'A Glorious Liberty Document'

Frederick Douglass' case for an anti-slavery Constitution


Frederick Douglass and the Fourth of July, by James A. Colaiaco, New York: Palgrave Macmillan, 256 pages, $24.95

On January 27, 1843, in a resolution adopted by the American Anti-Slavery Society, the abolitionist William Lloyd Garrison famously denounced the U.S. Constitution for sanctioning the crime of slavery. "The compact which exists between the North and the South," Garrison wrote, "is a covenant with death and an agreement with hell."

Was he right? Did the Constitution protect the right to own human property? Frederick Douglass, the escaped former slave, self-taught author and editor, and leading abolitionist orator, thought not. "Take the Constitution according to its plain reading," he challenged the Rochester Ladies Anti-Slavery Society on July 5, 1852, in Rochester, New York. "I defy the presentation of a single pro-slavery clause in it." In fact, Douglass told the crowd gathered to hear his Independence Day address, "Interpreted as it ought to be interpreted, the Constitution is a glorious liberty document."

In Frederick Douglass and the Fourth of July, the New York University historian James A. Colaiaco offers a compelling, if repetitive, account of this remarkable oration and the extraordinary individual behind it. "An abolitionist manifesto," Colaiaco writes, "Douglass's oration would be the greatest abolition speech of the nineteenth century." Not only did it furiously denounce slavery ("a system as barbarous and dreadful as ever stained the character of a nation"), the speech, entitled "What to the Slave is the Fourth of July," firmly grounded the fight against slavery in the text of the Constitution, boldly challenging the standard interpretation of the document, particularly its notorious "three-fifths" clause, and demanding that white America fully honor the Constitution's guarantee of natural rights.

Born sometime in 1818 to a slave mother and a white, most likely slaveholding, father, Frederick Douglass was 34 years old, and 14 years out of bondage, when he stood before 500 to 600 mostly white people in Rochester's grand Corinthian Hall. Invited to commemorate the anniversary of American independence, Douglass, the nation's foremost black leader, came out swinging. "Instead of congratulating them for having invited a black man to sing praises for the republic," Colaiaco writes, "he had them, along with millions of white Americans, bowing their heads in shame for tolerating slavery." Bitterly contrasting "your political freedom" and "your Fourth of July" with the misery of the American slave, Douglass informed his audience "this Fourth of July is yours, not mine. You may rejoice, I must mourn."

Describing the horrors he both witnessed and endured during his 20 years in bondage, Douglass painted a bleak, infuriating portrait of the slave system. "There is not a nation on the earth," he charged, "guilty of practices, more shocking and bloody, than are the people of the United States, at this very hour." Still, he refused to forsake America's founding principles, no matter how far the country had strayed in practice. He drew explicit parallels between the courageous signers of the Declaration of Independence, men who "preferred revolution to peaceful submission to bondage," and the brave abolitionists struggling to end slavery in the present.

In fact, Douglass argued, the U.S. Constitution was both the founding generation's greatest achievement and the abolitionists' greatest weapon. Contrary to the view held by both the Garrisonians and the slaveholders, both of whom saw the Constitution as pro-slavery, Douglass argued that the document forbade slavery and enshrined the colorblind principles set forth in the Declaration of Independence, including the "self-evident" truths that "all men are created equal" and born in possession of "unalienable Rights." Look to the language of the Constitution, he said, and "it will be found to contain principles and purposes, entirely hostile to the existence of slavery."

This was no small claim, Colaiaco notes, particularly coming from Frederick Douglass, who until just a few years earlier had been an ardent Garrisonian and an outspoken opponent of the Constitution, which he too had denounced as a "covenant with death." In fact, Douglass had explicitly endorsed Garrison's view that the free North should secede from the slave South, a position exemplified by the slogan "No Union With Slaveholders!," which adorned Garrison's newspaper The Liberator.

What changed? Colaiaco points to the passages in My Bondage and My Freedom (1855), the second of Douglass" three autobiographies, where he describes his growing dissatisfaction with the Garrisonians. "Give us the facts," Douglass records his mentors insisting before public appearances. "We will take care of the philosophy." Yet "I could not always obey," Douglass admitted, "for I was now reading and thinking. It did not entirely satisfy me to narrate wrongs; I felt like denouncing them."

In 1847 Douglass moved to Rochester, a stronghold of the political abolitionists' the non-Garrisonian faction, which viewed the Constitution as anti-slavery"where he opened his first newspaper, The North Star. It quickly became the leading black paper of the day. Garrison had opposed the venture, arguing that another abolitionist paper was not necessary and that the editorial duties would keep Douglass off the lecture circuit. "For a short time," Colaiaco writes, "Douglass accepted the judgment of the Garrisonians, but he eventually forged ahead [believing] that black Americans must assume the responsibility of combating slavery with their own organizations and press."

At the same time, Douglass was studying legal theory and history, leading to what Colaiaco calls his "conversion to the Constitution." An 1851 North Star editorial announced the change, with Douglass declaring his new opinion that the Constitution opposed slavery. This view "has not been hastily arrived at," he insisted, but came only after "a careful study of the writings of Lysander Spooner, of Gerrit Smith, and of William Goodell," three leading proponents of an anti-slavery reading of the document.

Though Colaiaco places the most emphasis on Smith, a founding member of the abolitionist Liberty Party and a wealthy New York landowner whose patronage was crucial for many anti-slavery ventures, including The North Star, Spooner (1808-1887) also deserves special attention. A lawyer, a radical abolitionist, and the author of the anarchist classic No Treason: The Constitution of No Authority (1870), Lysander Spooner is one of America's great libertarian heroes. His magnificent treatise against the slave system, The Unconstitutionality of Slavery (1845), would spark a firestorm of debate and have a huge influence on Douglass' evolving legal ideas.

To Spooner, the protection of natural rights—the doctrine that individual liberty is inherent to man's nature—was essential for constitutional legitimacy. "In order that the contract of government be valid and lawful," Spooner wrote, it "cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government—which is but an association of individuals—than to a single individual." Thus, any constitution sanctioning slavery, arguably the worst violation of rights short of murder, was invalid and should not be obeyed.

Purely for the sake of argument, Spooner then set aside this requirement and stipulated that laws that violate rights could command obedience. But to do so they must give "clear, definite, distinct, express, explicit, unequivocal, necessary and peremptory sanction of the specific thing," in this case, human slavery. Spooner did not believe that laws sanctioning slavery should be obeyed; he merely maintained that those who did accept the legitimacy of such laws had a legal and moral duty to make them as unambiguous as possible.

The Constitution, he argued, failed this test. In fact, "not even the name of the thing, alleged to be sanctioned, is given." Douglass echoed this point in his Independence Day address, asking, "if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it?"

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.