Inventing Equality: A Crack in the Foundation

Posted on October 21, 2020

by Michael A. Bellesiles

In his new book, Inventing Equality, Michael A. Bellesiles tracks the evolution of the battle for true equality in America through the men, ideas, and politics behind the 13th, 14th, and 15th Amendments passed at the end of the Civil War. Read on for an excerpt.

Scene at the Signing of the Constitution of the United States, Oil on Canvas, Howard Chandler Christy

How Americans abandoned their stated ideals and embraced inequality

The Framers of the Constitution struggled with the concept of human equality. The Constitution may have begun with the statement “We the People,” but it failed to define who those people might be. Under the three-fifths clause, the law accepted less-than-human people, a minimization of personhood that could easily be extended to other groups, including, of course, women. Further problems arose as a consequence of the passive voice used in the Constitution’s fugitive slave clause. “No person held to service or labour” in one state could avoid that labor by escaping into another state. Not only did the Constitution thus avoid the word “slave,” it also held that such a runaway worker would be “delivered up” to the person to whom the labor was due. But delivered by whom? There was the rub, and most northern states eventually determined that every runaway slave posed a moral rebuke to the Constitution and the country, and that capturing and returning these fugitives was not their job.

The Constitutional Convention compounded the embedded defect of slavery by failing to address the nature of citizenship. During the Revolution, the United States had moved away from the traditional European concept of subjectship—the notion that a person owed undying allegiance to the monarch of the state into which he was born. In its place, the new republic created a concept of citizenship based upon a chosen allegiance—a person became a citizen of a free society as an exercise of free will.

While a radical reimagining of society, citizenship remained ambiguous and received surprisingly little attention at the Constitutional Convention. Since Article IV, Section 2 seemingly established legal equality—“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States”—the definition of citizenship is obviously vital. Bluntly stated: it matters who deserves the rights and privileges of citizenship. Yet the Constitution did not define citizenship, deliberately leaving vague which people would enjoy the basic and essential legal equality promised by Article IV, Section 2. How then, did the Framers intend for citizenship to be understood and legal equality protected?

Madison’s notes indicate that the convention returned often to the issue of citizenship, but almost entirely within the context of eligibility for serving in Congress. Several delegates observed that the states had distinctive qualifications for citizenship, voting, and office-holding, leading to different levels of rights. No one objected to the absence of a unified process of naturalization, nor did anyone attempt to define citizenship, though James Wilson did remind the convention that the citizen of one state was a citizen of all the states. Without debate, the convention granted Congress the power “to establish an uniform rule of naturalization,” something Congress did not get around to until the 1920s.

There was a telling moment, however, in the debate over the slave trade. Gouverneur Morris proposed that Article I, Section 9 specify that “the importation of slaves into North Carolina, South Carolina, and Georgia, shall not be prohibited.” He favored the specification of the states involved not only to make a political point that the convention was bowing to their interests but also to remove any ambiguity about the states’ right to grant citizenship as they saw fit. Permitting the slave trade on the national level, Morris warned, not only confused the process by which states made citizens but also implied that some people—such as slaves—could never become citizens. However, delegates objected both to the naming of the states that demanded the slave trade and to the use of the word “slaves.”

In 1789, Madison, a member of the first House of Representatives, admitted that the Constitution should have defined citizenship in order to secure legal equality. Even in this first year of constitutional government, the confusions piled up. Could a person be a citizen and a slave, a woman and a citizen, an immigrant and an American? In the absence of constitutional guidance, Madison proposed that citizenship follow the place of birth, though he avoided complicated particulars and “peculiar” circumstances, such as slavery, gender, and immigration. Madison hoped to clarify that a person born in the United States was definitively a citizen, while kicking the larger issues down the road to some later Congress to sort out. But Congress found the specifics troubling, recognizing that if a person born in the United States was a citizen, then very soon slaves and women would step forth to demand their equal rights. Congress therefore refused to even debate Madison’s proposal, leaving the essential problem of an unclear standard for citizenship embedded in American law.

This lack of clarity on citizenship plagued every branch of government. In 1821, Attorney General William Wirt attempted to determine who enjoyed citizenship rights under the Constitution. Strict legal logic led Wirt irrevocably to insist that free blacks must be citizens entitled to all the privileges of citizenship. Yet Wirt, the longest-serving attorney general in the nation’s history, could not bring himself to accept his own logic, and he lamely concluded that the matter rested with the states. The states would not prove to be the firmest defenders of legal rights.

The failure of the Constitution to identify citizens continually imperiled free blacks. For instance, in 1832, Prudence Crandall’s school for girls in Canterbury, Connecticut, accepted white and black students. When local parents objected to Crandall’s integration policy, she transformed the school to exclusively serve blacks. The parents appealed to the legislature, which passed the “Black Law” prohibiting schools for black students without the approval of local authorities. Crandall defended herself in court by appealing to Article IV, Section 2 of the Constitution and its grant of citizenship rights across state borders. The court responded that free blacks were not citizens, so constitutional protections did not apply to black students. When Crandall still refused to change her policies, a mob attacked the school and closed it down. Similarly, the Constitution’s inability to provide guidance on the issue of citizenship permitted Pennsylvania’s chief judge, John Bannister Gibson, to disenfranchise every black in the state in 1837. Gibson cited no evidence to support his assertion that blacks could not be citizens beyond observing that since slaves were black, free blacks existed only at the state’s sufferance.

Chief Justice Lemuel Shaw of the Massachusetts Supreme Court, considered one of the preeminent jurists of his time, read the law in opposite directions on the tangled issue of legal equality. In 1836, Shaw relied on the principle of legal equality to free Med, a six-year-old slave residing in Boston. Since the Massachusetts constitution declared all people equal, Shaw reasoned, then Med ceased to be a slave the moment she breathed the state’s free air. Shaw accepted that other states could have slavery through the implementation of positive law—legislative acts—but Massachusetts had chosen freedom for all.

However, racism mangled Shaw’s elegant logic. In the 1840s black parents challenged Boston’s segregated schools, relying on the principle of legal equality Shaw had defended in the Med decision. Appearing before Justice Shaw in the case Roberts v. City of Boston, the parents’ attorney, Charles Sumner, argued that “any institution founded on inequality” violated the Massachusetts constitution, which guaranteed equality and prohibited “exclusive privileges.” Shaw agreed with Sumner that everyone is equal before the law, and yet some people are more equal than others because of “the actual and various conditions of per- sons in society.” Shaw thus offered a perfect legal tautology: inequality is legally permissible because inequality exists in society. Since natural differences exist between men and women, blacks and whites, old and young, the legislature can grant or deny rights to groups as it sees fit. Shaw’s decision became the cornerstone of segregation, the legal justi- fication to which state and federal courts turned until 1954.

The Supreme Court did no better in parsing constitutional standards of citizenship. Its only interstate slave trade decision came in 1841, with the complicated case of Groves v. Slaughter responding to Mississippi’s efforts to prevent the importation of slaves from other states. The seven justices split into five positions that mixed interstate commerce, which the Constitution clearly placed under congressional oversight, and personhood, returning to the thorny issue of whether slaves are people or property. Justice John McLean demanded that the Court confront the core issue, insisting that even slaves enjoyed the status of people under the Constitution. Justice Henry Baldwin angrily responded that the Constitution treated slaves as property and that states could not therefore prohibit the slave trade, as the owners’ rights were protected under the Fifth Amendment’s due process clause. The Court’s majority sidestepped the matter entirely by calling for further legislation.

The white public appeared widely indifferent to the courts’ confusion, preferring to accept the contradictions and get on with their affairs. The famed French traveler Alexis de Tocqueville praised this willful ignorance: “I have never been more struck by the good sense and the practical judgment of the Americans than in the manner in which they elude the numberless difficulties resulting from their Federal Constitution.” Tocqueville echoed Jefferson’s 1814 advice to Edward Coles in recommending that Americans leave the resolution of fundamental problems to some later generation.

By the time Tocqueville visited in the 1830s, Americans had successfully constructed a self-image that had no relation to their actual world. Within a few years of Tocqueville’s famous warning that equality posed the greatest threat to liberty, the anomalies would become too burdensome and the American people would pay a high price for failing to confront the large crack in the nation’s foundation. Avoidance and procrastination would cost hundreds of thousands of lives.


Michael A. Bellesiles, once a visiting professor at Trinity College in Connecticut and a professor of history at Emory University, is the author of numerous books on American history—including 1877 and A People’s History of the U.S. Military. Bellesiles received his BA from the University of California–Santa Cruz and his PhD from the University of California at Irvine. He lives in Connecticut.

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