Frederick Douglass Had a Radical Respect for the Constitution

Is the US Constitution for or against slavery? Questions concerning the legacy of America’s founding and how to interpret the Constitution have long gripped public discourse; in recent years they have become inseparable. From the 1980s came the originalists, a group of legal theorists who sought to recover the Constitution’s original meaning through textual analysis buttressed by historical investigation. Adhering to the document’s original meaning, they argue, promotes institutional stability and the rule of law.Scholars have long contested these claims, challenging the plausibility of recovering an “original meaning” or doubting the authoritative nature of such meaning even if discovered. Recently, however, a second phenomenon has brought constitutional discourse closer to political discourse. The 1619 Project has inspired new attacks against the originalist normative claim, as it recasts the nation’s history in terms of its legacy as a slaveholding nation committed to white supremacy. Scholars are now challenging originalism on the grounds that it is part and parcel of a tradition of oppression that cannot demand a people’s loyalty, much less respect.This reframes the question from the accessibility of original meaning and its authoritative nature to the problem of original meaning as it relates to constitutional evils. Still, originalists continue to defend the founding of the United States as a moment that instilled constitutional norms worth preserving. Indeed, they are compelled to do so. Originalism would not be worth its salt — promoting stability and the rule of law — if it meant only preserving oppression and white supremacy. Increasingly, we find two historical accounts representing two mutually exclusive Americas: an America founded on perpetuating slavery and white supremacy versus an America dedicated to liberty and equality.This clash of narratives is hardly new. The antebellum period was rife with political disputes concerning the future of slavery. Proslavery and antislavery advocates alike turned to the past to measure America as it was against what it should be. Slavery’s defenders argued that the institution was a positive good and that the framers of the Constitution enshrined protections for it. Fidelity to the founding of the nation, in their view, required protecting slavery as an indispensable American institution. Antislavery advocates, alternatively, argued that the Constitution did not recognize slavery as a positive good but set it on a course for eventual extinction.Defenders of slavery and antislavery advocates used conflicting interpretive frameworks to justify their respective understandings of the Constitution’s treatment of slavery. As is the case in the present day, both narratives posited conflicting accounts concerning history and its authoritative grip on the present. Still, both sides recognized that, at some level, one could not chart a course for a future that had no regard for the debt owed to the past.There is one figure in history who is uniquely positioned to shed light on complex nineteenth-century constitutional development and to speak to our current constitutional-political moment: Frederick Douglass, the former slave turned radical activist turned statesman.Modern-day critics and proponents of the Constitution’s beginnings alike reference the controversial conclusion in his famous speech “What to the Slave Is the Fourth of July?” that the Constitution was a “GLORIOUS LIBERTY DOCUMENT.” In that speech, Douglass has many rhetorical flourishes that either side might find useful in vindicating its position on the Constitution. Those who seek to salvage the Constitution from its relationship with slavery hold Douglass up as paradigmatic of proper veneration of the Constitution. Those who seek to malign the Constitution’s beginnings tend to focus on his scathing rebuke of America — in the very same speech — as his true message. Any reference to the Constitution or the Founders in positive terms, they argue, is nothing more than a rhetorical device aimed at increasing the potency of Douglass’s censure of the nation.But both groups fail to seriously consider the method behind his conclusion. What both accounts miss is that Douglass has much more to offer concerning constitutional fidelity and constitutional interpretation than his “Fourth of July” speech. Constitutional fidelity is not to be blindly adhered to; nor is it merely a pragmatic consideration. The Constitution is truly good when correctly interpreted.Douglass’s constitutional thought uniquely answered the question of what the Constitution’s posture toward slavery was. While some abolitionists simply accepted slavery as an indelible blemish on the Constitution, Douglass sought to redeem the Constitution from the evils of slavery. Indeed, he helped constitutional abolitionists popularize a natural rights theory of interpretation that excised slavery from the Constitution. Through this interpretation, he sought to put all persons on equal footing before the law. His great task, as he described it, was “by voice and pen . . . to stand for the freedom of people of all colors, until in our land the last yoke was broken and the last bondsman was set free.” His approach to the Constitution was critical in that endeavor, and it contributed to burgeoning constitutional thought in the antebellum period.Douglass was a cardinal figure during one of the most consequential moments in US constitutional development. He was a direct participant in the antebellum debate over slavery, which set in motion several theories of constitutional interpretation. Though methods and conclusions varied, each side of the debate claimed fidelity to the Constitution through an appeal to its text and to history. These debates shaped constitutional thought during the antebellum period and carried over into public deliberation during Reconstruction.Among the throng of opinions, we find Douglass arguing that based on the text, history, and natural rights, the Constitution was resolutely antislavery. His method was based primarily on natural rights principles. He argued that the Founders built this nation on a natural rights foundation, the principles of which were pronounced in the Declaration of Independence. As such, one had to interpret the Constitution according to those natural rights principles.But studying Douglass provides more than an arresting theory of constitutional interpretation. His intellectual journey is fascinating: he discovered for himself the significance of the nation’s founding principles after having survived harrowing experiences of cruelty and oppression under the color of law. Insufficient attention is given to just how exceptional Douglass was. After he escaped to freedom, he ventured into the world of the antislavery movement. There he quickly found fellowship with William Lloyd Garrison, an experience-hardened abolitionist who famously referred to the Constitution as “a covenant with death, and an agreement with hell.” Garrison and his camp, relying on James Madison’s Notes of Debates in the Federal Convention of 1787, argued incessantly that the Constitution was irredeemably a proslavery document and that the Union, by extension, was a curse. This left the Garrisonians only one possibility: the abolition of slavery meant disunion and abolishing the Constitution along with it.At first, Douglass adopted these views without reservation; he spoke at antislavery conventions across the North, disparaging the framers, cursing the founding, and expressing nothing but contempt for the Constitution. Douglass’s inquisitive and capacious mind could not long be satisfied with received wisdom, however. In a short time, he abandoned the Garrisonian position. As he consulted more accounts of the founding and the Constitution, Douglass became convinced that the Constitution was in fact an antislavery document, and that the truest interpretation of it would require abolishing slavery for the sake of union. Most look to him for his exceptional oratory skills, which have withstood the test of time, and rightfully so. Yet lurking under his witty remarks and fierce retorts attacking the power of the slave-owning class rested a cogent theory of law and legal interpretation.Douglass also offers a lesson for political actors who must confront the tension between their own theories and the demands of politics. Rarely does history provide an example of a figure with an intellectual stature comparable to Douglass and place that figure at the center of great constitutional change. He had a robust theory of law and justice that guided his actions during the antebellum period. It was only during Reconstruction, however, that political realities forced Douglass to act in ways that did not always reflect his theory. Douglass believed that the United States would be “complete” only when it granted equal rights to all its citizens, and especially universal suffrage.At the time, this meant expanding the circle of democratic participation to African Americans and women. But after early defeats in Reconstruction, it became clear to Douglass that there was insufficient political will to extend suffrage to both groups. Douglass’s natural rights constitutionalism had a clear answer for what the nation needed to do, but ideas alone could not bring a constitutional amendment into being. Confronted with the political exigencies of Reconstruction, Douglass pushed for African American suffrage at the expense of women’s suffrage to move the arc of justice forward. Douglass calculated the move to be an unfortunate but necessary one. As soon as the Fifteenth Amendment — which guaranteed suffrage regardless of race — was ratified, Douglass went to work again in favor of women’s suffrage. Indeed, he proves an excellent exemplar of the timeless question of prudence when confronted with this tension between theory and practice.For these reasons, Douglass remains relevant for Americans today. He teaches us much about our past and how to confront it in a sober but hopeful way. He also teaches us something of what it means to traverse adversity for the sake of justice, and how it at times might require momentary sacrifice for long-term gains. Douglass preserves the legacy of the Constitution in favor of freedom and provides a method for ensuring the Constitution delivers a brighter tomorrow.