By the People | For the Children

Summary

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Amicus with Dahlia Lithwick

Episode: "By the People | For the Children"

Date: July 25, 2026
Theme: Popular Constitutionalism Through the Lens of Family Separation, Slavery, and Habeas Corpus—Past and Present

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Episode Overview

This episode continues Amicus’s "By the People" series, interrogating how ordinary Americans, rather than only the Supreme Court, have shaped constitutional meaning—especially around liberty, family, and bodily autonomy. Focusing on the nearly forgotten 1867 “Henry Turner” case and the roles of Black parents fighting for their children post-emancipation, Dahlia Lithwick and Mark Joseph Stern, with guest Lyle Chernoff (University of Minnesota Law), draw direct lines to modern immigration and habeas battles, illuminating how “the Constitution” is forged not just in courtrooms but on the streets, in families, and through mass civic action.

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Key Discussion Points & Insights

1. Popular Constitutionalism vs. Judicial Supremacy

• [00:39] Dahlia Lithwick: “Excavating that past is crucial to answering this animating question of our time. Who gets to decide what the Constitution means?”
• The hosts challenge the prevailing notion that the Supreme Court alone defines constitutional meaning, advocating for “popular constitutionalism”: the people’s role in constitutional change.
• Citing legal scholar Larry Kramer, they identify an arc from popular engagement (“the people themselves”) to today’s “learned helplessness” that cedes meaning to courts.

2. History of Family Separation and Reconstruction-Era Struggles

• [05:18] Lyle Chernoff: “Constitutional doctrine is built of stories, but the reality is whose stories create that doctrine has for a long time been very carefully guarded.”
• The panel explores Maryland’s post-1864 “negro apprenticeship laws,” which effectively re-enslaved Black children even after emancipation ([06:44]-[07:00]).
• [07:00] Lyle Chernoff: Describes the harrowing practice of rounding up newly freed Black children into indenture, with Black parents—often mothers—petitioning, writing letters, and physically confronting former enslavers, the courts, and the Union Army.

3. The Power and Language of Habeas Corpus

• Parents and activists used habeas petitions as a simple, democratic legal tool to challenge unlawful detentions, both during Reconstruction ([09:45]-[10:14]) and in modern immigration fights ([32:10]-[32:29]).
• [11:13] Dahlia Lithwick: Emphasizes the roles of Black women and key scholars (Peggy Cooper Davis, Michelle Goodwin, Dorothy Roberts, Reba Siegel) in tracing the continuity of legal and bodily autonomy battles.

4. Case Study: In re Henry Turner (1867)

• [17:03] Lyle Chernoff: Tells the story of Elizabeth Turner, a Black girl re-enslaved as an “apprentice” after Maryland’s abolition of slavery, and her mother’s legal fight.
• The panel recounts how Elizabeth’s mother, supported by the Freedmen’s Bureau, files for habeas relief; Chief Justice Salmon Chase rules her “apprenticeship” violates the 13th Amendment and Civil Rights Act of 1866 ([28:12]-[28:41]), freeing Elizabeth and catalyzing similar cases nationwide.
• [28:41] Lyle Chernoff: “The Henry Turner opinion was widely understood at the time as shedding light not only on the legality of the Maryland law, but on the legality of all of these racialized apprenticeship laws.”

5. Forgetting—and Rediscovering—the People’s Role

• The narrative observes how legal history often canonizes judges while erasing the lived experiences and agency of Black parents and activists ([30:06] Dahlia Lithwick).
• [30:46] Lyle Chernoff: “Their stories have been buried...but the reality is...we still do have records of these people and the claims that they made. If we spend the time to look for them.”

6. Contemporary Parallels: Habeas and Family Separation in Modern America

• Lyle notes his involvement in Minnesota’s mass habeas filings against 2026 immigration raids ([32:29]): “There are lots of parallels between these two stories...family members getting separated from loved ones and then turning to the courts, specifically to the habeas corpus petitions, to make claims that the separation is unlawful...”
• Mark Joseph Stern ([37:30]) hails the “shared civic language” of habeas, showing how legal and street activism converged to resist ICE raids and mass detentions post-2025.

7. Democratizing Constitutional Meaning

• [36:12] Mark Joseph Stern: “I find it really striking that these petitions are often really, really short and straightforward…almost feel not like legal filings...sort of declarations...‘the government simply cannot keep this person locked away or trapped in servitude.’”
• Dahlia and guests praise the accessibility of habeas as a tool, rebuking the professionalization of law and the resulting distance between the courts and ordinary citizens ([39:32]).

8. Constraints of Judicial “Neutrality”

• The episode critiques courts (especially the Supreme Court) for narrowing their vision to “neutral” abstractions, resisting acknowledgment of the realities driving people to court ([42:33] Dahlia Lithwick, [44:57] Mark Joseph Stern).

9. The Power of Public Action

• Mark and Dahlia highlight that legal petitions aren’t primary—the context (mass demonstrations, mutual aid, street mobilization) sets the stage for law’s moral urgency ([37:30]-[41:21]).
• The community mobilization in Minnesota, and the parents’ relentless appeals in Maryland, are both constitutional action in practice.

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Notable Quotes & Moments

• [04:00] Dahlia Lithwick: “This very relatively recent, near universal acceptance…that the Supreme Court is the sole arbiter of what the Constitution means.”
• [10:14] Lyle Chernoff: “Most of these women had been enslaved themselves…freedom not only as what congressional men…said … but paying attention to these other voices…can…guide us in understanding the ordinary public meaning of these phrases.”
• [12:19] Lyle Chernoff: “Familial separation was a key component of what it meant to be enslaved during that era…almost no one else…was being deprived of the familial rights which were consistently denied to enslaved people.”
• [22:38] Mark Joseph Stern: “What is habeas corpus? … It simply means you have a right to know why you are being held and…the right to a process that can grant you freedom.”
• [28:41] Lyle Chernoff: “The Henry Turner opinion was widely understood at the time as shedding light not only on the legality of the Maryland law, but on…the legality of all of these racialized apprenticeship laws.”
• [32:29] Lyle Chernoff: “[In modern Minnesota]...the extent to which the community and family really mobilized…there was a moment of rapid acceleration of legal knowledge that happened amongst non lawyers.”
• [36:12] Mark Joseph Stern: “These petitions are often really…straightforward…almost declarations…This person deserves their liberty.”
• [37:00] Dahlia Lithwick: “These habeas petitions weren’t just a lawyer’s instrument. They become a kind of shared civic language…a way for ordinary people to name an abuse of power and…force the legal system to respond.”
• [39:32] Dahlia Lithwick: “Maybe we need to start selling law reviews in gas stations. …So much of the obfuscation…is a function of legal education, the professionalization of the practice of law…if you’re hyper focused on what’s going on in courtrooms, you miss where the action is happening.”
• [41:21] Mark Joseph Stern: “Habeas is the glue that binds the whole Constitution together. …Once you take that away, the worst things imaginable start to happen.”
• [42:33] Dahlia Lithwick: “Why…does the specter of losing habeas rights, while it sounds…old and abstract, really break through? Why this…legal tool is something people intuitively understand…”
• [47:45] Teaser for next episode: “Next week: How the gay rights movement recast the freedom to marry as a demand for constitutional equality… And another major triumph of popular constitutionalism… The creation of an individual right to bear arms under the Second Amendment.”

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Important Timestamps

• 00:39–01:20 – Introduction to popular constitutionalism and the “By the People” series
• 03:45–05:36 – Context of the Henry Turner case & Maryland’s “negro apprenticeship laws”
• 08:08–11:00 – Found family stories, petitioning, and the lived experience of slavery and emancipation
• 17:03–18:57 – Elizabeth Turner's story and the mechanics of indenture after emancipation
• 27:17–29:17 – Chief Justice Chase’s ruling, the case’s national impact, and the viral spread of the decision
• 32:10–37:30 – Parallels between Black families’ post-emancipation petitions and Minnesota’s 2026 habeas campaign
• 37:00–42:33 – Democratizing law, the function of civic language, and constitutional meaning made real
• 45:36–46:33 – Closing reflections, previewing future examples of popular constitutionalism

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Takeaways

• Constitutional meaning is not just decreed by courts—it emerges from the struggles, petitions, and demands of ordinary people.
• Habeas corpus is a democratic, accessible legal instrument repeatedly wielded by those most affected by state violence and deprivation.
• Much of the real constitutional action happens amid lived experience, not just in appellate opinions or law schools—a vital history and present that must be remembered, taught, and acted upon.
• Direct connections run from the fights of post-emancipation Black parents to today’s grassroots legal and civic campaigns—from Maryland’s courts to Minnesota’s streets.

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Next Episode Preview

“By the People” continues with:

• The marriage equality movement's constitutional innovations
• The rise of gun rights through popular organizing—showing that the democratization of constitutional meaning is not owned by any single political faction

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If you haven’t listened, this episode is an urgent, accessible entry point, rich in historical storytelling and contemporary resonance—worth your time whether you care deeply about law, history, activism, or the ongoing meaning of American freedom.

Transcript

[Lyle Chernoff]

All night long there was a father who had been standing at that hotel, who had walked the entire day proceeding just to try to get a few moments with this judge to try to free his children who were still being

[Dahlia Lithwick]

held 162 years ago. A scene that ricochets through our current moment.

[Lyle Chernoff]

Ordinary people insisting on their own vision of what we are and what we do as a country, and then enacting that vision.

[Mark Joseph Stern]

The voices and the stories that propelled America into its second founding have been largely excluded from constitutional and legal history.

[Dahlia Lithwick]

Excavating that past is crucial to answering this animating question of our time. Who gets to decide what the Constitution means?

[Mark Joseph Stern]

For most of American history, it wasn't the Supreme Court.

[Dahlia Lithwick]

It was the people themselves.

[Mark Joseph Stern]

It's your Constitution in this episode.

[Dahlia Lithwick]

What it looks like to take that seriously. This is Amicus, Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwick.

[Mark Joseph Stern]

And I'm Mark Joseph Stern.

[Dahlia Lithwick]

Welcome to episode two of by the People, a series of podcast episodes and print articles exploring how the American people can reclaim the Constitution from this monarchic supreme court.

[Mark Joseph Stern]

Go to slate.com bythepeople to join the conversation. We'll kick things off right after a break.

[Dahlia Lithwick]

This episode is brought to you by Ground News. Here at Amicus, we read a lot about the Supreme Court, but it's not the only news we consume. And like you, we seek out different sources on the same subject to get the full story. Ground News is a great way to get down to the facts. It's an app and website that makes it easy to compare news sources, break free from algorithms, and think critically about where you're getting your news. Recently, I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is center or nonpartisan. But if you click right, you can see right leaning coverage that claims, quote, Keir Starmer offered Britain nothing. And if you click left, you'll see headlines lamenting that Keir Starmer is, quote, the latest casualty of the Downing street meat grinder, the Nobel Peace center, called Ground News, quote, an excellent way to stay informed, avoid echo chambers and expand your worldview. Here's how to get started. Go to groundnews.comac to get 40% off their Unlimited Access Vantage subscription. That's groundnews.comac and you'll get 40% off the Vantage subscription, which is whether you subscribe yourself or send it as a gift. Make sure to use our link so that they know that we sent you. That's groundnews.com ac

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[Lyle Chernoff]

Foreign.

[Mark Joseph Stern]

Picking up from where we left off last week, you talked about learned helplessness. What did you mean by that? In the context of the Supreme Court and the Constitution, we were talking about

[Dahlia Lithwick]

this very relatively recent, near universal acceptance of this idea that the Supreme Court is the sole arbiter of what the Constitution means. In my conversation with legal scholar Larry Kramer, the man who well popularized the phrase popular constitutionalism, Larry talked about various inflection points that got us there. The rights fight against New Deal legislation put forth by fdr. And then the Warren courts turned toward thinking about a multiracial, progressive Constitution. But there's a really significant chapter of American history that Larry and I didn't even cover, and that is the diametric opposite of 21st century learned helplessness, a chapter that truly shaped and informed constitutional meaning. And that constitutional constitutional inflection point has some remarkable parallels with today.

[Mark Joseph Stern]

This week, a stash of papers from a Union army general reveals a nearly forgotten American story that spans the Civil War and early Reconstruction an eight year old girl, a legal and constitutional system that denied her most fundamental freedom, and the thousands of black parents who marched into courts and claimed their constitutional rights, rights that were not even fully enshrined.

[Dahlia Lithwick]

Yet.

[Lyle Chernoff]

Constitutional doctrine is built of stories, but the reality is whose stories create that doctrine has for a long time been very carefully guarded.

[Dahlia Lithwick]

That's Lyle Chernoff. He's a lawyer and an assistant visiting professor at the University of Minnesota Law School.

[Mark Joseph Stern]

He's talking about the work of another legal academic, Peggy Cooper Davis, which inspired his own. Davis, now professor emerita at NYU Law, conducted an essential historical investigation into the formation of the Reconstruction amendments with her 1997 work neglected the Constitution and Family Values.

[Dahlia Lithwick]

Lyle, then a student at Yale Law School, was trying to find some of the stories that created the doctrine around an 1867 case called Henry Turner, a

[Mark Joseph Stern]

note about that case title, for those of you who aren't lawyers, it looks a little like the subject line on an email in re. It's. It's Latin and it just means in the matter of. You often see it in a court case involving children because it identifies the child as the subject of the proceeding.

[Dahlia Lithwick]

Henry Turner is a case that shaped the constitutional landscape and closed off an attempted end run around emancipation. And it was about a little girl.

[Mark Joseph Stern]

A couple of things you need to know First. In the run up to the Civil War and in its immediate wake, many states, especially in the south, passed so called negro apprenticeship laws.

[Dahlia Lithwick]

And Maryland's state constitution, emancipating enslaved people went into effect on November 1, 1864.

[Lyle Chernoff]

Almost immediately, freed people discovered that their children were not being released from the plantations. In Maryland, slaveholders declared that while free adults could leave, they insisted that they still had legal claims to black children within the state under the Maryland apprenticeship laws. They were really being developed even before the abolition of slavery as a tool by which the state would separate black children from their black parents and force them to work. While apprenticeships for white children generally required the consent of their parents, for black children at this time, if a judge at the orphans court determined that it would be, quote, unquote, better for the comfort and habits of the black children for them to be apprenticed even with without their parents consent, then the court would go ahead and do that. Contemporaneous accounts in the days and weeks following the emancipation in Maryland contain reports of people seeing ox carts full of black children being carried to the state courthouses in which these fraudulent and hastily written quote unquote apprenticeship contracts were written out which would effectively indenture black children back to their slaveholders until they reached the age of majority.

[Dahlia Lithwick]

The image of these children in oxcarts is just harrowing. Recall that one of the most vital priorities for freed slaves was reuniting with their spouses and their kids and reconstituting their families. And to be told, oh no, we're keeping your children, was just brutalizing and

[Mark Joseph Stern]

within days of emancipation, right? Imagine the whiplash of here's your freedom and now we're going to take away your children. We also see contemporary accounts report that these kids were routinely being beaten and starved.

[Dahlia Lithwick]

But beyond those chilling descriptions, Lyle found other vital stories, constitutional stories.

[Lyle Chernoff]

I just happened to find this transcribed copy from a Union army general, Lew Wallace, that he had collected all the letters that he had received and submitted it to Congress. For me, it really began with the stories of the individuals captured in this archive, free people of color, mostly mothers, working to free their children from conditions of servitude. It was, I don't know, probably less than 100 pages, but each page had one or two letters of parents from this time petitioning the Union army about their children.

[Dahlia Lithwick]

Remember last week, Larry Kramer explaining how significant petitioning was as a lever of popular constitutionalism. That's why it's in the First Amendment.

[Lyle Chernoff]

I spent a lot of time just reading letters written by black women trying to free their children. And this really became the foundation of my interest and allowed me to consider how these popular constitutionalist claims were developed during this era.

[Mark Joseph Stern]

And these women didn't have jds. They hadn't 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.

[Lyle Chernoff]

Most of these women had been enslaved themselves and were freed under this 1864 state constitution. One letter that really stuck with me was written by this woman named Lucy Lee, who was describing the experience of being freed, but then immediately after that, being told that your children cannot go with you. And she said, you know, 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 lingering on that, I think, thinking about freedom not only as what congressional men kind of said it was when they were debating it in Congress, but paying attention to these other voices. What freedom felt and meant for the people most directly impacted by the 13th Amendment can help us, I think, morally guide, but also simply doctrinally guide us in understanding the ordinary public meaning of these phrases.

[Dahlia Lithwick]

At the time, Lyle's work was deeply grounded in the scholarship of some of the legal heroines of this podcast. Peggy Cooper Davis, Michelle Goodwin, Dorothy Roberts, and Reba Siegel. In fact, Professor Siegel has a fantastic piece that you can read as part of this project. Go to slate.com bythepeople to find it. Her piece connects the popular constitutionalism we're talking about and think about here with the birthright citizenship case that came down this term. Over several decades now, these scholars have built out a framework for understanding the historical and ongoing assaults on black family sovereignty, bodily autonomy, and privacy. They've shown through their work just how important the experience of formerly enslaved people, women in particular, really was in influencing the constitutional design of the Reconstruction amendments. If you don't understand what was done to the bodies and the children of black women, you cannot begin to grasp the degree to which this project was never about just freeing former slaves.

[Lyle Chernoff]

Familial separation was a key component of what it meant to be enslaved during that era. The continuous onslaught on black families during the antebellum era was unique to the condition of slavery. Almost no one else in America in that time was being deprived of the familial rights which were consistently denied to enslaved people. Listening to freed people describe from their own voices what the experience of slavery was and how they understood freedom, or the opposite of slavery to be, can help us understand not only at the time what the public kind of contemporary understanding of slavery was, but also shed light into how this doctrine can develop.

[Mark Joseph Stern]

The history of slavery in America is a history of family separation, sexual violence, and forced copulation, and it is all disgracefully visible in the case that Lyle's research focused on. If you choose to see it, we'll hear Elizabeth Turner's story next. How do you keep up with AI? The competition is only moving faster. Fortunately, There's NetSuite next. NetSuite is the AI powered business management suite that securely connects all of your data. It's a unified suite that brings your financials, inventory, commerce, HR and CRM into a single source of truth, and it's trusted by over 43,000 customers. NetSuite Next is the next huge leap in how business gets done because AI is built into everything you do. AI agents work alongside you to solve problems and help handle routine work. And anytime you have a question about anything, just ask, just like you're having a conversation with a colleague. NetSuite is customized for a wide range of industries, so it supports the way your business truly works. Whether your company earns millions or even hundreds of millions, it's time for Netsuite Next, where your business meets AI for the first time ever. You can try Netsuite Next for free. If your revenues are at least in the seven figures, go to Netsuite AI Amicus. Built for every industry, ready for every boardroom, Netsuite AI Amicus this episode is

[Dahlia Lithwick]

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[Lyle Chernoff]

Elizabeth Turner was born in 1856. She and her mother were enslaved to a white man named Silliman T. Hambleton, who was a plantation owner on Maryland's Eastern Shore.

[Dahlia Lithwick]

Lyle shared his research in a note for the Yale Law Journal in 2024. In his piece titled Remembering Henry Turner, he writes this quote the first time an official record of Elizabeth Turner's existence surfaces is in an 1860 slave census schedule, which lists a female child recorded amongst the census taker's bureaucratic tally. An M appears next to the child's age, indexing her as a mixed race child. Elizabeth Turner was thus born to a man who counted her among his chattel and to a mother who blessed her with her own first name. End quote. As Lyle points out, under slavery, only the slaveholder and not the mother who gave her name had any Legal claim to the child.

[Lyle Chernoff]

Elizabeth Turner was 8 years old when Maryland abolished slavery in their state. From the records, it appears she experienced about two days of freedom until Philemon came back. She was rounded up along with the other black children in the county and taken to the county court. At the county court they had these very kind of formulaic pre filled sheets which were the quote unquote apprenticeship and denture contracts. You can see hers, it's in the court files. They just filled basically in the name and the date of the children. Under this so called apprenticeship law, she was very hastily basically re enslaved back to the man who she had just been freed from.

[Dahlia Lithwick]

Meanwhile, Elizabeth's mother traveled across the Chesapeake Bay to Baltimore and she 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 and impoverished white refugees in the war torn south. Lawyers from the bureau filed a habeas corpus petition on behalf of the young Elizabeth Turner. They were busy.

[Lyle Chernoff]

Maryland historian Richard Paul Fuch estimates between 3,000 and 4,000 children in the first weeks after emancipation alone were re enslaved through these kind of fraudulent indenture contracts. It varied in somewhat, county by county, but in almost every case case, the person, quote unquote, apprenticing the child was in fact the former slaveholder.

[Dahlia Lithwick]

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

[Lyle Chernoff]

Almost immediately after the emancipation in Maryland, there are reports of parents petitioning for the freedom of their children. Some of these early reports are simply the parents going directly to the slaveholders in real acts of courage and demanding that the slaveholders let them leave with their children. According to the reports, often these were violent encounters in which the white slaveholders insisted that their children remain on the property. And from the early reports, these were often not successful. Although there are some stories of parents sort of successfully assisting their children in escaping from these violent apprenticeships. There are also reports of parents bringing their petitions to the Union army generals who at that time were stationed in Maryland. There's one account from a Union army general stationed in Annapolis who said, really 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 are also kind of an amazing collection of letters written by primarily black parents, but also sometimes black family Members or friends to union army officials in the weeks and months after emancipation, asking for their assistance in freeing these children. What caught my eye as a scholar interested in popular constitutionalism Was the way in which freed people made direct claims on the text of the state constitutions as they were making these arguments. So I looked at one letter written by a woman named Mary dare, who was instructing her mother to go in person to the uni general and plead on her behalf. And she said, if it should be required to resort to the constitution, I'm gonna direct you to the exact portion. And she cited directly to the article of the new constitution, which included the emancipation proclamat, which said slavery and involuntary servitude are banned from the state. And she reasoned, you know, very simply, that the way in which her children were being held was involuntary servitude. And so under this new law, they should be freed. We saw that several times in the letters. The black parents are very clearly reading these new laws and declarations and then making their claims directly in reference to them.

[Mark Joseph Stern]

Here it's worth explaining what habeas corpus is. It traces all the way back to 1215 and England's Magna carta, and it's known as the great writ because it is a promise by the government to the people 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 the right to a process that can grant you freedom.

[Lyle Chernoff]

The historian Martha Jones has done great work on the use of habeas petitions in Baltimore by free people of color just before this period. So during the antebellum period. She writes about how free people of color really ingeniously utilized habeas petitions to attempt to free friends and family members from involuntary servitude of various forms. And what of the advantages to habeas? I mean, there were several, but one of them was that there was more latitude for testimony. So at a time in which black people were often prohibited from giving testimony in court, Habeas corpus became a vehicle by which they could testify to the facts underlying their claims. So there's one judge in Maryland who became kind of famous for granting these habeas petitions. His name was Hugh Lennox bond. And basically, I think, blank black parents figured out that this was the guy to go to and that they would go to great lengths to file their habeas petitions in his court for a long time. He was by far the best hope of getting these indentured contracts dissolved. There's another report of he just was on a tour to give kind of a normal speaking engagement in Cambridge, Maryland. And he said he got off the boat and he was greeted by like 2,500 black parents who had traveled great distances just to try to get his ear. And there's a description of he spent the night in a hotel and he woke up in the morning and there was a father who had been standing at that hotel all night long who had walked the entire day proceeding just to try to get a few moments with this judge to try to free his children who were still being held.

[Dahlia Lithwick]

We'll be right back.

[Mark Joseph Stern]

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[Dahlia Lithwick]

Welcome back. So Henry Turner is decided in 1867 by then Chief justice of the United States, Salmon Chase. Now, back then, Supreme Court justices rode circuit. They literally rode horses or traveled by carriage to hear cases within the circuit that they oversaw. Chief Justice Chase was riding circuit in Maryland.

[Mark Joseph Stern]

As we heard earlier, Elizabeth Turner, age 8, is indentured just two days after she and her mother ostensibly gained their freedom. Her enslaver, Philemon Hambleton, who may well have been her biological father as well, refuses to release her from servitude. After the 13th Amendment is ratified in 1865, her mother brings a habeas petition under the federal Constitution. Hambleton won't defend himself in court because he doesn't want to waste money on a lawsuit.

[Dahlia Lithwick]

Chief Justice Chase ends up deciding in a very truncated opinion that Turner's apprenticeship is illegal on the grounds that it violates the 13th Amendment's prohibition of involuntary servitude as well as the guarantee to all citizens of the, quote, full and equal benefit of all laws contained in the Civil Rights act of 1866, which will soon be incorporated by the 14th Amendment as the Equal Protection Clause. Chief Justice Chase orders little Elizabeth Turner's release.

[Lyle Chernoff]

The Henry Turner opinion was widely understood at the time as shedding light not only on the legality of the Maryland law, but on the legality of all of these racialized apprenticeship laws. First, the 13th Amendment was passed. Then they passed the 1866 Civil Rights act, which said laws can't be different based on race within the state. And then they passed the Habeas Corpus act in 1867. And that act, Congressional act, that was explicitly understood as providing a mechanism by which to challenge these racialized apprenticeship laws, not just in Maryland, but across the South.

[Dahlia Lithwick]

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

[Lyle Chernoff]

There was coverage across the country of that case, predicting that this would inevitably strike down the laws in other states, somewhat to the disappointment, allegedly, of the justice who heard the case. It was never appealed to the Supreme Court, so they never got a nationwide ruling on it. But you see, over the course of the next few years, many of these states repealed their apprenticeship laws. And Returner was really a case of national significance.

[Dahlia Lithwick]

So, yeah, the case had national Significance, but then was seemingly instantly forgotten. The voices, the history of the women and children so central to understanding the Constitution. These Americans who truly understood not only what freedom meant, but what its opposite, slavery, really meant. If you heard about this case at all before, and I certainly wasn't taught it in law school, you probably heard about the Union General or the storied Chief Just. And not about the parents who managed to leverage habeas corpus into case law that helped shape the Constitution.

[Lyle Chernoff]

Their stories have been buried, those stories. And I think the tenacity of these parents really was what brought me in to this piece. And the more that I read, I felt that what had been underdeveloped in the literature that I was reading, which was, you know, large. I was in law school at the time, so it was largely the literature of constitutional history and reading the US Reports and going line by line through these congressional debates about the 13th Amendment and what exactly it included or didn't include, and every word of these senators. And I felt that there was this incredibly rich archive that was largely untapped, which was the perspectives of the people who were there at the time who had a felt sense of what freedom meant for them. And for a lot of us who are interested in kind of, you know, I guess to use Saidiya Hartman's phrase, like histories of the dispossessed or in telling stories of people that weren't the official actors at the time, I think there can be a sense of pessimism that these stories have been lost because they're not in the official kind of channels. But the reality is, I think even though they have not been, I would say, as fairly or as adequately captured as they should have, we still do have records of these people and the claims that they made. If we spend the time to look

[Mark Joseph Stern]

for them, 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 as Lyle acknowledges, you don't have to look far to see some pretty striking parallels between In Returner and Today.

[Lyle Chernoff]

Yeah, I mean, I have to tell you, you know, you got invited to this interview, and I was like, well, I should remember what I wrote. So I just kind of reread my own note this morning, and it had kind of this strange, like, eerie vertigo feeling, rereading my own descriptions of these habeas corpus petitions because I do live in Minnesota since December, have been very much engaged, like much of the legal community here, in the filing of habeas corpus petitions. I Mean, I think since December, there have been upwards of 1200 habeas petitions filed in this district alone, which is an exponential race. And the experience of reading about. I mean, there are lots of parallels between these two stories. The experience of family members getting separated from loved ones and then turning to the courts, specifically to the habeas corpus petitions, to make claims that the separation is unlawful. The judge, Hugh Lennox Bond, said that the advantages of habeas is that it's swift and cheap or something. He said, and that is, I think, what enabled a lot of the legal success in the district of Minnesota on behalf of detained people was that these habeas petitions could be filed very quickly. It only cost $5 to file these habeas petitions. And I think, you know, it's possible that a future historian will look back on this time and write about this moment as a time of popular constitutionalism. I think there would be a very legitimate claim to that. I think the extent to which the community and family really mobilized. I think there was a moment of rapid acceleration of legal knowledge that happened amongst non lawyers in the community. So everyone on the streets of Minneapolis are talking about habeas corpus, and that wasn't true a year ago. There was also the extent to which lawyers were learning from their clients and from their family members both about what happened and how to structure the legal claims underlying it. And I think, once again, we're seeing what it looks like when it's not just kind of lawyers somewhere off arguing, but it is very much in collaboration with the communities directly impacted. And I think there are so many ways to think about popular constitutionalism, what it is and what it does. One way is thinking about the claims themselves. But there are so many other factors that go into whether petitions get heard and ruled on and enforced. And so much of that really has to do with the social, cultural, political climate at the time. And I think what we've seen in Minneapolis is really ordinary people insisting on their own vision of what we are and what we do as a country and then enacting that vision to great success, I would say here. So the vast majority of those habeas petitions have been granted.

[Mark Joseph Stern]

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

[Dahlia Lithwick]

Yeah, so I think part of it is that habeas is inherently very democratic in a way that most constitutional litigation just, just isn't. It starts with somebody saying, my child, my parent, my neighbor, the government is holding them illegally. So 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?

[Mark Joseph Stern]

I find it really striking that these petitions are often really, really short and straightforward and anyone could read and understand them. And they almost feel not like legal filings. They, of course, but they're also these sort of declarations or even announcements to a judge, like a plea saying the government simply cannot keep this person locked away or trapped in servitude. Right. This is a plea that the courts must answer. And I find that so refreshing when we spend a lot of our time reading overly complicated court filings filled with legalese here in. In both Minnesota and way back in the 1860s, this was stuff that anyone could understand saying the most basic is on the line here. This person deserves their liberty.

[Dahlia Lithwick]

And maybe that's the answer to your question mark. The lawyering matters enormously. But these habeas petitions weren't just a lawyer's instrument. They become a kind of shared civic language. Just like Lyle said. Everybody on the streets of Minneapolis suddenly talking about habeas petitions. They become a way for ordinary people to name an abuse of power and to force the legal system to respond. That's more than just good lawyering. It's turning a constitutional climate into a public demand.

[Mark Joseph Stern]

I love the idea of habeas as this shared civic language, and it really leaps out from Lyle describing doing this work. Also, it's such a great rebuke to the Republican talking point in 2026 that immigration is creating a low trust society. Right. You hear this all the time, that the United States is becoming low trust. Nobody knows or trusts anybody anymore because there's too much immigration, There are too many foreigners and they're not assimilating and everything has gone off the rails. And we need to have 100 million deportations to bring it all back in, Maintain high trust again. And it's like the best example of a kind of high trust civic culture forming was the Twin Cities In January of 2026, when everybody came together to fight off these outrageous and unconstitutional raids and defend their neighbors who again, it cannot be stressed enough. They often didn't know. They didn't know their immigration status. They didn't know their backgrounds, they didn't care. They said, this is wrong and we are going to stand up and we are all going to fight it together. And that is the kind of society that I would rather live in than what other kind of like white supremacist nativist paradise, quote, unquote, the Trump Administration purports to be building with mass deportations. But I do think we can't just focus on the habeas petitions, right? We have to talk about all this stuff that was going on in the streets of Minneapolis and St. Paul. All of the regular people who I was just, you know, praising, who were protesting, monitoring ice, providing mutual aid, just putting themselves on the line, putting their bodies on the line to protect these people. That was constitutional law in the making as well. And even after two American citizens were murdered, even after so many people were badly injured and brutalized, the threat of violence didn't stop people from rising up and trying to protect their community from these raids. And again, that feels to me like shared civic language. It feels like the Constitution made plain by people who have such a strong conviction about what it means that they're willing to risk their lives to protect.

[Dahlia Lithwick]

I'm reminded, Mark, of Justice Scalia once famously saying in response to questions about why the law is so abstracted and obscured, that it's a good thing that they don't sell law reviews in gas stations. And you really come away from both in Returner and from Lyle's discussion of what was happening on the streets of Minneapolis with the sense that, that maybe we need to start selling law reviews in gas stations. Because it really is, I think, a reminder that so much of the obfuscation and the abstraction is a function of legal education, the professionalization of the practice of law. And as you and I say almost weekly, the court's aggrandizing to itself the responsibility to be the only determinant of what the law means. So one thing, thing that really does keep edging its way back into this series is that you do tend to miss where the action is happening if you're hyper focused on what's going on in courtrooms. You have to look way beyond the interior of a courtroom to see the folks on the ground fighting to actually construct constitutional meaning. And sometimes, as you say, they had to do that, putting their own bodies on the line again in Returner, again in Minneapolis. And I think they. There's a absolutely thread connecting the Minnesotans protesting and monitoring and terrorizing ice who are terrorizing their communities, and all the moms and the dads fighting to free their children from being re enslaved under the completely sham guise of apprenticeships.

[Mark Joseph Stern]

So look, obviously it's not a one to one comparison, but I absolutely see the thread too. And I don't think it's a surprise or a coincidence that we now know Stephen Miller, you know, Trump's close immigration advisor wanted to suspend habeas corpus, or at least flirted with the idea of suspending habeas in order to ramp up mass deportations without due process. Habeas being the thing that freed thousands of unlawfully detained immigrants in Minnesota and the thing that freed thousands of children after the Civil War in Southern states. Right. Habeas is the glue that binds the whole Constitution together. And once you take that away, the worst things imagine imaginable start to happen. And so in both of these cases, you see the wronged people and their neighbors and their families and their friends staking a claim about the Constitution that is rooted in habeas, that is rooted in this understanding that liberty is the default right, and then putting themselves behind that claim and organizing and resisting and making it impossible for the legal system to look away from this injustice or to treat the injustice as a mere abstraction that can be ignored or sort of downplayed.

[Dahlia Lithwick]

That's exactly right. And it somehow, I think, answers the mystery of why it is that the specter of losing habeas rights, while it sounds like very Latin and old and abstract, really does break through. Why this incredibly important visceral legal tool is something that people intuitively understand even if they can't buy a law review at a gas station. And I think you're making another really important point that we should spell out for a moment because we talk about it so much part of the obfuscation that goes on with the courts is the very deliberate decision to blinker the courts from what's going on on the streets, to suggest that, oh, we're neutral arbiters, it doesn't matter what's actually happening on the ground. And to take that into account in any way, shape or form is to somehow do a disservice to this posture of neutrality and oracular all knowingness. And what I really love about what you're saying is that these instruments, these habeas petitions, again, in both cases, really don't allow courts to do what the Supreme Court was doing this past term when the majority just blinkered itself to the horrible things that Donald Trump said about Haitians to totally blinker themselves to some of the most appalling implications of ICE detentions and seizures. And so it seems to me that what you're saying is these habeas petitions, this citizen driven constitutional meaning, forces courts to reckon with reality, and it doesn't allow them to say, oh, I have no idea what's going on, because I'm still applying my three point test. And so, yes, Chief Justice Salmon Chase knew exactly, exactly what was going on with those so called apprenticeships back in 1867. And yes, the judges on the US District Court in Minneapolis knew precisely what was going on on the streets outside their courthouse doors in January of 2026. And that doesn't make them biased. It means they are doing their jobs.

[Mark Joseph Stern]

And public action here doesn't replace the legal arguments. Right. It's not supplanting the law. It's supplying the constitutional context. And it's stripp the pretense that courts so often cling to when they want to stay out of the fray. Right. In both of these cases, apprenticeship just meant slavery. Immigration stops just meant disappearing innocent people who appeared Latino. The reality was laid bare in these citizens petitions, citizens pleas to the courts. And there's a real power in that that you're right, Dalia. By the time it gets up to SCOTUS and it's all sanitized on a cold paper record, it's way too easy for the justices to look away from.

[Dahlia Lithwick]

So this power of the people to make inequality concrete and tangible and urgent and thus impossible for the courts to just blow off, that's where we're going to pick up next week.

[Mark Joseph Stern]

We'll hear from Mark Solomon, who helped lead the campaign for marriage equality, about how the gay rights movement recast the freedom to marry as a demand for constitutional equality. That the courts had an obligation to answer.

[Lyle Chernoff]

Answer.

[Mark Joseph Stern]

It's always about making the case for groups of LGBT people, black people, women, that we are part of it. We are part of what the Constitution is talking about when we're talking about equal protection under the law.

[Dahlia Lithwick]

And we're going to look at another major triumph of popular constitutionalism that you and I, dear Mark, are maybe not so eager to spike the football about. And that is, Drumroll. The creation of an individual right to bear arms under the Second Amendment Amendment.

[Mark Joseph Stern]

Turns out conservatives also know how to make constitutional meaning through a sustained campaign outside the courts, even if they don't want to admit it.

[Dahlia Lithwick]

That does it for this episode of by the People here on Amicus. Thank you for joining us. Amicus plus members will see you over at the smokeless cigar bar in this week's bonus episode. This week, the cigar bar has been temporarily relocated to New Jersey, where we've seen two major legal developments of late. A 3rd Circuit decision last Friday striking down the Garden State's ban on assault weapons and large capacity magazines. And we'll also talk about Governor Mikey Sherrill's announcement that 400 non citizens voted in New Jersey through no fault of their own. We'll talk about what happened and why. If you're not a plescoteer and and you keep getting stopped at the door by the bouncer, well, here's how to change that.

[Mark Joseph Stern]

You can visit slate.comamicusplus to join our ranks and when you become a Slate+ member, you'll be supporting Amicus and you'll get loads of extras and ad free listening and paywall free [e-mail] youm can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for to listen to right now. We'll see you there.

[Dahlia Lithwick]

Sara Burningham is Amicus Supervising Producer. Our producer is Sophie Summergrad. We had extra help again this week from Joel Meyer. Hilary Fry is Slate's Editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations.

[Mark Joseph Stern]

Amicus will be back next week with episode 33 of by the People. Until then, take good care.

[Planned Parenthood Sponsor/Ad Voice]

This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic who gets to make decisions about our bodies and our health care care? That question isn't theoretical, it's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit planned parenthood.org defend and make a gift today.

[Mark Joseph Stern]

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