Neglected Stories and Progressive Constitutionalism

Abstract

Neglected Stories and Progressive Constitutionalism first re-articulates the neglected but increasingly recognized view that an antislavery ideology is at the heart of the definitions of liberty and citizenship enshrined in the Fourteenth Amendment of our reconstructed Constitution. We in the United States came to a deeper understanding of civil freedom as we experienced chattel slavery, and the Fourteenth Amendment should be interpreted to give life to that deeper understanding. The article then asks whether interpreting the reconstructed Constitution as a reflection of antislavery ideology furthers a progressive constitutionalism, where progressivism is understood to entail commitments to welfare, anti-subordination, and civic empowerment of a free citizenry. The answer is a qualified yes. An antislavery vision of the concepts of liberty and equal protection easily supports constitutional interpretations that combat subordination and promote civic empowerment, for subordination and social death were slavery's hallmarks. An antislavery constitutional vision is related in a more complex, but illuminating way to progressive goals of welfare. For example, the slave system and its immediate post-emancipation substitutes made clear that unregulated markets were inconsistent with minimally humane conceptions of a universal right to the fruits of one's labor. As a result, the antislavery vision of freedom encompasses fairness in the marketplace rather than absolutist notions of contractual liberty. The methods employed in the essay are contextual, perspective-seeking, critical methods developed within critical race and feminist legal theory, and the essay concludes with a comment on those methods and the persistent attacks to which critical race and feminist legal theory have been subjected.