The Constitution and “Natural Rights” – We Know Them When We See Them…

    

As Dr. Buccola indicates, it is the breadth of Frederick Douglass’s “robust conception of duty to vindicate natural rights” that is so troubling. It provides few guidelines and thus has the potential to justify many forms of extralegal violence simply committed in the name of defending “natural rights.” One might argue that such violence is constrained by the term “natural rights”; violence only in the defense of “natural rights,” one might say. However, that does not get us very far because of the vagaries of the term “natural rights.” Therefore, even if one seeks to engage in “extralegal” violence, Douglass’s words and actions – especially after 1851 – suggest a need to look within the law for, at the very least, a relevant understanding of the “natural rights” that we might have a constitutional (and Constitutional) duty to defend. In the United States, this therefore means consulting the U.S. Constitution – the nation’s “supreme law.” Vis-à-vis Frederick Douglass, this seems all the more appropriate given that after 1851 he wedded himself to a belief that the Constitution did not sanction slavery – and, for all the aforementioned vagaries, I think (or would at least hope) that we can arrive at a consensus that enslaving someone is a hardcore violation of their “natural rights.”

At the 17th annual meeting of the American Anti-Slavery Society in Syracuse, NY, in May 1851, William Lloyd Garrison lashed out at what he viewed as the intellectual treachery of his former disciple Douglass. “There is roguery somewhere,” cried Garrison. The “insulting remark” came in response to Douglass’s recent announcement that he no longer subscribed to the Garrisonian interpretation of the Constitution as a “covenant with death, and an agreement with hell.”[11] Douglass “had arrived at the firm conviction that the Constitution, construed in the light of well established rules of legal interpretation, might be made consistent in its details with the noble purposes avowed in its preamble; and that hereafter we should insist upon the application of such rules to that instrument, and demand that it be wielded in behalf of emancipation.”[12]

The seeds of Douglass’s discontent with the Garrisonian position on the Constitution began to emerge, in his public writings, in early 1849, when Douglass wrote a letter to C.H. Chase, published in Douglass’s North Star newspaper. If “‘strictly construed according to its reading,’” wrote Douglass, the Constitution was fundamentally an antislavery document. However, he still believed “that the original intent and meaning of the Constitution (the one given to it by the men who framed it, those who adopted, and the one given to it by the Supreme Court of the United States) makes it a pro-slavery instrument – such an [sic] one as I cannot bring myself to vote under, or swear to support.”[13] This indication that Douglass was no longer a loyal Garrisonian lieutenant was jubilantly received by the unconstitutionality-of-slavery community. As Gerrit Smith observed in a letter that he penned in immediate response to the Douglass-Chase correspondence, these “comments … cheer me with the hope that you are on the very edge of wielding the Federal Constitution for the abolition of American Slavery.”[14] This observation was at once astute and overly optimistic, because Douglass would stay on the edge for two more years.[15]

In January 1851, after three full years of immersion in the antislavery community of upstate New York, Douglass finally wrote the following in a letter to Gerrit Smith (who had replaced Garrison as a mentor):

However … Douglass’s rejection of the Garrisonian interpretation of the Constitution would not be complete until Smith answered one fundamental question. “[M]ay we avail ourselves,” wrote Douglass, “of legal rules which enable us to defeat even the wicked intentions of our Constitution makers?” This, he continued, was the “question which puzzles me more than all others involved in the subject.” In other words, Douglass wondered whether it was “good morality to take advantage of a legal flaw and put a meaning upon a legal instrument the very opposite of what we have good reason to believe was the intention of the men who framed it?”[17] As he made clear in his private correspondence over the next few months, he was persuaded of the veracity of an affirmative answer to this question and, as a result, he was “prepared to contend for those rules of interpretation which when applied to the Constitution make its details harmonize with its declared objects in its preamble.” This was an interpretation that led him to conclude that slavery was unconstitutional, a conclusion that he would talk about, and forcefully defend, in numerous speeches and writings thereafter.[18]

This does not by any means, however, solve the profound questions that still surround the concept discussed by Dr. Buccola. Ultimately, in light of his faith in the Constitution which, as social-contract theory tells us, is a compact into which “We the People” entered in order to preserve our “natural rights,” how can we explain (let alone justify) what appears to be Douglass’s rather robust defense of extralegal violence to preserve those “natural rights”? In the final section here I would suggest that the answer (as theoretically unsatisfying as it might be) lies in the importance of context and circumstances.

In the late 1840s, Douglass was moving – temporally and psychologically – further away from his personal experiences with the violence of slavery. As several scholars have observed, this move coincided with (and probably generated) an increased militancy in Douglass.[19] The former slave could easily accept the indictment of the Constitution, and the Framers, that the Garrisonians offered.

That changed as time passed. One thing that divided Garrison and Douglass was the latter’s ability to realize that strictly theorizing about the relationship between slavery and the Constitution and calling for disunion, as the Garrisonians were wont to do, was a fatally flawed strategy because of the factual reality of slavery. His life in bondage had taught Douglass that moral suasion only went so far; in theory it impacted the hearts and minds of those who considered slavery a moral abomination. And the antislavery community remained a distinct minority voice. It would take the very thing that Garrison abhorred – (political) action – to get anything done. Pragmatism would not override principle; as Douglass observed in a rousing speech at the 1852 national convention of the Free Soil Party in Pittsburgh: “It has been said that we ought to take the position to gain the greatest number of voters, but that is wrong…. Numbers should not be looked to so much as right. The man who is right is a majority. He who has God and conscience on his side, has a majority against the universe….If he does not represent what we are, he represents what we ought to be.”[20] Yet a principled stand, alone, could not accomplish anything tangible. What was needed was a principled pragmatism. And, if we are going to defend Douglass’s “conception of duty to vindicate natural rights,” we cannot ignore the circumstances out of which it was born. As James Oakes observes, Douglass “was never a very convincing pacifist.” Reflecting the violent world of slavery that he, and not Garrison, had experienced first hand, “Douglass tended to fall back on pragmatic as much as principled considerations.”[21] I am not sure any of us can blame him for that.

[11.] Philip S. Foner, ed., Frederick Douglass: Selected Speeches and Writings (Abridged and Adapted by Yuval Taylor) (Chicago: Lawrence Hill Books, 1999), 173-4. Douglass later wrote that “[t]here was no mistaking the meaning [of the remark]; and, coming from any one else, it would have been resented on the spot…. I do not think that the grand, old anti-slavery pioneer went to his grave thinking there was any ‘roguery’ in me. If he did, I was not alone in this bad opinion of his. No man who ever quitted the Garrisonian denomination was permitted to leave without a doubt being cast upon his honesty.” Quoted in John Ernest, ed., Douglass in His Own Time: A Biographical Chronicle of His Life, Drawn from Recollections, Interviews, and Memoirs by Family, Friends, and Associates (Iowa City, IA: University of Iowa Press, 2014), 101.

[12.] Frederick Douglass, “Change of Opinion Announced (1851),” in The Life and Writings of Frederick Douglass:  Volume II Pre-Civil War Decade, 1850-1860, ed. Philip S. Foner (New York: International Publishers, 1950).

[13.] Letter from Douglass to C.H. Chase, February 9, 1849, in Foner, Selected Speeches and Writings, 128. The letter appeared in the February 9, 1849, edition of the North Star.

[14.]   Letter from Gerrit Smith to Frederick Douglass, February 9, 1849, in John R. McKivigan, ed., The Frederick Douglass Papers: Series 3: Correspondence, Volume 1: 1842-1852 (New Haven, CT: Yale University Press, 2009), 356. Mariah Zeisberg has concluded that Douglass’s post-1849, non-Garrisonian, antislavery interpretation of the Constitution was based on a purely instrumental reading of that document rather than one derived from faithful scrutiny of the text. However, there is an important flaw in her analysis. She fails to acknowledge that Douglass was drawing (approvingly – in terms of their interpretive methods) heavily on others’ arguments (such as those of Lysander Spooner) without providing a sufficiently detailed examination of those legal and logical arguments. This has the effect of making Douglass look more like an instrumentalist than he was. (Mariah Zeisberg, “Frederick Douglass, Citizen Interpreter” [paper presented at the Annual Meeting of the American Political Science Association, Chicago, IL, 2007.]) And, indeed, as Peter Myers has astutely observed,

[15.] As two articles penned in the Spring of 1849 indicated. The first of these articles was an extensive North Star editorial published on March 16, in which Douglass clarified what he had meant by the phrase “‘strictly construed according to its reading’” included in his letter to C.H. Chase. Into this should not be read any commitment, on the part of its author, to the conclusion that the Constitution was “not a pro-slavery instrument.” Such an interpretation of the document could only be arrived at by strictly reading its text without any regard for the expressly stated, pro-slavery intentions of the men who had written that text. After this prefatory explanation, Douglass devoted the remainder of the editorial – under the telling subtitle “The Constitutionality of Slavery” – to explaining why he still believed that the original intent of the Framers mattered, and mattered a great deal. Sounding like a very faithful Garrisonian, Douglass confessed that he could only bring to bear upon the subject questioning that was underpinned by the “coolness and clearness of which an unlearned fugitive slave, smarting under the wrongs inflicted by this unholy Union, is capable. We cannot talk ‘lawyer like’ about law … nor can we, in connection with such an ugly matter-of-fact looking thing as the United States Constitution, bring ourselves to split hairs about the alleged legal rule of interpretation, which declares that an ‘act of the Legislature may be set aside when it contravenes natural justice.’” This was a direct criticism of Lysander Spooner’s approach, the dissection of which Douglass subsequently devoted a considerable portion of the editorial. (Frederick Douglass, “The Constitution and Slavery (1849),” in The Life and Writings of Frederick Douglass:  Early Years, 1817-1849, ed. Philip S. Foner [New York: International Publishers, 1950].) Two weeks later, in another North Star editorial, Douglass continued to toe the Garrisonian party line. The Constitution gave life to the national government, consequently it would be necessary to view that document as “impotent and useless” if it could be shown that the “government has a character independent of, and powers superior to” its creator. From the realization that the pro-slavery Constitution was neither “impotent” nor “useless” came the inevitable conclusion that the federal legislature, executive, and judiciary were also inescapably pro-slavery. To declare otherwise was to “wrest it from its true intent and meaning, by a class of rules unknown and unsustained by a single precedent in this country.” Douglass suggested that he was open to persuasion that such a class of rules existed, “but we have not yet seen them; and until we do, we shall continue to understand the Constitution not only in the light of its letter, but in view of its history, and the circumstances in which it was adopted.” That suggestion was explicitly directed at Gerrit Smith, but it took another two years before Douglass’s new mentor was able to persuade him that those rules actually existed. (“Comments on Gerrit Smith’s Address [1849],” in The Life and Writings of Frederick Douglass:  Early Years, 1817-1849, ed. Philip S. Foner [New York: International Publishers, 1950].)

[16.] Letter from Douglass to Smith, January 21, 1851, in Foner, Selected Speeches and Writings, 171.

[17.] Ibid.

[18.] Philip S. Foner, ed. The Life and Writings of Frederick Douglass, Vol. 2: Pre-Civil War Decade 1850-1860 (New York: International Publishers, 1950), 152-3. He also told Stephen S. Foster and Samuel J. May (in private correspondence) in the Spring of 1851. (Selected Speeches and Writings, 174, n1.) For examples of subsequent speeches and writings, see Douglass, “July Fourth.”; “Republican Party.” Additionally, unconstitutionality of slavery writings, by Spooner, Goodell, William Jay, and William Birney appeared in the Frederick Douglass Paper (the 1851 successor to the North Star) throughout 1851 and 1852. John R. McKivigan, “The Frederick Douglass-Gerrit Smith Friendship and Political Abolitionism in the 1850s,” in Frederick Douglass: New Literary and Historical Essays, ed. Eric J. Sundquist (New York: Cambridge University Press, 1990). While in 1849 he scoffed at the notion that unconstitutionality-of-slavery arguments, such as those penned by Spooner, were constructed using fierce logic, by 1855 he was speaking glowingly of the “iron-linked logic” in Smith arguments on this subject. (Quoted in John Stauffer, The Black Hearts of Men: Radical Abolitionists and the Transformation of Race (Cambridge, MA: Harvard University Press, 2001), 10.)

[19.] James H. Cook, “Fighting with Breath, Not Blows: Frederick Douglass and Antislavery Violence,” in Antislavery Violence: Sectional, Racial, and Cultural Conflict in Antebellum America, eds. John R. McKivigan and Stanley Harrold (Knoxville: University of Tennessee Press, 1999), 68-9; Myers, Frederick Douglass.

[20.] Frederick Douglass, “The Fugitive Slave Law, Speech to the National Free Soil Convention at Pittsburgh, August 11, 1852,” in Frederick Douglass: Selected Speeches and Writings (Abridged and Adapted by Yuval Taylor, ed. Philip S. Foner (Chicago: Lawrence Hill Books, 1999), 109 (italics added).

[21.] James Oakes, The Radical and the Republican: Frederick Douglass, Abraham Lincoln, and the Triumph of Antislavery Politics (New York: W. W. Norton, 2007), 11.