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Abolitionism as a Question of Citizenship


Etienne C. Toussaint (@EtienneT_Esq) is an Associate Professor of Law at the Joseph F. Rice Law School at University of South Carolina.

The Thirteenth and Fourteenth Amendments overturned Dred Scott and granted citizenship to formerly enslaved persons born or naturalized in the United States. But what did this status entail? Prior to abolition, there did not exist a stable, uniform conception of citizenship and its rights, privileges, and immunities across the nation. Instead, the meaning of citizenship varied widely—not just across the states, but often within them. In many states where slavery was illegal, for example, White supremacy mandated discrete forms of citizenship for free Black people, granting them some civil rights and precluding others. Thus, when chattel slavery was abolished and equal protection under the laws was extended to all citizens across the nation, the unresolved question of citizenship’s legal meaning was raised anew.

Below, I consider how that question was provisionally resolved, and why it must be revisited today. First, I look to the Reconstruction era, reviewing how competing conceptions of citizenship clashed during political debates over abolition. One view prevailed: a contract and property-based notion of citizenship that fortified rather than unsettled antebellum era social relations. Then, I turn to the present, suggesting how today’s abolitionists might take advantage of the unrealized emancipatory potential of the Reconstruction Amendments. A new vision of constitutional citizenship, I argue, lies not in marketplace imaginaries, but in the elusive yet powerful concept of human dignity.

The Contested Meaning of Citizenship

The Supreme Court’s 1857 opinion in Dred Scott v. Sandford denied Black people citizenship under the U.S. Constitution. As Chief Justice Roger B. Taney claimed, there is a “perpetual and impassable barrier . . . between the white race and the one which they had reduced to slavery.” Accordingly, any privileges and immunities of citizenship “enjoyed” by Black Americans in antebellum America existed at the state level, where its social, political, and legal meaning was shaped by the geographic particularities of regional culture, demography, and political economy.

In Southern states like Virginia and South Carolina, where the plantation economy was producing 75 percent of the world’s cotton, citizenship was reserved for people racialized as White. Black citizenship was simply incompatible with a political economy reliant upon the exploitation of a Black underclass (to say nothing of the genocide of Indigenous populations). On the other hand, in the comparatively urbanized, industrialized Northern states, where the abolitionist movement was gaining momentum, free Black Americans enjoyed greater rights of travel and assembly, with some New England states even granting voting rights, such as Massachusetts and Vermont.

However, the most vexed and internally contradictory forms of Black citizenship took shape on the Western frontier, where Southern and Northern political coalitions collided over the extension of slavery. Political efforts like the Missouri Compromise of 1820, the Compromise of 1850, and the Kansas-Nebraska Act of 1854 attempted to balance the South’s emphasis on protecting property rights in enslaved labor with the North’s professed commitments to the principles of equality and liberty espoused by the Declaration of Independence. Yet, equanimity crumbled under the weight of sectional tensions. The Kansas-Nebraska Act ignited a violent uprising known as Bleeding Kansas—a precursor to the Civil War.

Amidst ongoing political tensions and open violence, the constitutional status of Black citizens assumed mutated forms, even among states that rejected slavery. For example, the 1803 Ohio Constitution declared “that all men are born equally free and independent, and have certain natural, inherent and inalienable rights.” Yet, discriminatory “black laws” placed restrictions on Black Ohioans’ right to vote or testify in court. When antebellum era civil rights activists called for the dismantling of race-based distinctions in Ohio’s state laws and other nearby states in the Northwestern Territory, defenders retorted that such regulations were necessary for the protection and peace of White residents.

The outbreak of Civil War in 1861, followed by the formal abolition of involuntary servitude by the Thirteenth Amendment in 1865, seemingly settled the question of slavery in the Western territories and the nation. But, even as the politics of free labor prevailed, the Civil War and the Reconstruction Amendments did not settle the question of citizenship. In the aftermath of slavery, what rights, privileges, and immunities would be granted to Black and impoverished White Americans? How would the messy, uneven patchwork of state-by-state citizenship norms be transformed into a unified constitutional framework that protected all citizens?

For some lawmakers, such as Senators Edgar Cowan of Pennsylvania and William Saulsbury of Delaware, resolving the question of citizenship meant merely freeing Black people from their chains, while protecting the property interests of former enslavers and the liberty interests of non-slaveholding White supremacists. For others, such as Senator Charles Sumner of Massachusetts and Representative James Ashley of Ohio, citizenship meant embracing the full scope of the Declaration of Independence’s proclamation that “all men are created equal.” This more expansive view called for socioeconomic rights and suggested the need for large-scale transformation. Indeed, Ashley contended that a constitutional right to free labor required a positive right to participatory democracy, as well as the social and economic institutions to support such rights. As Senator Lyman Trumbell would summarize the demand in 1866, the “abstract truths and principles” of the Thirteenth Amendment are meaningless unless emancipated citizens are also granted the means to enjoy freedom.

These competing visions converged in the institutional form of the Freedmen’s Bureau, established in March of 1865, only two months before the Confederate Army surrendered at Appomattox Court House, Virginia. Supported by Radical Republicans like Thaddeus Stevens of Pennsylvania, this short-lived federal agency not only supervised lands abandoned and confiscated during the Civil War. It also aimed to empower “all loyal refugees and freedmen” with resources to become self-sustaining citizens, such as food, healthcare, housing, education, and employment. These efforts evinced a belief that the federal government should positively interfere with economic relations within the states to cultivate meaningful liberty.

To be sure, President Andrew Johnson vehemently opposed the Freedmen’s Bureau, alongside other Democrats. Further, despite its social-democratic ambitions, the Freedmen’s Bureau remained captive to a classical liberal vision of emancipation mediated by the so-called freedom of contract. The Bureau actively encouraged Black Americans to sign sharecropping contracts with White landowners—sometimes even former enslavers—to earn income from their labor. As historians have revealed, sharecropping and tenant farming became a continuation of the racialized system of labor exploitation that existed under chattel slavery. Such concessions to conservative politics rendered the Bureau vulnerable to the Southern Democrats’ violent campaign of Redemption, which involved harassing, terrorizing, and killing Black people daily.

Ultimately, the Reconstruction Congress would strike a middle ground between the Radical Republicans’ vision of social democracy and the Democrat redeemers’ faith in White supremacy. In relevant part, the Civil Rights Act of 1866 states that “all persons born in the United States . . . are hereby declared to be citizens . . . and such citizens, of every race and color . . . shall have the same right . . . to make and enforce contracts . . . to inherit, purchase, sell, hold and convey real and personal property . . . as is enjoyed by white citizens.” Here, the normative question of citizenship’s meaning is resolved by granting Black Americans the same rights “enjoyed” by people racialized as White. In other words, the act turned the affective dimensions of Whiteness—the joys promised by racial hierarchy that had been cemented in market transactions of property and contract—into the basis for political membership. The old paradox of a nation committed to liberal republicanism yet beholden to racialization had resurfaced.

On Human Dignity & Abolishing Slavery’s Political Economy

The expansive “equal rights” theory of the Thirteenth Amendment espoused by Radical Republicans suggested that chattel slavery was not merely a type of labor arrangement, but more poignantly—echoing Marx—a type of political society premised on culturally mediated and historically specific conceptions of the economic that define the parameters of everyday social relations. In other words, slavery’s political economy constituted the very nature of democratic citizenship.

But, if chattel slavery was a form of political and economic society, then what does it mean to abolish not merely slavery’s formal law, but also slavery’s political economy? Section 2 of the Thirteenth Amendment grants Congress the power to abolish all badges and incidents of slavery. Yet, to properly harness this power, we need a normative conception of citizenship that contradicts, rather than preserves, the logic of racial capitalism.

In recent scholarship, I argue that we should leverage the concept of human dignity as the normative framework for measuring liberal democratic citizenship. We should not view the abolition of slavery as granting the enslaved class the freedom to pursue the privileges and immunities of citizenship “as enjoyed by White citizens.” Instead, to resurrect the legislative potential of the Thirteenth Amendment, we should view abolition as positively granting all Americans the necessary social, economic, and civic freedoms to experience equal human dignity. This requires the abolition of slavery’s political economy. Sadly, neither the U.S. Constitution nor current U.S. federal law offers a legal definition of human dignity to help scholars discern the way slavery’s law and political economy inflicted dignitary harms upon American citizens.

Building upon philosophical conceptions of human dignity in Western intellectual discourse—from Immanuel Kant to Isaiah Berlin and Danielle Allen—alongside dignity’s rhetorical usage in U.S. constitutional jurisprudence, I offer a legal definition of human dignity as: (i) the equal opportunity to express inherent human capacities; (ii) free from the unjustified constraints of others; (iii) toward the full development of an integrated personhood. In other words, the concept of human dignity, I argue, characterizes the state of being human (dignity-as-equality), the state of becoming human (dignity-as-liberty), and the state of experiencing one’s humanity (dignity-as-integrity). Infusing this notion of human dignity into our conception of citizenship embraces a humanitarian ethic, a sense that individuals not only have a duty to respect the rights of others, but also a responsibility to create a political economy where all individuals can fully develop their individual capacities and experience their authentic humanity.

Abolition is not merely the modern movement to reimagine supervisory and brutal policing practices that perpetuate the harms of the slave patrol. Abolition must also attend to the afterlives of the antebellum slave society, the scenes of subjection that remain enmeshed in the U.S. political economy—our longing to measure human well-being through the commodity form and the valorization of capital; our commitment to resource distribution only through exchange markets; our belief that the key to mediating inequality in capitalist markets is to balance private power with public power; our reshuffling of existing concretions in the vain hope that reform will save us.

To understand just how expansive and demanding this dignity-based re-conceptualization of citizenship (and thus abolition) is, consider a contemporary harm that many readers will view as unjust, yet few will describe as a denial of citizenship: food insecurity.

The Abolition of Food Oppression

Across urban and rural America, many marginalized communities suffer from a lack of access to fresh, nutrient-rich food—both in the form of food deserts (where access is simply absent) and food swamps (where global food corporations have flooded local markets with cheap, unhealthy, highly processed fast food).

This form of racialized oppression, while naturalized as an unavoidable marketplace indignity under our contract and property-based model of political membership, is in fact a vestige of antebellum America. Enslavers routinely limited the ability of enslaved Black people to produce their own food, wielding hunger and dependence as tools of labor discipline. Even more, the slavery system’s disproportionate exposure of enslaved Black people to food-related diseases was used to perpetuate the abjection of Black social life, which buttressed White supremacy and its attendant labor exploitation.

The rise of Jim Crow following the end of Reconstruction, which segregated Black Americans into redlined neighborhoods with inadequate food access, preserved this aspect of slavery’s political economy. Legislative efforts to address this problem, such as social welfare and entitlement programs, have been stymied not only by liberals’ preference for market-based solutions, but also by violent conservative backlash reminiscent of Southern Redemption. The 1962 food blockade launched by the White Citizens’ Council in Greenwood, Mississippi, provides merely one horrific, yet understudied example.

As I argue in a recent article, the normalcy of food deserts and food swamps in low-income Black communities—a modern feature of racial capitalism—not only hinders public health; properly understood, it also undermines our right to the equal protection of the laws. More explicitly, communities that remain unprotected from food oppression are vulnerable to the hauntology of slavery’s political economy, invoking both the spirit and letter of the Thirteenth Amendment. Equality, liberty, and integrity—the pillars of my dignity-based citizenship model—provide a conceptual framework to characterize the emptiness experienced by those searching for their next meal. Under a dignity-based framing of citizenship, we can understand grassroots movements for food sovereignty—from Fannie Lou Hamer’s Freedom Farm Cooperative, to the more recent Solidarity Farm owned by the Pauma Band of Luiseno Indians in Southern California’s Pauma Valley—as part of a transhistorical struggle to abolish slavery’s political economy and finally realize the promise of Reconstruction.

To be sure, adopting a dignity-based vision of citizenship will not resolve the contradictions between liberal republicanism and racial capitalism. But it does have the potential to bring such contradictions to the surface. I, too, believe that there is a horizon beyond liberal legalism. But, to get there, we must move through liberal legalism, amplifying the fundamental contradictions between its normative commitments and material impacts. The concept of dignity has the power to guide that movement.