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INTRODUCTION

Making Black Citizenship Politics

What is striking is the role legal principles have played throughout America’s history in determining the condition of Negroes. They were enslaved by law, emancipated by law, disenfranchised, and segregated by law; and, finally, they have begun to win equality by law.

—Thurgood Marshall, “Reflections on the Bicentennial

of the United States Constitution,” 1987

John Brown Russwurm sat at his desk on a winter day in 1829 to write an essay explaining why he could no longer live in the United States. Russwurm had been born in Jamaica in 1799, the child of a white American man and a woman of African descent. Little is known of his mother. She may have been free or enslaved, may have been African or of mixed parentage, and may have died in childbirth or lived to see her son leave Jamaica when he was eight years old. Russwurm’s father gave the child parts of his name and his privilege, sending young John to school in Montreal in the early 1800s, then inviting his black son to live with his white family in Portland, Maine.¹

Russwurm was an immigrant, a background that likely shaped his feelings about the possibilities of the United States. When he graduated from Bowdoin College in 1826, he delivered a commencement address that praised the accomplishments of the Haitian Revolution and the republic it created. Haiti, Russwurm said, revealed the “principle of liberty” that dwelt in men of all colors. Russwurm considered studying medicine and emigrating to Haiti to help the country become “an empire that will take rank with the nations of the earth.” But by the spring of 1827, he had put down roots in New York, where he connected with a community of black activists that included Samuel Cornish, a minister and abolitionist who had been born to free black parents in Delaware. Together, Cornish and Russwurm transformed African American politics when they launched Freedom’s Journal, the nation’s first black newspaper, printing its first issue on March 16, 1827.²

From the paper’s office at No. 5 Varick Street, blocks away from the Hudson River in lower Manhattan, Russwurm and Cornish had considered the “many schemes … in action concerning our people.”³ These included a plan to forcibly remove black people to the West African colony of Liberia, the pet project of a group of white politicians who established the American Colonization Society (ACS) in 1816. For most of the life of Freedom’s Journal, Cornish, Russwurm, and their correspondents denied that the ACS would solve the problems free black people faced. That changed abruptly after Cornish left the Journal in Russwurm’s hands.⁴

In February 1829, the new editor-in-chief announced his decision to leave the United States in terms that surprised and alarmed other activists. “Our views are materially altered,” Russwurm wrote, declaring that he was now “a decided supporter of the American Colonization Society.”⁵ He believed black people had reached an impasse in working to change their status in the United States. “We consider it a mere waste of words to talk of ever enjoying citizenship in this country: it is utterly impossible in the nature of things.”⁶ In September 1829, John Brown Russwurm sailed for Liberia and never returned to the United States.⁷

While Russwurm did not believe black citizenship was possible in the United States, other African Americans understood that the meaning of citizenship was unsettled and that this instability might help them change their legal lives. Free black activists in the northern states publicly challenged racial exclusion by calling themselves citizens, invoking the status to claim specific rights. Because the terms of citizenship were uncertain, the status was a flexible and potent tool for African American politics. Black protest spurred conversations about citizenship among state and federal lawmakers, most notably Chief Justice Roger Taney’s 1857 effort to deny that any black person could be a citizen in the United States. African American activists used citizenship in ways that shaped the long process of defining the nation’s legal structures.⁸

Just weeks after Russwurm embraced colonization, Samuel Cornish returned to New York City and launched the Rights of All, the nation’s second black newspaper.⁹ He offered an alternative vision of the legal possibilities of African American life in the ways he wrote about citizenship in that paper. Some white Americans believed colonization would compensate Africa for the continent’s stolen generations, but Cornish instead demanded that lawmakers “do her sons justice wher ever we find them.” “Educate this oppressed and afflicted people,” Cornish proclaimed, “encourage them in agricultural and mechanical persuits, and there will be no difficulty in making them good and happy citizens.”¹⁰ In addition to claiming that black people could be citizens, he declared that the status should entitle them to rights and opportunities. “Our colored citizens have been uniformly denied License as Car[t]-men and porters,” he wrote, using the status to seek new employment opportunities.¹¹ He also centered political rights in his vision of citizenship, urging black New Yorkers to seek and to use the right to vote—to “participate in your rights as citizens.”¹² Cornish and other free black people saw possibility and power in the concept of citizenship. When Russwurm denied that black people could be citizens, he sparked immediate, forceful opposition because other black activists wanted to use citizenship to seek rights and protections. That form of protest grew out of their opposition to Russwurm and became a critical thread in antebellum black politics.

Free black Americans’ overarching political goal was to change the legal circumstances of their lives. The malleable nature of citizenship made the status an important tool in that pursuit. In the era of the American Revolutionary War, lawmakers in several northern states enacted measures to gradually abolish slavery. But legislators and judges also constrained black freedom, denying black men the vote, excluding them from militias, and considering measures that would force African Americans out of their states. Black people relied on the concept of citizenship to challenge those restrictions and seek specific rights and protections. Remaking the Republic is the story of that political work as it developed from the 1820s through the 1860s across the free states. This book examines how and why black people called themselves citizens and the meanings of that particular form of their politics. Exploring their political work from this perspective illuminates the legal possibilities of citizen status and the ways African Americans took part in re-creating the legal order of the United States in the nineteenth century. African Americans were active participants in the process of constructing citizenship, determining to whom the status was available and what its content would be.

Black people were able to use citizenship in their politics because there was no agreed-upon definition of citizen status in the law of the early United States.¹³ The authors of the U.S. Constitution used the terms “citizen” and “citizens” eleven times in the document. According to the Constitution, citizenship was a criterion for election to Congress or the presidency, a descriptor of those who might sue in federal court, and a status that secured to an individual an unspecified set of “Privileges and Immunities.”¹⁴ The framers suggested that citizenship could be an important determinant of an individual’s legal life, but they did not clarify the rights or obligations the status entailed or who could call themselves a citizen. Generally, people in the early United States agreed that citizenship described a relationship between individuals and a government, but the conditions and content of the relationship were ill-defined.¹⁵ As late as 1862, U.S. Attorney General Edward Bates acknowledged the persistent vagueness of the status. “Eighty years of practical enjoyment of citizenship, under the Constitution, have not sufficed to teach us either the exact meaning of the word, or the constituent elements of the thing we prize so highly,” Bates wrote.¹⁶ That uncertainty provided a space for black politics to operate, enabling African Americans to claim legal protections through citizen status.

Although citizenship could be a path to rights, no decisive legal statement declared that the status must be the foundation for an individual’s legal identity. Citizenship remained vague for so long in part because many lawmakers and others did not agree that the status was important for defining identity or securing legal protections. The vagueness stemmed in part from the fact that the framers of the Constitution refused to resolve essential questions about the relationship between states and the federal government. It was unclear how the legal authority of the states related to one another and to that of the national government, and so it was also uncertain to whom an individual should turn to resolve disputes about his or her rights or which level of government would be the operative authority in shaping people’s legal lives. State and federal governments legislated and adjudicated questions of rights and obligations, and it was not clear how citizenship might be crafted or administered on either the state or national level or through some combination of the two. Many people in the early United States looked to local courts for justice and had little sense of close ties to the federal government. Generally, authority was decentralized and individuals’ legal lives were individual, particular to their contexts, personal connections, wealth, gender, and race.¹⁷ By claiming rights as citizens, black people therefore helped make citizenship more important, pushing the status toward the center of lawmaking discussions, arguing that it should be a cornerstone for individuals’ rights and their relationships to American governments. Through their political work, black people built a new republic, one that rested on a legal order in which citizen status connected individuals to the federal government through a web of rights and obligations.

Free black people in the North established community institutions, developed distinctive cultural practices, and organized to practice multiple forms of politics in the nineteenth century. Black northerners did all these things in the face of prejudice, racist violence, legal exclusion, and widespread economic disempowerment.¹⁸ Scholars have explored the myriad ways activists pushed against the limits of freedom and sought to remake their lives. But much of this scholarship has presented activists as striving toward “full citizenship” and has thus obscured the particular ways African Americans used citizen status in pursuit of legal change. Important forms of black protest were possible because there was no accepted legal understanding of citizenship. Further, black protest was potent because it made claims about the foundations of individual Americans’ legal identities. Black citizenship politics involved African Americans calling themselves citizens and issuing public demands for formal legal changes, deploying the ill-defined legal status in pursuit of protections they deemed essential.¹⁹

By understanding the ways black people exploited the uncertainties of citizenship, we can see how their work contributed to the process of defining the status and helped remake the nation’s legal order. In the ways black activists used citizenship, they generated and engaged in lawmaking conversations that were part of the long process of determining the legal shape of the republic. Exploring black citizenship politics offers a fuller portrait of African American protest and its transformative potential. This book seeks to specify the work black Americans did when they talked about citizenship and to examine the broadest possibilities of their protest for legal developments in the United States.²⁰

This study is built around the work marginalized people did to shape legal development in the early United States. Although African Americans were often excluded from spaces where laws were drafted and court cases decided, black northerners exploited uncertainties of federal law in order to shape its terms.²¹ For instance, in 1837, hundreds of black women and men violently rescued an alleged fugitive slave in New York City, challenging the legal process of slavecatching and demanding protections of their personal security. In the 1840s, a black New Yorker named Willis Hodges acquired land in upstate New York as a path to securing the franchise in the state, realizing his vision of a citizenship defined by participation in formal politics. In the late 1850s, black Bostonians protested the Dred Scott decision that denied they could be citizens by celebrating Crispus Attucks, a black hero of the revolutionary era who represented the longstanding, critical presence of black people in the nation. These and other black northerners molded ideas about their legal position and the nature of citizenship through the statements they broadcast in conventions and newspapers as well as through legal and extralegal public displays. By grappling with the concept of citizenship, African Americans pushed their voices into lawmaking discussions at the highest level. They practiced their politics in ways they knew would resonate because of uncertainties about federalism, individual rights, and the future of slavery that stood at the heart of the nation’s laws and governments. Free African Americans in the North imagined and helped to build a new legal order through their political uses of citizenship.²²

* * *

Remaking the Republic is rooted in the extensive published record of antebellum black protest. Free African Americans believed that speaking in public was essential to producing change. They used common political forms of the early United States—organizing conventions, printing newspapers, circulating petitions, gathering for public demonstrations—hoping to change ideas about black people and the legal protections to which they were entitled. Black northerners published dozens of newspapers under such weighty titles as the Rights of All, the Colored American, the North Star, the Ram’s Horn, the Aliened American, the Mirror of Liberty, and the Colored Citizen.

These papers conveyed the thoughts of prominent editors like Samuel Cornish and Frederick Douglass, who had formal education, social connections with white northerners, and access to resources that amplified their voices and concerns. But black newspapers also enabled lesser-known black people to engage the public through letters to the editor as well as by organizing and participating in political events that newspapers covered. State and national conventions brought together dozens of black activists to discuss contemporary challenges and develop political strategies, often including hundreds of people as participants and audience members in formal and informal proceedings. And public protest meetings were designed to be large and open, to present a sizable community interested in pursuing legal change.

Black men’s voices emerge clearly and frequently in this archive, while black women often remain at the margins. African American activists, like others in the nineteenth century, tended to view politics as a space for men; newspapers and conventions offered limited opportunities for women to speak directly to the public. Still, women were essential to the functioning of conventions and to the survival of black activists.²³ Further, black women did a great deal of what was seen as traditionally male political work—standing on the front lines during fugitive rescues, attending public meetings where they endorsed and contested men’s claims, and organizing in their own spaces to offer their own arguments about black people’s proper legal position. I seek to underscore important moments when black women engaged in the public forms of black citizenship politics, to consider what these moments meant to them, and to analyze critically the gendered forms and limitations of particular strategies of black protest.

While a handful of well-connected men produced many of the statements at the heart of this book, the printed record in which their voices are most vivid reflects a wider African American community. Extant sources emerged from a free black population characterized by ideological conflicts, and those tensions helped shape published statements. In collaboration and in conflict, black northerners advocated legal changes that could transform the lives of a broad range of people in the United States. I use printed material to explore the concerns of a large, diverse, politically engaged free black population. Through these sources, I tell the story of the complex communities and ideas that shaped the development of American laws in the nineteenth century.²⁴

The printed records of northern black activists make clear that free African Americans were knit together in a political community that crossed state borders. Black people’s political concerns were not bound by political geography. Just as lawmakers looked to other states for precedent, black people saw that their advocacy could shape legal developments beyond their local communities. Further, making claims based on a national citizen status was significant for people beyond the specific state in which those claims were made. Most importantly, the infrastructure of black politics relied on interstate networks and labor, reflecting and perpetuating a community of concern that spanned the free states.²⁵

This book tells the story of how African American activists reshaped law and society as they worked to enrich their own freedom. In the 1860s, emancipation and Reconstruction created new opportunities for African Americans to define their relationship with the federal government, and the government took definitive steps to determine the criteria for and rights of citizenship. But the central questions of Reconstruction—the qualities of black freedom and the content of American citizenship—had a long and contentious antebellum history.²⁶ Black northerners’ political work helped to produce the legal changes of the Civil War era. By the time of the war, activists had for decades emphasized that black people should be seen as citizens, that citizen status should link people to the federal government, and that federal authority should protect people’s rights. They built the intellectual context for the legal changes of Reconstruction.²⁷

This story of free black people’s politics reveals the techniques that marginalized groups have used to challenge and remake the structures that excluded them. It is a story of a radical political project working within the rhetorical pathways that the uncertain terms of citizenship provided. African Americans seized the opportunity to remake the republic’s legal foundations by working to change understandings of legal belonging in the nation. The nation’s laws were, and remain, tenuous and malleable. Remaking the Republic is about black people imagining futures as African Americans and using citizenship to build them. Understanding the many ways that people could and did redefine the law illuminates the possibilities of securing justice in exclusionary societies. Bringing together histories of black politics and American laws highlights the ways law has been made and contested by those who were formally excluded from government. It underlines the ways the law, which has so often been a tool to bind black people, also was used to create new possibilities for African Americans’ lives.

* * *

The first three chapters of this book explore black activists’ work to connect with an expanding set of communities in pursuit of rights. First, I consider the ways black New Yorkers used citizenship to protest disfranchisement. People in New York joined those in other states who faced similar restrictions. Together, they argued that because they had built their communities, they were citizens, and that citizenship must entail formal political rights. Chapter 2 connects black politics to debates about the nation’s expansion in the early 1840s. As lawmakers considered the annexation of Texas and the changing geography of slavery, black activists challenged state-level legal restrictions with appeals to federal authority, arguing that they should possess rights through a national citizen status. To foster black political unity and a relationship with the federal government, they presented themselves as a body of African American citizens, a national community bound together by a shared legal status. In the spring of 1848, revolutions across Europe captured Americans’ attention. Chapter 3 builds around Frederick Douglass’s thoughts on Europe and the ways activists attacked the hypocrisy of a nation of slaveholders who praised a new birth of freedom abroad. Traveling and reading about Europe influenced the ways black people imagined citizenship and worked for legal change in the late 1840s.

The second half of the book focuses on a set of protest strategies black activists used amid a series of legal and political watersheds during the midnineteenth century. Slavecatchers posed the most urgent threat to black northerners’ freedom. Activists used citizenship to argue for legal protections, including a jury trial for any person alleged to be a fugitive from slavery. Chapter 4 examines that work in the 1830s and 1840s alongside extralegal rescues, which also implicitly demanded legal protections of black freedom. The potency of those multiple forms of black politics led southerners in Congress to push through the Fugitive Slave Act of 1850, a law that created a substantial new apparatus to arrest black people in the North and ship them into bondage in the South. Similarly, black citizenship politics produced other moments of crisis and opportunity in the next two decades. In May 1857, Chief Justice Roger Taney erected a new legal barrier designed to silence African Americans’ arguments about citizenship when he ruled in Dred Scott v. Sandford that black people could never be American citizens. Chapter 5 traces black responses to Taney’s ruling. Activists denied Taney’s authority, working to ensure that the terms of citizenship remained a ground for debate and a useful political tool. While Dred Scott encouraged some to consider following John Russwurm to West Africa, the Civil War offered profound opportunities to remake black people’s legal lives. Activists sought enlistment and equal pay by presenting themselves as citizens, expecting that that status and their sacrifice would secure their rights in peacetime. Chapter 6 shows how antebellum forms of politics persisted into the Civil War era and how they molded urgent discussions about the content of citizenship and the significance of suffrage.

In June 1866, Congress agreed to the Fourteenth Amendment, which conferred citizenship on black people who were born in the United States and ensured “the equal protection of the laws” to American citizens. This story closes in the aftermath of that measure, as black people experienced the possibilities and limits of citizen status. The vagueness of the Fourteenth Amendment, the brutality of white resistance to black rights, and the failures of legal enforcement increasingly demanded that African Americans continue the work they had done in the antebellum period, struggling to mold the terms of citizenship and make the status meaningful in their lives.