Frederick Douglass' Constitution: from Garrisonian abolitionist to Lincoln Republican.

AuthorFinkelman, Paul
PositionAbstract through V. Frederick Bailey's First Constitutional Moment, p. 1-33

ABSTRACT

This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave--and thus an "object" of the Constitution--to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, as an antislavery activist, and then as a spokesman for African Americans during the Civil War. This Article provides insights into antebellum constitutional thought and the background to the Fourteenth Amendment. This Article also explores our understanding of the Constitution and its relationship to slavery through the lens of Frederick Douglass.

First, the Article looks at how the Constitution impacted Douglass and how Douglass was himself a "constitutional actor," even though he held no public office and was not even considered a U.S. citizen under the holding in Dred Scott v. Sandford. For example, Douglass was a constitutional actor when he escaped from slavery--and thus came under the Fugitive Slave Act of 1793 and Article IV, Section 2, Clause 3 of the Constitution; when he married in New York but was still a fugitive from Maryland; when he applied for, and received, a copyright for his first autobiography, even though he was a fugitive slave at the time; and when he left the United States for Great Britain without a passport. This Article also explores Douglass's constitutional theories and understandings and how he used the Constitution to oppose slavery. I argue, in part, that his understanding of the Constitution and his approach to constitutional interpretation changed as his life circumstances changed. Thus, when he returned from England, he was a free man because British friends had purchased his liberty. This led him to a new understanding of how to approach the Constitution and how to fight slavery under the Constitution. While essentially a work of legal history, this Article also offers ways of understanding constitutional theory and the elements of being a constitutional actor. The Article also raises issues of interstate comity and the recognition in one state of a status created in another. While not explicitly stated--because this is a work of legal history--this Article obviously has implications for modern issues surrounding marriage equality, child-custody based on interstate recognitions of status changes, the interstate recognition of gender transitions, and the legal rights of non-citizens within the United States.

INTRODUCTION

Frederick Douglass was the most important black abolitionist in antebellum America. By the eve of the Civil War, this former slave was the most famous African American in the world. During the Civil War, he twice met with Lincoln in the White blouse (1) and then attended the party after Lincoln's second inauguration. (2) Douglass initiated the first meeting; (3) but Lincoln invited him to the White House for a second meeting to discuss various military and political issues. (4) During this second meeting, Lincoln's secretary interrupted the conversation to tell the President that the governor of Connecticut was there to see him. (5) Lincoln asked his secretary to inform "Governor Buckingham to wait, for I want to have a long talk my friend Frederick Douglass." (6) Douglass later recalled that "[t]his was probably the first time in the history of this Republic when its chief magistrate had found an occasion or shown a disposition to exercise such an act of impartiality between persons so widely different in their positions and supposed claims upon his attention." (7) What Douglass did not say, but clearly implied, is that this was certainly the first time in the history of the United States when a white man had to wait while the president discussed matters of the state with a black man.

Lincoln later invited Douglass "to take tea with him at the Soldiers' Home," where Lincoln spent his nights during the summer. (8) Sadly, Douglass declined the invitation because of a previous engagement. (9) But the very idea of the invitation was a measure of Douglass's stature. He was the first black to ever be invited to "break bread" with a president. (10) In mid-nineteenth century America, this was an enormous breakthrough in race relations. Very few whites socialized with blacks at this time, and they almost never shared meals with them.

At his inaugural party, Lincoln visibly and emphatically confirmed a new day for race relations and the central importance of Douglass to this changing world. When Douglass entered the East Room of the White House, the President crossed the room to greet him, saying in a voice loud enough for all the dignitaries present to take notice: "Here comes my friend Douglass," and then shook his hand in public, declaring "1 am glad to see you." (11) As historian James Oakes concluded, Douglass "went home to Rochester, honored." (12) He also returned home impressed by the reality that he had helped change the nation and helped redefine American race relations. He had also helped reframe the meaning of the American Constitution.

  1. DOUGLASS AS CONSTITUTIONAL ACTOR AND ACTIVIST

Douglass comes to us as a social activist and reformer. Less well understood, he was also a constitutional actor and thinker. Throughout his life, he interacted with the Constitution, critiqued it, and helped shape it. This Article explores how a non-lawyer who was never elected to public office--a person who was a "non-citizen" for more than half his life (13)--was able to help shape constitutional thought and constitutional development.

In the antebellum period, Douglass was a tireless advocate of black rights, a newspaper editor, a popular public speaker, (14) and "one of the nineteenth century's greatest orators." (15) He would continue those endeavors for the rest of his life. During the Civil War, he initially criticized the administration for not directly moving against slavery and accepting black troops. (16) But he was also an active supporter of the Union cause, an advisor to Lincoln, and when the time came, a recruiter of black troops. (17) After the Civil War, he became a Republican activist, held numerous appointed offices, and was a constant advocate of black rights. (18) In 1872, he became the first black ever chosen as a presidential elector and was given the honor of personally delivering New York's electoral votes to Congress. (19) Douglass understood the political and constitutional symbolism of this event:

Only a few years before this any colored man was forbidden by law to carry a United States mail bag from one post-office to another. He was not allowed to touch the sacred leather, though locked in "triple steel," but now not a mail bag, but a document which was to decide the Presidential question with all its momentous interests, was committed to the hands of one of this despised class, and around him, in the execution of his high trust, was thrown all the safeguards provided by the Constitution and the laws of the land. (20) Douglass never sought an elective office, although he was on the ballot as a Republican presidential elector in 1872 and was thus technically elected by the voters in New York. (21) Nevertheless, following the Civil War, he held numerous political appointments: envoy to Santo Domingo, president of the Freedman's Savings Bank; marshal of the District of Columbia; recorder of deeds for Washington, D.C.; and U.S. minister to Haiti. (22) As a young man, he fought slavery; as a mature adult, he lobbied for the recruitment of black troops at the beginning of the Civil War and then advocated for their equal treatment; (23) as he turned fifty, he campaigned for the ratification of the Fourteenth and Fifteenth Amendments; (24) he denounced black disfranchisement, lynching, and segregation in the last two decades of his life. (25) He was a newspaper editor, social critic, journalist, author, and political commentator. (26) He made much of his living giving public lectures throughout the nation, as well as in Europe. (27)

He published three different autobiographies (28) and then added a second edition to his last autobiography when he lived another decade. (29) The first of these--Narrative of the Life of Frederick Douglass--was the most famous slave narrative in the antebellum period. (30) It sold over 30,000 copies within five years and was quickly translated into French, German, and Dutch. (31) Today, it remains the most widely read slave narrative. (32) By the time of the Civil War, Douglass was famous throughout the nation and in much of the western world. (33) At his death in 1895, he was unquestionably the unelected leader of black America. (34)

Douglass was also a constitutional actor, theorist, and critic, especially in the years leading up to the Civil War. (35) Douglass's path from fugitive slave to political activist took him across the antebellum constitutional landscape of proslavery America and antislavery theory. Douglass's life and his various experiences as a slave, fugitive, and freeman also made him the living embodiment of the great constitutional issues of antebellum America. His constitutional theory grew out of the life he lived, and thus, his understanding of the Constitution evolved as his horizons expanded and his legal status changed. When he entered the antislavery movement as a fugitive slave fresh from Maryland, he became a disciple of William Lloyd Garrison and unhesitatingly accepted Garrison's view that the Constitution was a proslavery "covenant with death, [and] an agreement with hell." (36) His views of the Constitution changed after...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT