Can We Take Frederick Douglass’s “Change of Opinion” Seriously?

    

During the 1850s a significant percentage of abolitionists began to move away from a nonviolent response to slavery. Increasingly, they infused their writings with calls to arms; some went further, becoming involved in endeavors that were designed to, and sometimes actually did, result in violent confrontations with Slave Power. Into the 1850s the futility of actions grounded in peaceful principles became more apparent. As James Brewer Stewart observes: "Two decades of preaching against the sin of slavery had yielded, not emancipation, but an increase to over four hundred thousand black people held in bondage."[68] The passage of the 1850 Fugitive Slave Act (see below) – which served as the principal trigger for this new wave of more aggressive abolitionist activism – also exposed the futility of antislaverey constitutionalism grounded in a commitment to the "proper" rules of interpretation. So, in this, my final contribution to this interesting discussion about Frederick Douglass, I pose the following question: can we take Frederick Douglass's "change of opinion" about the relationship between slavery and the Constitution seriously?

In a quest to answer this question, I think a good place to start might be Robert Cover's admonition to us to remember that the prevailing definition of law during the antebellum period was "not simply words in instruments. It was the fabric of purposes and motives associated with the men who wrote them. Even when men proclaimed and declared 'natural' rights, it was not the natural but the human fabric that gave it its shape and import." Consider the "moral-formal" dilemma about which Cover wrote so eloquently and incisively in his landmark Justice Accused.[69] For judges who sought to accommodate "the natural law tradition" into their interpretation of laws, there were three main options. One could (a) determine that the authors of a law had intended it to further a goal that was consistent with natural law; (b) identify situations when natural law could aid in the application of a law; or (c) conclude that natural law should trump positive law unless the language of that law explicitly (in other words, textually) stated otherwise.[70]

The Constitution was a clear example of a law that, for numerous reasons, lent itself to antislavery interpretations consistent with one or both of these first two options. However, at the intellectual center of his interpretive theory Lysander Spooner placed a rule that invoked option three. Spooner found that rule in United States v. Fisher,[71] an opinion accurately described as "the Marshall Court's most extensive discourse on interpretive methodology."[72] Although better known as an exposition on the Necessary and Proper Clause (predating McCulloch v. Maryland),[73] Fisher was of relevance to Spooner because of the one passage of Chief Justice Marshall's opinion that read as follows: "Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects."[74] In Spooner's opinion, the "reasonableness, propriety, and therefore truth" of the Fisher rule were proven by the fundamental principles of natural justice.[75]

When employing Spooner's theory, Douglass frequently cited this rule; that, I think, tells us much about Douglass's change of opinion. This is because the rule leaves open the possibility that a law that violated natural rights could be perfectly constitutional as long as "the legislative intention" was "expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects." The Fugitive Slave Act did just that. It "evinced a clear congressional policy favoring harsh and summary enforcement of the rendition policy over any solicitude for procedural or substantive rights of alleged fugitives…. [T]here was substantially less room for the outlet of principled preference for liberty, which operated in more amorphous doctrinal situations."[76]  

As I have argued in my earlier contributions to this discussion, I think there is merit in viewing Douglass's change of opinion as driven by principled pragmatism. If we return to that theme here, in conclusion I am left wondering whether it was the passage of the Fugitive Slave Act that pushed Douglass over the edge of the unconstitutionality of slavery cliff. The pragmatic Douglass had to realize that the Fugitive Slave Act was the result of the pitiful politics of 1850. The Fisher rule gave the principled Douglass a way to explain that all hope was not yet lost. Yes, it was possible that rights would be infringed and fundamental principles overthrown when the general system of the laws was departed from, as long as that legislative intention was expressed with irresistible clearness – as it was in the law of 1850. But "the general system of the laws" had to be departed from, and supreme law within that "general system of laws" was the Constitution. And until that was overthrown, it would stand proud as the last best hope for the country, a country that would eventually – by amending that very same document – declare that slavery was indeed unconstitutional.

[68.] James Brewer Stewart, Holy Warriors: The Abolitionists and American Slavery, revised ed. (New York: Hill and Wang, 1997), 156 (quotation), and generally chapter seven.

[69.] Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven, CT: Yale University Press, 1975), 60.

[70.] Ibid., 62.

[71.] 6 U.S. (2 Cranch) 358 (1805).

[72.] John Choon Yoo, "Note: Marshall's Plan: The Early Supreme Court and Statutory Interpretation," Yale Law Journal 101 (1992), 1619.

[73.] 17 U.S. 316 (1819).

[74.] 6 U.S. at 390, quoted in Lysander Spooner, The Unconstitutionality of Slavery, reprinted in The Collected Works of Lysander Spooner, Vol. IV: Anti-Slavery Writings, ed. Charles Shively (Weston, MA: M & S Press 1971), 18-19.

[75.] Ibid., 155.

[76.] Cover, Justice Accused, 121.