'A Glorious Liberty Document'

Frederick Douglass' case for an anti-slavery Constitution

(Page 2 of 2)

Take the infamous "three-fifths" clause—Article I, Section 2—which states that for the purposes of taxation and political representation, state populations shall be counted "by adding to the whole Number of free persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other persons." What to make of these "other persons?"

In Federalist No. 54, James Madison argued that the clause's language skillfully reflected slavery's "mixt character of person and property." It showed "great propriety," Madison wrote, by regarding slaves "as inhabitants [of a state], but as debased by servitude below the level of free inhabitants."

Certainly "other persons" has long been understood as a code language for slavery. And with good reason: As Madison's published Notes on the proceedings of the 1787 Constitutional Convention make clear, the subject of slavery dominated many of the debates. "The great division of interests," Madison wrote, "did not lie between the large & small States; It lay between the Northern & Southern." Terms such as "other persons" were crafted precisely to alleviate this division.

For Spooner, that was not enough to sanction the practice legally. The phrase "other persons," he argued, is open to both an innocent interpretation ("partial citizens," i.e., resident aliens) and a malevolent one (slaves). The fundamental responsibility of the American state, he continued, is the protection of natural rights. Thus, when faced with the choice between a constitutional interpretation that secures rights and one that subverts them, the former must always prevail over the latter. Anything less would nullify the legitimacy of the government.

"This is the true test for determining whether the constitution does, or does not, sanction slavery," Spooner wrote. "Whether a court of law, strangers to the prior existence of slavery or not assuming its prior existence to be legal—looking only at the naked language of the instrument—could, consistently with legal rules, judicially determine that it sanctioned slavery. Every lawyer, who deserves that name, knows that the claim for slavery could stand no such test." Luther Martin, a delegate to the Constitutional Convention and later opponent of ratification, partially anticipated this argument, declaring that when it came to slavery, his fellow delegates "anxiously sought to avoid the admission of expressions which might be odious to the ears of Americans."

The Spooner/Douglass interpretation of the Constitution would never persuade the majority of white abolitionists. It did, however, persuade many, perhaps most, black Americans, who generally favored political activism over the Garrisonian refusal to participate in a political system contaminated by slavery. It also attracted Abraham Lincoln. While he was certainly no abolitionist, Lincoln was a critic of Southern slavery and an opponent of its westward expansion. In an 1854 speech in Peoria, Illinois, Lincoln made a colorful reference to the Spooner/Douglass view, declaring that slavery "is hid away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out, lest he bleed to death."

For Garrison and his many supporters, the idea of an anti-slavery Constitution ran against the clear intent of the document's framers and reeked of political opportunism. At the 18th annual meeting of the American Anti-Slavery Society, held in Syracuse, New York, in May 1851, Garrison personally moved to have Douglass' North Star deleted from the list of officially endorsed newspapers in retaliation for the betrayal. "There is roguery somewhere," Garrison declared, a cheap shot that left his former supporter and still respectful admirer deeply wounded.

The Columbia University historian Eric Foner has revived this charge of opportunism for the present day, writing in his book Who Owns History? (2002) that Douglass' "tortuous logic suggests that his motivation lay in political expediency rather than deep conviction." But Foner, like Garrison before him, forgets Douglass' lifelong commitment to the philosophy of natural rights, the very same philosophy coursing through the Declaration of Independence and the Constitution.

For instance, in his celebrated 1848 "Letter to Thomas Auld," his former master, Douglass characterizes his escape from slavery as an inherently lawful act. "You are a man and so am I," he wrote. "In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living. Your faculties remained yours, and mine became useful to their rightful owner." A more compelling invocation of "unalienable Rights" could hardly be imagined.

Douglass' Fourth of July address similarly resounds with the principles of classical liberalism. Evoking John Locke's famous description of private property emerging from man mixing his labor with the natural world, Douglass pointed to slaves "plowing, planting and reaping, using all kinds of mechanical tools, erecting houses" as proof of their humanity. "Would you have me argue that man is entitled to liberty" That he is the rightful owner of his own body"" Douglass asked. "There is not a man beneath the canopy of heaven, that does not know that slavery is wrong for him." Indeed, as he repeatedly and convincingly argued, and as Frederick Douglass and the Fourth of July helps to vividly illustrate, it was the slaveholders, in their desperate attempt to reconcile human bondage with the Constitution's guarantee of natural rights, that employed "tortuous logic" for "political expediency."

In the end, of course, it would take a brutal war and a new constitutional amendment to abolish slavery, an ordeal that Douglass accepted as necessary, declaring in 1861 that the Civil War was "the logical and inevitable result of a long and persistent course of national transgression." From the outset of hostilities, moreover, Douglass loudly and persistently demanded that the war be transformed into a fight both to preserve the Union and to abolish slavery—the position ultimately, if reluctantly, adopted by the Lincoln administration.

Was Douglass right? Did the original Constitution forbid human bondage? Whatever you think of the logic of the Spooner/Douglass view, it did largely prevail in the arena of politics. And Douglass, whom Colaiaco rightly celebrates for delivering "the greatest abolition speech of the nineteenth century," did more to popularize the idea of an anti-slavery Constitution than anyone else. With his furious and uncompromising devotion to natural rights, Frederick Douglass was more than just a persuasive abolitionist. He was—and remains—one of history's greatest champions of human freedom.

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