“You white women speak here of rights. I speak of wrongs.”
— Frances Ellen Watkins Harper, 1866
In recent years, a new history of abolition has come to the foreground, one that promises to transform how we think about the movement’s past and the lessons it holds for the present. Drawing on overlooked archives and revived social theories, this new history has de-centered the field’s traditional emphasis on the white bourgeois northerners who did little to change the centuries-old racial caste system upon which their own sense of self and privileges so often rested. Instead, this is a history that calls upon us to listen and learn from the transformational ideas, words, and deeds of Black abolitionists, who rose up and spoke out against an American injustice so profound it continues to defy the standard lexicon of the historian’s craft.
Already, those who have heeded this call have taught us a great deal about abolition’s past. We have learned, for example, that far from a recent invention, abolition is a practice and philosophy with roots in America’s soil that run as deep as the unmarked graves that hold the remains of those who first spoke out against atrocity centuries ago. We have learned, too, how those whom the law abandoned and excluded from the polity were among the first to theorize the racialization of power structures and to design strategies of resistance, fashioning arguments from the raw materials of natural law principles and the lived experiences of the formerly enslaved that breathed life into the founding documents of a colonizing nation. We have seen, as well, how in the courtrooms, lawyers in an age of mass enslavement forged pathways to combine direct client services with political change. And in the end, we have witnessed how, within the archival footprint left behind by this abolitionist tradition, there lies a new set of arguments with which we might now revive the elusive promises of the Reconstruction Amendments.
While much of this emerging scholarship has brilliantly illuminated the strategies of resistance that unfolded across the long nineteenth century, here I would like to suggest how this history can also help us to understand a line of abolitionist work that, although it remains less well understood, may well be one of the more tangible legacies of that distant past: the work of keeping a record of injustice and the particular theory of law upon which this work rested. In particular, I would like to suggest that by heeding the call of the new history of abolition, we can see in sharp relief a determined effort on the part of Black abolitionists not only to fashion legal arguments based on individual rights, but also to create and preserve a written record of wrongs: one penned for a future America that at the time could only be imagined and that calls upon us now to act.
Preserved in handwritten journals, typeset speeches, and folded letters, this is a record of atrocity that begins not with the words of the nation’s founders, but with the testimonies of the formerly enslaved. Unlike the familiar tales of violence that reduced the pain of enslavement to gratuitous, voyeuristic images and stories found in anti-slavery pamphlets, this was a record written by those who knew what it meant to lose a loved one to the relentless violence and assault wrought by white America, a record that began with the dignity of individual people. In careful cursive, these abolitionists who served as informal record-keepers and who worked at the front line of resistance sought to preserve in print the stories of the men, women and occasional children fleeing the institution of enslavement: people who climbed the stairs of a safe house to knock on the door of a stranger, in search of a refugee from the relentless policing that lined the roadways of America, before setting out again in the morning for the hope of refuge across the border.
In lieu of the stock images that distilled the institution of slavery to an abstraction, the record-keepers who began this work of transcription – perhaps seated at a small table in a small room – began with the names of the individual people across from them: recorded, perhaps, so that their loved ones might later find them. The record-keepers asked and wrote down the names of the places the people called home, along with the names of the family members they left behind, and the names of the perpetrators – those who called themselves masters and mistresses of the plantations and who were perhaps even then already leaving notices with the town newspapers in Baltimore, Norfolk, Richmond to be on the watch for a runaway slave. The record-keepers asked what happened and sometimes their questions gave way to silence; a note instead in the margins of a scar that spoke of so much pain and so much loss for so long it could not be spoken. Sometimes their questions gave way to pages filled with words: a twenty-year old man asked for the first time what had happened to him by someone with the means of recording his words, and the pages that followed told of a story that began with he and gave way to I.
This was a record of wrongs that, far from remaining invisible, became the basis upon which abolitionists began the work of constructing a novel set of constitutional arguments that anticipated critical race theory by nearly a century and a half. Developed by abolitionists including, most notably, Frances Ellen Watkins Harper, this was a mode of argument that refused to participate in the longstanding and still ongoing debate as to whether the founders of the Constitution were pro-slavery or anti-slavery, or whether the words they put down in print ought to be interpreted according to original or plain meaning, or whether the union ought to be dissolved or preserved. Instead, this was a mode of abolitionist constitutionalism that placed the human suffering wrought by the American legal order at the centerpiece of the conversation. Fashioned out of the stories of the formerly enslaved, this mode of constitutionalism sought to illuminate the ways in which the American legal order, under the guise of legal positivism, had endorsed a racialized assault against the humanity of Black America in the name of private profit.
To be sure, this was a record of atrocity and a mode of constitutional argument that remained spoken by only a few in America’s age of slavery: a language of quiet truths that America’s mainstream politicians choose not to speak when they climbed the steps of the Capitol for the first time and spoke instead of deference to the sacred rights of the states for the broader ends of preserving a more perfect union. But as the new history of abolition teaches us, those who crafted this record may well have been writing not for the politicians of their moment, but for the dignity of those denied full membership in the polity of America and the hope of a future generation that might listen to the recorded histories that remain with us today.