AuthorRebeiro, Bradley
PositionConstitutional Reconstruction: History and the Meaning of the Thirteenth, Fourteenth, and Fifteenth Amendments

INTRODUCTION 1512 I. THE WORK Is NOT DONE 1515 II. DOUGLASS'S POLITICAL RIGHTS THEORY 1516 III. A TIME AND A SEASON FOR ALL THINGS: THE RISE OF EXPEDIENCY 1522 A. The Crucible of Political Experience: Meeting President Andrew Johnson 1522 B. Self-interest Over Justice 1526 IV. THEORY AND PRACTICE IN OPEN CONFLICT: BIACR V. WOMEN SUFFRAGE 1530 V. FIFTEENTH AMENDMENT 1534 A. Ratification 1534 B. Post-Ratification Return to Natural Rights 1538 CONCLUSION 1540 INTRODUCTION

Political theorists have long struggled to resolve the tension between theory and practice in politics. Though political actors may yearn to enact their values, political exigencies often require less-than-ideal behaviors. Two well-known political thinkers offer different solutions to this dilemma. Aristotle suggested that individuals balance the demands of ideals and practical reality by developing prudence in the form of practical wisdom. When exercised appropriately, he argued, prudence would allow actors to consider what justice requires while also responding to what is politically possible. (1) Put differently, a prudent political actor could guide the regime toward "the good," even if full realization of that good is never practically possible. (2) Machiavelli offered a different solution. Rather than encourage political actors to prioritize some conception of the good, Machiavelli emphasized the importance of regime stability. When faced with a dilemma between theory and practice, then, he admonished individuals to pursue whatever course of action would best ensure the stability of the state. At times, this might require the political actor to sacrifice or even abandon private virtues. For Machiavelli, though, this was a worthwhile-price: to do otherwise would lead to ruin for the regime and, by extension, the individual. (3)

Prudence as an art presents several complexities. When and how to sacrifice one's ideal--how much to concede, and for how long--is a difficult balance to strike. We might liken the dilemma to a captain steering her ship with the North Star as her guide. (4) While the North Star might lead her to the Promised Land, it does not bode well to keep her gaze upward at the expense of running the ship aground or needlessly imperiling the ship among rocks, glaciers, or treacherous waters. At times the skilled captain must heed her surroundings and veer off course for the sake of the ship. But the captain does so only as necessary to keep the final destination within her sights.

In this Essay, I consider what Frederick Douglass's approach to black suffrage in Reconstruction contributes to this age-old dilemma. Though Reconstruction opened the door to an unprecedented expansion of civil rights, there was less political or public motivation to secure political rights for freedmen. This was particularly true with black suffrage. Despite the generally accepted sentiment that freedom and certain civil rights rightfully belonged to all persons, many felt that suffrage was fundamentally a political question. And extending suffrage to blacks was a possibility that a large portion of the populace was not willing to entertain. (5)

Acting in this context, Douglass provided a compelling example of how to balance ideals and pragmatism. Though he remained committed to universal suffrage, for a period during Reconstruction he made the critical switch from advocating for universal suffrage to pushing black suffrage at the expense of women's suffrage. I argue that this move exemplifies the Aristotelian approach to the dilemma of theory and practice. Yes, Douglass sacrificed his theory of justice to realize black suffrage, but he did so with an eye to the ultimate good--universal suffrage. Had he been more Machiavellian, Douglass might have pursued the course that he thought would best promote stability. For example, many argued that the question of blacks voting did not rest on whether blacks were equal to whites, but whether whites were confident enough in their manhood to allow blacks to vote. Voting, they insisted, was a manly endeavor, and opening the door to black males was a proper test of men's confidence in their superior status as white males. (1) ' But, foregoing arguments that appealed to base prejudices, Douglass opted for the more refined strategy of separating the question of black suffrage from women's suffrage because he knew that justice required that women eventually have the right to vote as well, and because he feared that certain arguments, though presently useful, might unnecessarily dampen future prospects for universal suffrage. Indeed, immediately after black male suffrage was secured, Douglass turned his sights to the claims of justice again, advocating for women's suffrage. This quick turn suggests that all along, Douglass was guided by Aristotelian prudence--prioritizing present action for the aim of the highest, ultimate good. He prudently chose the path least compromising of just principles and stuck to it only so long as was necessary to ensure that the regime bent toward justice.

Douglass's example is one that political and constitutional actors might heed when navigating the complexities of pursuing just ends while constrained by a political-constitutional framework. Douglass had the wisdom to forsake the theoretically pure for the politically necessary.


    In May 1865, in the wake of the Civil War, William Lloyd Garrison declared that the anti-slavery work was complete. (7) With the permanent abolition of slavery, the anti-slavery movement was devoid of purpose. Garrison, relishing the victory over slavery and oppression, recommended that the Anti-Slavery Society immediately disband.

    Douglass thought otherwise. The anti-slavery movement, Douglass argued, was based on two principles: "first, the freedom of the blacks of this country; and, second, the elevation of them." (8) The first goal had been substantially achieved, but it was not enough to merely emancipate slaves. Without a firm basis upon which to protect their rights, former slaves risked escaping odious chattel slavery only to fall prey to the more pernicious form of servitude--civil slavery. Abolitionists could not fulfill their duty if freedmen were left in such a precarious state.

    Douglass proclaimed that the only thing that would make blacks truly free was the right to vote. He called for "'the immediate, unconditional, and universal' enfranchisement of the black man, in every State in the Union." (9) Without political rights, their liberty was a "mockery." (10) Until blacks secured the right to vote, their freedom would not be a right but something more of a privilege, to be granted or withdrawn by capricious rulers.

    Though Douglass believed the straggle for black suffrage was nothing more than an extension of antebellum anti-slavery efforts, his methods for fighting that battle changed. Using natural rights theory as a foundation, in the antebellum period, Douglass argued that blacks already had the right to vote based on the natural equality of human beings, coupled with allegiance to the political community. (11) During the Reconstruction era, however, Douglass drastically shifted his line of argument in advocating for political rights. He emphasized two major premises during Reconstruction that stressed the conventional nature of political rights, arguments which were only appendages to his natural rights argumentation in the antebellum period. First, he argued that the right to vote was not only a matter of natural equality, but also contingent on the form of regime the political community assumed. Second, he argued that the right to vote for blacks principally was a matter of expediency. The first major premise remained closely connected to, even if not solely reliant upon, natural rights principles, but the second line of argument was most puzzling because it in some ways subordinated natural rights claims. Though he never repudiated his natural rights argumentation from the antebellum period, Douglass minimized such claims when it mattered most during Reconstruction.

    The reasons for Douglass's shift become clearer in the context of the political realities he faced in the quest for black suffrage. Douglass faced two principal challenges: First, post-Civil War efforts to achieve black suffrage failed early and often. Second, women at this time, led by Elizabeth Stanton and Susan B. Anthony, were also pushing for equal voting rights. Douglass strongly supported women's suffrage in the antebellum period. (12) And while he likely would have preferred that all received equal voting rights at once, Douglass realized that the question of black suffrage had to be separated from women's suffrage if his efforts were to succeed. It is here that we find that Douglass's actions could only be explained by prudence--it was enough that the constitutional arc of justice bent toward freedom, even if freedom was not to be fully realized. Douglass's changed argument was not a matter of changed political theory. Rather, he made a prudential calculation that black suffrage needed to take pride of place at this critical constitutional moment. That Douglass's natural-rights-based thinking did not change is evinced by his immediate return to advocating for women's suffrage after the Fifteenth Amendment was ratified.


    Douglass argued that the black claim to suffrage relied on two lines of argument. First, the right to vote was theirs because of natural rights and the nature of the regime. Douglass curtly stated: "We want it because it is our right, first of all." (13) Logically, the primary claim blacks had to voting was based on natural rights. Douglass's state-of-nature theory not only envisioned human beings in a perfect state of freedom according to the natural law, but also saw human beings as fundamentally social. (14) In this state of nature, all human beings had equal natural powers...

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