406 U.S. 205, 213 (1972)).
[308]. See supra Part II.A.3.b.
[309]. Rodriguez, 411 U.S. at 102–03 (Marshall, J., dissenting).
[310]. Id. at 112.
[311]. Id. (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)).
[312]. Id. at 113.
[313]. Id. Marshall also connected education to political rights, which adds another layer of Black liberation theory to his analysis. Id. at 112.
[314]. Randal S. Jeffrey, Equal Protection in State Courts: The New Economic Equality Rights, 17 L. & Ineq. 239, 271–72 (1999).
[315]. Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 Cornell L. Rev. 1, 11 (1992) (discussing the permissibility of de facto discrimination under Supreme Court equal protection doctrine).
[316]. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 736 (2007) (“The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations.”).
[317]. Andrew R. Highsmith & Ansley T. Erickson, Segregation as Splitting, Segregation as Joining: Schools, Housing, and the Many Modes of Jim Crow, 121 Am. J. Ed. 563, 583 (2015) (“Over the past generation, scholars have thoroughly dismantled the notion that segregation derived primarily from the private acts of racist individuals.”).
[318]. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15–16 (1971) (discussing duty of school officials to undo harms of segregation).
[319]. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 212–13 (1989) (Blackmun, J., dissenting) (comparing the majority to “antebellum judges who denied relief to fugitive slaves” and contending that “our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them”); John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1655 (2001) (arguing in the statutory context that “ambiguous language necessarily vests judges with some degree of policymaking discretion”); Caroline Mala Corbin, Free Speech Originalism: Unconstraining in Theory and Opportunistic in Practice, 92 Geo. Wash. L. Rev. 633, 639 (2024) (arguing that “judicial discretion is inevitable because courts cannot easily uncover the original meaning from a much earlier historical era, especially an original meaning that will determine how a case today should be decided”).
[320]. Merton L. Dillon, The Failure of the American Abolitionists, J. S. Hist. 159, 176 (1959) (arguing that “abolitionists had failed to create widespread determination in any part of the nation to grant to the freedmen social or political or economic equality”).
