Frederick Douglass on the U.S. Constitution

By Nancy Spannaus

Sept. 20, 2021—It’s Constitution Week, and long past time that we Americans went beyond the cursory knowledge which most of us have had of our nation’s founding document. The recent tendency to damn the U.S. Constitution as a virtual pact with the devil is particularly disturbing to this author.

So, I call upon Frederick Douglass, the former slave who became a leading ally (while still a critic) of President Abraham Lincoln in his war to liberate the enslaved. I was previously familiar with Douglass’s famous 1860 speech on the Constitution, where he defended it against those in the abolitionist camp who argued that it codified slavery. But this last week, I took the occasion to read the whole speech much more carefully, and I was positively shocked.

Douglass is a political figure who I believe should command broad respect, not only in his fight for ending slavery, but his contribution to our nation as a whole. His systematic refutation of what are today standard attacks on the Constitution as a pro-slavery instrument must be taken into account by those who are serious about evaluating our founding document. While I believe more could be said about some of these clauses, Douglass’s speech is a good start.

While encouraging you to read the full document, I will devote most of the rest of this post to some of his most trenchant arguments. But first, an overview.

What’s at Issue

Douglass’s speech was given to the Scottish Anti-Slavery Society in Glasgow, Scotland, in response to a speech by abolitionist George Thompson a few weeks before. He defines the issue between himself and Thompson this way:

The real and exact question between myself and the class of persons represented by the speech at the City Hall may be fairly stated thus: — 1st, Does the United States Constitution guarantee to any class or description of people in that country the right to enslave, or hold as property, any other class or description of people in that country? 2nd, Is the dissolution of the union between the slave and free States required by fidelity to the slaves, or by the just demands of conscience? Or, in other words, is the refusal to exercise the elective franchise, and to hold office in America, the surest, wisest, and best way to abolish slavery in America?

Douglass’s answer is unequivocal. He says: “I, on the other hand, deny that the Constitution guarantees the right to hold property in man, and believe that the way to abolish slavery in America is to vote such men into power as well use their powers for the abolition of slavery.”

The orator then goes into a lengthy discussion of the Constitution itself, asserting that it must be taken at its words. There is a difference between the Government and what it did, and the Constitution itself, he insists. The government may be wrong, while the Constitution is right. And the aims of the Constitution, as laid out in the Preamble, are noble ones with no reference to race. They must be fought for and brought to reality.

“3/5 of a Man”

One of the most frequent attacks – then and now – on the Constitution is directed to the compromise on popular representation. The relevant clause (Art. 1, Sec. 2) reads: “Representatives and direct taxes shall be apportioned among the several States which may be included in 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 taxes, three-fifths of all other persons.”

How does Douglass respond to the accusation that this clause gives the slave states a benefit? He denies it specifically refers to blacks, but concludes that even if it did, it “leans toward freedom.” The rules are set up so that states actually are benefited by eliminating slavery!  (Keep in mind that the slaveholders were demanding that slaves be counted one for one, in terms of representation in Congress. While the slave states gained extra weight in Congress, they by no means got what they wanted.)  I quote:

Let us grant, for the sake of the argument, that the first of these provisions, referring to the basis of representation and taxation, does refer to slaves. We are not compelled to make that admission, for it might fairly apply to aliens — persons living in the country, but not naturalized. But giving the provisions the very worse construction, what does it amount to? I answer — It is a downright disability laid upon the slaveholding States; one which deprives those States of two-fifths of their natural basis of representation. A black man in a free State is worth just two-fifths more than a black man in a slave State, as a basis of political power under the Constitution. Therefore, instead of encouraging slavery, the Constitution encourages freedom by giving an increase of “two-fifths” of political power to free over slave States. So much for the three-fifths clause; taking it at is worst, it still leans to freedom, not slavery; for, be it remembered that the Constitution nowhere forbids a coloured man to vote.[1] (emphasis added)

Continuing the Slave Trade

Next, Douglass takes on the attack on the Constitution for allowing the slave trade to continue for another 20 years. The clause (Art. 1, Sec. 9) reads: “The migration or importation of such persons as any of the States now existing shall think fit to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”

Douglass argues that “the American statesmen, in providing for the abolition of the slave trade, thought they were providing for the abolition of slavery. This view is quite consistent with the history of the times. All regarded slavery as an expiring and doomed system, destined to speedily disappear from the country.”

Men, at that time, both in England and in America, looked upon the slave trade as the life of slavery. The abolition of the slave trade was supposed to be the certain death of slavery. Cut off the stream, and the pond will dry up, was the common notion at the time.

He concludes that “It [the Constitution-ed.] is anti-slavery, because it looked to the abolition of slavery rather than to its perpetuity,” and “it showed that the intentions of the framers of the Constitution were good, not bad.”

The “Fugitive Slave Provision”

We then come to the other provision of the Constitution considered as most strongly proving that it was a pro-slavery document. That is Art. 4, Sec. 2, which reads: “No person held to service or labour in one State, under the laws thereof, escaping into another shall, in consequence of any law or regulation therein, be discharged from service or labour; but shall be delivered upon on claim of the party to whom such service or labour may be due.”

Douglass’ refutation to presenting this clause as a pro-slavery mandate is extensive and trenchant, and I won’t quote it in its entirety. His leading points are the following:

1. The motion by South Carolina delegates Butler and Pinckney calling for the recapture of those held in “servitude” was voted down by the Constitutional convention. As Constitutional scribe James Madison wrote in his notes later, the Convention refused to admit the idea of “property in man.” (i.e., a man cannot be considered property)
2. If the section does not apply to slaves, it applies to indentured apprentices who were “bound to service” to pay off their indenture. Slaves were not bound to service, he argues, since that implies making a contract; slaves were in no position to make contracts, so it can’t apply to them.

A Brief Conclusion

Douglass has much more to say, both about the illogic and misstatements of the Constitution’s attackers and the negative consequences for eliminating slavery of adopting their view.  He admits, of course, that the reality of America’s first 70 years did not cohere with the written document which the Founders crafted. But that’s not the question, he says. As he put it in 1893 at the Chicago World’s Fair, “Men talk of the Negro problem. There is no Negro problem. The problem is whether the American people have loyalty enough, honor enough, patriotism enough, to live up to their own Constitution.”

Please read the 1860 document. It is a powerful argument for us to throw ourselves wholeheartedly into the battle that Douglass demanded: fulfilling the Preamble of the Constitution for all Americans, at last.[2]

[1] In fact, black men meeting the property qualifications were indeed allowed to vote in at least six states at the time of the Constitution: Massachusetts, New York, North Carolina, Maryland, Pennsylvania, and Vermont.  I believe New Jersey could also be added.  Only Virginia, Georgia, and South Carolina explicitly barred nonwhites from voting.

[2] In advancing  Douglass’s outlook, I am necessarily omitting the crucial economic dimension for ending slavery, which is also enabled by the Constitution. For more, see https://staging7.americansystemnow.com/the-constitution-and-slavery-the-missing-economic-dimension/

Tags: Constitution Week, Frederick Douglass, Nancy Spannaus, slavery, U.S. Constitution