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Common-Sense Constitutionalism and Abolition in the Early American Republic
Brush, Emma
Brush, Emma
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Abstract
In this article, I develop a theory of common-sense constitutionalism that contrasts with both “common good constitutionalism” and public meaning originalism. Unlike those theories of constitutional interpretation, common-sense constitutionalism takes seriously the people’s right to self-governance (contra common good constitutionalism) and the importance of their historical engagement with constitutional law (contra originalism). This theory of early constitutional meaning, moreover, is historically discrete: a product of the conditions and premises of the late eighteenth century, and thus not descriptive of constitutional law or interpretation today.
As scholars of popular constitutionalism have shown, early American constitutional law did not derive from constitutional text or judicial mandate alone. Instead, it emerged from competing sources of fundamental law, including natural law, common law, and popular custom. The substance of these authorities depended on the interpretations of a broader public, and the people’s interpretive powers came from their “common sense”—a prerational capacity that everyone shared, and that served as the basis for collective deliberation in the public sphere. As a result, early American common sense shaped the key constitutional debates of the period, including revolution, ratification, and abolition—a central constitutional question once the frame of reference expands beyond the writings of a handful of elite Americans.
This article reviews the role of common sense in each of these contests before exploring two prominent forms of common-sense constitutionalism in early abolitionist practice. Freedom suits and antislavery petitions, I argue, demonstrate that a diverse array of early Americans engaged in constitutional interpretation at the state as much as the federal level, before legislative and executive bodies as much as judicial ones, and amongst themselves as much as their representatives. While the perspectives of these participants are typically elided in constitutional histories, they indicate that constitutional meaning was continually contested and ultimately indeterminate in the early republican period. Similarly, no one authority or interpretive methodology needs govern constitutional law today: the fact of dissension in the past should instead inspire continued debate in the present.