The right to petition was the ‘cornerstone’ of all other liberties, petitioners frequently argued. In the UK the right to petition was based on precedent, conventions and popular constitutionalism and was not, as in polities established in revolutionary contexts, a codified constitutional right derived from the idea of popular sovereignty. The right to petition was a contested right formed through a continuous, dynamic struggle between petitioners and Parliament. The right to petition was open to all subjects, and not limited by class, gender, race, literary, property or the franchise. There was little restriction of the content, as opposed to the form, of petitions to Parliament, and the decreasing limitations on petitioning in relation to association and assembly, ensured it became the key mode in connecting, legitimating and underpinning other political activities. Finally, petitioners successfully pressed for a popular, open right to petition, but politicians were able to resist attempts to expand the right of petition into a right of presence or audience. The contest over the right to petition was one of the ways in which politicians sought to retain their discretion and uphold parliamentary sovereignty while acknowledging popular rights.

Chapter 2 explains the scholarly traditions of ‘popular’ law on which I have drawn, describes the analytical approach to law as language that I have used, and situates the smaller histories contained in this book within the wider scholarship on international legal history.

The Dred Scott decision embodied how the debates over slavery held unique potential to deepen Americans’ awareness of historical distance. In his decision, Chief Justice Roger B. Taney accepted the historical grounds of debate that had been prepared through decades of interpretive emphasis on the historical explication. He then argued that because the founders had not considered blacks as citizens in 1787, blacks could not be citizens in 1857. In this reading, Taney forcefully rejected the antislavery idea that the progress of moral insight demanded new constitutional readings. However, in their dissenting opinions, John McLean and Benjamin Curtis gave official credence to much of that antislavery idea. They suggested that the Constitution could be adapted in light of original expectations of abolition. These opinions, along with political and popular responses to the decision, accelerated a growing sense that more than just chronological difference separated nineteenth-century Americans from their revolutionary predecessors. In their appeals to the founding era, the justices and their respondents highlighted unmistakable historical differences between that past and their present.

This chapter shows how Frederick Douglass, Abraham Lincoln, and Theodore Parker used historical distance in their responses to Dred Scott. Parker tied the idea of the Constitution as the act of the ratifiers to the right of the people as interpreters. He believed that the founding generation’s expectation of abolition warranted a progressive popular reading. Lincoln insisted that the framers had used caution to word the Constitution in such a way that slavery would disappear from the American past once their descendants abolished the institution. That the Slave Power had obscured that expectation made it even more important to work towards its realization. Douglass also placed emphasis on the framers’ emancipationist expectations. He distinguished original antislavery meaning from obscuring post-founding-era construction and trusted that Americans would notice the distinction and then use the Constitution to usher in a new era of freedom. The slavery debates forced interpreters to confront historical distance, and Parker, Lincoln, and Douglass used it to insist on radically new readings of the Constitution. Historical distance had become an interpretive force in antebellum America.

Chapter 1 examines how ordinary antebellum Americans cherished the Constitution for enshrining their “free institutions” of freedom of speech, press, and religion as well as representative democracy and local self-government. Indeed, Americans boasted that the Constitution had given them a form of government that was superior to any other in the world. At the same time that they gloried in the Constitution, mid-nineteenth-century Americans were divided by the Constitution. Slavery, more than any other issue, drove the division. Except for a tiny group of radicals, antislavery Northerners believed the Constitution was either antislavery or at least neutral towards slave labor. Northern conservatives and some moderate Southerners held that the Constitution countenanced slavery and they accepted this as the price for a constitutional union of free states and slave states. Most white Southerners believed that the Constitution was avowedly proslavery. This three-way debate carried over to the lives and intentions of the Founders and the proper way to interpret their Constitution.Southerners believed that the Constitution was avowedly pro-slavery. This three-way debate carried over to the lives and intentions of the Founders and the proper way to interpret their Constitution.