Frederick Douglass and our “Glorious Liberty Document”
In August of 2019, The New York Times Magazine published a special series of articles collectively entitled The 1619 Project. The lead-off essay by Nikole Hannah-Jones immediately sparked controversy because it claimed that American independence was sought not for the purpose of securing equality and freedom but to perpetuate slavery and to facilitate its extension. The noble sounding rhetoric of the Declaration of Independence (1776) and the U.S. Constitution (1787) cleverly hid the hypocrisy of founders such as Jefferson and Washington. The true founding of America should therefore be placed in 1619 when the first slaves were imported to the colony.
Hannah-Jones’ analysis of the American founding and the Constitution that eventually arose from it should be contrasted with that offered by another famous American, the former slave and 19th century civil rights pioneer, Frederick Douglass. In a famous speech he delivered in Scotland in 1860, Douglass subjects the Constitution to a close reading and concludes not only that it is not a pro-slavery document, but that it is an anti-slavery document. Surprisingly, Hannah-Jones, who received The Pulitzer Prize in 2020 in large part for her essay, never refers to Frederick Douglass’ speech. She ignores his remarks even though one purpose of her project is to raise the profile of black Americans’ perspective regarding the founding. Douglass’ speech answers the very question she raises: whether the Constitution is pro-slavery or anti-slavery. Douglass not only differs with Hannah-Jones’ conclusion, he also anticipates the approach she takes to reading the Constitution, and in that sense she offers nothing new. More importantly, Douglass calls the sort of legal interpretive framework she adopts mischievous.
Hannah-Jones begins by arguing that the typical story told about America’s founding is wrong and needs to be corrected. In fact, it does not seem unfair to describe the 1619 Project as revolutionary in spirit: it attempts to replace America’s old foundation with a new one. The title intimates that America’s true founding occurred not in 1776 with the Declaration’s ringing affirmation that “all men are created equal” but rather when “Jamestown colonists bought 20 to 30 enslaved Africans from English pirates” in 1619. The Declaration of Independence, signed 157 years later, founded the new nation on “both an ideal and a lie” because the men who signed the Declaration and later drafted the Constitution asserted that “all men are created equal” but they did not believe that “to be true for the hundreds of thousands of black people in their midst.” Conveniently left out of the founding mythology, Hannah-Jones asserts, “is the fact that one of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery.”
Hannah-Jones notices that “There is no mention of slavery in the final Declaration of Independence,” and the same is true of the Constitution. What should one conclude about that word’s absence? “When it came time to draft the Constitution,” she informs her readers, “the framers carefully constructed a document that preserved and protected slavery without ever using the word. In the texts in which they were making the case for freedom to the world, they did not want to explicitly enshrine their hypocrisy, so they sought to hide it.” Yet a paragraph included in Jefferson’s original draft of the Declaration of Independence condemns slavery as nothing less than piratical warfare on human nature itself, yet this was expunged from the final version. Southern delegates to the Continental Congress refused to sign unless that passage was removed. Had Jefferson gotten what he wished for the document would have indeed contained the world “slave” but only to condemn it in the harshest terms. The possibility that Jefferson included that passage because he regarded the condemnation of slavery as a logical extension of the self-evident truth that “all men are created equal” is simply ignored by Hannah-Jones. It’s not even mentioned.
Also ignored is the assertion by Alexander Stephens in 1861 when he became the Vice President of the Confederate States that the consensus among the American founders was that slavery was a moral wrong. Indeed, the reason the Confederacy was formed, Stephens makes clear, was to get out from under what he regarded as the Declaration’s moral error and to assert what he believed to be the contrary truth: that all men are not created equal. “Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man;” This can mean only one thing. That the plain meaning of the Declaration of Independence’s equality clause is the opposite principle to the one upon which Stephens wishes to base the Confederate States upon—and so the Declaration positively affirms the equality of all men “yes white men as well as black men,” as Martin Luther King Jr. famously said in 1964. The pro-slavery position that Hannah-Jones attributes to the framers is what Stephens openly rejects. He opposes the framers’ sincere intentions as expressed in the Declaration:
The prevailing ideas entertained by him [Jefferson] and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. (Stephens)
As far as Stephens was concerned—and he was willing to lay his life on the line to defend his view—the founders were sincere when they said all men were created equal. This was precisely the problem as far as he was concerned; had they been insincere there would have been little reason to separate from the Union and launch a civil war. Hannah-Jones says nothing about the fact that one of the leading architects of the Confederacy justifies the rebellion based on a reading of the Declaration diametrically opposed to the one she gives it.
Hannah-Jones makes equally questionable claims about the Constitution. The framers, she assets, “carefully constructed a document that preserved and protected slavery without ever using the word.”
The Constitution contains 84 clauses. Six deal directly with the enslaved and their enslavement, … and five more hold implications for slavery. The Constitution protected the ‘‘property’’ of those who enslaved black people, prohibited the federal government from intervening to end the importation of enslaved Africans for a term of 20 years, allowed Congress to mobilize the militia to put down insurrections by the enslaved and forced states that had outlawed slavery to turn over enslaved people who had run away seeking refuge.
Douglass acknowledges that at one time he too believed the Constitution was pro-slavery. Hannah-Jones’ interpretation is essentially the same one that William Lloyd Garrison and his followers gave to the document. So thoroughly corrupt was the Constitution, Garrison reasoned, that no one could faithfully serve under it, and no one should seek office let alone vote for those who did even if they were abolitionists. Garrison’s interpretation influenced Douglass’ early views about the constitution. “When I escaped from slavery, and was introduced to the Garrisonians, I adopted very many of their opinions, and defended them just as long as I deemed them true.” But subsequent study “brought me to other conclusions.”
First, Douglass points out, if we are to dispute the Constitution’s meaning, “we better ascertain what the Constitution itself is.” The document may have been drafted by a relatively small number of Americans meeting in Philadelphia behind closed doors, but the final and official document, the law which forms the supreme law of the land, is a “great national enactment done by the people.” The negotiations leading up the final constitutional document were deliberately held in confidence so that the document would be judged on its merits, not upon the “secret motives or unexpressed intentions of any body.” The “text, and only the text” was adopted by the people. And “it would be the wildest of absurdities, and lead to endless confusion and mischiefs, if, instead of looking to the written paper itself, for its meaning, it were attempted to make us search it out, in the secret motives, and dishonest intentions, of some men who took part in writing it.” That mischievous approach is precisely the one adopted by Hannah-Jones.
Douglass argues for a different approach to the interpretation of law. He adopts a “strict construction” jurisprudence. If a law is written to oppress people, then this must be plain and clear. And if it is plain, then that meaning must be accepted. Therefore, “in all matters where laws are taught to be made the means of oppression, cruelty, and wickedness, I am for strict construction. I will concede nothing.” However, beneath this approach Douglass finds a more fundamental premise of legal construction. The nature of law is “opposed to all such wickedness, and makes it difficult to accomplish such objects under the forms of law.” Law is not an “arbitrary” enactment regarding justice, reason, or humanity. And so, if a law is written for the purpose of oppressing others, the object must be “expressed with irresistible clearness” since it would run counter to the general purpose of lawmaking itself. Quoting the Supreme Court itself, Douglass states that “Where a law is susceptible of two meanings, the one making it accomplish an innocent purpose, and the other making it accomplish a wicked purpose, we must in all cases adopt that which makes it accomplish an innocent purpose.”
Nikole Hannah-Jones reverses Douglass’ approach to studying the Constitution. Anywhere Hannah-Jones senses (or imagines) ambiguity in the legal text, she violates this principle of jurisprudence and forces the law to accomplish oppressive goals. In her view, the law must be given the worst, most oppressive possible construction unless its true purpose can be proven otherwise. But Douglass argues that to do so is fundamentally to misunderstand the nature of law and the law of nature.
Moreover, Douglass reminds his audience of another principle of legal interpretation: a specific law ought to be read in light of the general objects sought by the law. If these rules of construction are applied to the Constitution, Douglass declares, “you will see with me that no man is guaranteed a right of property in man, under the provisions of that instrument.” Here Douglass turns to the Preamble of the Constitution to ascertain the general objects of the fundamental law in accordance which its specific provisions must be interpreted. If this supreme law is to be bent to the purpose of turning men into property, the law must declare this “with irresistible clarity.” Therefore, he proposes to “look at the objects for which the Constitution was framed and adopted, and see if slavery is one of them,” and, of course, he cannot find that purpose among the six objects listed in the Preamble. But then he notes there are many slaveholders at the time who would argue that, nevertheless, “the Negroes are not included within the benefits sought under this declaration.” And Douglass’ audience could be counted on to remember the notorious Dred Scott decision of 1857 in which Justice Tawney, arguing for the court, concluded exactly that. Yet, Douglass responds, “the constitutionality of slavery can be made out only by disregarding the plain and common-sense reading of the Constitution itself; by discrediting and casting away as worthless the most beneficent rules of legal interpretation;” The preamble refers to “We, the people,” so it stands to reason that if “Negroes are people,” they are included in the benefits for which the constitution was ordained and established. Douglass is also careful to point out that the language of the preamble is general. It refers to all people, not “we the white people, not even we the citizens, not we the privileged class, not we the high, not we the low, but we the people; not we the horses, sheep, and swine, and wheel-barrows, but we the people, we the human inhabitants.” In the one reference Douglass does make to the in-camera discussion that occurred during the constitutional convention, he shows that southern delegates, Pinckney and Butler, introduced a provision with a view to the recapture of escaped slaves—what Hannah-Jones refers to as a provision that “forced states that had outlawed slavery to turn over enslaved people who had run away seeking refuge.” Yet Douglass points out the proposal in its original form was “indignantly” rejected by that convention. The word servitude in the original proposal was struck out, James Madison declared, “because the convention would not consent that the idea of property in men should be admitted into the Constitution.” The reason the world slave is missing from the constitution is not because the framers were trying to hide their hypocrisy, as Hannah-Jones would have Americans believe, but because to most of them the idea that the fundamental law would establish that men could be property was simply odious. This sentiment accords with the prevailing sense of the founders at the time. To quote Alexander Stephens again, “The prevailing ideas entertained by him [Jefferson] and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature.”
Douglass demonstrates that the clauses the Garrisonians (and Hannah-Jones) attempt to read as positively pro-slavery should in fact be read in the opposite spirit. So, for example, the 3/5th compromise by which slaves were counted as 3/5th of a person for the purpose of apportioning seats in Congress, is regarded not as favoring slavery but as penalizing the slave states. By giving them fewer seats in Congress than their population otherwise would have entitled them, it rendered their states less powerful in the legislature than if this clause did not exist. Where Douglass again refers to the intentions of the framers, he says their intentions were good not bad, and he points to the Constitution’s abolition of the international slave trade as further proof. Hannah-Jones, on the other hand, gives this a negative connotation by emphasizing the prohibition on ending the slave state did into occur any sooner than it did. But Douglass regards the issue differently, “The American statesmen, in providing for the abolition of the slave trade, thought they were providing for the abolition of the 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.” Once again, Douglass’ positive characterization of the framers’ attitude toward slavery is consistent with Alexander Stephen’s complaint that most framers regarded slavery as a violation of the laws of nature. Remarkably, although Douglass and Stephens are diametrically opposed to one another on the question of the moral rightness of slavery, they thoroughly agree with one another that the Constitution was not adopted to extend slavery.
Nikole Hannah-Jones’ article was intended to be revolutionary in the sense that it sought to undermine fundamental principles the American founding and give to them an uncharitable interpretation. Douglass would claim that her approach is more than uncharitable: it is false and therefore dangerous. James Madison, writing in the Federalist 49, argues that “even the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.” He warns that, “The danger of disturbing the public tranquility by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society.” Madison would agree with Douglass that Hannah-Jones is playing dangerous game. It would be one thing if her interpretation was based on the plain meaning of the text, as Douglass says a proper legal interpretation should be, but she attempts to disparage the founders by attributing to them secret motives that she tries to prove by reference to what is not in the text. She implies that the founding documents do not deserve the reverence they have enjoyed until now. Douglass, on the other hand, acknowledges that he moved from a revolutionary position vis a vis the Constitution to one of reform “my position is one of reform, not revolution. And after a careful study of the Constitution, he concludes that “the intentions of the framers of the Constitution were good, not bad.”
One of Nikole Hannah-Jones’ goals for The 1619 Project is to shed more light on the contributions of black Americans to the full development of the principles of the liberty in the Declaration of Independence. She would do well to heed her own advice and begin by reading Douglass’s 1860 speech on the US Constitution.
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