When the Constitution Was 'At War With Itself,' Frederick Douglass Fought on the Side of Freedom
A new appreciation of the great abolitionist on the 200th anniversary of his birth.
This month marks the 200th anniversary of the birth of one of the greatest figures in American history. Frederick Douglass was born into slavery in Talbot County, Maryland, sometime in February 1818. At the age of 20, he made his escape from bondage, traveling north to Philadelphia, New York City, and finally to New Bedford, Massachusetts, where he would earn his "first free dollar" on the dockyards loading ships. "I was now my own master," he proclaimed, "a tremendous fact." In 1839, Douglass spoke up for the first time at an abolitionist meeting. Six years later, he was an internationally acclaimed orator and the author of a celebrated autobiography. In less than a decade, he had established himself as one of the most singular and influential voices in the most pressing debate of his time: the debate over slavery.
Arguing about slavery was a combat sport in those days, both figuratively and literally, and the field was crowded with skilled combatants. Among them was John C. Calhoun, the legendary South Carolina statesman who proclaimed slavery to be a positive good, fully sanctioned by the letter and spirit of the U.S. Constitution. There was also the militant Boston abolitionist William Lloyd Garrison, who burned his copy of the Constitution, damning it as a pro-slavery "covenant with death and an agreement with hell."
Douglass would face them both down. "Garrison sees in the Constitution precisely what John C. Calhoun sees there," Douglass observed. He saw something different: "Interpreted as it ought to be interpreted, the Constitution is a glorious liberty document."
At a time when the principles of the Declaration of Independence were under assault, Douglass waved the banner of classical liberalism, championing inalienable rights for all, regardless of race or sex. At a time when socialism was on the rise, Douglass preached the virtues of free labor and self-ownership in a market-based economy. At a time when state governments were violating the rights of the recently emancipated, Douglass professed the central importance of "the ballot-box, the jury-box, and the cartridge-box" in the fight against Jim Crow.
Douglass, the former slave who secretly taught himself how to read, would teach the American people a thing or two about the true meaning of the Constitution.
'Wielded in Behalf of Emancipation'
On May 9, 1851, the leading lights of the abolitionist movement gathered in Syracuse, New York, for the 18th annual meeting of the American Anti-Slavery Society. Among the items on the agenda was a resolution calling for the society to officially recommend several anti-slavery publications, including a small weekly called the Liberty Party Paper.
But William Lloyd Garrison, the powerful editor of The Liberator, one of abolitionism's flagship publications, would have none of that. The Liberty Party Paper, Garrison complained, saw the Constitution as an antislavery document. That view was tantamount to heresy, as it clashed with Garrison's famous judgment that the Constitution was a pro-slavery deal with the devil.
So a more congenial resolution was soon proposed: The American Anti-Slavery Society would only recommend those publications that toed the Garrisonian line.
It was at this point that Frederick Douglass stood up. For the previous 10 years, Douglass had been a friend, ally, even a disciple of Garrison's. "Every week the Liberator came, and every week I made myself master of its contents," Douglass later recalled. "I not only liked—I loved this paper, and its editor."
But Douglass no longer loved what Garrison had to say about the Constitution. In fact, he now thought Garrison was dead wrong on the subject. What is more, Douglass decided that the time had come for him to say so in public. Douglass "felt honor bound to announce at once," he explained to the assembled worthies, that the paper he edited, The North Star, "no longer possessed the requisite qualification for their official approval and commendation." The Constitution, he told them, "should be wielded in behalf of emancipation."
Those words went down about as well as might have been expected given the audience. There were howls of outrage, cries of censure. Garrison, for his part, accused Douglass of harboring ulterior (read: financial) motives. "There is roguery somewhere!" Garrison exclaimed. Douglass never quite forgave his old comrade for that.
In truth, Douglass agonized over his change of opinion. He came around gradually and only after much brooding. He forced himself "to re-think the whole subject," he recalled, "and to study, with some care, not only the just and proper rules of legal interpretation, but the origin, design, nature, rights, powers, and duties of civil government, and also the relations which human beings sustain to it."
Those studies began to produce fruit as early as 1849. Writing in The North Star on March 16 of that year, Douglass conceded that the Constitution "is not a proslavery instrument" when interpreted "standing alone, and construed only in the light of its letter." The trouble came when he considered the pro-slavery "opinions of the men who framed and adopted it." How to reconcile the text of the Constitution with the unwritten intentions of its framers?
A year later, on April 5, 1850, Douglass moved a little further away from the strict Garrisonian position. The Constitution is "at war with itself," he now wrote. "Liberty and Slavery—opposite as Heaven and Hell—are both in the Constitution." Both in the Constitution? The imperious Garrison would not like the sound of that. Furthermore, Douglass ventured, "if we adopt the preamble [to the Constitution], with Liberty and Justice, we must repudiate the enacting clauses, with Kidnapping and Slaveholding."
By 1851, his mind was made up. Yes, the Constitution did contain certain oblique references to slavery, such as the notorious "three fifths" clause. But those references spoke only of "persons." Neither the word slave nor the word slavery appear anywhere in the text. That textual absence, Douglass concluded, was a fatal weakness in the slaveholders's position that must be exploited. "Take the Constitution according to its plain reading," he insisted. "I defy the presentation of a single pro-slavery clause in it. On the other hand, it will be found to contain principles and purposes, entirely hostile to the existence of slavery." Douglass would deploy those principles and purposes against the peculiar institution until it was finally destroyed.
'All Men Are Created Equal'
There was also the Declaration of Independence to factor in. Was not the entire American system founded upon the "self-evident" truths that "all men are created equal" and endowed with "certain unalienable rights," such as "life, liberty, and the pursuit of happiness?" Did not that noble language vanquish the case for slavery?
John C. Calhoun was wondering about that too. At the time of his death in 1850, Calhoun was one of America's most influential politicians. He had served as secretary of war for President James Monroe, as secretary of state for President John Tyler, and as vice president for two very different administrations, that of John Quincy Adams and Andrew Jackson. But it was from his perch in the U.S. Senate that Calhoun wielded perhaps his greatest power, a power that he used again and again in defense of slavery.
But what about the Declaration of Independence? Sitting at his desk, Calhoun would ponder the Declaration's implications for his beloved slave system. In 1848, he finally followed his pro-slavery logic to its conclusion and denounced both the Declaration and its author, Thomas Jefferson.
The Declaration's claim that "all men are created equal" was "the most dangerous of all political error," Calhoun announced. "For a long time it lay dormant; but in the process of time it began to germinate, and produce its poisonous fruits." This false notion of equality, he continued, "had strong hold on the mind of Mr. Jefferson…which caused him to take an utterly false view of the subordinate relation of the black to the white race in the South; and to hold, in consequence, that the former, though utterly unqualified to possess liberty, were as fully entitled to both liberty and equality as the latter."
Frederick Douglass had reached a similar view—minus the racism and white supremacy. What is more, Douglass would do precisely what Calhoun feared: weaponize the principles of the Declaration of Independence and unleash them against slavery. "Would you have me argue that man is entitled to liberty? That he is the rightful owner of his own body?" Douglass demanded. "There is not a man beneath the canopy of heaven that does not know that slavery is wrong for him."
Douglass would even enlist Jefferson's ghost in the antislavery crusade. In his 1784 Notes on the State of Virginia, Jefferson had shuddered at the prospects of a slave revolt against the master class, of which he himself was a part. "The Almighty has no attribute which can take side with us in such a contest," Jefferson admitted. "I tremble for my country when I reflect that God is just; that his justice cannot sleep forever." Douglass would quote those very words in an 1850 speech on the inhumanity of slavery. "Such is the warning voice of Thomas Jefferson," Douglass observed. "Every day's experience since its utterance until now, confirms its wisdom, and commends its truth."
'You Are a Man, and So Am I'
In 1854 the Virginia writer George Fitzhugh published the book that would make his name. Sociology for the South, or The Failure of Free Society offered a sweeping historical, political, and economic defense of the slave system. "The ancients took it for granted that slavery was right," Fitzhugh wrote, "and never attempted to justify it." He attempted it; his efforts made him a bestselling author.
Like Calhoun, Fitzhugh sneered at the Declaration of Independence. But Fitzhugh went further. He sneered at the entire classical liberal tradition dating back to the English political theorist John Locke, who had argued that government was instituted to protect humanity's preexisting natural rights. "We believe no heresy in moral science has been more pregnant of mischief than this theory of Locke," Fitzhugh wrote. "[Man] has no rights whatever, as opposed to the interests of society; and that society may very properly make any use of him that will redound to the public good…. Whatever rights he has are subordinate to the good of the whole; and he has never ceded rights to it, for he was born its slave, and had no rights to cede."
Frederick Douglass also understood that slavery and classical liberalism were fundamentally incompatible. In The Second Treatise of Government (1681), Locke had argued that "every man has a property in his own person. This nobody has any right to but himself." Douglass did more than just take those words to heart; he used them as the foundation for an all-out attack on the slave system.
"Every man is the original, natural, rightful, and absolute owner of his own body," Douglass argued, "and can only part from his self ownership, by the commission of crime." He made the same point with even greater force in his famous 1848 letter to his former master, the slaveholder Thomas Auld. "You are a man, and so am I," Douglass wrote. "In leaving you I took nothing but what belonged to me."
Douglass carried his classical liberal principles beyond the debate over slavery. Confronted by advocates of socialism, Douglass dismissed their ideas as "arrant nonsense." His case for self-ownership included the right to enjoy the fruits of his own labors in the economic marketplace. "To own the soil is no harm in itself," Douglass maintained, rejecting socialist arguments against private property. "It is right that [man] should own it. It is his duty to possess it—and to possess it in that way in which its energies and properties can be made most useful to the human family—now and always."
The same principles also made Douglass a lifelong advocate of women's rights, or as he liked to call himself, a "radical woman suffrage man." "The great fact underlying the claim for universal suffrage is that every man is himself and belongs to himself, and represents his own individuality," Douglass declared. "The same is true of woman…. Her selfhood is as perfect and as absolute as is the selfhood of man."
Although he is not normally credited as such, Douglass undoubtedly deserves to be ranked as one of the 19th century's most effective proponents of Lockean classical liberalism.
'No State…Shall Abridge'
On April 30, 1866, Chief Justice Salmon P. Chase wrote a letter to his Supreme Court colleague, Justice Stephen Field, about the proposal then pending before Congress to add a new 14th Amendment to the U.S. Constitution.
One of the goals of the amendment, Chase observed, was, "Prohibiting the States from interfering with the rights of citizens." That worried him. Was it too radical a goal for moderates to support? "Will not these propositions," Chase wrote, "be received with some alarm by those who, though opponents of succession or nullification, yet regard the real rights of the States as essential to the proper working of government?" He added: "I do not myself think that any of the proposed amendments will be likely to have injurious effects."
Two years later, the 14th Amendment was ratified and became a permanent part of the constitutional firmament. And just as Chase had described it, the new amendment prohibited the states from interfering with the rights of citizens. "No State," it declared, "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
Chase's worries also proved accurate. When the first 14th Amendment case was decided by the Supreme Court a few years later, a majority of Chase's own Court put state power before individual rights.
At issue in The Slaughter-House Cases of 1873 was an act of the Louisiana legislature that granted a private corporation the exclusive authority to operate a central slaughterhouse for the city of New Orleans. According to a group of local butchers, that monopolistic state law deprived them of their right to earn a living, which, they argued, was among the privileges or immunities of U.S. citizenship that the 14th Amendment now protected from state infringement.
"Conscience, speech, publication, security, occupation, freedom, and whatever else is essential to the liberty, or is proper as an attribute of citizenship," the butchers and their lawyers told the Court, "are now held under the guarantee of the Constitution of the United States." They urged the justices to follow the 14th Amendment and invalidate the offending state law.
But the Court took a different view. According to the 5-4 majority opinion of Justice Samuel Miller, to interpret the 14th Amendment as a federal shield in this case "would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens." It was exactly what Chase had feared back in 1866. Justice Miller cared more about the authority of the states than he did about the purposes of the 14th Amendment.
Writing in dissent, Justice Stephen Field shook his head in disbelief. "It is to me a matter of profound regret that [the monopoly's] validity is recognized by a majority of this court," he wrote, "for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated." The whole point of the 14th Amendment, Field wrote, was to protect the civil rights of U.S. citizens from state infringement, and "clearly among these must be placed the right to pursue a lawful employment in a lawful manner." Unsurprisingly, given the content of his 1866 letter, Chief Justice Chase joined Field's dissent.
Had he been a member of the Supreme Court, Frederick Douglass would have joined Field's dissent too. The Slaughter-House decision was "folly," Douglass wrote in an 1874 letter to the antislavery leader Gerrit Smith. The 14th Amendment clearly forbid the states from infringing on the civil rights of U.S. citizens. But now, thanks to this ruling, "the nation affirms, the State denies and there is no progress," Douglass observed. "The true doctrine is one nation, one country, one citizenship and one law for all the people." As for what Justice Field called "the right of free labor," Douglass had been championing that idea his entire life. "What is freedom?" Douglass once wrote. "It is the right to choose one's own employment. Certainly, it means that, if it means anything."
Bad as it was, the gutting of the 14th Amendment by the Supreme Court was just one aspect of the problem. In the aftermath of the Civil War, most state and local governments throughout the South engaged in a wholesale attack on the civil rights of black Americans and their white allies, targeting their rights to vote, serve on juries, receive due process, travel, enjoy public accommodations, make contracts, own property, earn a living, and keep and bear arms for self-defense. As one African American man from Virginia testified before Congress in 1866, "We feel in danger of our lives, of our property, and of everything else."
Douglass would spend decades fighting these state-sanctioned injustices with every weapon he possessed. He spoke out, wielded his pen, urged resistance. "Yes, let us have peace, but let us have liberty, law, and justice first," he declared. "Let us have the Constitution, with its thirteenth, fourteenth, and fifteenth amendments, fairly interpreted, faithfully executed, and cheerfully obeyed." Tragically, he met with very limited success. Despite the best efforts of Douglass and others, Reconstruction ultimately gave way to Jim Crow.
The Fight for Liberty
Today Frederick Douglass is perhaps best remembered for his courageous and inspiring life story. He deserves to be remembered for much more than that. His penetrating ideas about freedom, equality, and individualism still stand out for their clarity and originality. His forceful arguments against racism and collectivism still have the power to win any debate. On the major issues of his day, Douglass got it right. Through his words, his actions, and the personal example that he set, Douglass helped to move his country a little bit closer towards liberty. If only more Americans—then and now—could say the same thing.