Wednesday, May 19, 2004

Gay marriage

Well, it's happened and Western Civilization (or at least what passes for it in these parts) still stands. As a student of slavery in the Northern states of the U.S., I see in the Massachusetts gay marriage case something that echoes the legal fight that ended slavery in that state: "judicial activism."

Like states' rights, this one has come around from the beginning in American history. Politicians who love it one year hate it the next: it all depends on the last ox to be gored. But some people today, in discussing the Massachusetts marriage case, talk about such matters as modern corruptions, signs of our fall from the purity of the Founders.

The Massachusetts state constitution of 1780 contained a bill of rights that declared "all men are born free and equal, and have ... the right of enjoying and defending their lives and liberty." Clearly the Legislature, in approving this, did not intend to abolish slavery in Massachusetts. Had they wanted to do so, they would have been explicit (and probably set a long timetable for very gradual emancipation, as Pennsylvania's constitution of the same year did).

The courts were pro-abolition, however. And a 1783 judicial decision, interpreting the wording of the 1780 constitution, brought slavery to an end in Massachusetts. Collectively known as "the Quock Walker case," it was actually a bundle of judicial actions concerning a Massachusetts slave known as Quock Walker (the name is variously spelled).

Walker had been promised freedom by his original owner once he reached age 25, and there were witnesses, which usually was sufficient to win such a case. But the attorney who represented him, Levi Lincoln, was not content to argue the case on the technical grounds. One of the men who had claimed to own Walker had assaulted him, and Walker's legal team pressed charges on the basis that Walker had been a free man at the time, not property.

In his appeal to the Supreme Judicial Court, Lincoln argued that slavery was a violation of the laws of nature and of God. Chief Justice William Cushing held that the 1780 constitution had, in fact, granted rights that were incompatible with slavery:

"[W]haver sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses-features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal -- and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property -- and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract ...."

The case was not set down in law reports, but it was the talk of the state. Legal experts have pointed out that Cushing's statement likely was obiter dictum, and the constitution of 1780 never actually was amended to prohibit slavery. Nevertheless, with the courts clearly refusing to uphold it, slavery in Massachusetts was doomed. The Legislators pondered whether to clarify their meaning in the constitution, but they thought better of it, rightly reading public opinion as being strongly anti-slavery.

This public opinion involved more than Cushing's moral and political rhetoric. Massachusetts had a strong, politically active white working class which perpetually sought an end to slavery, not for the benefit of blacks but to remove them from economic competition. Rich men put their slaves to work, sometimes in skilled trades, and white workers resented this. Free blacks, without the protection of powerful masters, easily could be driven from crafts, and this is what eventually happened. "If the gentlemen had been permitted by law to hold slaves," John Adams wrote, "the common people would have put the Negroes to death, and their masters too, perhaps."