Liberty Matters

With a Little Help From His Friends

A second question generated by Dr. Buccola's "Frederick Douglass and the Right and Duty to Resist" is a question of causation and correlation. If we accept that circumstances played an important role in shaping Douglass's views about natural rights, it is logical to want to dig deeper and find out if we can more precisely determine what caused him to hold these views and what the correlation is between these views and certain events.
Such inquiries arguably become more pressing when we turn our attention to the 1850s change of heart that Douglass had about the relationship between slavery and the Constitution. After all, "[s]lavery was the original sin in the New World garden, and the Constitution did more to feed the serpent than to crush it."[51] Or, put another way, "slavery somehow was there at the constitutional beginning, like an unbidden, malevolent spirit at a festive celebration: the fairy-tale witch who was not invited to the christening but who came anyway and in an act of spite left a curse on the child."[52] That the Framers did a deal with the slavery Devil in Philadelphia is not something of which only relatively recent generations of Americans have become aware. It is not a fact upon which an historian stumbled one day when rifling through some obscure manuscripts in an obscure archive. All of the unconstitutionality-of-slavery treatises were written after the publication of damning evidence of the Framers' compromising actions that permitted the snake of slavery to sit comfortably coiled at the feet of their desks. This evidence emerged – laid out in black and white for all to see – when James Madison's notes from the constitutional convention were posthumously published in 1840. Given the existence of those notes, it is difficult to understand how, especially after the passage of the Fugitive Slave Act, any individual could make a serious and intellectually authentic argument that slavery was unconstitutional.
I am inclined to believe that we are never going to find the smoking gun that leads us, once and for all, to understand what caused Douglass to change his opinion about the Constitution because I do not believe that such a smoking gun exists. I agree with Dr. Buccola that Douglass "thought long and hard about embracing this reading." His writings suggest as much – they suggest that this was not an easy decision. What intrigues me is why he came to this reading so late (relatively speaking).
As early as the 1830s, abolitionists who disagreed with the Garrisonian condemnation of the Constitution offered modest and cautious arguments that the document permitted but did not actually sanction slavery.[53] More radical theories of constitutional interpretation took hold during the 1840s, but only Lysander Spooner's could claim a methodologically rigorous, absolutist commitment to the position that slavery was unconstitutional.
Spooner published his The Unconstitutionality of Slavery in two parts, as contributions to a debate that he felt it was necessary to have with Wendell Phillips, one of Garrison's most prominent lieutenants. In 1844 Phillips published The Constitution: A Pro-Slavery Compact, which he used to shore up the Garrisonian constitutional interpretive position.[54] The following year, Spooner responded with what became "Part First" of The Unconstitutionality of Slavery.[55] In 1847, Phillips fired back with his Review of Lysander Spooner's Essay on the Unconstitutionality of Slavery.[56] The final word in this debate came from Spooner's pen, just a few months later, when he wrote The Unconstitutionality of Slavery: Part Second, in which he provided additional evidence for the argument made in Part First.[57]
These publications received extensive coverage in the abolitionist press, and Spooner – who was his own best and worst publicist – ensured that his writings were widely disseminated. However, as the 1840s came to a close, not only had Spooner moved on to other interests, but also the coverage of his treatise had dissipated. This reduction in enthusiasm for his theory was only accelerated by the passage of the Fugitive Slave Act. Except for Frederick Douglass, who in 1851 embraced an interpretive theory that had already seemingly run its course of interest. Why did this happen? That is a question I will briefly try to address next time.
[51.] Akhil Reed Amar, America's Constitution: A Biography (New York: Random House, 2005), 20.
[52.] William M. Wiecek, "The Witch at the Christening: Slavery and the Constitution's Origins," in The Framing and Ratification of the Constitution, eds. Leonard W. Levy and Dennis J. Mahoney (New York: Macmillan, 1987), 167.
[53.] Helen J. Knowles, "The Constitution and Slavery: A Special Relationship," Slavery and Abolition 28, no. 3 (2007): 309-28.
[54.] Wendell Phillips, The Constitution: A Pro-Slavery Compact -- Selections from the Madison Papers, &C. (New York: American Anti-Slavery Society, 1844; repr. New York:  Negro Universities Press, 1969).
[55.] Lysander Spooner, The Unconstitutionality of Slavery (Boston: Bela Marsh, 1845). Online version: Lysander Spooner, The Unconstitutionality of Slavery (Boston: Bela Marsh, 1860). </titles/2206>.
[56.] Review of Lysander Spooner's Essay on the Unconstitutionality of Slavery: Reprinted from the "Anti-Slavery Standard," with Additions (Boston: Andrews & Prentiss, 1847; repr. New York: Arno Press & New York Times, 1969).
[57.] Lysander Spooner, The Unconstitutionality of Slavery:  Part Second (Boston, MA: Bela Marsh, 1847). Online version: Lysander Spooner, The Unconstitutionality of Slavery: Part Second (Boston: Bela Marsh, 1860). </titles/2207>.