Social Education 72(5), pp 246–250 ©2008 National Council for the Social Studies Was the Constitution pro-? The Changing View of Robert Cohen

During of the union that unfolded in America in the nineteenth century swears support to it vows alle- and culminated with the Civil , a debate raged over whether the Constitution was giance to two masters—so oppo- a pro-slavery document. At first glance, this might not seem a debatable subject. After site, that fidelity to one is, neces- all, key abolitionist figures, such as , who disagreed vigor- sarily treachery to the other. If we ously with slave-owners on virtually every aspect of the slave system did agree with adopt the preamble with Liberty them on one thing: that the Constitution supported slavery. It was the Constitution’s and Justice, we must repudiate the protections of slavery, most notably the three-fifths clause, the enacting clauses, with Kidnapping and the provision preserving the slave trade for 20 years (see the box on p. 247) and Slaveholding.2 that enabled the most vehemently pro-slavery representatives to the Constitutional Convention from and Georgia to endorse the Constitution. By protecting slavery, the Constitution was, in Douglass’s words “supporting and Those same provisions led Garrison to ing figure in the abolitionist movement: perpetuating this monstrous system of denounce the Constitution as “a covenant one of its leading orators, authors, and injustice and blood.” 3 with death and an agreement with hell,” newspaper editors. Douglass, with his flair for stirring which “compromises with [the] tyranny” oratory and writing, gave voice to this of the slaveholder. Garrison dramatized The Initial Interpretation scorching abolitionist indictment of this scathing indictment by publicly burn- On the question of the Constitution and the Constitution in a series of memo- ing a copy of the Constitution in 1854.1 slavery, Douglass began his abolition- rable speeches and editorials. One of The Supreme Court’s decision ist career—and went through much of his most powerful critical statements on of 1857, which upheld the right of slave the 1840s—holding the same position as the Constitution and slavery was made owners to maintain possession of their Garrison, his early mentor in that move- in England, where he fled and stayed for slaves even in states where slavery was ille- ment. Even as late as 1850, Douglass, in more than a year after the publication of gal, also seemed to support the contention his abolitionist newspaper, The North his autobiography, Narrative of the Life that the Constitution was pro-slavery. Star, condemned the founding fathers of Frederick Douglass, An American When we dig deeper, however, into for having “cunningly wrought into” the Slave, in 1845, because he lived in fear the , anti-slavery, and Constitution “the pro-slavery principle.” that his fame in the made the Constitution, it is clear that the pro- Douglass argued that the Constitution’s him, as a fugitive slave, vulnerable to slavery implications of the Constitution rhetoric about liberty was belied by its being kidnapped and returned to slavery are a matter for debate. The debate was pro-slavery provisions: in .4 Douglass condemned the played out most notably in the case of Liberty and Slavery—opposite Fugitive Slave “clause of the American Frederick Douglass, the pre-eminent as Heaven and Hell—are both constitution” for giving African American protest leader in the in the Constitution; and the oath antebellum period. Douglass had escaped to support the latter, is an oath to the slaveholder the right at any from slavery in Maryland in 1838, and to perform that which God has moment to set his well-trained within a few years emerged as a tower- made impossible. The man that continued on page 248

S o c i a l Ed u c a t i o n 246 Articles of the Constitution Cited as Evidence of its Support for Slavery

Three-fifths clause (Article 1, section 2) Representatives and direct taxes shall be apportioned among the several states which 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.

Provision for the suppression of insurrections (Article 1, section 8) The Congress shall have power…. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

Provision preserving the slave trade for 20 years (Article 1, section 9) The migration or importation of such persons as any of the states now existing shall think proper 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.

Fugitive Slave clause (Article 4, section 2) No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

Clause offering protection against “domestic violence” (Article 4, section 4) The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

S e p t e m b e r 2008 247 bloodhounds upon the track of the founders had, in Douglass’s words, from the immoral influence of slavery, it the poor fugitive; hunt him down insured that “the whole system, the entire offered little in the way of effective steps like a wild beast, and hurl him network of American society” would be to end slavery in the South. Douglass back to the jaws of slavery from “one great falsehood from beginning to came to see what historian James Oakes, which he had, for a brief space end,” tyranny masking itself as democ- in his recent book on Douglass, Lincoln, of time, escaped. This clause racy.8 and anti-slavery politics, has termed the of the constitution consecrates discrepancy “in Garrisonian abolition- every rood of earth in that land Douglass’s Change of Mind ism between its histrionic rhetoric and over which the star-spangled The most powerful rebuttal to Frederick its remarkably passive plan of action” for banner waves as a slave-hunting Douglass’s depiction of the Constitution ending slavery.11 (In the article following ground.5 as a pro-slavery document would come this one, Oakes shares his own reflections from Douglass himself, later on, as he on the relationship between slavery and Douglas argued that “were it not for grew more independent of Garrison, and the Constitution.) Thus, by re-casting the the … protection afforded” to slavery finally broke with by this constitution” many more slaves his former men- “would run away,” as he had done. “They tor’s indictment of do not love their masters so well as the the Constitution. tyrants sometimes flatter themselves; they In 1851, after an do frequently run away.” Reminding the ongoing dialogue audience of his own escape from with New slavery, Douglass pointed to his presence abolitionist Gerrit as evidence of the slaves’ “disposition to Smith, Douglass run away,” a line that drew thunderous came to agree with applause.6 Smith that the Douglass also denounced the articles Constitution actu- of the Constitution that authorized U.S. ally had anti-slav- armed forces to protect slavery against ery implications.9 slave rebellions by giving the president Douglass con- and Congress the power to “suppress tended that those insurrections” and stop “domestic vio- who claimed the lence.” Thus, Douglass said, “The consti- Constitution was a tution … converts every white American pro-slavery docu- into an enemy to the black man in that ment were mis- land of professed liberty. Every bayo- reading it. He saw for Research in Black , Public Library, Astor, Lenox and Tilden Foundations. net, sword, musket, and cannon has its the Constitution John Chester Buttre, Schomburg engraver (1821-1893)/The Center deadly aim at the bosom of the Negro: as having “noble 3,000,000 of the coloured race are lying purposes,” which were “avowed in its Constitution as anti-slavery, Douglass there under the heels of 17,000,000 of preamble” whose words about liberty could justify embracing the idea of voting their white fellow creatures.” 7 rendered it an “instrument” that could be and aligning abolitionists with those in At this time, Douglass’s approach to the “wielded in behalf of .” 10 the American electoral system who were and Constitution Douglass’s turnaround on the critics of slavery and slave expansion, was characterized by profound alien- Constitution was connected to his first in the Liberty Party and then in the ation. He condemned as hypocritical growing belief that the Garrisonian Free Soil and Republican parties. This the Constitution preamble’s lines about position on the politics of anti-slavery offered the prospect of using the vote to securing “the blessings of liberty to our- was impractical. Garrison had taken the prevent the expansion of slavery west- selves and posterity.” In Douglass’s eyes moralistic stance that abolitionists ought ward and then to abolish the “peculiar the founders lied about slavery by “wrap- not to vote or in any way participate in a institution” entirely. ping it” and the sins of the slaveholding political process that had been corrupted As part of his new mode of argument, republic “in honeyed words…. The iden- by the slave system and its pro-slavery Douglass adopted a very literal mode of tical men who … framed the … constitu- Constitution. Instead, Garrison advo- interpreting the Constitution. He held tion were trafficking in the blood and cated the use of moral suasion and the that the Constitution meant what it said souls of their fellow men.” By speaking secession of the northern states from and said what it meant: Claims about the language of liberty in a Constitution the Union. The flaw in this position was slavery’s constitutionality ought not to that actually safeguarded racial slavery that though it might protect the North be accepted unless backed by plain lan-

S o c i a l Ed u c a t i o n 248 guage in the Constitution. Here Douglass we the low, but we the people; not Understanding Douglass’s took advantage of the founders’ most we the horses, sheep, and swine, Change of Interpretation notable silence, that the Constitution and wheel-barrows, but we the One explanation of the shift in Douglass’s they wrote never mentioned the word people; and if Negroes are people, thinking on the Constitution—and one “slavery.” Douglass saw this silence as they are included in the benefits that he himself alluded to in his writings— evidence that the founders did not want for which the Constitution of the had to do with his growing intellectual the central document of the new repub- United States of America was independence. During his period of ref- lic to legitimize slavery by explicitly ordained and established.14 uge in Britain, following which he moved recognizing it. James Madison’s notes to Rochester, New York, away from the from the convention confirm that this Critics might dismiss this multi-racial influence of Garrison and , refusal to name slavery derived from an reading of the preamble because the Douglass had the intellectual space to anti-slavery sensibility, that some del- all-white Constitutional Convention reflect on the fact that there was more egates “thought it wrong to admit in the included and compromised with slave- than one way to think about anti-slavery Constitution the idea that there could be owners. However, Justice Benjamin tactics and the Constitution. There, he property in men.” 12 Robbins Curtis’s dissenting opinion in the opened himself to the ideas of a new and For Douglass, the preamble occupied Dred Scott decision supports Douglass’s more political circle of abolitionists. a central place in his anti-slavery read- interpretation. Justice Curtis argued Another very important explanation ing of the Constitution. Douglass, in his that the liberties ordained for “We the for Douglass’s change of mind is that 1860 speech on “The Constitution and people,” included free blacks, most nota- at least some aspects of the anti-slavery Slavery,” invited readers to inspect the bly residents of New York, New Jersey, reading of the Constitution have a fair Constitution’s preamble to “look at the North Carolina, New Hampshire, and claim to historical validity, and their objects for which the Constitution was who, “though descended logic attracted him. The Constitution framed and adopted and see if slavery from African slaves” were not merely of 1787, unlike the Civil War South’s is one of them.” Douglass recited the citizens but voters in the Constitution’s Confederate Constitution, was a com- preamble: ratification process.15 promise with slavery rather than a proud Douglass also reversed his earlier embrace of it.17 Not only radical abo- We the people of these United interpretation of the Constitution’s litionists such as Frederick Douglass, States, in order to form a more articles empowering the federal gov- but moderate reformers, including perfect union, establish justice, ernment to “suppress insurrections” and , saw anti-slavery fea- insure domestic tranquility, “domestic violence.” Since neither of these tures in the Constitution. Lincoln, and provide for the common defense, articles mentioned slavery, Douglass many of his fellow Republicans dif- promote the general welfare, and now argued that the only reason they fered with Douglass in holding that the secure the blessings of liberty became a license to suppress slave rebel- Constitution protected slavery where it to ourselves and our posterity, lions was because pro-slavery presidents already existed, but agreed with him that do ordain and establish this distorted their meaning. He envisaged a the founders opposed slavery’s expansion Constitution for the United States Lincolnesque leader using the power of westward. Both Lincoln and Frederick of America. the presidency, his constitutional author- Douglass looked at the language of the ity, to suppress insurrection, as a license Constitution empowering Congress “to Douglass expressed support for all for : make all needful Rules and Regulations six goals of the preamble—“union, respecting the Territories,” and saw in defence, welfare, tranquility, justice, and If it should turn out that slavery this the right to ban slavery from the liberty”—and he noted that “slavery so is a source of insurrection, that new western territories, a reading of the far from being among them, is a foe of there is no security from insur- Constitution that slavery’s advocates vio- them all.” 13 To slaveholders who claimed rection while slavery lasts, why lently opposed.18 that the founders did not mean for the the Constitution would best be Since Douglass, in 1860, was read- Constitution’s phrases about liberty to obeyed by putting an end to slav- ing the Constitution to conform with his apply to African Americans, Douglass ery, and an anti-slavery Congress anti-slavery aspirations, he did tend to responded that they needed to read the would do that very thing.16 ignore contrary evidence. Even so, he was preamble: correct in arguing that the Constitution Much in line with Douglass’s new empowered (though did not require) the Its language is “we the people”; interpretation, Lincoln eventually used federal government to abolish the slave not we the white people, not even his constitutional power as commander- trade, which it did in 1808; that slavery we the citizens, not we the privi- in-chief to suppress a rebellion not of was abolished in the antebellum North leged class, not we the high, not slaves but of slave-owners. under the Constitution, even as slavery

S e p t e m b e r 2008 249 expanded in the Old South; and that the on slavery as true to the founders and the another, shall in consequence of any law or regulation founders had refused to use the word Constitution. therein, be discharged from such service or labor, but shall be delivered up to be claimed by the party to “slavery” in the Constitution. Moreover, In pondering his verdict on this whom such service or labor may be due.” in 1863, President Lincoln did use the debate about the Constitution and slav- 6. Ibid., 209-210. war powers of the Constitution to issue ery, Douglass asked, “Who is right in 7. Ibid., 208. the Emancipation Proclamation. On the this contest?” and answered, “so far as 8. Ibid., 207. 9. Oakes, The Radical and the Republican, 18-20. other side of the ledger—Douglass’s later the Constitution is concerned … all are 10. Frederick Douglass, “Change of Opinion Announced,” arguments notwithstanding—were the wrong,” since the Constitution was neither The Liberator, May 23, 1851, reprinted in The Life Constitution’s pro-slavery Fugitive Slave wholly pro- or anti-slavery but “at war and Writings of Frederick Douglass Vol. 2, 155. 19 11. Oakes, The Radical and the Republican, 9. and three-fifths clauses, the guarantee of with itself.” And the same would be true 12. Douglass, “The Dred Scott Decision,” Life and two decades of congressional inaction of antebellum America, whose political Writings of Frederick Douglass Vol. 2, 419.; Notes of Debates in the Federal Convention of 1787 on the slave trade, the fact that it took a battles over such questions culminated reported by James Madison, (New York: WW Norton bloody Civil War to banish slavery, and in the bloodiest war in American history. & Co 1966), 532; Sanford Levinson, Constitutional the necessity of passing the thirteenth The Constitution, written as it was by Faith (Princeton, N.J., Princeton Univ. Press, 1988), 31; Jack N. Rakove, Original Meanings: Politics and amendment to purge the Constitution a convention whose members included Ideas in the Making of the Constitution (New York: of its compromises with slavery. vocal foes and friends of slavery, played a Alfred A. Knopf, 1997), 91. 13. Douglass, “The Constitution of the United States: Is The debate over the Constitution prominent role in rendering America, in it Pro-Slavery or Anti-Slavery?” Life and Writings and slavery proved persistent in the Lincoln’s words, “a house divided against of Frederick Douglass, Vol. 2, 477. real world of antebellum politics, and itself” on the slavery issue. In this sense 14. Ibid. grew increasingly contentious, espe- the Constitution’s flaws paved the way for 15. Paul Finkelman, ed., Dred Scott v. Sanford: A Brief History with Documents (Boston: Bedford Books, cially after the Supreme Court weighed the Civil War. And yet the Constitution, 1997), 110. in with its pro-slavery reading of the with its war powers and amending pro- 16. Douglass, “The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery?” Life and Writings Constitution in the Dred Scott decision cess, also made possible the new birth of Frederick Douglass, Vol. 2, 473. in 1857. The same was true of the rise of of that Lincoln heralded at 17. In contrast to the founding fathers, with their com- the Republican Party, and the election of Gettysburg, as emancipation and the thir- promises and their reluctance to mention racial terms or “slavery” in the Constitution, the Confederate Lincoln, since their anti-slavery reading teenth amendment finally took America States of America’s Constitution explicitly barred laws of the Constitution (regarding the right of beyond the constitutional compromises “impairing the right of property in Negro slaves” (William Lee Miller, Arguing about Slavery: The the federal government to ban slavery in which first established and then divided Great Battle in the United States Congress [New the new western states) helped push the the slaveholding republic. York: Alfred A Knopf, 1997], 21). South towards secession in 1861. 18. Abraham Lincoln, “The Old Policy of the Fathers, Address at Cooper Union, 1860,” in Richard N. When students ask which was more Notes Current, ed., The Political Thought of Abraham correct, the early or the later reading of 1. Garrison burned a copy of the Constitution at a meet- Lincoln, (Indianapolis, Ind.: Bobbs Merrill, 1967), ing of the Massachusetts Anti-Slavery Society on July 139-149; Donald G. Nieman, Promises to Keep: the Constitution by Frederick Douglass, 4, 1854. See Peter C. Myers, Frederick Douglass and African Americans and the Constitutional Order, one answer may be to introduce them to the Rebirth of American (Lawrence: Univ. 1776 to the Present (New York: Oxford University of Kansas Press, 2008), 84; Nathan Huggins, Slave Press, 1991), 13; , Free Soil, Free Labor, yet another Frederick Douglass. This is and Citizen: The Life of Frederick Douglass (Boston: Free Men, The Ideology of the Republican Party not the anti-Constitution Douglass of the Little, Brown and Company, 1980), 64. Before the Civil War (New York: Oxford University 1840s or the pro-Constitution Douglass 2. Frederick Douglass, “Oath to Support the Press, 1977), 75- 76. Constitution,” The North Star, April 5, 1850, re- 19. Frederick Douglass, “Oath to Support the of the 1850s, but rather the Douglass who printed in Philip S. Foner, ed., The Life and Writings Constitution,” in Foner, Life and Writings of in April 1850 was in transit between these of Frederick Douglass, Vol 2, Pre-Civil War Decade Frederick Douglass, Vol. 2, 32. (New York: International Publishers, 1950), 118. two positions. It was at this moment that 3. James Oakes, The Radical and the Republican: he was most willing to acknowledge the Frederick Douglass, Abraham Lincoln and the Triumph of Antislavery Politics (New York: WW paradoxical nature of the Constitution, Norton & Co., 2007), 14. Robert Cohen is professor and chair of the and how that document’s ambiguities 4. Ibid., 12. Department of Teaching and Learning in the and jarring contradictions—pro-liberty 5. “Farewell Speech to the British People,” in Foner, Life Steinhardt School of Education at New York here, pro-slavery there—fed the sectional and Writings of Frederick Douglass, Vol. 1, 209. The University, where he is also an affiliated professor Constitution’s fugitive slave clause (article IV, section in the Department of History. crisis since both North and South had 2) stated that “No person held to service or labor, in grounds for seeing their clashing stances one State under the laws thereof, escaping into

Many social studies teachers dread document lessons, particularly when centered on primary sources that seem dry, complex, and technical. However, discussions of the Constitution’s meaning regarding slavery and freedom can make its sections read as vital pieces of a fascinating historical puzzle, and not like the dry passages of a contract. The excerpts from the Constitution on page 247, as well as passages reflecting Frederick Douglass’s different interpretations of the Constitution, are the kinds of primary sources that engage students and stimulate discussions that continue after class. In the Middle Level Learning supplement to this issue of Social Education, Vanessa Rodriguez presents a lesson plan and handouts for debating the subject that has worked well among middle school students; using the same handouts, the lesson can easily be adapted for high schools. R.C.

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