In The Antebellum Origins of the Modern Constitution, Simon Gilhooley recounts how nineteenth-century abolitionists and proslavery thinkers invoked the “spirit” of the American founding. Abolitionists challenged the Constitution’s proslavery clauses by, for example, reading the Declaration’s egalitarian preamble into the Constitution. Defenders of slavery cited the framers’ proslavery leanings to preempt congressional abolition of slavery in the territories and District of Columbia. Although it is situated in these antebellum debates, Gilhooley’s thorough, insightful work offers broader lessons on how competing political coalitions often appeal to the same capacious concept of the framers’ “spirit.”

Abolitionist and proslavery thinkers alike struggled to claim the legacy of the founding. The book, expansive and comprehensive, is structured chronologically, opening by recounting the abolition debates of the 1820s and the early 1830s. The first substantive chapter recalls how proslavery congressmen, seeking a concession to expand slavery into western territories during the 1820 Missouri crisis, invoked the framers’ compromises over slavery. Antislavery opponents then reframed these founding compromises as emergency measures, with little precedent for their own time—an opening salvo in the struggle to claim the legacy of the founding.

As Gilhooley shows, by the 1830s, Black and white abolitionists—particularly followers of William Lloyd Garrison in Boston—began contesting the Constitution’s proslavery provisions by invoking the Declaration’s egalitarian language and the Revolution’s legacy of civil disobedience. Later Bostonian orators legitimized defiance against the Fugitive Slave Clause and 1850 Fugitive Slave Act by recalling their Revolutionary forebears’ resistance to the Tea Act. For example, speaking from Faneuil Hall, where Revolutionary Bostonians decried British tariffs, abolitionist Theodore Parker declared that the rescue of alleged fugitive slave Shadrach Minkins was “the most noble deed done in Boston since the destruction of the tea in 1773” (“Speech at the Faneuil Hall Meeting,” in Anthony Burns: A History, 1856).

As abolitionists looked beyond the Constitution, Southern proslavery thinkers reinterpreted the Constitution to affirm slavery. Gilhooley tracks this shift, with a special emphasis on Virginia thinkers. Reacting to the 1831 Nat Turner rebellion, Virginians looked to better entrench slavery, and so abandoned the longstanding 1772 Somerset decision—which held that slavery was protected only under positive, statutory law—and instead reinterpreted their state constitution and the federal Constitution to protect a property right to enslaved people. Parallel to this interpretive shift was a textual one. Even before the rebellion, Virginians in 1830 revised their state constitution to expressly forbid uncompensated taking of property, including property of enslaved people. Other Southern states similarly revised their constitutions to preempt antislavery constitutional interpretations by abolitionist judges and legislators (see, for example, Stephan Stohler, “Slavery and Just Compensation in American Constitutionalism,” Law & Social Inquiry 44[1], 2019).

This constitutionalization, which precluded uncompensated legislative abolition, forced abolitionists to consider alternate routes to emancipation. Antislavery reformers instead sought abolition in the territories and the District of Columbia. The second half of the book addresses debates over abolition in the District in the 1830s and 1840s. The Constitution largely left recognition and regulation of slavery to the states but empowered Congress to regulate the District, and—as some abolitionist organizations petitioned—to abolish slavery in the District. Proslavery members tabled these abolition petitions under the contentious “gag rule,” and on the rule’s repeal, invoked framers’ intent against abolition in the District. Gilhooley notes that this appeal to the Constitution’s spirit increasingly displaced appeals to the Constitution’s text in congressional debates: “the appeal to a spirit of the founding came not from a need to fix the constitutional text, but rather in an attempt to circumnavigate it. In the debates of the 1830s, it was not that the history of 1787 was holding as to the meaning of the textual constitution, it rather came to be the case that the history of 1787–88 illustrated a spirit that itself became holding as the Constitution” (p. 9).

In describing this long debate, the work makes several contributions to the study of American constitutional thought and interpretation. The first concerns how abolitionist and proslavery legislators, printers, and organizers pitted constitutional “spirit” against the constitutional text. Scholars have detailed the framers’ entrenchment of slavery in the Constitution’s text, the resulting congressional and judicial defense of these proslavery clauses, and the consequent condemnation of this text by abolitionists. This story is a familiar one to students of abolition. Gilhooley builds on this, demonstrating that the Constitution’s authorization of congressional abolition in the District forced proslavery members to dismiss this section of the constitutional text and, like abolitionists, to appeal instead to the framers’ spirit. Gilhooley’s book is therefore nicely nuanced, showing that the Constitution, in its brevity, neither clearly empowered nor forbade congressional abolition in the territories and District, allowing for conflicting interpretations of the framers’ intent.

Gilhooley consequently demonstrates how competing coalitions struggled to claim the slippery concept of the framers’ spirit. Whereas abolitionists invoked the founding in the early antebellum era, later prominent abolitionists—chiefly Garrison and Wendell Phillips—condemned the framers’ corrupt compromises over slavery, citing the 1840 publication of Madison’s Notes. As abolitionists ceded this rhetorical terrain to proslavery thinkers, proslavery invocations of the founding spirit proliferated, appearing in Justice Joseph Story’s 1842 Prigg decision and culminating in Chief Justice Roger B. Taney’s claim in Dred Scott (1857) that the framers intended to proscribe Black citizenship. Noting that inegalitarian and egalitarian judges and legislators alike can easily co-opt the amorphous language of founding spirit, Gilhooley warns contemporary progressives that “we should be wary of a belief that spirit or principle offers the prospect of an easy or automatic corrective to any perceived excesses of originalism” (p. 20).

The Antebellum Origins of the Modern Constitution is thorough and comprehensive, recounting shifting interpretations of slavery’s constitutional status and tracing the schisms between proslavery and antislavery thinkers, between Black and white abolitionists, and even within the minds of individual abolitionists. In emphasizing constitutional interpretation, the work says less about the politics of constitutional amendment and revision. In the antebellum years, the only explicit constitutional protection of slavery by name was made under the state constitutions. Southern state legislators and constitutional convention delegates—some invoking the founding—extended and affirmed slavery by forbidding uncompensated emancipation and by stripping enslaved people’s legal rights, preempting antislavery constitutional readings, and shaping the interpretive debates that Gilhooley describes. These constitutional debates, good fodder for Gilhooley’s claims, are perhaps beyond the scope of the book. Nevertheless, the work offers a capacious, exhaustive summary of interpretive debates among members of Congress, state lawmakers, printers, and organizers, and it is useful to scholars of American political thought and development, constitutionalism, and slavery. The work also offers a compelling normative lesson on constitutional interpretation. Recounting reformers’ struggle to establish an authoritative interpretation of the founding spirit, Gilhooley concludes that such a strategy may be foolhardy: “If we are to create a truly democratic polity, it is perhaps time for us to leave 1787–88 behind” (p. 22).