The Republican Party and Our Forgotten Second Founding Fathers

Georgetown law prof Randy Barnett has been doing a slow-rolling study of the abolitionists writers and lawyers who provided the intellectual and moral arguments in support of ending slavery and passing the 14th Amendment. First was his "Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment." Now comes a paper remembering Salmon P. Chase. Here is the abstract and table of contents: 

The name Salmon P. Chase is barely known and his career is largely forgotten. In this Article, I seek to revive his memory by tracing the arc of his career from antislavery lawyer, to antislavery politician, to Chief Justice of the United States. In addition to explaining why his is a career worth both remembering and honoring, I offer some possible reasons why his remarkable achievements have generally unremembered today.

Contents

Introduction: Constitutional Abolitionism.............................654

I. Chase’s Rise to the Chief Justiceship ......................................656

A. Chase’s Early Years........................................................................ 656

B. Chase as an Antislavery Lawyer ...............................................659

C. Chase as an Antislavery Political Leader..............................668

II. The Chief Justiceship of Salmon P. Chase ..........................676

A. Chase’s Duties as Chief Justice..................................................676

B. Chase’s Opinions on Reconstruction.......................................677

1. In re Turner............................................................................................677

2. Texas v. White .......................................................................................679

C. Chase on the Enumerated Powers of Congress.....................683

1. United States v. Dewitt.........................................................................683

2. The Legal Tender Cases........................................................................687

D. Chase on the Privileges and Immunities of Citizens
of the United States..............................................................................694

III. Why Has Chase’s Career Been Forgotten? ..........................697

Conclusion ...............................................................................................701

Chase was a towering figure in his day: governor of Ohio, Treasury Secretary, and Chief Justice of the Supreme Court. He helped found no fewer than three national political parties: the Liberty Party, the Free Soil Party (even coining its slogan "Free Soil, Free Speech, Free Labor and Free Men"), and of course the Republican Party*. He was also an attorney who spent years refining abolitionist legal arguments. And, apparently, Chase Bank was (posthumously) named for him. It's a bit much to say he's "forgotten" - anyone who reads about the Civil War era will come across his name - but it is certainly true that Chase's accomplishments deserve more note than current historic understanding grants to him. 

As Barnett notes, Chase and his cohort, whom Barnett dubs "constitutional abolitionists," successfully found a middle ground between the competing sides of the slavery question. On the one hand, Democrats insisted that slavery was constitutional, and would eventually insist that, as a matter of constitutional law, blacks were mentally inferior and slavery should spread through the territories, and even into the northern states. On the other, full-mooners like William Henry Garrison insisted that disunion - and the rending of the Constitution - was the only proper "solution" to the slavery question. Great, but what if you just want to go to work and raise a family without worrying that the government will fall apart before lunch? Chase, et al.'s middle ground preserved the Constitution through the fire and brimstone of the Civil War.

The Constitutional Abolitionists relied on close readings of the Constitution to point out that (1) there was nothing in the Constitution specifically approving slavery (read the Confederate Constitution to see how that's done); and (2) other parts of the Constitution, especially the Fifth Amendment made involuntary servitude unconstitutional. Whatever Founding Father nods and winks southerners relied on to support their arguments were meaningless as they couldn't be found in the text. These might be obvious points now, but back then they were literally dynamite. When Abraham Lincoln - the greatest of the Constitutional Abolitionists - won the presidency, the South knew the jig was up, at least with regard to the slavery question. (No, the issue of state's rights was not "resolved" by the Civil War. Only children and Ivy League graduates could believe that).

Barnett rightly laments that the Constitutional Abolitionists, with the exception of Abraham Lincoln and Frederick Douglass, are largely obscure as historic figures and rarely register in high or low culture. Well, join the club. Unless you are a progressive princeling or a member of an oppressed class, your would-be admirers have to actively work to seek out your biography. Plus, how can the likes of Lysander Spooner (google him) measure up to Beyonce'? 

Still, there is one group of Americans who should rectify their ignorance in this area: members of the Republican Party, who are often as ignorant of the noble origins of their party and philosophy as anyone else. Read Whence Comes Section One. It is literally inspiring (and ought to provide the basis for a very good book). On the most important political questions in American history, our guys were 100% right. Modern-era Democrats might claim their pursuit of "social justice" should take pride of place, but nothing can compare to the freeing of the slaves. Republicans seeking inspiration in these times would do well to learn more about their own founding fathers. 

* NB: Chase started and ended his political career as a Democrat, however, even running for the Democrat presidential nomination in 1868.