Monday, May 08, 2006

What Slavery in Massachusetts can Teach us about Constitutional Abstraction:

Someone named Connell just left this comment on a post from a few months ago on the abolition of slavery in Massachusetts and whether to credit the democratic process or an activist court for the outcome.


Unfortunately that website is incorrect. Massachusetts' state constitution, passed in 1780, declared that all men are "born free and equal". This lead Quork (actually Quaku) Walker to sue his master Nathaniel Jennison for his freedom in 1781. The Massachusetts State Supreme Court declared him free in 1783, based on the wording of the three year old state constitution. (The website incorrectly indicates that he won his freedom first and then Mass. passed its constitution. It was just the opposite.)

A great reference is Hon. Peter W. Agnes, Jr., "The Quork Walker Cases and the Abolition of Slavery in Massachusetts: A Reflection of Popular Sentiment or an Expression of Constitutional Law?" vol 36 Boston Bar Journal No. 2 (March/April, 1992)

Basically, yes the Mass. court did abolish slavery without a democratic vote, however much of the courtroom debate acknowledged that "popular sentiment" in Massachusetts had clearly sided on abolishing slavery and that weighed heavily in favor of Mr. Walker. So it's not that clearly a case of "judicial activism" sidestepping democratic process. Either way makes no difference to me - they did the right thing in the long run and that's what is important.

Connell (a radical Homo)
Santa Cruz

One interesting thing I find (from what I know) of the facts in the case is that they illustrate how abstracting from more general constitutional (or philosophical) principles can lead to results, entirely consistent with (and arguably demanded by) those principles, but not necessarily anticipated or expected by the Framers of those principles, and indeed, flat out inconsistent with longstanding tradition and practice.

Notice that provision in Massachusetts's constitution doesn't say, "Slavery shall be abolished in Massachusetts," like the Federal Constitution's 13th Amendment, but rather that all men are "born free and equal," which is exactly what the Declaration of Independence (and the Enlightenment philosophy which founds this nation) declares.

If longstanding practice and tradition, especially tradition that continues well after the texts in question have been framed and ratified, are dispositive, then the interpretation of the original meaning of the text changes. Indeed, it's been argued by some that the Declaration's assertion that "All men are created equal" really meant, because, if you look at practice it had to mean, all propertied white Protestant Males, when a broader, more generous reading of the text could mean all human beings, whatever gender, whatever race, and whatever religion.

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