Slavery Outlived the Civil War. How It Actually Ended Will Surprise You.

This is part of Amicus and Slate’s “ By the People ” series, which explores how the American people can reclaim the Constitution, and the law, from this monarchical Supreme Court.

As Amicus delved into popular constitutionalism, the process by which ordinary people shape constitutional meaning, we came across Lyle Cherneff’s work on a largely forgotten American story that captures the concept in action. Writing in the Yale Law Journal , Cherneff reconstructed the history of In re Turner , an 1867 decision by Chief Justice Salmon P. Chase that helped end the re-enslavement of Black children through involuntary “apprenticeships.” At the center of the case was Elizabeth Turner, an 8-year-old girl whose mother fought to free her after her former enslaver forced her back into bondage. She was one of many Black parents whose demands for their children’s freedom helped define the scope of the 13 th Amendment’s ban on slavery after the Civil War.

In the latest episode of By the People , our summer series on popular constitutionalism, co-hosts Dahlia Lithwick and Mark Joseph Stern explore the importance of In re Turner and its striking relevance amid this year’s immigration raids in Minnesota. The episode draws on Amicus’ interview with Cherneff, a lawyer and visiting assistant professor at the University of Minnesota Law School. The following excerpt has been edited and condensed for clarity.

Mark Joseph Stern: Elizabeth Turner was 8 years old when she was indentured just two days after she and her mother ostensibly gained their freedom. Her enslaver, Philemon T. Hambleton, who may well have been her biological father, refused to release her from servitude.

Dahlia Lithwick: Meanwhile, Elizabeth’s mother traveled across the Chesapeake Bay to Baltimore and made her way to the Freedmen’s Bureau, a federal agency established during Reconstruction that provided food, medical care, education, and legal assistance to emancipated African Americans. Lawyers from the bureau filed a habeas corpus petition on young Turner’s behalf. They were busy.

Lyle Cherneff: Maryland historian Richard Paul Fugate estimates that between 3,000 and 4,000 children, in the first weeks after emancipation alone, were re-enslaved through these fraudulent indenture contracts. It varied somewhat by county, but in almost every case, the person “apprenticing” the child was in fact the former slaveholder.

Lithwick: Separated from their children, not yet full citizens, formerly enslaved parents faced unimaginable odds to reunite their families. But here is where something extraordinary happens: A movement begins, both legally and corporeally. People physically show up, demanding that their rights be vindicated.

Cherneff: Almost immediately after emancipation in Maryland, there were reports of parents petitioning for the freedom of their children. Some went directly to the slaveholders, in real acts of courage, and demanded to leave with their children. According to the reports, these were often violent encounters in which the white slaveholders insisted that the children remain on the property. There are also stories of parents helping their children escape from these violent apprenticeships.

There were also reports of parents bringing their petitions to Union Army generals stationed in Maryland. One general in Annapolis said, “Not a day goes by that we don’t have a Black parent coming to our office and directly asking us to help them free their child.” There is also an amazing collection of letters written primarily by Black parents to Union Army officials, asking for help freeing their children.

What caught my eye as a scholar interested in popular constitutionalism was the way freed people made direct claims on the text of the state constitution. A woman named Mary Dare instructed her mother to go in person to the Union general and plead on her behalf. She said, “If it should be required to resort to the Constitution, I’m going to direct you to the exact portion.” She cited the provision banning slavery and involuntary servitude. And she reasoned, very simply, that the way her children were being held was involuntary servitude and that under this new law, they should be freed.

Stern: These women did not have JDs. They had not passed a bar exam. They were simply reading the plain and obvious meaning of constitutional texts and insisting that it applied to them and their kids.

Cherneff: One letter that really stuck with me was written by a woman named Lucy Lee, who described being freed and immediately being told that her children could not go with her. She said, “God help us, our situation was improved but little to be freed ourselves, but denied freedom to our children, which would be basically the only thing that would help us feel free and happy: the presence of our children.”

Stern: Habeas corpus traces back to 1215 and England’s Magna Carta. It is known as the “Great Writ” because it is a promise by the government that you cannot be snatched off the streets, spirited away to a secret prison, and detained without an opportunity to contest the charges against you. It might sound like a legal term of art, but it simply means you have a right to know why you are being held and a process that can grant you freedom.

Cherneff: One advantage of habeas was that there was more latitude for testimony. At a time when Black people were often prohibited from testifying in court, habeas became a vehicle by which they could testify to the facts underlying their claims. One Maryland judge, Hugh Lennox Bond, became famous for granting these petitions. On a trip to Cambridge, Maryland, Bond got off the boat and was greeted by around 2,500 Black parents who had traveled great distances to get his ear. He spent the night in a hotel, and the next morning there was a father who had stood there all night, after walking the entire preceding day, just to get a few moments with the judge and try to free his children.

Lithwick: In re Turner was decided in 1867 by then, Chief Justice of the United States Salmon Chase. Back then, Supreme Court justices “rode circuit”, they literally rode horses or traveled by carriage to hear cases within the circuit they oversaw. Chase was riding circuit in Maryland.

Stern: After the 13 th Amendment was ratified in 1865, Turner’s mother brought a habeas petition under the federal Constitution. Hambleton would not defend himself in court because he did not want to waste money on a lawsuit.

Lithwick: Chase decided, in a very truncated opinion, that Turner’s apprenticeship violated the 13 th Amendment’s prohibition of involuntary servitude and the Civil Rights Act of 1866. He ordered little Turner’s release.

The decision went as viral as a 19 th -century opinion could. The Freedmen’s Bureau used it to reunite 110 indentured children with their parents. It is credited with ending the use of apprenticeships to perpetuate child enslavement by another name.

But then the case was seemingly instantly forgotten. If you heard about it at all, and I certainly was not taught it in law school, you probably heard about the Union general or the storied chief justice, not the parents who managed to leverage habeas corpus into case law that helped shape the Constitution. Their stories have been buried.

Stern: Ordinary people standing up for what they know the Constitution guarantees: That turns out to be the origin story of pretty much every major civil rights movement in America. And you do not have to look far to see some pretty striking parallels between In re Turner and today.

Cherneff: I reread my own note and had this strange, eerie feeling of vertigo reading my descriptions of these habeas corpus petitions, because I live in Minnesota and, since December, have been very much engaged, like much of the legal community here, in filing habeas petitions. I think there have been upward of 1,200 petitions filed in this district alone, which is an exponential rise. There are lots of parallels between these two stories: family members getting separated from loved ones, then turning to the courts, specifically to habeas corpus petitions, to claim that the separation is unlawful. Hugh Lennox Bond said the advantages of habeas are that it is swift and cheap, and I think that is what enabled a lot of the legal success in the District of Minnesota. These petitions could be filed very quickly.

It is possible that a future historian will look back on this moment as a time of popular constitutionalism. There was a rapid acceleration of legal knowledge among nonlawyers. Everyone on the streets of Minneapolis was talking about habeas corpus, and that was not true a year ago. Lawyers were learning from their clients and family members both what happened and how to structure the legal claims. Once again, we are seeing what it looks like when it is not just lawyers somewhere off arguing but is very much in collaboration with the communities directly affected. What we have seen in Minneapolis is ordinary people insisting on their own vision of what we are and what we do as a country, then enacting that vision.

Stern: I do wonder, though, what makes mass habeas litigation an episode of popular constitutionalism and not just an example of really successful lawyering.

Lithwick: I think part of it is that habeas is inherently very democratic in a way that most constitutional litigation just is not. It starts with somebody saying, “My child, my parent, my neighbor, the government is holding them illegally.” It democratizes constitutional enforcement because it poses the simplest and most urgent question: Does the state have actual grounds to take away this person’s liberty?

Stern: I find it striking that these petitions are often really short and straightforward and anyone can read and understand them. They are legal filings, but they are also declarations or pleas to a judge: The government simply cannot keep this person locked away or trapped in servitude. The most basic right is on the line. This person deserves their liberty.

Lithwick: You come away from both In re Turner and what was happening on the streets of Minneapolis with the sense that you tend to miss where the action is happening if you are hyperfocused on courtrooms. You have to look beyond the interior of a courtroom to see the people on the ground fighting to construct constitutional meaning.

Stern: Public action here does not replace the legal arguments. It is not supplanting the law. It is supplying the constitutional context and stripping away the pretense courts so often cling to when they want to stay out of the fray. Apprenticeship just meant slavery. Immigration stops just means disappearing innocent people who appeared Latino.

Lithwick: That is the power of popular constitutionalism: People make inequality concrete and urgent. They do not wait for the Supreme Court to tell them what freedom means. They claim the Constitution for themselves and demand that the law live up to it.