In the early 1840’s, Douglass joins a revitalized abolitionist movement largely shaped by the views of William Lloyd Garrison. Since the early 1930’s, Garrison espouses a particular set of moral and political beliefs, radical for his time, which he promotes in his influential anti-slavery paper The Liberator. He believes in total non-violence, violence being a tactic of the slaveowners and their corrupt government protectors, not of good God-fearing people who have moral truth on their side. He believes that since voting implies that a government that legalizes slavery is legitimate, true abolitionists must abstain. He believes that the continued Union of the States, Abraham Lincoln’s sacred cause, was not only impossible, but undesirable: it involved the North, directly and indirectly, in the evil of slavery. Since the South was hell-bent on preserving that unnatural and therefore illegal institution, the South should go, and good riddance. And all of these are tied to Garrison’s view of the Constitution: it’s an ultimately pro-slavery, anti-human rights document, and therefore not worthy of obedience or respect.
For many years, Douglass fully agrees with Garrison. But over time, as a result of his conversations and debates with abolitionists who interpret the Constitution differently, and of his own study, experience, and thought in the first four years of publishing his own paper The North Star, Douglass changes his mind. By the early 1850’s, the abolitionist par excellence had come to disagree with Garrison, father of American radical abolitionism, and to agree with Lincoln, proponent of preserving the Union at all costs and of the gradual phasing out of slavery.
So how does Douglass come to make what seems such a counterintuitive change in his views on the Constitution and on the role of violence, voting, and the Union in bringing an end to slavery?
Some of the reasons for Douglass’ evolution are pragmatic; his pragmatist side becomes more pronounced with time and experience (more on this in another piece). For one, he comes to believe that violence is not only unavoidable at times, but sometimes necessary (more on this in another piece as well).
Douglass also becomes convinced that abstaining from politics is just suicide by degrees for the abolitionist movement, since it cedes political power to slaveowners and their supporters. Abstaining from voting in protest, as Garrison calls for, actually works against the project of obtaining greater political rights for black people. (As with celebrity comedian-guru Russell Brand’s anti-voting campaign today; the idea of abstaining from the vote in protest is neither new nor, in my opinion, any more effective now than it was then.) As Douglass points out, however motivated some people are to do the right thing by their fellow citizens, there will always be plenty of others motivated by greed, moral laziness in going along with the status quo, and the drive for power and domination over others. Political clout, gained through voting in those who represent their views, is one of the very few ways in which black people can finally obtain and protect their equal legal rights. And not only that: voting is one of the most practical yet powerful ways black people can demonstrate their full citizenship to those who might be inclined to doubt it. Other than getting an education and fighting in the war for emancipation, Douglass argues that it’s the most important way to undermine ugly stereotypes, prevalent in his day, of black people as lazy, uninformed, and fit only to have their lives run by others. (These stereotypes are, by the way, so ugly that it’s painful just to write them down, but confronting the ugliness head-on drives home the dire necessity of getting rid of them once and for all.)
But voting’s not enough to ensure that black people obtain the political power necessary to enhance and preserve their rights. For the abolitionist revolution to succeed, the Union must be preserved at all costs, and in the process, it must be recreated as the unified, true haven of freedom it’s meant to be. Douglass believes it’s the responsibility of the free states to liberate the enslaved people of the Southern states, and to extend and enforce guarantees of human rights for all inhabitants of all states.
Why? Because the Preamble of the Constitution tells us that’s what it’s for.
But how does Douglass justify this interpretation when it’s still a matter of such contention that he’s watching his country tear itself in two over it?
To understand the Constitution, it can help somewhat to consider the history that led to its creation and the ideas and intentions of those who wrote it; but to fully understand its true meaning and purpose, Douglass believes, we must always interpret all of its parts in the context of its preamble:
‘We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.’
The preamble is the key to any valid interpretation of the Constitution because it tells us, in plain, direct, and eloquent language, why the Constitution is written, who it’s written for, and who is bound to obey it. Any interpretation inconsistent with the Preamble reveals that either the Constitution itself is illogical, inconsistent and therefore invalid, or it shows that it’s the interpreter’s reasoning that’s illogical, inconsistent and therefore failing in understanding. Garrisonians agree with the first; Douglass agrees with the second.
So what to do with such parts of the Constitution as the three-fifths clause, which reads:
‘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‘?. (Art. I, Sec. 2, Cl 3.)
Doesn’t it imply that all those bound to service, which in Douglass’ time almost exclusively applies to black slaves, only count as three-fifths-person, and ergo, are not fully human? While Douglass grants that this clause is deeply problematic, he no longer agrees that it’s actually an endorsement of slavery.
There are two cases which can be argued when it comes to the effects of the three fifths clause: that it gives extra 3/5th’s representative powers to slaveowners, or that it takes away 2/5th’s; that point’s debatable. As Douglass points out, the clause actually appears to be a concession of a point that slaveowners didn’t really want to make but felt forced to if they wanted to increase their political power: that slaves are persons. If they’re not, it would make no more sense to include them at all for purposes of representation than it would to include cows, chickens, or farm implements. But even this grudging concession of personhood is conceivably debatable.
But while the effects of the three fifth clause may help indicate what use it’s been used for, they don’t tell us what it really means or what its true purpose is. So how do we successfully go about determining its meaning?
How about original intent? Since the expressed beliefs and opinions of the Constitution’s authors vary so widely on the matter of slavery, this won’t help us to decide the matter either. Douglass bases his original interpretation of the Constitution as a pro-slavery document on the basis of intent, but as we’ve seen, he changes his mind.
Well, then, how about strict constructionism? This won’t help us either. The terms used are so broad that it’s hard to tell what they literally and finally mean, or to prove outside of the historical context that they refer to the American brand of slavery at all. The three fifths clause never says anything about permanent bondage or race-based slavery. (In fact, the phrase ‘term of years’ seems to imply that there’s a beginning and end to the servitude in question that’s determined by something other than birth and death, but it doesn’t exclude the latter.)
So which interpretation of the three-fifths clause is most consistent with the preamble? Not the idea that those bound to service are anything other than persons or citizens, since the right to representation is only accorded to citizens, which, in turn, are necessarily persons. Nor is the idea that those bound to service are part-person or part-citizen: there’s nothing in the language of the clause nor of the rest of the Constitution that recognizes there’s such things as part-persons or part-citizens. Douglass points out that ‘…the Constitution knows of only two classes [of people]: Firstly, citizens, and secondly, aliens’. Constitutionally, all persons born in the United States are citizens by definition, and all others aliens; of course. the latter are still persons. So the ‘three-fifths’ clause can’t be referring to the completeness of individual persons; as we can see by the language itself, it specifically applies to the total number of persons for the purpose of apportionment only.
In a word, nothing. At least, not directly. As Douglass reminds us, the word ‘slave’ and its derivatives never appear in the Constitution at all. It does mention people ‘bound to service for a term of years’ but as we’ve already considered, this is unspecific, never mentions race, nor implies that bondage to servitude is ever anything other than limited.
There is one reading of the three fifths clause that I think is most consistent with the Preamble and with Douglass’ view of proper Constitutional interpretation. Given that the Constitution is concerned with Union, and Justice, and Tranquility, and the common defense, and the general Welfare, and Liberty, the three-fifths compromise was the best the founders could do at the time, given the intransigence of the slaveowners coupled with the young country’s need for their inclusion in the Union, to make the country large and strong enough to bring as much liberty as possible to as many people as possible. Bringing an end to slavery, Douglass believes, is the next necessary step for accomplishing the goals laid out in the Preamble as well as in the Declaration of Independence: to finally stamp out that liberty-destroying institution which had so undermined the general welfare, strength, and tranquility of the Union from its very beginning.
To return to the twin issues of personhood and citizenship in Douglass’ America: in a speech in 1854, Douglass says ‘In the State of New York where I live, I am a citizen and legal voter, and may therefore be presumed to be a citizen of the United States’. Just three short years later, in the infamous Scott vs. Sandford, a.k.a. the Dred Scott decision, the Supreme Court ruled that Douglass and all his fellow black people are not citizens at all. While Douglass explains in his speech’… [the] Constitution knows no man by the color of his skin’, the infamous Dred Scott decision of 1857 upended decades of common practice and legal precedent since the founding of the nation, where free black people throughout the United States had enjoyed legal, if not social, equality. However, as Douglass correctly observes, skin color is never mentioned in the Constitution as a precondition for citizenship, only place of birth and status of naturalization.
According to his biographer Philip Foner, Douglass becomes the most advanced and most informed thinker in Constitutional law, and the political and legal theory that informs it, than any of his fellow prominent abolitionists. Douglass believes, in the end, that the Garrisonian abolitionists are making the same mistake as the slaveowners: they fail to interpret the Constitution rightly, on its own terms and as a unified legal document unparalleled and unprecedented in its full establishment of human liberty. From the Garrisonians onward, those of us who likewise interpret the Constitution as protecting the rights of some without protecting others, or who likewise fail to understand its true significance, its true potential, and its true power to bring the blessings of liberty to all, just don’t get the Constitution.
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Sources and Inspiration:
Blassingame, J. (Ed.). The Frederick Douglass Papers, Series One: Speeches, Debates, and Interviews. 4 volumes, and The Frederick Douglass Papers, Series 2: Autobiographical Writings. 3 volumes. New Haven and London: Yale University Press, 1979-1999
Douglass, Frederick. Autobiographies, with notes by Henry Louis Gates, Jr. Volume compilation by Literary Classics of the United States. New York: Penguin Books, 1994.
Douglass, Frederick. The Heroic Slave: A Cultural and Critical Edition. Eds Robert S. Levine, John Stauffer, and John McKivigan. Hew Haven: Yale University Press, 2015.
Douglass, Frederick. My Bondage and My Freedom: 1855 Edition with a new introduction.. Re-published 1969, New York: Dover Publications, Inc.
Foner, Philip S. The Life and Writings of Frederick Douglass, Vol. 1-4. New York: International Publishers, 1950.
Landmark Cases: Scott vs. Sandford (The Dred Scott Decision), A C-Span Original TV Series, 2015 http://landmarkcases.c-span.org/Case/2/Scott-V-Sandford