The Yale Law Journal

May 2024

Remembering In re Turner: Popular Constitutionalism in the Reconstruction Era

Legal HistoryCritical Race TheoryConstitutional Law

abstract. This Note presents a historical account of the underexamined movement to end racialized apprenticeship laws in the post-slavery era. Original archival research from census records, Union Army files, and newspaper articles illustrate the contributions of formerly enslaved men, women, and children to the ultimately successful movement to declare Maryland’s apprenticeship laws unconstitutional. Relying on the insights of Critical Race Theory and feminist legal theory, this Note fills a gap in existing legal history by producing a consideration of Reconstruction Era constitutional lawmaking “from the bottom.” This Note argues that our shared constitutional memory has been artificially narrowed by an underconsideration of freedpeople’s constitutional theories and claims. Restoring the anti-apprenticeship movement to our constitutional memory strengthens contemporary efforts to end racial discrimination in the child welfare system and to vindicate familial rights under the Thirteenth and Fourteenth Amendments.

author. Yale Law School, J.D. 2024. Without the guidance, insight, and encouragement of Professors Amy Kapczynski and Reva Siegel, this Note would not exist. For their support I am deeply grateful. I would also like to thank Professor Emily A. Owens, who taught me as an undergraduate all that legal history can be, and whose rigorous, curious, enduring approach to scholarship continues to shape my own. Many thanks as well to Joshua Aiken, Professor Monica C. Bell, Ali Gali, Imani Jackson, Professor Paul Kahn, Helen Malley, Talia Rothstein, Grace Watkins, Sarah Yerima, and my family for generative conversation, insightful suggestions, mentorship and friendship throughout. Lastly, I would like to thank the Yale Law Journal editors for their tireless work in readying this Note for publication, especially Valentina Guerrero and Doménica Merino. All errors are my own.


On December 6, 1864, Mary Dare wrote to her mother with urgent instructions. She wished her mother to travel on her behalf to the Union Army station in Baltimore to explain to the provost marshals that her children were being held unlawfully by a white man in Prince Frederick.1 Ms. Dare directed her mother to the newly enacted state constitutional provision which she believed would free her children: “If it should be necessary to refer to the Constitution, it can be found in the 24th Article of the Bill of Rights, which says, ‘that hereafter in this State there shall be neither slavery nor involuntary servitude, except in punishment for crimes . . . .’”2 Therefore, Ms. Dare reasoned, “it will be seen that [the children] are liberated because it is involuntary servitude.”3

Mary Dare’s legal acumen is notable in an era in which literacy amongst women born Black and enslaved was routinely criminalized,4 but she was not at all alone in interpreting what the newly enacted state constitution meant for her family. Hundreds of Black mothers lodged complaints with agents of the federal government protesting a section of the state code that permitted ex-slaveholders to sign newly freed children into decades-long indenture contracts without their consent.5

The persistence of these mothers moved the officials of the state: “Not a day passes,” reported a military officer stationed in Annapolis, “but my office is visited by some poor woman who walked perhaps ten or twenty miles to . . . try to procure the release of her children.”6 Among these walking women was Maria Nichols, a young mother forced to watch in silence as an Orphans’ Court judge indentured her young son to a former slaveholder.7 Another mother, Fanny Thompson, traveled to the Army Corps Headquarters to report that a white man, Richard Smith, coerced her into signing a contract which required her children to live and work on his land until adulthood.8 A third mother, Elizabeth Kennard, enlisted a neighbor to write to Colonel Ross on her behalf.9 She quoted from the state governor’s proclamation which stated that “all persons held in bondage . . . were made free whether they were minors or adults.” “[A]ll persons,” Kennard reasoned, plainly included her children, and so she begged the Colonel to heed the Governor’s order and free her children from the apprentice masters who held them.10

These women began a movement which would ultimately shape constitutional law.11 It took three years, one amendment, and two acts of Congress, but in an October 1867 circuit decision In re Turner, United States Supreme Court Chief Justice Chase officially adopted Mary Dare’s interpretation of the proscription against “involuntary
servitude.”12 In re Turner struck down Maryland’s apprenticeship laws for Black children as violations of the newly enacted Civil Rights Act and the Thirteenth Amendment.13

Despite their perseverance, Mary Dare, Fanny Thompson, and Elizabeth Kennard have not been recorded in the canon of constitutional theorists.14 They devoted enormous intellectual labor towards deciphering the meaning of constitutional liberty, interpretations which were eventually upheld in federal court, yet their perspectives are not called upon today to help decipher the plain meaning of the Reconstruction Amendments.15 This absence ought to strike us as counterintuitive; formerly enslaved people, and perhaps they alone, were experts on what the badges and incidents of American slavery entailed.16 If we listen, their words and advocacy could guide us in the ongoing efforts to define the contours of constitutional liberty today.

In re Turner and the social movement that preceded it represent a rich and largely forgotten narrative from our constitutional history. This overlooked constitutional story provides several insights for our present. First, In re Turner invites consideration as to the means by which social movements led by everyday individuals without economic or political power engaged in constitutional interpretation and effected durable change. Second, In re Turner enriches our understanding of the Thirteenth and Fourteenth Amendments’ meaning at the time of their ratification. The anti-apprenticeship movement offers a vision of familial integrity as a key civil right, a tradition which practitioners may draw from today.

This Note proceeds in five parts. Part I situates this contribution to existing scholarship in the fields of legal history and constitutional theory. Part II traces the origins of the apprenticeship system though English common law and American slavery’s contortions. Part III documents the early efforts of freedpeople to attack apprenticeship through habeas petitions and traces the previously unstudied influence of freedpeople on the celebrated Maryland judge, Hugh Lenox Bond. Part IV details In re Turner,the federal circuit court opinion which ultimately affirmed the constitutionality of the Civil Rights Act and declared Maryland’s apprenticeship laws unconstitutional. Part V suggests several means by which the apprenticeship movement and In re Turner may fortify movements for racial justice and family rights today.