The historian Charles Payne has described Brown v. Board of Education as “a milestone in search of something to signify.” Widely hailed as a symbol of Jim Crow's demise, the case is popularly understood to represent America at its best. For many, Brown symbolizes the end of segregation, a national condemnation of racism, a renewed commitment to the ideal of color-blind justice, or some combination of all of these, but Brown is equally affirmed in less celebratory narratives, in which it is seen to articulate a constitutional aspiration against which the injustice of current racial practices can be measured. Unlike the celebratory Brown, which indulges a fantasy of completion or accomplishment, this aspirational Brown marks “an appeal to law to make good on its promises” of equal citizenship and racial democracy, even if that promise remains as yet largely unfulfilled.

On Tuesday July 4, 1854, it was hot and humid at Harmony Grove; “the heat of the weather…was extreme.” But this did not deter a large audience from gathering at this location in Framingham, Massachusetts. This was the spot upon which many of them had assembled, under the organization of the Massachusetts Anti-Slavery Society, for the past 8 years. They came by crowded railroad cars (from Boston, Milford, and Worcester), and by horse and carriage from many other surrounding towns, eager to hear speeches by prominent members of the antislavery community. William Lloyd Garrison was not the first to speak, but his actions were the most memorable. Addressing the audience, Garrison held up, and systematically burned, three documents: a copy of the 1850 Fugitive Slave Act; a copy of a recent court decision that ordered the free state of Massachusetts to use its facilities to assist in the capture of fugitive slaves; and a copy of the United States Constitution. This was no mere symbolic act; it conveyed an important part of the Garrisonian argument. Namely, that the Constitution was “a covenant with death, and an agreement with hell.”

In 1824, the American schooner Fox sailed into Charleston harbor with seasoned mariner and Rhode Island native Amos Daley on board. When officials boarded the ship, they interrogated the captain and crew before cuffing Daley and hauling him off to the Charleston jail, where he remained until the Fox was set to leave harbor. Daley's detainment occurred because 16 months earlier the South Carolina General Assembly had enacted a statute barring the entrance of all free people of color into the state. Unlike other antebellum state statutes limiting black immigration, this law extended further, stretching to include in its prohibition maritime laborers aboard temporarily docked, commercial vessels. This particular section of the law was passed on the assumption that such sailors inspired slave insurrection and thereby posed a direct threat to the safety and welfare of the citizenry. Over the course of the next four decades, the states of North Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas would join South Carolina in passing statutes, commonly referred to as the “Seamen Acts,” which limited the ingress of free black mariners. Amos Daley was only one of ~10,000 sailors directly affected by these particularly Southern regulations.

Like revolutionaries throughout the modern world, Americans built a new, stable legal order on property confiscated from their enemies. Early in the American War for Independence, colonial governments collapsed, British courts closed, and ordinary people took the law into their own hands. They created committees that enforced harsh, revolutionary justice. But remarkably, by the end of the War, they were able to develop the stable legal institutions of new governments.