Excerpted From: Rebecca E. Zietlow, Freedom Seekers: The Transgressive Constitutionalism of Fugitives from Slavery, 97 Notre Dame Law Review 1375 (April, 2022) (272 Footnotes) (Full Document)

RebeccaZietlowIn The Reconstruction Amendments: The Essential Documents, Kurt Lash has created an important resource for scholars of the Reconstruction Era. Along with Supreme Court opinions and congressional debates, Lash includes many sources written by advocates for constitutional change. By doing so, Lash acknowledges that constitutional meaning is not created only by courts, or even only by lawyers, but also by political advocates and grassroots movements. As Lash explains, “[t]he nature of the original Constitution, the proper division of national and state power, the meaning of American citizenship and human freedom, and the significance of race--all were subjects of nationwide debate long before the Civil War.” Several of the documents included in Volume One of the collection were written by free black people who advocated for their own civil rights as well as the end of slavery. These are significant documents because they add to our understanding of how constitutional change happens and help guide our interpretation of the changes wrought as a result of that advocacy. However, there is a significant perspective missing from The Essential Documents--that of the fugitives from slavery who served as catalysts for the constitutional change.

Indeed, until now, fugitives from slavery have largely been absent from virtually all of the legal scholarship about the antebellum and Reconstruction Era. This Article seeks to remedy that oversight. As William Carter has noted, “[B]y listening to enslaved persons' voices, we credit them as part of the contemporaneous polity whose understandings should matter in constitutional interpretation, rather than merely as passive beneficiaries to, or forgotten members of, the Second Founding” which took place during the Reconstruction Era. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights. Their actions were central to the antislavery struggle, and their sacrifices send a profound moral message which inspired other activists and strengthened their cause. Eventually, the Reconstruction Congress enshrined their claims into constitutional law.

In the years leading up to the Civil War, fugitives from slavery put their lives on the line to improve their own status and that of their families in their quest for freedom. Fugitives from slavery, or “freedom seekers,” engaged in civil disobedience, resisting laws that they believed to be unjust and inhumane. In the North, free black people and their white allies supported the freedom seekers by engaging in civil disobedience of their own. Many joined the Underground Railroad and helped freedom seekers to escape. Other free black people engaged in mass demonstrations to protest the kidnapping of those whom slave catchers accused of being fugitives. Freedom seekers raised concerns related to the fundamental structure of our government, including interstate comity and federalism. They also demanded fundamental human rights, foremost of which was what Hannah Arendt calls “the right to have rights,” to be recognized as human beings who are entitled to legal protection.

The transgressive constitutionalism of freedom seekers created tensions between free and slave states which ultimately led to the Civil War. Their claims to freedom intensified during the Civil War, when they fled across Union battle lines and demanded not only their freedom, but also their right to fight for their country as citizens. By doing so, they asserted their claim to citizenship and other individual rights, which were then enforced by the Reconstruction Congress.

This Article thus challenges the standard narrative of the abolition of slavery--that of well-meaning white lawmakers bestowing freedom upon grateful enslaved people. In popular culture, President Abraham Lincoln is known as the Great Emancipator, and the Emancipation Proclamation is portrayed as the single act which freed enslaved people from their bondage. Legal scholars tend to focus not only on Lincoln but also on the members of the Reconstruction Congress who debated the constitutional Amendments and statutes that abolished slavery and established individual rights for newly freed slaves. Recently, legal scholars have turned their attention to popular constitutionalism, or constitutional advocacy outside the courts, and some have studied the constitutional impact of antislavery activists and their theories of rights. However, until now, legal scholars have largely overlooked the impact of fugitives from slavery on this crucial period of U.S. constitutional development. By contrast, in the field of history, there is currently an emerging scholarship about freedom seekers and their individual experiences, and their free black allies in the North. This Article builds on this historical scholarship and explores the impact of this activism on how we should think about constitutional development and the meaning of Reconstruction.

This Article thus considers what it means to be a constitutional advocate. Plaintiffs who file lawsuits asserting their rights are clearly constitutional advocates, and they are the focus of much of legal scholarship about constitutional change. Political advocates who rely on the Constitution to support their claims are also constitutional advocates and the subject of the new scholarship on popular constitutionalism. Fugitives from slavery engaged in both of those forms of constitutional advocacy. Some filed lawsuits claiming their right to freedom, and some actually won those suits. Others engaged in political activism. Some freedom seekers published narratives of their lives, testaments to the cruelty of slavery which persuaded many to join the antislavery cause. Fugitive slaves such as Frederick Douglass served as leaders of the abolitionist movement, especially in the decades leading up to the Civil War.

The vast majority of freedom seekers, however, did not openly advocate for political change for obvious reasons--they were afraid of being captured and returned to slavery. However, they also engaged in constitutional activism, what I call “performative constitutionalism”--using their bodies and actions to assert constitutional claims. Freedom seekers engaged in a particular form of performative constitutionalism--“transgressive constitutionalism.” By transgressing borders from slave states to free, they asserted their claims to freedom and fundamental human rights with their actions.

Until now overlooked by legal scholars, the transgressive constitutionalism of fugitives from slavery served as a crucial catalyst for the constitutional changes which occurred during the Civil War and Reconstruction Era. Perhaps the reason why legal scholars have largely overlooked the transgressive constitutionalism of fugitives from slavery is that they mostly did not make claims in express constitutional terms. Determining the mindset of those who engaged in transgressive constitutionalism presents additional challenges. Enslaved people were silenced by law, forbidden from advocating for the end of slavery or even criticizing those who held them in bondage. Enslaved people could not enter into contracts, file lawsuits, testify in court, or petition the government for redress. Laws in slave states prohibited enslaved people from learning to read or write so most were illiterate, unable to write letters or other documents for historians to read. Moreover, any attempt to assert any of these rights would jeopardize their lives. Some freedom seekers published fugitive slave narratives that were highly influential during the years leading up to the Civil War. However, the only way that most enslaved people could express their natural human rights was to escape their situation and travel across borders to free states.

Regardless of whether freedom seekers viewed themselves as asserting constitutional claims, however, they actually asserted constitutional claims through their actions. By transgressing borders from slave state to free, they claimed freedom for themselves, claimed the soil on which they stood as free soil, and asserted fundamental constitutional rights. By travelling, they asserted the right to travel. By claiming freedom, they claimed the places to which they travelled as free spaces. By resisting federal laws which authorized their capture and re-enslavement, they invoked due process rights and the right of people in states in which they were located to also resist federal authority. Freedom seekers' actions had constitutional implications, and others translated their actions into constitutional claims.

This Article makes four fundamental arguments. First, it argues that freedom seekers were constitutional actors who engaged in multiple formats of constitutional activism. Second, freedom seekers engaged in transgressive constitutionalism, crossing borders to make constitutional claims. Third, by transgressing borders, freedom seekers sparked constitutional controversies over issues of interstate comity and federalism which exacerbated tensions that led to the Civil War. During the war, they used their bodies and their actions to transform a war to save the union into a war to end slavery. Finally, freedom seekers made individual rights claims that resonated with those made by Northern black civil rights advocates. These claims influenced the Reconstruction Congress who enshrined them into constitutional law. This Article thus challenges the standard narrative of emancipation--that of enslaved people being acted upon by lawmakers without agency of their own. Instead, it recognizes freedom seekers as constitutional actors, engaged in a highly effective form of popular constitutionalism.

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Recognizing the agency of freedom seekers, their contribution to the downfall of slavery and to fundamental constitutional change in our country, is important not only for symbolic reasons. It strengthens the claims of their descendants asserting the rights that were achieved as the result of their struggles. Enslaved people did not wait passively for the Great Emancipator to bestow freedom on them and give them rights. Freedom seekers played an active role in bringing down the institution of slavery and establishing the rights that their descendants, and other people of color, seek to assert today. Thus, recognizing the agency of freedom seekers bolsters the case for reparations for the harm that generations of slavery and racial discrimination wrought against them and their descendants. Perhaps most importantly, it undermines white supremacists' claims of racial superiority and commands respect for those who played an active role in fighting that supremacy even though they had almost no resources to do so. Finally, it is an essential step towards understanding how constitutional change occurs, not through top-down mandates, but through grassroots struggle and boots on the ground.