How Bleeding Kansas shaped John Brown's provisional constitution

In 1856, Brown wrote bylaws, a covenant, and op-eds that framed proslavery forces as outlaws under the law of nations. Those writings laid the groundwork for the constitution he drafted before Harpers Ferry

Before John Brown led the 1859 raid on Harpers Ferry, he and his followers drafted and ratified a Provisional Constitution, and the roots of that document reach back to Bleeding Kansas. In this John Brown Project roundtable, constitutional scholar Robert L. Tsai traces how Brown's 1856 writing in Kansas shaped his provisional constitution. Tsai is Professor of Law and Harry Elwood Warren Memorial Scholar at Boston University School of Law, author of America's Forgotten Constitutions, and author of the Boston College Law Review article "John Brown's Constitution."

Tsai explains how Brown worked to legitimate armed resistance to the Slave Power by calling proslavery forces "pirates" and "barbarians," terms that placed them outside the law of nations. He also shows how Brown wrote bylaws and a covenant for his fighters that invoked sacred honor and promised captives an impartial jury, drawing on both the Calvinist covenantal tradition and civic republican ideas of civic virtue. Tsai then turns to Brown's Declaration of Liberty, which borrowed the structure and natural rights language of the Declaration of Independence to speak on behalf of enslaved people who could not organize for themselves. Together these documents show John Brown as an abolitionist committed to the rule of law, democratic self-government, and a free republic without slavery.

Lightly edited transcript

Kansas and the roots of the provisional constitution (0:00)

Moderator: You're sketching the biographical background, particularly because we're looking at Brown and Black people, their influence on him, and how that rolls into his actions, particularly his writing. I want to plug in Kansas, because, Professor Tsai, you point out that you start to see this constitutional framing in Brown's writing in Kansas.

So as Ian is saying, he's been exposed to the politics of protest and the Black convention movement. Ian, maybe later we'll circle back, and you can talk about the Gileadites, because he writes a document there. But I think the point in your article is very strong in terms of the lineage of this provisional constitution. You talk about Kansas and what he did in 1856.

The fight over slavery's expansion west (1:05)

Professor Tsai: What I detect in his activities in Kansas is that he's leading the fight against the proslavery forces. This is a period when the question of slavery is being fought square mile by bloody square mile, because Congress has indicated that each territory, once it becomes a state, will be able to choose for itself whether it will be free or slave.

This comes to great cheers from existing slaveholders. If you read the writings of major slaveholders and their defenders in the South, they've started to fret. That's a reason they secede the moment Abraham Lincoln is elected. They had already begun to worry that if things kept going the way they seemed to be going, slavery would probably meet its demise in the South. So the only answer was to move slavery into the West as aggressively as possible.

That helps us understand why John Brown heads out, gets guns from abolitionist financiers, and races west with his sons and others.

Barbarians and pirates: the language of legitimacy (2:55)

But he's not just over there fighting, and that's the most interesting part of this story for me. He's also working to legitimate what's going on: to legitimate the use of force, to legitimate the resistance. So he's writing op-eds calling the Slave Power derogatory names. They're not just nasty names. They have legal significance. He's calling them barbarians. He's calling them pirates.

In those days, those terms put people outside the law of nations. They said that people doing X, Y, or Z, in this case fighting for the right to own other human beings, were in violation of the law of nations and of natural law more broadly.

Bylaws, covenants, and civic virtue (4:03)

During this period he also starts to behave in what I call a rule-of-law-like manner, because he's writing bylaws for his little army. That suggests he intends to hold his soldiers to those bylaws. He describes some of them as part of a covenant, and here we see the beginning of his effort to invoke the covenantal tradition in American politics.

That matters for more than the religious element, which is consistent with his Calvinist background. It matters because of civic republican theory, which he invokes more broadly and which has largely British and French origins that are part of our own tradition. Civic virtue was essential. How do you encourage ordinary citizens to have civic virtue? How do you instill it in leadership? He is saying that even as we fight, we have to fight in a way that's consistent with the virtue we want all Americans to embrace.

Sacred honor and an impartial jury (5:35)

So he writes up what he calls a covenant, and he talks about the sacred honor of his forces, who are trying to maintain the rights and liberties of the free-state citizens of Kansas. Already you see the beginnings. He's working with constitutional ideas and invoking the covenantal tradition, with both a secular and a religious component. He writes in the covenant that those who are captured and violators of the bylaws will have the benefit of an impartial jury. There are rule-like elements to it.

I haven't looked very deeply into whether his own men were held strictly to the bylaws. But the fact that he put these things down in writing already signals a commitment to rule-of-law-like institutions and behavior.

From covenant to provisional constitution (6:53)

Eventually this develops into the provisional constitution. The covenant is the start of writings that lead to more writings, and to more imagining of institutions, that we ultimately see in the provisional constitution. He mentions rights and liberties in the covenant but doesn't go into them much. In the provisional constitution, he will address both the duties and what we now consider the rights of each person it governs.

The Declaration of Liberty and 1776 (7:33)

The Declaration of Liberty is the other document he writes during this period. Here we see his most obvious engagement with the writings of 1776: the Declaration of Independence and Jefferson, which Ian mentioned earlier. He's also aware of the question of a document like this one's legitimacy.

I'm glad Ian brought up Brown's awareness of the Black tradition of constitutionalism, of covenants and conventions, because here he very self-consciously says the document is written only by representatives of enslaved people. Everybody knows the enslaved are not able to organize themselves. Free Black people can, and have been doing so. But the people currently enslaved, the ones he wants to speak and act on behalf of, cannot organize easily.

Speaking for the enslaved (8:46)

What's interesting is that he isn't necessarily claiming to speak for all free people. He wants to say something on behalf of enslaved people who can't speak for themselves, or at least to begin to. In this document, he talks about the importance of creating a free republic and breaking from the yoke of oppression.

He uses a lot of the terminology and structure of the Declaration of Independence, in a smaller form. There are grievances. He talks about the natural rights, the human rights, that people are entitled to in a free republic. These are all ideas we see in Jefferson as well. So I think those are the beginnings, the precursors to what we'll eventually see in the provisional constitution.

Outro music: John Brown’s Body, Chuck Bickford