Legal Commentary

The Libertarian Origins of the Republican Party

By Randy Barnett

I just uploaded a revised version of ?Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment,? which is forthcoming in the Journal of Legal Analysis. In this the penultimate version before editing for publication, I make explicit the connection between ?constitutional abolitionism? and the founding of the Republican party. I only became fully aware of this connection in the final stages of revising this paper and filling out the biographical backgrounds of these constitutional abolitionists. You can download the paper here. Here is the abstract:

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that disparaged abolitionism, the ?radical? Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about ?carpetbaggers? than they know about the framers of the Fourteenth Amendment. Despite a brief revival of interest stimulated by the writings of Howard Jay Graham and Jacobus tenBroek, abolitionist constitutionalism remains obscure to law professors and even to historians of abolitionism.

This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North, many of whom were instrumental in the formation of the Liberty, Free Soil, and Republican parties. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.

The more one reads the forgotten writings of these ?constitutional abolitionists,? the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court?s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came

In a short talk based on this paper, I recently spoke about ?The Libertarian Origins of the Republican Party? at the Annual Convention of the Republican Liberty Caucus. My talk focussed on the role that Salmon P. Chase played in developing these ideas for the Liberty, Free Soil, and Republican parties. You can view it here:

I should note that I have only started to learn about Salmon P. Chase and the formation of the Republican party. On this subject I highly recommend the engaging 1978 book, Ballots for Freedom: Antislavery Politics in the United States, 1837?1860, by University of Wisconsin historian, Richard Sewell.

Full post as published by The Volokh Conspiracy on February 24, 2011 (boomark / email).