Black History Month was originally Black History Week, initially held in the second week of February to overlap with the birthdays of Abraham Lincoln (Feb. 12) and Frederick Douglass (Feb. 14). Yet the date in February that reveals most powerfully the tension between race and the American founding was Feb. 9, 1849. It was on this day that Douglass wrote in a fateful letter to abolitionist C.H. Chase about the relationship between the U.S. Constitution and slavery: “On a close examination of the Constitution, I am satisfied that if strictly ‘construed according to its reading,’ it is not a pro-slavery instrument …”
For most of the 1840s Douglass had embraced the view of Garrisonian abolitionists that the U.S. Constitution was a pro-slavery document. He thus believed that moral suasion and non-political activity by anti-slavery societies — and not strict appeals to the text — were the most effective strategies to achieve emancipation. His letter to Chase was the first signal that he had begun to reevaluate his views on the Constitution. He went on to break from the Garrisonian position over the next two years.
Consider the context, now and then: Oftentimes, Americans will claim that we need to recover the principles of the American founding in order to revive the blessings of life, liberty, and the pursuit of happiness. Yet critics of this view — Garrisonian abolitionists then, contemporary progressives today — counter that appealing to the era of the founding means embracing chattel slavery, the subjugation of women and a host of other social evils. This is called the “dead-hand” problem in constitutional theory. And it is a legitimate concern.
Then consider the consequences: If the creed of the American founding were indeed color-blind, then recovering the principles of liberty and justice would apply to whites and non-whites. It would be a step toward progress. But if the founding’s Declaration of Independence and Constitution were race-conscious, then reviving their lessons would sanctify social anachronisms. It would be a step toward evil.
The challenge for antebellum abolitionists, then, was to use the Constitution, and not just apolitical moral reasoning, to show that the text did not sanction slavery.
Douglass tried to meet it. In an 1860 speech in Glasgow, Scotland, Douglass outlined a new mode of constitutional interpretation that drew from the strict constructionism he mentioned in his letter to Chase. This mode interpreted the Constitution through a plain reading of the text’s straightforward linguistic content, rather than through a psychoanalysis of the framers’ internal motivations when they drafted the document.
The latter method is clearly deficient if one seeks to argue that the founding principles were color-blind. Douglass highlights two South Carolina delegates, Charles Pinckney and Pierce Butler, who sought to insert constitutional provisions to strengthen their claim to slaves. Other Northern delegates opposed slavery. Attempting to uncover a uniform meaning of the Constitution based on such conflicting personal motivations, therefore, would be an exercise in interpretive futility.
But Douglass believed the method of plain reading was not deficient. Nowhere is slavery explicitly mentioned in the Constitution, he argued. And the clauses that implicitly referenced slavery, in his judgment, were conscious efforts to restrict and set the institution on the course of ultimate extinction.
The ban on prohibiting the slave trade until 1808? Douglass believed that this merely preserved slavery’s perpetuation for only 20 years. Indeed, an act of Congress banning the slave trade became effective on Jan. 1, 1808. “Cut off the stream, and the pond will dry up, was the common notion at the time,” Douglass said. If slaveholding states ratified the Constitution, this decision would be an implicit admission that slavery was not a constitutional right.
The three-fifths clause? Douglass argued that this provision, which counted slaves as three-fifths of a person for determining state population size for apportionment purposes in the House of Representatives, was actually an advance toward freedom: Slaveholding states wanted to consider slaves as full persons when counting state population size in order to increase their number of representatives in the House. Hence, black men in free states were worth “two-fifths” more, politically speaking, than blacks in slave states, according to Douglass. “[T]aking it at its worst, it still leans to freedom, not slavery,” he said.
The right to suppress insurrections? The power to quell a rebellion, said Douglass, suggests the concomitant authority to remove its sources. Thus the central government held the authority to abolish slavery in order to prevent it from sparking insurrections. The fugitive slave clause? Douglass noted that the word “servitude” was struck from the original wording “for the very reason that it applied to slaves.”
Douglass’ constitutional theory is convincing in many respects, less convincing in others. Yet his attempt to demonstrate the compatibility between the Constitution and color-blind liberty should nudge all of us to reexamine an oft-unchallenged assumption in America today: that the American founding and social progress stand in irreconcilable tension.
Gregory M. Collins is a graduate student in American politics and political theory at the Catholic University of America.
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