Constitution Review: John Brown’s Provisional Constitution

John Brown’s body lies a-mouldering in the grave, but his provisional constitution is available online.

John Brown is best known for fighting to end American slavery. Born in 1800 and raised around abolitionists, ending slavery was a religious conviction for Brown, who came to believe that he was “an instrument of God” put on earth for this very purpose. From the 1820s on Brown was seriously involved in the Underground Railroad, but in the 1840s he became frustrated by their lack of progress, and formed his own, more militant version of the Underground Railroad, the Subterranean Pass Way. By 1856, Brown and his sons were out in Kansas, killing pro-slavery border ruffians as part of Bleeding Kansas.

This all culminated in a daring raid on the federal armory at Harpers Ferry, Virginia in 1859. Brown’s plan was to take the armory and use the captured weapons to arm former slaves, carrying out future raids deeper and deeper into the South, freeing and arming more slaves every time. The plan originally called for 4,500 men to lead the attack, but on the day of the raid, Brown found himself with only 21. He went ahead with the plan anyway. 

The raid went well at first, but eventually the US Marines showed up (under the command of Robert E. Lee, of all people!) and took back the armory. John Brown was captured, tried, and hanged. He became a martyr to the abolitionist cause, and in the Civil War a few years later, Union soldiers marched to the new song John Brown’s Body, which eventually mutated into such forms as the Battle Hymn of the Republic — or if you are a schoolchild, The Burning of the School.

But before his untimely end, he put together a provisional constitution. 

It’s not really clear what the provisional constitution was for. Even at the time, people weren’t sure what to make of it. Brown’s lawyer introduced the provisional constitution at his trial as evidence that Brown must be insane, calling the provisional constitution “ridiculous nonsense–a wild, chimerical production” that “could only be produced by men of unsound minds.” Naturally, Brown disagreed.

Some people have suggested that it was intended to be the constitution of a new anti-slavery state in the Appalachian Mountains, where West Virginia ended up being. But the provisional constitution itself makes it pretty clear that it is intended for, or at least open to admitting, all citizens of the United States. 

It might be a constitution for Brown’s new, more hardcore Underground Railroad, his Subterranean Pass Way. By some accounts it was written while Brown was a guest of Frederick Douglass in Rochester, New York (the two men had been uneasy friends for more than a decade). In May 1858 he met with Railroad leaders, including Harriet Tubman, in Chatham, Ontario, and it was there that he held a constitutional convention. But the provisional constitution describes the rules for a government, not a secret society. 

Most likely, the provisional constitution was meant as a stopgap solution to a major point of contention among abolitionists. Brown and other abolitionists were fervent, one might even say crazed patriots, and they loved America. But hating slavery and loving America had a problem, and that problem was the US Constitution. In the eyes of many abolitionists, at least, the US Constitution sanctioned slavery, and that was unacceptable.

Abolitionist William Lloyd Garrison took the most extreme position — he called the US Constitution “the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villainy ever exhibited on earth” and promoted a philosophy sometimes called “no-governmentism”, which is about what it sounds like. This led to a schism in the abolitionist movement, between people who accepted the US Constitution mostly as it was, and people who thought it was a covenant with death. 

This may seem a little hysterical to modern ears, but it makes sense given what was going on at the time. In 1857, the Supreme Court made a decision in the case of Dred Scott v. Sandford, ruling quite explicitly that, because of the way the US Constitution was constructed, the descendents of slaves could not be US citizens. “A free negro of the African race,” reads the transcript, “whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States. … The change in public opinion and feeling in relation to the African race, which has taken place since the adoption of the Constitution, cannot change its construction and meaning, and it must be construct and administered now according to its true meaning and intention when it was formed and adopted.” 

The majority opinion in the case said:  

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all of the rights, and privileges, and immunities, guarantied [sic] by that instrument to the citizen? … they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.

The two dissenting justices made strong cases that this argument was ahistorical and not, in fact, in line with constitutional law. But coming on the heels of this decision, it’s easy to see why many abolitionists couldn’t get behind the US Constitution. 

So one possibility is that Brown got up his provisional constitution in an effort to bypass this schism, or because Garrison had convinced him that the US Constitution had to go. Garrison was firmly anti-violence, so the two men did not exactly see eye to eye; though Garrison sort of came around to Brown’s position in the end. And Thoreau wrote of Brown that, “I should say that he was an old-fashioned man in his respect for the Constitution, and his faith in the permanence of this Union.” The hope might have been that even if the abolitionists could not all agree on the US Constitution, they could agree on a provisional one in the meantime, and put off the decision of whether or not to replace the US Constitution until after slavery was defeated.  

(We think Thomas Jefferson would approve, he wanted the Constitution — and indeed, all laws — to automatically expire every 19 years.)

In any case, Brown’s provisional constitution gives us a glimpse into his thinking and what kind of political philosopher he was, so it’s worth taking a look. (Brown himself would like this — “I wish you would give that paper close attention,” he said of his provisional constitution during the questioning after his capture.)

Tip My Hat to the New Constitution

The provisional constitution is made up of a short preamble and 48 articles. The preamble starts by condemning slavery and ends in the second paragraph by declaring, “we, citizens of the United States, and the oppressed people who, by a recent decision of the Supreme Court, are declared to have no rights which the white man is bound to respect, together with all other people degraded by the laws thereof, do, for the time being, ordain and establish for ourselves the following Provisional Constitu­tion and Ordinances, the better to protect our persons, property, lives, and liberties, and to govern our actions.”

The first few articles concern the design for a system of government, with the expected executive, judicial, and legislative branches. Compared to the US federal government, though, it seems quite small. Only one chamber of Congress, and that composed only of “not less than five nor more than ten members.” A Supreme Court of only five justices, chosen by direct election to three-year terms, just like the President and Vice-President. 

Articles 13 to 15 provide brief and explicit instructions for how to try and impeach any member of government, including Supreme Court justices. Perhaps Brown was thinking of the Dred Scott case.

It’s easy to see how the provisional constitution could be construed as treasonous, since it does provide for an entirely new form of government. But John Brown eventually gets around to addressing this explicitly in the third-to-last article:

ARTICLE XLVI.

These articles not for the overthrow of government.

The foregoing articles shall not be construed so as in any way to encourage the overthrow of any State government, or of the general government of the United States, and look to no dissolution of the Union, but simply to amendment and repeal. And our flag shall be the same that our fathers fought under in the Revolution.

On the other hand, the provisional constitution does mention “the limits secured by this organization”, suggesting that the organization would be taking territory from someone. And the provisional constitution does seem written with warfare against slavery particularly in mind. Several articles are devoted to the organization, rules, and duties of the military, including what to do with prisoners and with “all money, plate, watches, or jewelry captured by honorable war­fare, found, taken, or confiscated, belonging to the enemy.” There are also these articles: 

ARTICLE XXXIII.

Voluntaries.

All persons who may come forward, and shall voluntarily deliver up their slaves, and have their names registered on the books of the organization, shall, so long as they continue at peace, be entitled to the fullest protection of person and property, though not connected with this organization, and shall be treated as friends and not merely as persons neutral.

ARTICLE XXXIV.

Neutrals.

The persons and property of all non-slaveholders, who shall remain absolutely neutral, shall be respected so far as the circumstances can allow of it, but they shall not be entitled to any active protection.

At times, Brown gets a little bogged down in the weeds, especially on religious issues. He gets into it enough to devote several whole articles to forbidding behaviors which, we imagine, he must personally have had strong feelings about, the sorts of things not normally included in a constitution: 

ARTICLE XII.

Special duties.

It shall be the duty of Congress to provide for the instant removal of any civil officer or policeman, who becomes habitually intoxicated, or who is addicted to other immoral conduct, or to any neglect or unfaithfulness in the discharge of his official duties.

ARTICLE XXXV.

No needless waste.

The needless waste or destruction of any useful property or article by fire, throwing open of fences, fields, buildings, or needless killing of animals, or injury of either, shall not be tolerated at any time or place, but shall be promptly and properly punished.

ARTICLE XL.

Irregularities.

Profane swearing, filthy conversation, indecent behavior, or indecent exposure of the person, or intoxication or quarreling, shall not be allowed or tolerated, neither unlawful intercourse of the sexes.

ARTICLE XLII.

The marriage relation, schools, the Sabbath.

The marriage relation shall be at all times respected, and families kept together, as far as possible; and broken families encouraged to reunite, and intelligence offices established for that purpose. Schools and churches established, as soon as may be, for the purpose of reli­gious and other instructions; for the first day of the week, regarded as a day of rest, and appropriated to moral and religious instruction and improvement, relief of the suffering, instruction of the young and ignorant, and the encouragement of personal cleanliness; nor shall any persons be required on that day to perform ordinary manual labor, unless in extremely urgent cases.

That said, sometimes getting into the weeds on specific issues is all right. Section 41, on “crimes”, actually lists only one crime, but it’s a strong choice. The entire text of the Section 41 is: 

Persons convicted of the forcible violation of any female prisoner shall be put to death.

Brown’s reputation as a “.44 caliber abolitionist” seems pretty well-deserved in the light of the last few articles, where he encourages open carry for everyone, men and women alike:

ARTICLE XLIII.

Carry arms openly.

All persons known to be of good character and of sound mind and suitable age, who are connected with this organization, whether male or female, shall be encouraged to carry arms openly.

It’s especially interesting, though, that he stresses the open part of open carry. Concealed weapons were to be the exclusive domain of policemen, officers of the army, and… mail carriers:

ARTICLE XLIV.

No person to carry concealed weapons.

No person within the limits of the conquered territory, except regularly appointed policemen, express officers of the army, mail carriers, or other fully accredited messengers of the Congress, President, Vice President, members of the Supreme Court, or commissioned officers of the army-and those only under peculiar circumstances-shall be allowed at any time to carry concealed weapons; and any person not specially authorized so to do, who shall be found so doing, shall be deemed a suspicious person, and may at once be arrested by any officer, soldier, or citizen, without the formality of a complaint or warrant, and may at once be subjected to thorough search, and shall have his or her case thoroughly investigated, and be dealt with as circumstances on proof shall require.

On its own merits, the provisional constitution is not so radical, not even all that nutty. It provides for a normal state, with the normal branches of government, and most of the articles have to do with basic stuff like how people get elected and who is allowed to sign what treaties. The religious bent is a tad unusual, the violent abolition angle is pretty exciting/terrifying, but paragraph to paragraph it reads like any other constitution.

But in another way, the provisional constitution is affirming one of the deepest and most radical privileges inherent to being an American. Being an American entitles you to be an amateur political scientist, to speculate on strange new forms of government, and if needs be, to write your own damn constitution in defense of new forms of freedom, just like they did in 1776. 

3 thoughts on “Constitution Review: John Brown’s Provisional Constitution

  1. Matt Edwards says:

    I’ve actuslly just finished reading The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World https://a.co/d/1ctZoN6 by Linda Colley and in context its very unsurpring that John Brown wrote a comsitution. By the mid-19th century it was an extremely popular passtime. Constitutions were a new and successful poltiical technology and speculative fiction tool, loads of people were at it.

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  2. Anon says:

    For what it’s worth: as I recall, there actually is fairly strong evidence that Brown suffered from some sort of mental illness that caused grandiosity, overconfidence, and a sort of single-minded obsessiveness. This probably led him to undertake the raid on Harpers’ Ferry, a plan which was so obviously doomed to fail that most abolitionists declined to participate.

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    1. Anon says:

      If so, this is arguably an interesting case of a mentally ill person actually behaving *more correctly, and more justly*, from our own historical perspective, than his “normal” contemporaries dared to do.

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