Frederick Douglass’s Constitution: From Garrisonian Abolitionist to Lincoln Republican

Missouri Law Review Volume 81 Issue 1 Winter 2016 Article 17 Winter 2016 Frederick Douglass’s Constitution: From Garrisonian Abolitionist to Lincoln Republican Paul Finkelman Follow this and additional works at: http://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Paul Finkelman, Frederick Douglass’s Constitution: From Garrisonian Abolitionist to Lincoln Republican, 81 Mo. L. Rev. (2016) Available at: http://scholarship.law.missouri.edu/mlr/vol81/iss1/17 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. Finkelman: Frederick Douglass’s Constitution MISSOURI LAW REVIEW VOLUME 81 WINTER 2016 NUMBER 1 Frederick Douglass’s Constitution: From Garrisonian Abolitionist to Lincoln Republican Paul Finkelman* ABSTRACT This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave – and thus an “object” of the Constitution – to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, as an antislavery activist, and then as a spokesman for African Americans during the Civil War. This Article provides insights into antebellum constitutional thought and the background to the Fourteenth Amendment. This * Ariel F. Sallows Visiting Professor of Human Rights Law, University of Saskatchewan College of Law and Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, and Constitutionalism. I began working on this Article while serving as the John Hope Franklin Visiting Professor of American Legal History at Duke Law School and continued working on it when I was the Justice Pike Hall, Jr. Visiting Professor at the Paul M. Hebert Law Center, Louisiana State University. I thank Marguerite Most of the Duke Law School library for her indispensable help in gathering materials for this Article. I also thank Bob Emery, Colleen Ostiguy, and John Kenny at the Albany Law School library and Jennifer Murray and Greg Wurzer at the law library at the University of Saskatchewan College of Law for their assistance. I presented earlier versions of this Article at a conference on Frederick Douglass at Indiana University – Purdue University at Indianapolis and at faculty colloquia at Stanford Law School, Duke Law School, the University of Pittsburgh School of Law, the Wilberforce Institute for the Study of Slavery and Emancipation, University of Hull (U.K.), Marquette Law School, the University of Kentucky Law School, and Albany Law School. I thank the faculty at those schools and institutions for their feedback. For their many helpful comments I thank Diane Barnes and John McKivigan of The Frederick Douglass Papers and David Blight, Jon Bush, William M. “Chip” Carter, Jr., Raymond T. Diamond, Roy Finkenbine, Julie Goldsmith, Bernard J. Hibbitts, Jedediah Purdy, Mark Shulman, and Judge David Weinstein. Published by University of Missouri School of Law Scholarship Repository, 2016 1 Missouri Law Review, Vol. 81, Iss. 1 [2016], Art. 17 2 MISSOURI LAW REVIEW [Vol. 81 Article also explores our understanding of the Constitution and its relationship to slavery through the lens of Frederick Douglass. First, the Article looks at how the Constitution impacted Douglass and how Douglass was himself a “constitutional actor,” even though he held no public office and was not even considered a U.S. citizen under the holding in Dred Scott v. Sandford. For example, Douglass was a constitutional actor when he escaped from slavery – and thus came under the Fugitive Slave Act of 1793 and Article IV, Section 2, Clause 3 of the Constitution; when he married in New York but was still a fugitive from Maryland; when he applied for, and received, a copyright for his first autobiography, even though he was a fugitive slave at the time; and when he left the United States for Great Britain without a passport. This Article also explores Douglass’s constitutional theories and understandings and how he used the Constitution to oppose slavery. I argue, in part, that his understanding of the Constitution and his approach to constitutional interpretation changed as his life circumstances changed. Thus, when he returned from England, he was a free man because British friends had purchased his liberty. This led him to a new understanding of how to approach the Constitution and how to fight slavery under the Constitution. While essentially a work of legal history, this Article also offers ways of understanding constitutional theory and the elements of being a constitutional actor. The Article also raises issues of interstate comity and the recognition in one state of a status created in another. While not explicitly stated – because this is a work of legal history – this Article obviously has implications for modern issues surrounding marriage equality, child-custody based on interstate recognitions of status changes, the interstate recognition of gender transitions, and the legal rights of non-citizens within the United States. http://scholarship.law.missouri.edu/mlr/vol81/iss1/17 2 Finkelman: Frederick Douglass’s Constitution 2016] FREDERICK DOUGLASS'S CONSTITUTION 3 INTRODUCTION Frederick Douglass was the most important black abolitionist in antebellum America. By the eve of the Civil War, this former slave was the most famous African American in the world. During the Civil War, he twice met with Lincoln in the White House1 and then attended the party after Lincoln’s second inauguration.2 Douglass initiated the first meeting;3 but Lincoln invited him to the White House for a second meeting to discuss various military and political issues.4 During this second meeting, Lincoln’s secretary interrupted the conversation to tell the President that the governor of Connecticut was there to see him.5 Lincoln asked his secretary to inform “Governor Buckingham to wait, for I want to have a long talk my friend Frederick Douglass.”6 Douglass later recalled that “[t]his was probably the first time in the history of this Republic when its chief magistrate had found an occasion or shown a disposition to exercise such an act of impartiality between persons so widely different in their positions and supposed claims upon his attention.”7 What Douglass did not say, but clearly implied, is that this was certainly the first time in the history of the United States when a whit (...truncated)