“Now, take the Constitution according to its plain reading, and I defy the presentation of a single pro-slavery clause in it. On the other hand it will be found to contain principles and purposes, entirely hostile to the existence of slavery.”11 —Frederick Douglass
Is the Constitution pro-slavery or anti-slavery? This question is old, and its best answers were given when the stakes were highest, when the nation went to war with itself to answer it once and for all.12
In answering this question today, it helps to ask ourselves why Frederick Douglass called the Constitution “a glorious liberty document.”13 Although he initially thought that the Constitution was a “wicked compact,”14 he came to see that throwing away the Constitution would be like throwing away the compass on a ship.15 Moreover, throwing away the Constitution would also deny slaves the best argument they had for claiming their freedom. After all, the Declaration’s principle of equality, although true, was meaningless without rules that guided the nation toward it—rules that the Constitution created and that good people could use to destroy slavery.
Douglass knew that the American people and their state and federal governments fell short when it came to honoring and enforcing those rules. But where critics of the Constitution went wrong, he argued, was in thinking of the Constitution and the governments “as one and the same thing.”16 They are not. They are “as distinct from each other as the compass is from the ship.”17
If the American government has been mean, sordid, mischievous, devilish, it is no proof whatever that the Constitution of government has been the same.18
In fact, it was the Constitution itself that let Douglass hold the nation to account over slavery. The Constitution made concrete the “great principles” in the Declaration—the nation’s standards of good behavior.
To Douglass, whether the Constitution was pro-slavery or anti-slavery turned on whether it protected or undermined those principles. The question was: Does the Constitution protect a right to own other people?19 In other words, does it concede that some people have a right to rule others?
The answer is a resounding “No.” The Framers repeatedly refused to include any words in the Constitution that could be interpreted as creating property in people.20 James Madison said during the Constitutional Convention that it would be “wrong to admit in the Constitution the idea that there could be property in men.”21 Although the Constitution tolerated slavery where it already existed, it did not protect it from abolition. In fact, it enshrined principles that would eventually lead to slavery’s demise.
For one thing, nowhere in either the Declaration or the Constitution are human beings classified by race, ethnicity, color, or anything else. Both documents recognize the rights of all people, persons, and citizens without any regard for what they look like.
But what about the Framers’ intent? Isn’t it relevant that some of the men who drafted and ratified the Constitution owned slaves? Frederick Douglass answered those questions with one of his own: What is the Constitution? It is, he said, “a written instrument, full and complete in itself.”22 All that matters when interpreting written laws like the Constitution is “the text and only the text.”23 The Framers’ intentions, “be they good or bad, be they for slavery or against slavery, are to be respected so far, and so far only, as they have succeeded in getting these intentions expressed in the written instrument itself.”24
Nothing in the text of the Constitution protects slavery from abolition. Even where the Constitution refers to slavery, it always refers to slaves as persons to avoid denying them their inalienable rights. It is true that the Constitution itself did not free any slaves, but by referring to slaves as persons, the Constitution denied slaveholders the ability to claim that it protected the legitimacy of slavery. In short, the Constitution tolerated slavery where it existed but did not protect it.25
This might seem like a small distinction, but it was, in fact, profound. For one thing, it meant that if the people of the slave states passed laws to abolish slavery—as most of the Founders hoped—defenders of slavery could not use the Constitution to defeat those laws. Second, it meant that Congress had the power to outlaw slavery in new territories, thus preventing slavery from expanding. Third, it kept the slave states in the Union, which gave free states power that they could—and later would—use to end slavery. If the Framers had tried to abolish slavery in the Constitution, the slave states would never have agreed to be part of the new country, and the free states would not have been able later to force them to follow the standards set by the Declaration of Independence.26 There would have been no Civil War, no Emancipation Proclamation, and no Thirteenth Amendment.
Despite all of this, critics of the Constitution argued that several clauses actually did protect slavery. One clause says that three-fifths of “other persons” (referring to slaves while still recognizing their humanity) will count toward representation. Another says that Congress cannot outlaw the importation of “such persons as any of the States now existing may think fit to admit” until 1808. One says that the militia may suppress insurrections. Another says that “no person held to service or labour” will be discharged from that labor by escaping to another state, but must be delivered to the person to whom labor “may be due.” Do these provisions defend slavery, as critics contended?
“Abolish slavery tomorrow, and not a sentence or syllable of the Constitution need be altered.” 27 —Frederick Douglass
Frederick Douglass and others, like abolitionist legal scholar Lysander Spooner, showed that they do not.28 Not one of these provisions denies slaves their inalienable rights, admits that slaveholders have property rights in slaves, or prevents the states from ending slavery. The plain text—which controls—does not mention slavery; therefore, these clauses cannot rightly be interpreted as doing so.
But even if these clauses are taken at their worst, Douglass argued, each still “leans to freedom, not to slavery.”29 Article I, section 2 did not define slaves as three-fifths of a person; it reduced slave states’ representation in Congress and thus gave them an incentive to increase their representation by becoming free states. Article I, section 9 gave Congress the power to outlaw the international slave trade, which it did immediately in 1808. Article 1, section 8 does not mention slave rebellions. What’s more, Douglass argued, slavery itself was “an insurrection by one part in the country against the just rights of another,” which meant that this clause gave the federal government the power to use force to end slavery.
Finally, Douglass turned to the so-called Fugitive-Slave Clause. He noted that an original draft of that clause was rejected by the Framers because it applied to slaves. He also noted that the clause refers to labor that is “due.” If a slave is a person, as the Constitution says, and endowed with all the same rights as any other, as the Declaration says, can it be that his labor is “due” to someone who purports to own him in violation of those rights? Of course not. Douglass called the idea that a slave could owe his master anything “perfectly ridiculous.”30
At first, some states did not respect the principles that the Constitution embodied. As Douglass said, however, that was a problem of the people, not of the Constitution itself. The Constitution was not pro-slavery, and the principle of absolute equality—the apple of gold that it framed—was anti-slavery.
But Douglass was not done with the Constitution’s critics. His most forceful response to their claim that the Constitution applied only to white people was: How dare you? “[H]ow dare any man who pretends to be a friend to the Negro thus gratuitously concede away what the Negro has a right to claim under the Constitution?”31 The plain language of the Constitution is “‘we the people’; not we the white people, not we the citizens, not we the privileged class, not we the high, not we the low, not we of English extraction, not we of French or of Scotch extraction, but ‘we the people.’”32 Black people have the same right “to demand their liberty” that everyone else has.33
It took the Civil War, Reconstruction, and the civil rights movement to convince some people that Frederick Douglass was right. But he was—and he still is. The Constitution’s protections are for everyone to claim, regardless of skin color.
ENDNOTES:
11. Frederick Douglass, What to the Slave Is the Fourth of July, July 5, 1852.
12. See Lysander Spooner, THE UNCONSTITUTIONALITY OF SLAVERY (1845).
13. Frederick Douglass, What to the Slave Is the Fourth of July, supra note 11.
14. Frederick Douglass, The Constitution and Slavery, Mar. 16, 1849.
15. Frederick Douglass, The American Constitution and the Slave, Mar. 26, 1860, reprinted in DOUGLASS: SPEECHES & WRITINGS (David W. Blight ed., 2022).
16. Id.
17. Id.
18. Id.
19. Id.
20. See Sean Wilentz, NO PROPERTY IN MAN (2018).
21. Notes on the Debates in the Federal Convention, Aug. 25, 1787.
22. Douglass, The American Constitution and the Slave, supra note 15.
23. Id.
24. Id. Today, we call this way of interpreting the Constitution “originalism.” In the past, no such distinction was necessary because it was the only way to interpret the Constitution. The Supreme Court later pioneered new ways to interpret the Constitution so that it could avoid enforcing the equality guarantees of the Fourteenth Amendment. This was a major mistake that the Court is still fixing today.
25. See Angela Sailor et al., Slavery and the Constitution, The Heritage Foundation Lecture No. 1320, Feb. 23, 2021.
26. See Frederick Douglass, The Dred Scott Decision, May 14, 1857 (“The dissolution of the Union would not give the North one single additional advantage over slavery to the people of the North, but would manifestly take from them many which they now certainly possess.”).
27. Frederick Douglass, Address for the Promotion of Colored Enlistments, July 6, 1863.
28. Spooner, supra note 12.
29. Douglass, The American Constitution and the Slave, supra note 15.
30. Id.
31. Frederick Douglass, The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?, Mar. 16, 1860, reprinted in 2 THE LIFE AND WRITINGS OF FREDERICK DOUGLASS (Philip S. Foner ed., 1950).
32. Douglass, The American Constitution and the Slave, supra note 15.
33. Id.
