Liberty Matters
Frederick Douglass’ “The Constitution: Is it Pro-Slavery or Anti-Slavery?”
If one had only contemporary popular discussion to go by, one could be forgiven for being unaware that the role of slavery in the Constitution has been discussed before. A case in point is the too little read speech of Frederick Douglass “The Constitution: Is it Pro-Slavery or Anti-Slavery?” given before the Scottish Anti-Slavery Society in Glasgow, Scotland on March 26, 1860. In his address, Douglass posed directly a question which had often gone unasked—largely because its answer was presumed to be self-evident: did the Constitution in fact recognize the legitimacy of slavery? Or in Douglass’ more precise formulation: “Does the United States Constitution guarantee to any class or description of people in that country the right to enslave, or hold as property, any other class or description of people in that country?” Abolitionists and Secessionists alike—just as popular opinion today—had presumed that the answer was a self-evident ‘yes!’, and that for that reason race-based slavery (and a fortiori white supremacy) were inextricably bound up with the country’s origins and founding framework.
Douglass asked a second question as well, which made clear what was at stake in the first: “is the dissolution of the union between the slave and free States required by fidelity to the slaves, given the demands of just conscience” (emphasis added)? What, in effect, did the demands of “just conscience, as well as the humane and moral duty of “fidelity” to those now actually in the chains of slavery, require morally conscientious individuals to do? Was the only moral response—as his opponents, the Garrisonians, had maintained—to reject the country in toto—to “dissolve the union”—because that union’s foundations, in advancing the legal pretexts that had forged the chains of slavery, were irredeemably corrupt?
Douglass’ framing of this two part question as the “real and exact” one (and his impatient dismissal of others as so much “jumbling up” and “dust-throwing”) had a fraught pre-history. After his own escape from slavery, he had been welcomed by the Garrisonians, and, he tells us, at that time embraced their view of the country’s founding document as little more than an instrument of enslavement. For those who have not revisited William Lloyd Garrison’s words in the light of contemporary debates, it is worth reminding ourselves both how powerful (and how contemporary!) his searing indictment of the Constitution was:
There is much declamation about the sacredness of the compact which was formed between the free and slave states, on the adoption of the Constitution. A sacred compact, forsooth! We pronounce it the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villany [sic] ever exhibited on earth. Yes—we recognize the compact, but with feelings of shame and indignation; and it will be held in everlasting infamy by the friends of justice and humanity throughout the world. It was a compact formed at the sacrifice of the bodies and souls of millions of our race, for the sake of achieving a political object—an unblushing and monstrous coalition to do evil that good might come. Such a compact was, in the nature of things and according to the law of God, null and void from the beginning. No body of men ever had the right to guarantee the holding of human beings in bondage. Who or what were the framers of our government, that they should dare confirm and authorise such high-handed villany—such a flagrant robbery of the inalienable rights of man-such a glaring violation of all the precepts and injunctions of the gospel-such a savage war upon a sixth part of our whole population? —They were men, like ourselves—as fallible, as sinful, as weak, as ourselves. By the infamous bargain which they made between themselves, they virtually dethroned the Most High God, and trampled beneath their feet their own solemn and heaven-attested Declaration, that all men are created equal, and endowed by their Creator with certain inalienable rights — among which are life, liberty, and the pursuit of happiness. They had no lawful power to bind themselves, or their posterity, for one hour-for one moment — by such an unholy alliance. It was not valid then—it is not valid now. Still they persisted in maintaining it — and still do their successors, the people of Massachusetts, of New-England, and of the twelve free States, persist in maintaining it. A sacred compact! a sacred compact! What, then, is wicked and ignominious?
Far from being a “sacred compact,” the Constitution was a “bloody” and “heaven-daring” arrangement, whereby “fallible, weak, and sinful” men waged savage war against their fellow human beings, usurping a right they did not—could not—rightfully have, in order to rob these others of their inalienable rights, and instantiate a “system of the most atrocious villany [sic] ever exhibited on earth” (emphasis added) in order to lend the color of law to their wickedness. Whatever his previous views, by 1860 Douglass had come to a very different conclusion. Through his own reading and study, he tells us, he now believed the fault was not with the Constitution.
Because it is easy to miss, one point of deep agreement between Garrison and (as it will turn out), Douglass deserves to be highlighted: the question of whether the framers had in fact “trampled beneath their feet their own solemn and heaven-attested Declaration, that all men are created equal and endowed by their Creator with certain inalienable rights—among which are life, liberty, and the pursuit of happiness.” Their apparent disagreement notwithstanding, Garrison and Douglass in fact agreed that the fundamental question regarding the Constitution was whether it betrayed the principle of human equality as enunciated in the Declaration. To Garrison, it was self-evident that it had; for Douglass, or at least the Douglass of 1860, it had not.
Much, Douglass stressed, was at stake in understanding “fully and clearly” this “real question” because it had been so powerfully obscured by the “jumbling up” and “dust-throwing” of partisans. The question was not, Douglass wrote,
whether slavery existed in the United States at the time of the adoption of the Constitution; whether slaveholders took part in the framing of the Constitution;whether those slaveholders, in their hearts, intended to secure certain advantages in that instrument for slavery;whether a pro-slavery interpretation has been put upon the Constitution by American Courts.
All of these things might, or might not, be true—but they were irrelevant. The "real and exact” question was whether the Constitution recognized a right to hold slaves. To answer this question, Douglass said, it was necessary to return to the text of the Constitution itself. And in the remainder of his address to the Scottish Anti-Slavery Society he provided an exegesis of the relevant clauses which continues to arrest for its cogency and force.
First reminding his Scottish audience that the American Constitution differed from the British in that it was a “written instrument,” he adduced a basic interpretational principle: “it should be borne in mind that the mere text, and only the text, and not any commentaries or creeds written by those who wished to give the text a meaning apart from its plain reading, was adopted as the Constitution of the United States.” Accordingly, Douglass argued, “the intentions of those who framed the Constitution, be they good or bad, for slavery or against slavery, are respected so far, and so far only, as we find those intentions plainly stated in the Constitution.”
Douglass’ principle is important because it pointed to what was at once the strongest and yet ultimately weak supposition of the Garrisonians and slavery apologists alike: that the practice of the founders could be read interchangeably with the text of the Constitution. As Douglass noted, however, practice is one thing, law another. Many peoples have had good laws and bad practice. That his opponents were forced to resort to the founders’ practice and comments made in debate, suggested Douglass, revealed the ultimate weakness of their argument. It was a de facto admission that “the thing for which they are looking is not to be found where only it ought to be found, and that is the Constitution itself. If it is not there, it is nothing to the purpose, be it wheresoever else it may be.”
In the text of the Constitution itself, Douglass argued, his opponents had really only been able to adduce three provisions in order to impose upon the document a pro-slavery interpretation. Because his argument remains an exemplary model of exacting legal exegesis on this question, it is worth reviewing Douglass’ points in detail.
For Douglass, as for us, the most salient article was Article 1 section 2 (the three-fifths clause”):
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined 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.
For contemporary critics (the charge goes back to Douglass’ time), this “three-fifths” clause is often casually summarized as though it equated American Africans with three-fifths of a human being. In fact, Douglass notes, the clause exists solely and exclusively for taxation and representational purposes. Douglass further observes—as he does repeatedly throughout his discussion—that there is no explicit mention, and certainly no endorsement, of “slaves” or “slavery.” On its face, the language of the clause applies to all unnaturalized citizens, i.e., resident aliens. Even supposing its primary intention concerned slaves, however, the clause was, Douglass argued, in fact a “downright disability” for slave holding states in that it deprived them of two-fifths of the representation that they would under normal counting procedures have had. Taking it at its worst, Douglass argued, it “leans to freedom.”
Second, Douglass took up Article 1, section 9 (the “slave trade” clause):
Migration or importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.
For Garrison and his fellow travelers, this clause was tantamount to a ratification of the slave trade. Even if that were true, Douglass argued, the article would have been a dead letter more than fifty years previous. But in fact, rather than guaranteeing the perpetuation of slavery, it looked to the abolition of the African slave-trade: “…it says to the slave States, the price you will have to pay for coming into the American Union is that the slave trade, which you would carry on indefinitely out of the Union, shall be put an end to in twenty years if you come into the Union.” It too, Douglass argued, tended to freedom, and showed that the “intentions of the framers of the Constitution were good, not bad.”
Third was the flash point of so many pre-civil war conflicts, the “fugitive slave clause,” Article 4 section 2. As read by abolitionists and slavery advocates alike (including Lincoln), the clause constituted a de jure recognition of a right to slavery:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Douglass’ response is both overwhelmingly brilliant and uncertainly convincing. Again observing that the text of the Constitution steadfastly avoided any explicit recognition of slaves or slavery, Douglass maintains that it might equally apply to indentured servants. Uncertain as this argument is, however, it is backed with a surprising piece of evidence that lends an unanticipated force to Douglass’ argument in its entirety: “the words employed in the first draft of the fugitive slave clause were such as applied to the condition of slaves, and expressly declared that persons held to “servitude” should be given up; but that the words “servitude” was struck from the provision, for the very reason that it applied to slaves….Mr. Madison declared that the word was struck out because the convention would not consent that the idea of property in men should be admitted into the Constitution.”
Space forces us to close, but it does not release us from the obligation of wrestling with Douglass’ argument. What, then, do we make of this remarkable man’s contention that the Constitution was not pro-slavery and—to say something, that Douglass never quite says—that it did not betray the principle of the Declaration? Taken as a whole, I find Douglass’ argument overwhelmingly persuasive, and what might have seemed an explicit authorization of slavery emerges under his exegesis as a deliberate and pervasive intent to avoid recognizing any “property in men.” That the framers compromised with a deep injustice as the necessary cost of an otherwise impossible union is scarcely to be denied. What Douglass shows us is that they were clearer-eyed and harder headed than we might have suspected about refusing to enshrine those compromises as principle.
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