A Glorious Liberty: Frederick Douglass and the Fight for an Antislavery Constitution by Damon Root
By Timothy Sandefur
Lincoln, NE: Potomac Books, 2020
186 pp., $26.95 (hardcover)
Nothing in history has so bitterly divided Americans as the practice of slavery. Even today, a century and a half after the “peculiar institution” was abolished, debates continue over whether the authors of the Constitution intended to grant it permanent legal protection or place it—in the phrase Abraham Lincoln often used—“in the course of ultimate extinction.” According to the authors of the New York Times’s “1619 Project,” the founders designed the Constitution to preserve slavery forever—but, as the project’s critics have shown, there is ample evidence that the founders were entirely aware that slavery contradicted the principles of the American Revolution and openly wished for its demise. Yet the question persists: If the founders detested slavery, why did they let it continue?
The most interesting voice in this generations-long debate belongs to a man who was himself a slave: Maryland-born Frederick Douglass. Long honored for his heroic escape from bondage and the eloquent memoirs he subsequently published, which chillingly depict some of the most horrific aspects of slavery, Douglass was not only an activist, but one of the country’s most important public intellectuals. Or, as Damon Root puts it in this short and accessible narrative, he was a “civic philosopher” who “deserves to be ranked alongside Thomas Jefferson, James Madison, Alexander Hamilton and Abraham Lincoln” (4).
As these words suggest, Root’s book is not a biography but an introduction to Douglass’s constitutional thinking, which evolved between his 1838 escape to freedom and his death in 1895. During those decades, Douglass spoke and wrote extensively on subjects ranging from civil rights for former slaves to women’s suffrage and immigration. But the most interesting question of his career was that of the constitutional status of slavery. As Root shows, this was a far more complex question than many of today’s history books suggest.
Douglass joined the abolitionist movement in 1841, when he was only twenty-three. A devoted admirer of the radical abolitionist William Lloyd Garrison, he initially embraced Garrison’s view that the Constitution was poisoned to its core by its compromises with slavery and that the only path to justice lay in repudiating it and dissolving the United States. Garrison, who took Douglass under his wing at the Massachusetts Anti-Slavery Society, adopted as his motto “no union with slaveholders!,” and he meant it literally. He insisted not only that northern states should secede from the union in order to absolve themselves of any association with slavery, but that Americans should refuse to vote or run for office because doing so lent credibility to the corrupt political system.
Garrison did not speak for all abolitionists, however. Another group of activists, headquartered in New York and led by the eccentric millionaire Gerrit Smith, also sought to end slavery, but they believed their goals were perfectly consistent with the Constitution. Abolitionists, they said, should run for office, vote for antislavery candidates, and persuade Congress to restrict slavery whenever possible.
As Root explains, Douglass mostly hewed to Garrison’s opinions at first, but he was never entirely comfortable with them. For instance, Garrison thought that violence was never justified, even as a tactic against slavery, but Douglass—who had more than once been forced to defend himself with his fists, against both southern slave masters and northern racists—was “never destined to be much of a pacifist” (26). On the contrary, he celebrated slave uprisings, encouraged forcible resistance to the Fugitive Slave Act, and viewed the insurrectionist John Brown—who tried unsuccessfully to recruit him to participate in his disastrous 1859 attack on Harpers Ferry—as one of America’s greatest heroes. But the more significant conflict came when Douglass dramatically repudiated Garrison’s anti-Constitution views and embraced instead the pro-Constitution abolitionism of Gerrit Smith and his allies.
Root is at his best when emphasizing the diligence with which Douglass studied this question before changing his mind. This is worthwhile because Garrison and his allies later accused the former slave of compromising his principles for purposes of personal gain—and historians still make this accusation today. This Root rightly regards as “a cheap smear” (48). The reality is that Douglass seriously examined the subject for years, devouring complex books of constitutional law and history, particularly those by Lysander Spooner, William Goodell, and Smith himself. It was only after four years of careful examination that Douglass announced that he had been persuaded. The Constitution was not a “pact with hell” as Garrison had taught him; instead, it was an antislavery document, at least in principle, and a potential tool for abolition.
Garrison reacted badly to this, accusing Douglass of “roguery” on the grounds that Smith was subsidizing the newspaper Douglass had established after moving to New York (48). But Douglass’s change of mind was sincere, and it had a strong theoretical basis. Abolitionist constitutional theory began with two basic rules of legal interpretation. First, the Constitution’s meaning is derived exclusively from its written text, not the personal opinions of those who wrote or ratified it. In other words, if its authors intended to protect slavery, that fact was irrelevant unless they wrote such protections into the document itself. Second, the Constitution should be interpreted in favor of freedom and against slavery whenever possible. This rule was based on a long-standing principle—called a “clear statement rule”—that the law could tolerate something as horrendous as slavery only if (in the words of an 1805 Supreme Court case) “the legislative intention” was “expressed with . . . irresistible clearness” (41).
Examining the Constitution with these principles in mind, Spooner, Smith, and eventually Douglass, emphasized that it begins with the proclamation that “We, the people of the United States” are responsible for establishing the government. Who are these people? The Constitution did not say “white” people. Thus black Americans must be part of “the people of the United States,” entitled to the same constitutional rights white Americans enjoy.
Moreover, the Constitution did not use the words “slave” or “slavery.” In fact, it referred to slaves as “persons,” a term that also appears in the Fifth Amendment, which says that no “person” shall be deprived of liberty except through a legal process. Yet slaves had been deprived of liberty through no process at all. At a minimum, the omission of any explicit reference to slavery meant that the Constitution was not an explicitly pro-slavery document—and that Chief Justice Roger Taney was wrong to say in the 1857 Dred Scott decision that “the right of property in a slave is distinctly and expressly affirmed in the Constitution.”1
What of the document’s oblique references to slavery: the three-fifths clause, the fugitive slave clause, the provision empowering the federal government to put down “insurrections,” and the clauses that barred Congress from interfering with the international slave trade until 1808? Smith, Spooner, and Douglass answered that these provisions did not protect slavery but merely recognized its existence. Moreover, following the principle that the Constitution should be read as antislavery whenever possible, these provisions could be given innocent interpretations. The fugitive slave clause, for instance, refers not to slaves but to “persons” from whom labor is “due.” But labor is not due from slaves, who are compelled to work without due process of law.
Some antislavery constitutionalists, including Spooner, went even further, arguing that slavery was already illegal and that Congress was obligated to end it immediately. But Root finds this view less plausible because the Constitution gave the federal government only narrowly limited powers, none of which included eradicating slavery within state borders. “The historical evidence also shows that the Constitution was designed to offer certain protections for domestic slavery” (64). To dismiss such evidence as irrelevant, as Spooner did, implies a far more radical theory of constitutional interpretation than most legal experts were willing to endorse. That included such relatively moderate antislavery lawyers as Salmon Chase, whom Lincoln eventually appointed to the Supreme Court and who conceded that Congress lacked power to regulate slavery within states. But, Chase argued, it could and should “prevent [slavery’s] extension, and . . . prohibit its existence within the sphere of the exclusive jurisdiction of the General Government” (54). It was this position—summarized under the slogan “Liberty national, slavery sectional”—that Lincoln embraced and southern leaders could not accept.
Root elegantly summarizes these debates but does not stop there; he also explains how the constitutional amendments adopted after the war were designed to “revolutionize the relationship between citizens and the states” by creating new rules that protected all Americans against unjust acts by state governments (130). To some then (and still), this seemed revolutionary, but antislavery constitutionalists had believed all along that the Constitution, rightly interpreted, promised such protections. As one of the Fourteenth Amendment’s authors, Senator Jacob Howard, put it, the amendment “is simply declarative of what I regard as the law of the land already” (125). In this and other ways, the postwar amendments were supposed to ensure that antislavery constitutional theory would be permanently enshrined in the nation’s fundamental law—meaning that anyone seeking to understand these amendments today must examine the views of thinkers such as Frederick Douglass.
Unfortunately, when the question of the new amendments’ meaning reached the Supreme Court in the 1870s, the justices largely balked at their responsibility to enforce them. In decisions such as the Slaughterhouse Cases (1873) and The Civil Rights Cases (1883), they crippled both the Fourteenth Amendment and the civil rights legislation designed to enforce that amendment. Slaughterhouse nullified the amendment’s protections for the “privileges or immunities” of citizenship—meaning the individual rights guaranteed to all Americans—and The Civil Rights Cases invalidated the 1875 Civil Rights Act, which, among other things, prohibited segregation.
Douglass watched these developments with alarm, recognizing them as signals that “a horrifying new chapter in American race relations was beginning to unfold” (146). After 1876, when the federal government essentially abandoned its effort to protect black Americans against their former masters, Douglass could do little more than denounce, with his considerable eloquence, the trend toward what amounted to the restoration of slavery and a new age of terror in the south. A year after Douglass’s death, the Supreme Court would pronounce its Plessy v. Ferguson decision, approving the principle of “separate but equal.” Throughout his career, Douglass insisted that black Americans “are American citizens” entitled to the same legal protections enjoyed by those of other races (90). By the end of his life, it seemed the federal government no longer regarded them as such.
Yet Douglass never surrendered to the arguments of those—black as well as white—who said America was a land only for white people and that former slaves and their children should leave for colonies in Africa or Central America. Today, similarly nihilistic arguments are voiced in the “1619 Project” and in the works of Ibram Kendi, Ta-Nehisi Coates, and others, who characterize the United States as a white supremacist nation. Douglass refused to accept this during his life, and his intellectual work remains a powerful refutation of those who, while claiming to speak on behalf of the oppressed, actually embrace the same arguments that pro-slavery intellectuals made a century and a half ago.
It would be impossible, in a slim volume of 186 pages, to do full justice to the complex and profound battles of ideas that marked the careers of Frederick Douglass and his contemporaries. But Root’s book provides a thoroughly researched and readable introduction to the arguments that formed the basis of what has rightly been called the “refounding” of the United States a century and a half ago—and that remain relevant today.