The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding

Abstract

Simon J. Gilhooley argues that an appeal to the spirit of the founding achieved constitutional authority through 1830s congressional debates about slavery. By examining the speeches of congressmen and the writings of Black and white abolitionists, such as David Walker and William Lloyd Garrison, and proslavery thinkers, such as Nathaniel Beverley Tucker, Gilhooley demonstrates the contingent process by which appeals to 1787 came to inform antebellum constitutional thought. He finds the beginnings of this development in the 1820s, when antirestrictionists recovered a founding-era spirit of compromise, and Black activists used the Declaration of Independence to reveal an egalitarian constitutional spirit. Gilhooley's attention to these and other antecedents sets the stage for his analysis of congressional debates over abolition petitions, which followed from but also reconfigured prior developments. The 1830s saw the emergence of the idea that a spirit of compromise had produced the original compact, which opened the door to expansive, extratextual arguments and allowed politicians to oppose congressional interference on political grounds. Gilhooley carefully delineates the positions of distinct groups, including those suspicious of the claim that Congress did not have power over slavery in the district, and those obdurately opposed to anything but that claim. He shows that the most influential segments of the House and the Senate set aside the necessary and proper clause and used an appeal to a founding-era spirit of compromise to conclude that Congress should not interfere with slavery.