George Brown Breaks the Law, Part Two

George W. Brown

George W. Brown

Gentle Readers, I must disappoint you. I still intend to write a post, probably more than one, on literacy in the middle of the nineteenth century. However, the statistics are not so conveniently available as I remembered and so will require some adjustment and arrangement. Putting that on top of the data entry (easy enough, but tedious and time-consuming) and subsequent analysis, as well as several connected topics that arose and probably deserve posts, and I’ve created for myself a project that I don’t think I can do justice to with the time available to me before this post would go live. What I could offer you now would make for, at best, a first approximation that I would have to come back and revise in later posts.

I can, however, give you some more about George W. Brown’s civil disobedience.

George Washington Brown tossed the proverbial tea into the Missouri River on September 15, 1855. That day, the Assembly of Kansas’ laws to protect slave property through the generous suppression of white freedoms came into effect. That laws forbade the utterance, writing, publishing, or circulating of essentially any antislavery opinion within Kansas. Unlike eighteenth century Bostonians, he did not bother dressing up as someone else. Instead he published news of his lawbreaking in his own newspaper, under his own name, and helpfully cited the exact provisions of the law that he broke. Brown did not settle with implicating himself once, but instead confessed to multiple counts. He broke the law with his newspaper, but also with the Bibles and copies of the Declaration of Independence that he sold from the Herald of Freedom offices.

After sounding off on how the Bible and Declaration ran afoul of Kansas’ new laws, and how Brown expected to end up in a Missouri prison until his sentence to hard labor put him to work back in Kansas on a Pacific railroad, the editor came to another text of some interest:

By the way, there is an obsolete document which formerly was quoted largely by statesmen of small caliber, known as the Constitution of the United States, which declares that “Congress shall make no law ** abridging the freedom of speech or the press,” and as a corollary it was urged that no body deriving their authority from Congress could pass any such law; but modern statesmen care nothing about that document. The “Barons of Kansas” are superior to the Constitution; and as to the Declaration of Independence, or the Bible, it is of no account whatever.

John C. Calhoun of South Carolina, Secretary of State, Senator, and the generation's leading secession and slavery booster.

John C. Calhoun

Most nineteenth century Americans, including the federal bench, did not regard the guarantees of the Constitution as applying to the laws of states. The Fourteenth Amendment briefly changed all of that, but the Supreme Court saved the nation from the scourge of the Bill of Rights by ruling otherwise not long thereafter. Later courts have, in the past century, thankfully gone the other way. But some Americans did insist that the Constitution’s guarantees ought to apply to the states. No less an authority than John C. Calhoun held that the constitutional right to property protected slavery and should take precedence over any contrary state law.

Antislavery Americans argued over whether or not the Constitution itself protected slavery, with those like William Lloyd Garrison arguing that it did and so deserved abolition and a good burning but others of a less radical stripe preferred a reading of the document which cast it as a work that set slavery on and looked forward to its eventual extinction. Trying to read the document in context, I don’t myself find a clear answer either way. That ambiguity cleared out ample space for both understandings and probably greased some wheels during ratification. Parts of the Constitution clearly affirm slavery, such as the prohibition on outlawing the Atlantic slave trade for a quarter of a century, but they run together with equivocal compromises like permission to do so thereafter. The infamous Three-Fifths Clause did recognize slavery, but did not give the slave states all the recognition they wanted for it. Furthermore, by counting slaves as “all other persons” rather than as property, the framers left open the question of whether or not the property protections in the Bill of Rights applied. The separate listing implied that slaves did not exist as property under federal law, even if they did under state law, but implication went only so far. 

This question overlaps with, but differs from, the question or whether the framers as a group, or as individuals, or the conventions that ratified the Constitution, understood it as a proslavery or antislavery document. Likewise it does not subsume the question of whether the government created by the Constitution served more consistently the interests of slavery’s extension or extinction. None of those inquiries has a succinct, short, and complete answer save for “it depends.”

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