Rather than write a column for this Independence Day weekend edition of the newsletter, I decided to chat with Zaakir Tameez, a recent graduate of Yale Law School, about his new biography of Charles Sumner, the Massachusetts senator and great antislavery proponent who helped change the course of American history.
I hope you enjoy the discussion, which has been edited for clarity.
Zaakir, thank you so much for joining me to talk about your new book. Before we jump in, I just wanted to ask you to tell us a little bit about yourself. What brought you to Charles Sumner as a subject?
Thank you for having me. I graduated from the University of Virginia before going to law school at Yale. I wrote the book at Yale, but my interest in history started at U.Va. I was there in Charlottesville in August 2017 when neo-Nazis and neo-Confederates stormed and desecrated our grounds with antisemitic bile, with racist chants and with their tiki torches. And at one point, these neo-Nazis converged at the statue of Thomas Jefferson, the founder of U.Va. And the neo-Confederates wanted to, in some way, celebrate Jefferson as an icon of white supremacy, to celebrate his legacy as a slaveholder.
But a few of my classmates got to the Jefferson statue first. And they defended the Jefferson statue from these white supremacists. I think what they were doing was not saying that they value Jefferson, necessarily, but that we have to take ownership of our history, because if we don’t tell the stories of history, then we leave it to others, like the neo-Confederates, to do so.
And I think that moment seared in my mind this interest in studying our past, because it’s only through the past that we can understand our present moment.
So what brought you from this interest in history to wanting to take on the project of writing a biography of Sumner?
I never planned on writing a book. The project started in a class in law school where I was reading the brief filed by Thurgood Marshall and the N.A.A.C.P. in Brown v. Board of Education. And as I’m reading this brief, I stumble on the name of Charles Sumner, who was cited not once, not twice but more than 40 times.
And I’m amazed by this because I knew about Charles Sumner as this U.S. senator who had been caned on the Senate floor as a prominent politician during the Civil War. What I did not know is that more than 100 years before Brown, Charles Sumner tried to integrate the schools of Boston in a case at the Massachusetts Supreme Court, where he argued that the equality provisions of the Massachusetts Constitution and the Declaration of Independence had to be implemented in law, such that there can be no separate schools.
Marshall took this argument by Charles Sumner, cited it point by point, redeveloped it and then said — and I’m paraphrasing — that credit goes to Thomas Jefferson for saying all men are created equal. But it was none other than Sumner who insisted that equality should be implemented in law. And given my own interest in Jefferson and at U.Va. and my interest in the history of race and slavery in this country, I thought Charles Sumner’s story needed to be told again.
Tell us about Charles Sumner in Boston. What is his family background? What brings him to the place where he is fighting for integration in Boston schools?
So Charles Sumner grew up in a series of contradictions. I’ll tell you just two. First, he’s a third-generation Harvard-educated man. His father went to Harvard, his grandfather went to Harvard, and he went to Harvard. But he also grew up in poverty because his father was a bastard child of his grandfather. Didn’t have any of the wealth and privileges that came with that. His father also was just a lawyer who was really bad at being a lawyer. He just couldn’t seem to make any money. And so they grew up impoverished. His mom was a seamstress.
That leads to the second contradiction, which is that Sumner grew up in a predominantly African American neighborhood in Boston in the 1810s and 1820s because his parents could not afford to live in any other part of town and also because his father was a true racial egalitarian. He was known to tip his hat walking past Black Bostonians. He always said that he wished for the day when Black people would be judges in Boston. Interestingly, he insisted on using the term “people of color” to refer to his neighbors. I thought of this as a modern term, but I see it in his diary.
Now put all that aside. Sumner grows up, goes to Harvard, goes to law school, is trained by Joseph Story, a prominent justice on the U.S. Supreme Court. And as a result, he gets inculcated in a very conservative aristocratic academic environment. His teachers wanted him to become a corporate lawyer, and that’s what he does after law school. And yet as he practices law with the merchant class of Boston, many of whom make their profits off slavery, he still lives in his mother’s home in the Black part of town.
His contradictions are things that he wrestles with throughout his early adulthood.
What did his peers think of his closeness with Black Bostonians?
So when he was a kid, he was bullied in school for coming from the Black part of town. And the main bully, interestingly enough, was a young Wendell Phillips. So Wendell Phillips is one of the leading American abolitionists, kind of the right-hand man to William Lloyd Garrison. But Phillips is a real Boston blue-blooded Brahmin. His father was the first mayor of the city. And Wendell Phillips, as a kid, was definitely a racist and definitely prejudiced. He was kind of the alpha male of the school because of his privileges. And so he bullied Sumner. They went all the way through Boston Latin School. They went to Harvard College together. They didn’t even become friends until law school.
That’s really interesting. It speaks to the small world that was the world of abolitionism. Everyone knew one another and ran in similar circles.
Yeah, it’s so true. This is a slight exaggeration, but I sometimes feel like Sumner knew every single famous person of the 19th century. And through my research, I just come across all these names like Alexis de Tocqueville, Charles Dickens, Ralph Waldo Emerson.
I could go on and on, but they’re all there. They all passed through Boston, or he knew them through this part of his life or a different aspect. And it’s crazy to think how small the country was.
So how does Sumner go from practicing corporate law to politics?
Wendell Phillips and other abolitionists, Black and white, are trying to pull Charles Sumner into their movement. They recognize that he had a powerful intellect. He did soaring oratory. He was 6-foot-4, which would have made him a formidable abolitionist.
Big dude.
Big dude, strong, loud, outspoken. And they must have recognized that growing up in the community that he did and the private views he was expressing that he was someone who could be recruited for the movement. And one of the first ways they tried to recruit him was through the law.
Sumner, as I said, was a student of Joseph Story, this titan of American law, who wrote “Commentaries on the Constitution of the United States,” probably the most famous treatise of constitutional law of all time. Sumner once called “Commentaries” a light law reading, an entertaining and informing book. It is not light or entertaining. It is informing, but I wouldn’t call it the other two things. And so they invited Sumner to go to the Smith School, one of the first Black schools in the country, near his home, and give a lecture to the community on constitutional law.
And I saw the notes of his lecture, and they are so tone deaf. He’s just getting into federalism and this and that, and even the rights he’s describing are obviously effectively inapplicable to this community, which he doesn’t even acknowledge, at least in the notes that I’ve seen. But he does go, and he goes dressed up, and he takes them seriously, and he gives this lecture.
And over the next few years, abolitionists keep trying to pull him in. But he wrestles with this because he’s uncomfortable with the anti-constitutionalism of Garrison and Phillips. He once had this exchange of letters with Wendell Phillips, where Wendell Phillips is pointing out that the Constitution makes these compromises with slavery. Most famously, Phillips and Garrison believed, as Garrison put it, that the Constitution is “a covenant with death and an agreement with hell.”
Sumner, meanwhile, keeps defending the Constitution. He says that he knows of no Constitution anywhere that is morally perfect and that all have flaws. And he says: As a citizen who benefits from the Constitution, should I not use my views and my vote to influence it to make it better? So they have this debate. And it’s fascinating because remember that Phillips and Sumner went to law school together. They had the same teacher. And now they’re having this complex debate.
But then around the same time, Sumner meets John Quincy Adams. They met by accident. Adams had mistakenly thought Sumner had been to Russia because Sumner’s brother had gone to Russia. So Sumner goes to Quincy. They realize that Sumner’s the wrong Sumner and that Adams wanted to meet someone else, but he’s already there, and so they just get to talking. John Quincy Adams had for a while been proposing that the Constitution be amended to abolish slavery.
And at this time, Adams was serving in the House, right?
Yes, at this time he is serving the House, he’s out of the presidency, he is an antislavery proponent of a kind, and he’s not quite an abolitionist, but he is very outraged at the suppression of abolitionism in the North.
Adams is suggesting an amendment to the Constitution to abolish slavery, which is very provocative and also seemed very delusional. No one could have imagined that being something practical. Not unlike today, the idea of amending the Constitution seemed just so out there. But Adams was proposing it, and Adams conceived of the Constitution as a flawed document that failed the Declaration of Independence, which his father, John Adams, helped write. So Adams teaches Sumner to think of the Declaration as a promissory note, that when it said “all men are created equal,” the founders had made a pledge, and that pledge needed to be fulfilled. And the only way to bring the Constitution in line with the Declaration was to amend it.
So when Sumner finally does begin entering into politics and into antislavery politics, in one of his first speeches, at a Whig state convention in Massachusetts, he starts proposing the idea of an abolition amendment. And that was his way of bringing the moral fervor of Garrison and Phillips into the legalistic ideas that he had.
We’ve both alluded to it, so I think it might be worth unpacking. Whenever anyone thinks about being against slavery in this period, they think of everyone being an abolitionist. But that wasn’t really the landscape of antislavery thinking at the time. Abolitionists were sort of on one end. But who were the other nonabolitionist antislavery groups?
Yeah, so there’s a range of different attitudes here. Abolitionists are generally defined as people who demanded the unconditional, immediate, uncompensated elimination of slavery and then freedom and equality granted to Black Americans. It’s a tiny, tiny, tiny, tiny fraction of people, white people, who believed in abolitionism.
Then you have a kind of general antislavery sentiment, which meant slavery is morally wrong. Maybe it should be abolished in the territories and permitted in the South. Maybe there should be gradual compensated abolition. Maybe there should just be the nonextension of slavery into new places. There are all kinds of different views here, a whole range. And then there is the colonization movement.
The colonization movement proposed abolishing slavery or winding it down over a period and then effectively deporting formerly enslaved people to Africa. The colonization societies could not imagine white and Black people living as equals in this country or African Americans being a political body in this country. So their proposal was just to mass deport them.
Many abolitionists and antislavery politicians, interestingly, began at some point in the colonization movement. Sumner never did. He’s one of the very few white abolitionists who never entertained the idea of colonization.
And I think that roots back to his childhood, seeing a free Black community that was marginalized, yes, was persecuted, yes, was oppressed but was also vibrant and full of life and full of intellectual ideas and full of people going to school and going to church. And so from a young age, he could imagine a different kind of world in which white and Black people were equally American.
It seems like that early experience really solidified in his mind that Black Americans were not some foreign imposition but very much part of the national community.
Precisely, and once he gets into politics, he would continually point out that at the time of the founding, in 1788, when the Constitution is ratified in 11 of the 13 colonies, Black men, at least on paper, could vote or perhaps Black men of property, which is a really striking fact, I think, for most people who don’t know much American history, because we assume that Black men didn’t have the right to vote, couldn’t own property, couldn’t do anything until after the Civil War. But in fact, many of the rights that they did have at the time of the founding were taken away after the founding. I believe that in New Jersey and New York, it was only in the early 19th century when Black men lost the right to vote.
The expansion of political rights for all white men kind of went hand in hand with their restriction from other groups. That was the paradox of Jacksonian democracy — the country became more democratic for some and far less democratic for others.
I think that’s right. And then I didn’t get much into this, sadly, but there were many Black veterans of the Revolutionary War in Boston or their children. And Sumner probably knew many of them, or at least he would have known that there were many Black people who fought during the Revolution. And so for him, this idea of Black citizenship was very natural. It wasn’t something alien or something that was bizarre or inconceivable.
Let’s talk about how he gets to Washington. How does he get to the Senate?
So in 1849, Sumner is a corporate lawyer, and a young Black lawyer named Robert Morris comes to him. And Morris asked Sumner to join him on a case to integrate the schools of Boston. This is the case I referred to earlier, and it’s amazing because the idea of using litigation to advance school integration came from this young Black attorney. It did not come from Sumner, who simply joined on the case.
Now, how did Sumner and Morris know each other? They served together on the Boston Vigilance Committee, which was an organization that Sumner helped to create that was a collaboration between lawyers and activists to protect Black Bostonians from being re-enslaved.
After the passage of the Fugitive Slave Act of 1850, Congress had essentially authorized bounty hunters to come to the North and accuse either runaways from slavery or just free people of being runaways from slavery. They would be sent to a magistrate. The magistrate would get paid $5 for giving them freedom, $10 for sending them into slavery.
So Sumner is horrified by this law, what he calls the most “cruel, un-Christian, devilish law.” It gets him really involved in the thick of the action. So he is helping to defend suspected fugitives from being re-abducted. He is representing them in court. He is doing this, doing that with Morris and others. And he is also trying to figure out how to get this law overturned in Congress in the future.
Now, this is, again, very hard to conceive. Sumner’s a dreamer. And he sets out on a mission to try to get an antislavery politician to succeed Daniel Webster, the famous Webster of Massachusetts who was in the Senate and had endorsed the Fugitive Slave Act. When Webster was appointed secretary of state, there was now an opening for that Senate seat.
Robert Winthrop is appointed to be there for about a year and a half before the election. And as that election is approaching, Sumner knows that the Massachusetts legislature will decide on who is the next senator, because back then, legislatures decided, rather than the public. And Sumner is now organizing with the Free Soil Party.
This is a party that stands for the opposition to slavery in the Western territories. Again, that’s closer to the middle of the antislavery spectrum. Summer’s campaigning with the Free Soilers. The Free Soilers win a handful of seats in the Massachusetts legislature, not a majority, just a small number of seats, but it’s enough to deprive the Whigs and the Democrats of a majority, which means one of those two parties needs to form a coalition with the Free Soilers. And the Free Soilers present an offer to the Democrats that in exchange for voting with the Democrats within the state, the Democrats would give the Free Soilers a seat in the Senate.
And the next thing you know, Sumner is elected to the U.S. Senate on this Free Soil platform.
To the extent that anyone knows about Charles Sumner, it’s Sumner in the Senate, specifically the confrontation with a congressman, Preston Brooks. Could you walk through Sumner’s first years in the Senate?
Sumner gets to the Senate, and he is full of lofty ideas about what the Senate is going to be like. Sumner went to the Boston Latin School. He had been reading about the Roman Senate all his life. And he probably imagined something very similar when he gets to Washington. And in some ways, the Senate does reflect that Roman ideal. It’s a gorgeous space. A semicircle with these thick crimson carpets, mahogany desks, a beautiful vaulted ceiling. The senators are known for their booming oratory, and the Senate is a place of very vibrant debate.
So Sumner gets there, and probably one of the first things that he would notice is that the floor is covered in tobacco spit. Because senators were known to spit tobacco directly onto the floor, even though there were spittoons available everywhere. They would spit on the floor because they could. Charles Dickens once visited the Senate and he said that if anyone goes to the Senate, don’t look down.
On top of that, there is a lot of machismo behavior. Within the first few weeks, he sees senators almost getting into brawls and threatening each other. He sees senators getting drunk, often by the afternoon. A lot of the committee rooms had free liquor. And he’s coming in from Puritan New England. So he’s horrified by all this, very uncomfortable. He’s prudish by nature.
And he would later describe these kinds of behaviors as plantation manners. Although they did apply to many Northerners, Sumner perceived it as all arising from this Southern — quote, unquote — gentlemanly behavior. He’s warned within days of arriving by a colleague that in Washington slavery rules everything.
Anyone who was being appointed to a cabinet position or to any position that the Senate had to confirm would be asked about their opinions on slavery. All the committee chairs in Washington would not have been selected if they held antislavery political positions. The leading members of the Senate are all coordinating to ensure that slavery is expanding within the Southwest. Sumner is appalled and deeply disturbed by this.
At the same time, he is still navigating how to speak out against it. So for the first two years, he is becoming friends with as many people as he can. He is going to a lot of parties in Washington. Washington is a Southern slave city. And so he’s being exposed to Southern culture. Interestingly, in Washington he befriends Jefferson Davis’s wife.
And even writing many decades later, I think the 1880s or ’90s, Davis’s wife, after the Civil War, remembers Sumner fondly because Sumner would talk to her for hours about dance and about laces and about dresses and the history of this and the Romans and the Greeks. Sumner was a big yapper. And so anyone who liked to listen just enjoyed his company.
This is maybe a little later in the story, but I know he was close to Mary Todd Lincoln, and it sounds like a very similar kind of relationship.
Exactly. He was really close to Mary Todd Lincoln, who also just enjoyed they would speak in French together because Mary Todd had studied French and Sumner was one of the only people in Washington who was fluent in the language. And so he often had these kind of interesting pairings with women, leading women in Washington society.
So he’s navigating the Senate, making friends, trying to get his bearings. When is his first real address to the Senate, and what is he tackling in that first address?
For the first two years, Sumner is getting a lot of pressure from his abolitionist and antislavery constituents to speak out and to make a bold antislavery speech. His base, so to speak, is furious with him for remaining relatively silent at first.
Sumner keeps writing to constituents saying: You need to be patient with me. I need time. I don’t want to just be labeled the radical senator who won’t have credibility with my colleagues. And meanwhile, folks in Boston are furious with him because they’re afraid he’s selling out. Theodore Parker, this abolitionist reverend in Boston, writes to Sumner and says: I expect you to be the senator with a conscience. I expect heroism of the heroic kind from you.
When Sumner is not meeting that expectation, Parker writes to Sumner’s best friend and tells him to tell Sumner that he needs to speak; otherwise, he is dead, dead, dead. So he’s getting this pressure for a while. Eventually Sumner decides that it’s finally time to give a speech. And he makes the mistake of telling colleagues that he plans to give a major antislavery speech.
It’s just classic rookie behavior, right? You don’t tell your opponents your play. And so naturally when he tries to give the speech, other senators stop him, using various procedural rules. And for a while Sumner’s getting really anxious because if he can’t get the floor to speak before the end of that first two years, he’s going to go home to Boston, and they’re going to hate him.
So he keeps the speech in his desk, and at some point he learns that if he speaks on an amendment to an amendment to the budget bill, he will have the floor for as long as he wants. So when the budget bill is coming up for a vote, Sumner decides that that’s the moment he’s going to speak, connecting it to the fact that the budget bill is going to include appropriations to commissioners who are participating in the abduction of fugitive slaves.
He’s ostensibly giving a speech against the Fugitive Slave Act. The speech is called “Freedom National; Slavery Sectional.” He gets up, claims the floor, boasts that nobody can stop him now, and then he delivers this major antislavery speech, almost entirely from memory, several hours long, and he lays out a theory that he adopted in part from his colleague Salmon Chase.
As a quick sidebar: Salmon Chase was a prominent Ohio antislavery politician and longtime presidential contender under various tickets who would serve as Lincoln’s secretary of the Treasury and then chief justice of the United States.
So Chase is a brilliant lawyer, not as good of an orator. And that is where Sumner thrives. So Sumner takes Chase’s ideas and gives them a pithy, easy way for people to understand. He argues that under the national flag, there is no such thing as slavery. Slavery can exist only at the state level. Now, what’s the evidence for this?
He points out that the Constitution never uses the word “slavery.” James Madison famously said in his diary that he did not want to admit the idea of property and man in the Constitution, which is why they use euphemisms. Sumner points out that at the time of the founding, there was no territory that had slavery.
The first territories incorporated into the country in the Northwest were all free territories. And then Sumner also points out that slavery had never been recognized at the national level.
Now, he does something really interesting here, which is that he’s making this constitutional argument that slavery is unconstitutional in territories because it has no national recognition, then he says that every word of the Constitution must be construed in favor of liberty. He’s drawing from a common law principle that you must interpret the law in favor of the value of liberty.
And so unless there is an explicit positive language in the Constitution establishing slavery in territories, the default is that there cannot be slavery in territories because slavery is a violation of natural liberties. When he makes this argument, he continues to invoke the founding fathers. He says that he is going to look at the practices of the founding fathers, the intentions of the founding fathers, the words of the founding fathers, and he goes on and on.
While preparing for the speech, he wrote to his buddy Charles Francis Adams and asked him if he had any private letters of his grandfather against slavery, his grandfather being John Adams. And he makes these very bold arguments about why the founders, in his view, are antislavery at the federal level, even if they permitted slavery at the state level.
So for example, George Washington was a slaveholder. And many slavery proponents would point out: How can slavery be wrong if Washington was a slaveholder himself? And Sumner responds and points out that Washington emancipated his slaves in his will. And to Sumner, that means that Washington on earth was a slaveholder but Washington went to heaven as an abolitionist.
And he says, essentially, “From Washington on earth, I appeal to Washington from heaven.” He points out that Jefferson is a brutal enslaver but Jefferson wrote the words “all men are created equal.” And so Sumner said that Jefferson was effectively, temporally, a slaveholder but achieved immortality as an emancipator.
So he uses this rhetoric. He has this very different idea of who the founding fathers were. He’s also embracing the founding project rather than rejecting it in the ways that some abolitionists were. And this whole approach is particularly novel and very disarming for his opponents, who were just unprepared to react to a speech like that.
It’s interesting to see as far back as then this approach of cloaking themselves in the flag, in the founders, in the Constitution to make their case. And it’s a testament to its effectiveness, right? In a lot of ways, their political and intellectual descendants — the civil rights movement activists — do the exact same thing, basically adopt the same strategy, for making their rhetorical appeals.
It’s very apt because Sumner was frustrated with abolitionists who continued to denounce the Constitution. Garrison, for example, on July 4 one year, while standing onstage with Sojourner Truth and Henry David Thoreau, took a copy of the Constitution and lit it on fire.
So Sumner was very disturbed by this approach. He believed that strategically and morally it was better to embrace the American project. But at the same time, he doesn’t reject his more radical allies. They’re working in concert for the same political objectives, even if they have a different conception of America writ large.
Around this time the Republican Party is taking shape. So Sumner becomes a Republican. Does he find himself in the Republican Party as sort of a founding member, or is he kind of someone who joins the Republican project after it’s been more or less established?
He’s one of the founders of the Republican Party. The Republican Party was organized at the grass roots, so there’s no founding charter of the Republicans that names the signatories at the bottom. But insofar as there are founders of the Republican Party, he’s definitely on that list. And after the caning, which we may talk about in a moment, the Republicans embrace Sumner as one of their mascots, so to speak. At the first Republican National Convention in 1856, they are chanting Charles Sumner’s name in unison. The Republicans print Sumner’s speech “The Crime Against Kansas.” As many as three million copies are printed by the Republican Party. He’s very much one of the first Republicans and one of the symbolic founders of the Republicans.
Let’s go into what might be the big event of his life in this period, an event we alluded to earlier, which is that he’s attacked by Preston Brooks, a Democratic member of the House from South Carolina.
So let’s paint a picture of America by 1856. By this time, there were four million enslaved people in the South. Roughly one-quarter of the Southern population is enslaved. Slaveholders are terrified of domestic rebellion. And as part of that, they are seeking to suppress abolitionist dissent by any means necessary.
There are many Southern states where you could get the death penalty for helping a slave escape, even if you’re a white person. Southern states were monitoring the mail for any antislavery sentiment, which was criminalized. All this comes to the fore in the territory of Kansas. Kansas is a territory straddling North and South.
Congress passed the Kansas-Nebraska Act two years earlier, essentially allowing the territories to have a vote on whether they would become a slave state or a free state. White men are going to vote on whether to enslave the Black population of Kansas. Slaveholders are desperate to make sure that Kansas becomes a slave state, so much so that Sumner’s former colleague David Atchison — the former president pro tem of the Senate, a senator from Missouri — goes back to Missouri, organizes a gang of more than 1,000 men. They storm into Kansas, take over polling locations at gunpoint, stop the ballots and force voters to vote in favor of slavery. And Atchison tells his thugs: If we can get slavery in Kansas, we can spread it all the way to the Pacific Ocean.
Meanwhile, in Washington, a slave city, many of Sumner’s antislavery colleagues are nervous to speak out against this terrible threat to democracy. They themselves are getting harassed and accosted on the streets. They knew that there were consequences for speaking out against slavery, particularly if they spoke out in very strong language. If they were muted and quiet about it, they were safe. If they spoke out strongly, they were at risk of attack because Southern slavocrats in Washington followed the same social mores of South Carolina and Georgia: If you spoke against slavery, you would get hurt.
In this context, Sumner decides after thinking it over that he needs to speak out, that if no one else will, he will do so. And Sumner doesn’t know moderation. If he’s going to speak out, he’s going to go all out.
He writes to a friend and he says that he will deliver the most “thorough Philippic ever uttered in a legislative body.” He calls it “The Crime Against Kansas,” where he denounces the crisis in Kansas as “rape of a virgin territory.” Then he starts to single out his colleagues. He describes David Atchison as a Roman traitor. He compares President Franklin Pierce to a Roman dictator. He basically calls Stephen Douglas Lucifer incarnate. And then he targets Senator Andrew Pickens Butler of South Carolina.
Butler is a slaveholder. Butler also has a speech impediment because he was recovering from a stroke. Sumner makes fun of his speech impediment, makes fun of Butler’s hair, makes fun of Butler’s home state by saying the state of South Carolina could be blotted out of existence and civilization would look the same. And then he targets Butler by saying that Butler had a mistress, pure in his sight but ugly in the sight of the world: “the harlot, Slavery.”
What Sumner is doing is he’s pointing out the reality that Southern slaveholders were often engaging in rape. I found evidence that’s not been reported in any previous Sumner biography that one of Butler’s former slaves was interviewed in the 1930s, many decades later, and that enslaved person, now free, recalled that Butler did, in fact, have a — quote, unquote — mistress and sired two children by her.
So Sumner is telling the world about Butler’s activities as he’s pointing out this antidemocratic, treasonous activity in Kansas. The Senate is appalled by this speech. One senator said that Butler should come back and basically beat the crap out of Sumner. A congressman said that Sumner should be hanged.
Stephen Douglas asked on the Senate floor whether Sumner wanted a colleague to kick him like a dog on the street. And there’s this tension in the atmosphere because people know that violence was possible at this point. Sumner, I argue, saw this coming. He knew that he was putting himself at risk, and he did so anyway because he saw the political utility for the antislavery movement if an incident ended up occurring.
And sure enough, a relative of Butler’s, a congressman from South Carolina, Preston Brooks, approaches Sumner on the Senate floor two days later. He comes with two colleagues, also from South Carolina. One of them brandishes a cane and possibly a gun to make sure nobody intervenes. And Brooks approaches Sumner from the front with a gold-tipped cane and starts beating him over the head. The cane shatters.
Eventually Sumner gets up, and Brooks just starts beating him over and over and over again. Someone else eventually grabs Brooks and pulls him back and says: You’re going to kill him. You’re going to kill him. And Brooks responds: I do not intend to kill him. I only intend to flog him.
For the next few weeks, lots of Southern papers are using the language of flogging and whipping to describe what happened to Sumner. One Southern newspaper said that Sumner was beaten because he represented the “sentiments of a Negro.” Brooks defends himself afterward by basically saying on the House floor that he had a right to beat Sumner just as he has a right to whip his own slaves on his plantation. And the North is appalled by seeing this outpouring of violence and the celebration of violence by the South.
The South sees it as a necessary act to discipline the abolitionist agitators of the North and show them who’s boss.
So in the wake of Sumner’s beating, this really does galvanize a Northern public. And it seems to contribute to the kinds of tensions that would explode a couple of years later with the Supreme Court’s decision in Dred Scott, of which Sumner was a very vocal critic.
In the aftermath of the caning, the North is galvanized. Frederick Douglass said that no one act did more to rouse the North to antislavery sentiment. There are tens of thousands of Northerners gathering in what they called indignation meetings to lament over the caning and to organize action afterward. It’s really an organic, grass-roots Republican agenda, Republican program, that emerges across the North.
Later, Sumner is recovering. He spends a lot of time in Europe. And on his second trip to Europe, while he’s recovering from the caning, literally the day that he leaves, the newspaper is published with Dred Scott in it. Sumner, luckily for his mental health, did not know about it until after he got to London. And he is horrified by this. Dred Scott, written by Chief Justice Roger Taney, basically said that Black people cannot be citizens of the United States.
Taney makes this argument, also historical interpretation, like Sumner, and says that the founders believe that only white men were entitled to rights under the Constitution. Basically, the opposite of what Sumner had been saying. Sumner was disturbed by it. He was also not impressed by it.
Sumner, for the rest of his life, argues for a very limited Supreme Court. He says later on that the Supreme Court is not the arbiter of the acts of Congress. He also says that the Supreme Court should not be overturning acts of legislation. Dred Scott is the first time in more than 50 years the Supreme Court had overturned an act of Congress — the first time being Marbury v. Madison.
To Sumner, Dred Scott is both horrifying and legally incorrect. It is also a significant overreach of the court’s powers. He is trying to contain the court because he fears that it’s an antidemocratic institution.
We’re going to fast-forward a little bit through some history. I’m kind of curious about Sumner’s relationship with Lincoln during the Civil War. How does he view his role during the war? How does he view his relationship with Lincoln?
On the day that Fort Sumter is bombed — this is the first battle of the Civil War — Sumner goes to the White House, goes to Abraham Lincoln and basically says: This is amazing. This is great news. And he tells Lincoln that now Lincoln can use his war powers to emancipate Southern slaves. The idea of wartime emancipation came into Sumner’s life from John Quincy Adams, who had proposed the same thing decades earlier, warning the South that if there is one day a civil war, a servile war, some kind of war, then the president has new powers not granted in peacetime, including the confiscation of property of the enemy.
So here Sumner sees the possibility of Lincoln issuing an executive order claiming the property of the enemy, which in this case is the newly created Confederacy, and then emancipating that property to lead to freedom for Southern enslaved people. Lincoln doesn’t quite like this idea. He’s not convinced by it, but they argue about it until midnight. And for the next few months, Sumner would go to Lincoln, and they would just argue and argue and argue.
But the fact that Lincoln continued to argue with Sumner indicated that he took the idea very seriously and that he was slowly warming up to it. Lincoln later on tells Sumner: You and I agree; we’re only six weeks apart.
Sumner, for a long time, assures Lincoln that he will not speak out publicly against the administration because he had this private faith that Lincoln was on the right track, even if he was slow to walk in. Eventually, Sumner does break that, and he starts to speak out very openly in public demanding that Lincoln sign this order. Sumner had very interesting opinions about Lincoln. He thought Lincoln was completely unprepared for the job.
He saw Lincoln as not totally inept but fairly inept. Lincoln is this folksy guy from Illinois who grew up in Kentucky. Lincoln spoke only one language. Sumner spoke six. Lincoln had never traveled outside the United States. Sumner had been all across Europe. Lincoln was a self-trained lawyer. Sumner went to Harvard. So they had all these very big differences.
But at the same time, Sumner saw Lincoln had the capacity to achieve greatness. In 1861 in October and November, it was very early in the war, Sumner says that Lincoln could go down in history as a hero like Columbus and Washington, because he was presiding over the third great epoch on the American continent. The first being the — quote, unquote — discovery, the second being the founding, the third now being the Civil War.
And Sumner says that Lincoln could be a great emancipator and go down for all time if he issues an emancipation proclamation. And amazingly, he does use that exact phrase of “emancipation proclamation” in 1861. When Lincoln does sign the Emancipation Proclamation in 1863, Sumner helps to revise the last sentence, and then Lincoln hands him the pen afterward, which Sumner took to Boston, and now it’s in a museum.
After the Emancipation Proclamation, as we get through 1864, the Lincoln administration is beginning to think more about what to do about former rebel states, thinking about what that postwar period is going to look like. Where is Sumner in all of this?
So Sumner writes an article laying out his theory of Reconstruction in 1862, way before anyone else was even thinking about it. And then, in fact, he doesn’t publish it because he notices that the country’s not quite there yet and waits a little bit longer before it gets published in The Atlantic. And in that article, Sumner basically lays out his theory that Southern states had committed suicide. It’s called the state suicide theory.
The logic here being that when Southern states decided to rebel against the national government, they had effectively killed themselves as legal entities. And now those Southern states had reverted to a territorial status, which means that Congress has plenary power over them. Sumner emphasizes that Congress should play the key role in these states after the war.
And what should Congress do? Sumner argues that Congress should require Southern states to have new constitutional conventions where Black people could participate and draft new conventions, constitutions. Sumner wanted to add certain provisions to this. He wanted to require mandatory public schools across the South.
He wanted to ensure the voting rights, of course. He also wanted there to be mass land redistribution. He said: Shatter the plantations and give the pieces to the slaves. He plays a role both in public and also behind the scenes.
One of his closest protégés, Edward Pierce, goes to the Sea Islands to see the experiment in land redistribution that famously went on there. And Pierce writes a report back to the federal government that circulates widely. He’s also working with Carl Schurz, who writes a similar report. And he’s working with the American Freedmen’s Inquiry Commission, which writes another similar report. And all these reports talk about land reform. And so Sumner is kind of everywhere, laying seeds for what he thinks Reconstruction should be, and he starts very early.
In 1865, Congress passes the 13th Amendment. The war ends, Lincoln is assassinated and the states ratify the amendment later that year. And we’re kind of into Reconstruction proper. President Andrew Johnson is really resisting Congress. Can you speak a little about Sumner during this period of Reconstruction?
Sumner is there when Lincoln dies. He’s actually holding Lincoln’s hand. He had heard about a possible shooting. He ran to the White House, where he found Robert Todd Lincoln, who didn’t know anything. And together they go to Ford’s Theater and then across the street to the house where Lincoln is in his room. And Sumner is there until 7 in the morning, holding Lincoln’s hand, sobbing as Lincoln dies.
He goes home later that day. He’s having breakfast. And a lot of people are visiting him because they’re worried that he might have been killed, too, because there weren’t, you know, smartphones back then. Nobody knew exactly what happened, who had been killed, who had not been. William Seward, the secretary of state, had been attacked. People wondered if Sumner had been attacked. Sumner slumped over to the breakfast table — a visitor is relieved to know that he’s alive and asks him: What are we going to do now that our leaders are gone? And Sumner goes, “Our leaders are gone, but the Republic remains.”
He meets Andrew Johnson. At first, Johnson is pleasing to Sumner. Johnson seems to be open to Black suffrage and to a radical Reconstruction program. Johnson had this deep hatred toward rich white Southern slavocrats. But Sumner confuses that hatred for wealthy aristocrats in the South for empathy for enslaved people, who Johnson could not care less about.
Right. A lot of people make this mistake — Frederick Douglass famously makes this mistake.
Right, exactly.
So after a few months when Johnson clearly is pursuing a completely different program of granting amnesty to ordinary Confederates, even if he’s punishing the leading rebels, Sumner comes back to Johnson in the fall and just starts screaming at him. At some point, Johnson spits into Sumner’s hat. Probably by accident, but maybe not.
Johnson had a colleague who was there, a congressman from the South, who said that Sumner was crying big crocodile tears for the Negro. And Sumner then basically never goes back to Johnson again. And he starts openly calling for the impeachment of Andrew Johnson. Others are still trying to work with Johnson, hoping he’ll come around. Many leading Republicans feel awkward about this whole situation because Johnson is ostensibly a member of their party. But after Johnson vetoes the Civil Rights Act of 1866 and the Freedmen’s Bureau Act, then Republicans start to realize that Johnson is never going to work with them.
Meanwhile, Sumner proved very prescient because pretty much from the get-go, from that fall of 1865, Sumner is saying that Johnson can’t be trusted. Eventually, Congress does move to impeach Johnson, based on alleged violations of the Office of Tenure Act, and Sumner is furious with his colleagues for making it into a whole legal proceeding. He’s very openly saying, no, we’re going to impeach him because his politics are bad.
And while that’s not successful, what is successful is that Sumner helps to secure a Republican supermajority in Congress such that they can pass legislation that overrides Johnson’s veto.
Sumner, throughout this period, remains a huge proponent for equal rights, for an expansive vision of what the Constitution provides. He is, if I understand this correctly, a major proponent of some of the key parts of the 14th and also for the 15th Amendment and its constitutional protection of voting rights.
So Sumner is interesting because he believed the 13th Amendment did everything that Congress needed. He put a lot of emphasis in the second clause of the 13th Amendment, which basically said that Congress shall pass any appropriate legislation to enforce the meaning of this amendment. And to Sumner, this enforcement clause essentially authorized Congress to do it all, to secure equality, to secure voting rights, to secure birthright citizenship. These were all things that Sumner believed could happen by statute now that 13th Amendment had passed.
The theory being that abolishing slavery was about ending not just the legal relationship but everything surrounding slavery as an institution.
Exactly. The theory that everything surrounding slavery and its institution should be abolished permanently and the theory that Congress had the right to interpret what the abolition of slavery constituted. He did not think the courts should later prescribe what is and is not the abolition of slavery. He thought Congress could do it on its own and the courts should defer to Congress’s judgment.
Now, this all comes to the fore by 1870. By this time, Sumner is very close to a number of Black middle-class entrepreneurs and businessmen in Washington, D.C., who are pointing out to him that yes, slavery has been abolished, yes, there’s birthright citizenship, yes, Black men have the right to vote.
But they’re still shut out of common schools. They’re shut out of the rail car. They can’t get into the same hotels as a white person. They’re still effectively relegated to a second-class citizenship status. So Sumner collaborates with a Black law professor named John Mercer Langston. He tells Langston to write up a bill that would effectively be a national integration bill that would create a right of public accommodation for anyone to get on a common carrier, regardless of race.
Langston writes the bill for Sumner. Sumner introduces it to the Senate. Some Republicans are saying that this bill goes too far, that it infringes on states’ rights. And Sumner responds to one of his colleagues and says, “You are referring to the old method of constitutional interpretation. I am referring to the method that was conquered at Appomattox.” He says there is now “a new rule of interpretation where every line, every word of the Constitution is to be construed uniformly and thoroughly for human rights.”
So he believed in visionary, expansive human rights constitutionalism that he thought resided in the 13th, 14th and 15th Amendments and also from the nature of the Civil War itself. The war had transformed the law. He said the greatest victory of the war was the emancipation of the Constitution. And that’s what he uses to explore this bigger project of securing equality in all aspects of public life after the Civil War.
If I remember this correctly, this bill, which becomes the Civil Rights Act of 1875, really is a kind of precursor to what would become the Civil Rights Act of 1964. It’s remarkably similar to see the same calls for nondiscrimination in public accommodations almost 100 years before the 1964 Act.
Yeah, I got goose bumps when I looked up the Civil Rights Act in 1964 and read the first two provisions, because those two provisions are basically verbatim what Charles Sumner introduced in 1870. And verbatim what Langston, this Black law professor who has been mostly forgotten today, wrote in his original draft. Much of modern civil rights law was written by Sumner and Langston nearly 100 years earlier. They created the blueprint.
It’s really interesting to think about these partnerships Sumner had with Black lawyers. It speaks both to the relationship Sumner had with Black Americans in Boston, but it also speaks, I think, to something that isn’t as appreciated in the present: the real impact that Black Americans as legal thinkers had on the legal and constitutional debate surrounding the Civil War.
What’s really incredible is not Sumner’s relationship with Black lawyers but Black businessmen who had legal ideas. He was very close to George Downing, who was a caterer, a restaurateur and the head of the mess hall for the House of Representatives. So Downing is basically top chef on Capitol Hill. And Downing is furious with Republicans, whose mouths he fed, who are refusing to endorse Sumner’s civil rights bill. So Downing writes these letters to Sumner where he is point by point debating constitutional ideas that moderate Republicans were proposing. And Sumner would read those letters on the Senate floor. And there’s this one great quote where he says: Put Downing side by side with the senator from Maine and Downing is basically a better constitutional lawyer.
So Sumner is not only working with Black lawyers; he’s working with ordinary Black citizens and arguing that their interpretations of the Constitution are just as legitimate as, if not more legitimate and more accurate than, those of sitting United States senators.
Can you talk a little bit about the end of Sumner’s life and the passage of the Civil Rights Act, which does happen in 1875, and what the reaction was to Sumner’s death was among Americans?
In 1874, Sumner has a heart attack. One of the first people to get to his home is George Downing. And Downing is holding Sumner’s hand and keeping watch by the bedside as a huge flock of Washingtonians come to Sumner’s home when they learn about what’s going on. The speaker of the House, James Blaine, is in the room.
Carl Schurz is in the room. Many diplomats are there. Frederick Douglass arrives. And they’re all in Sumner’s home while Sumner lies dying. In another room, the library next door, the Senate chaplain is there reading prayers to a group of members of Congress who had walked from Capitol Hill 40 minutes all the way to Sumner’s house. Congress adjourned when they learned that Sumner was dying, just so that people could go to his home, and in fact, many people were getting up before the official adjournment just to come to Summer’s home.
As he’s dying, he is high off his mind with morphine, and he’s constantly trying to get up, and Downing, among others, is holding him down. And then he says to his secretary: The bill, the bill — take care of the bill. And his secretary says: Don’t worry. We will pay your household bills. You’re not going to die in debt. I got you. And Sumner responds and says: No, you don’t understand me. Take care of my civil rights bill. Don’t let the civil rights bill fail.
And that’s when Downing helped us realize that Sumner was trying to get up because he was trying to go to the Senate to work on the civil rights bill. Downing recalled that on another day, Sumner told Downing: Prostrated as I am, if I could crawl to the Capitol and pass a civil rights bill, I would before I died. And so Sumner is trying to get up. He’s telling people: Take care of it. Don’t let the bill fail. Everyone is crying at this point. And then Sumner dies.
Frederick Douglass writes on a note card Sumner’s final words, “Don’t let the civil rights bill fail.” And that note card is still in the Library of Congress. Sumner lies in state in the Senate, the first senator to do so. Then he’s taken up by train to Boston — home. He lies in state at the Massachusetts State Capitol.
Tens of thousands of people visit Sumner’s casket. People are leaving all kinds of tributes to Sumner. And George Downing’s brother Peter Downing, from Brooklyn, goes up to Boston and sets up these blue violets on Sumner’s casket and spells out with white carnations, “Do not let the civil rights bill fail.” And there’s a Harper’s Weekly printed with a drawing of Sumner’s casket with this floral shield that says, “Do not let the civil rights bill fail.” Tens of thousands, perhaps millions of people see this drawing in Harper’s Weekly.
And then Douglass, Downing, Langston and others lead a campaign to pass the civil rights bill in Sumner’s honor. The Senate passes the bill three months later. The House did not pass it until the following year, whittling it down significantly. It does become law, the Civil Rights Act of 1875, but eight years later, the Supreme Court, which Sumner believed had no right to do this, overturns the law in the civil rights cases. And within a few years after that, you saw the rise of Jim Crow, which would have been effectively illegal under Sumner’s bill.
And it wasn’t until the Civil Rights Act of 1964 that this idea of a right to public accommodation was nationally authorized again.
There’s another bit of interesting symmetry in that the 1964 Civil Rights Act is spurred on by Kennedy’s assassination — just the deaths of these figures providing the fuel for the passage of these laws.
I think Sumner, at some deep level, was a politician who understood these kinds of moments. After the caning, one of the first things Sumner does — literally when he’s still there, he’s still bloody — he saw a doctor, then he sees a reporter, and he basically tells the reporter what happened to him. When Lincoln dies, Sumner uses Lincoln’s death to push for Black suffrage. And now as he’s dying, while he’s high on morphine, he’s probably at some very deep innate level recognizing that if he keeps saying, “civil rights bill, the bill, the bill, the bill,” it might inspire a movement after his passing.
I want to wrap up by asking: What lessons do you think can be drawn from Sumner’s life and experience and political work?
I can think of two. So the first lesson is the value and necessity of allyship with ordinary people. It’s really striking to see Sumner develop this very close relationship of solidarity with George Downing. I can’t imagine there are many politicians in Washington today who not only know the name of the top chef on Capitol Hill but will actually go to that top chef for political advice and will collaborate with that top chef on political strategy. Politicians will go to their consultants. They’ll go to their donors. They’ll go to major advocacy groups. They’re very rarely going to ordinary people and taking their judgment seriously.
Second, there’s a real lesson of courage. Sumner in the 1850s, while he’s seeing the antidemocratic threat in Kansas, while he is braving his own death threats, decides nevertheless to put his life on the line to speak out against slavery and to speak in favor of American democracy. And I think there’s a lesson there, too, about the need for courage in perilous times, the necessity of courage even in the face of death threats and the necessity of courage to stand up for American ideals.
What I Wrote
My column this week was on a simple idea: President Trump represents Republican governance as it has been since Ronald Reagan, and even the most egregious parts of his agenda are straightforwardly continuous with that of previous presidents.
And yet the most salient detail about Trump as an actual officeholder is that he is a Republican politician committed to the success of the Republican Party and its ideological vision. In this way, he is little more than a vehicle for the policy agenda of the most conservative Republicans, willing to sign whatever they might bring to his desk.
I also joined Dahlia Lithwick and Mark Joseph Stern of Slate’s Amicus podcast to discuss the recent Supreme Court term. And on YouTube, I have a video up on the origins of Jim Crow.
Now Reading
Guillaume A.W. Attia on the dialectic of American history, for Liberal Currents.
Sherrilyn Ifill on the limited jurisprudential range of the conservative majority on the Supreme Court, for her Substack newsletter.
Evan D. Bernick on reactionary constitutionalism, for the Balkinization blog.
James Gleick on artificial intelligence, for The New York Review of Books.
A legal filing, from lawyers for Kilmar Armando Abrego Garcia, detailing his torture and abuse in CECOT, the Salvadoran prison and rendition site for the Trump administration’s deportation efforts.
Photo of the Week
From the No Kings protest in Charlottesville, Va., last month.
Now Eating: Corn Fritters
Fair warning: These corn critters are addictive, and you will be tempted to eat the entire batch. The good news is that they are exceptionally easy to put together, so if you do eat the whole batch, you can make more in no time. Recipe comes from New York Times Cooking.
Ingredients
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3 ears corn, raw or cooked, husks and silk removed
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⅓ cup milk
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1 large egg
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1 teaspoon sugar
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½ teaspoon baking powder
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½ teaspoon salt
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Pinch cayenne
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¼ cup cornmeal
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¼ cup flour
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Vegetable oil, for cooking
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Maple syrup, for serving
Directions
Trim the tips of the corn cobs. Stand a cob up in a wide bowl and slice off the kernels with a sharp knife. Repeat.
To the corn, add the milk, egg, sugar, baking powder, salt and cayenne. Combine with a large whisk. Mix in cornmeal and flour. Let rest for at least 10 minutes.
Heat oven to 200 degrees. Line a rimmed baking sheet with paper towels or brown paper bags and put it in the oven. In a large nonstick skillet, heat 2 tablespoons oil over medium heat.
Working in batches, drop batter into the pan by heaping tablespoons. Fry until golden brown, about 3 minutes on each side. Transfer to the prepared baking sheet and sprinkle with salt. The fritters can be kept warm in the oven up to 30 minutes. Serve with maple syrup.
Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va., and Washington. @jbouie
The post The Civil War That Never Ended appeared first on New York Times.
