Frederick Douglass Changed My Mind about the Constitution

S e p t e m b e r 2008

251

Frederick Douglass

Changed My Mind

about the Constitution

James Oakes

Writing a book on Abraham Lincoln

and Frederick Douglass forced me to

reconstruct carefully three very different

positions on slavery and the Constitution.

The first was the view shared by the

slaveholders and the Garrisonians, to

which Douglass initially subscribed,

that the Constitution was a proslavery

document; the second was Douglass’s

“strong” antislavery constitutionalism,

which interpreted the Constitution

as an antislavery document; and the

third was Lincoln’s “weak” antislavery

constitutionalism, which held that the

Constitution recognized slavery in a

couple of ways, but only out of neces-

sity, while allowing Congress to restrict

slavery in other ways. Having worked my

way through these three interpretations I

found myself persuaded by Lincoln, and

I’m still inclined in that direction.

But shortly after finishing the book,

I got myself wrapped up in an Internet

discussion of the three-fifths clause and

went back to a speech Frederick Douglass

gave in Scotland on the eve of the Civil

War. He argued, for example, that the

fugitive slave clause does not actually

mention slaves, and that there’s no reason

to give the slaveholders the benefit of

the doubt on the matter. Douglass was

invoking a principle of constitutional

interpretation that holds that the text

itself is all that matters, that the inten-

tions of the framers are irrelevant. This

allowed him to argue—contrary to every-

thing that most Americans at the time

believed and that most historians today

believe—that the three-fifths clause pun-

ished, rather than rewarded, the South

for slavery. Douglass’s argument was

disarmingly simple: take away the three-

fifths clause and all the slaves would have

been counted for purposes of represen-

tation, since the default position in the

Constitution was that representation

would be based on the entire population.

By this reading the Constitution reduced

the South’s representation by counting

three-fifths rather than five-fifths of the

slaves. Moreover, by inserting the three-

fifths clause, the founders had planted

in the Constitution an incentive for the

slave states to increase their representa-

tion in Congress by emancipating their

slaves. There is nothing in the actual text

of the Constitution to justify any other

reading, Douglass argued.

I had no easy answer to Douglass

other than to invoke a different strand

of constitutional interpretation, one in

which the intentions of the framers did

matter. But the more I dug into it, the

messier things looked. The debates at

the Constitutional Convention revealed

a jumble of mixed motives and compli-

cated intentions. The proposal to count

three-fifths of the slave population was

not part of either of the two main propos-

als, the Virginia plan and the New Jersey

plan. In that sense, the three-fifths clause

came out of nowhere, tossed into the dis-

cussions in Philadelphia as part of the

debate over the treatment of large versus

small states. Supporters and opponents

of the three-fifths did not break down

along pro- and anti-slavery lines, since

most of the delegates expressed antislav-

ery sentiments. Those who complained

that the clause rewarded the South were

often conservatives who resented south-

ern political power, and their position

was not that slavery should be abolished

but that slaves should count for nothing

for purposes of representation. Then, too,

there is the other three-fifths clause in the

Constitution, less well known, relating to

taxation of slaves versus other forms of

Frederick Douglass changed my mind about the Constitution—no small irony

in view of the fact that Douglass himself so dramatically and publicly changed his

own mind. Like many historians of slavery, I had long viewed the Constitution as a

problem—not necessarily the compact with Satan that William Lloyd Garrison thought

it was, but not all that far from historian Paul Finkelman, who isolated a dozen or so

passages in the Constitution that implicitly recognized slavery.

Social Education 72(5), pp 251–252

S o c i a l ed u c a t i o n

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property. This clause ultimately had no

practical consequences, but the discus-

sion of it suggests that it was inspired

by the classical economic critique of

slavery’s alleged economic inefficiency.

That is, slaves were less efficient than

free laborers and should therefore be

taxed at a lower level. Most of those

who supported both of the three-fifths

clauses were opposed to slavery, and

most believed that antislavery politics

would ultimately be strengthened by

the new Constitution.

I’m not sure I actually believe this

argument. I’m quite sure that the men

who wrote the Constitution intended

the fugitive slave clause to apply to slaves,

despite the fact that they deliberately

kept the word “slave” out of the docu-

ment itself. On the three-fifths clause,

I’m a lot less certain than I used to be.

Right from the start, critics complained

that it rewarded the South, but they did

so on the assumption that slaves were

not citizens and should not be counted

at all. So here, too, the framers’ inten-

tions don’t really clarify matters.

But I am persuaded that Lincoln’s

“weak” antislavery constitutionalism

put him closer to Douglass than to

Garrison. And in the long run it was

Lincoln’s position that prevailed. The

Constitution gave the federal govern-

ment more power than the Articles of

Confederation to interfere with slavery,

and under the right circumstances—

southern secession—it empowered the

federal government to abolish slavery

entirely. After 75 years of inflamed

debate over what the federal govern-

ment could do with slavery, the issue

was finally decided by the Civil War:

invoking the powers authorized by

the Constitution drawn up in 1787,

the federal government abolished

slavery. Realizing that he had been

wrong, that the Constitution did give

the government the power to emanci-

pate the slaves after all, William Lloyd

Garrison strongly supported Lincoln’s

re-election in 1864.

James Oakes is a professor of history and Grad-

uate School Humanities Professor at the City

University of New York. He is the author of The

Radical and the Republican: Frederick Douglass,

Abraham Lincoln and the Triumph of Antislavery

Politics (W.W. Norton, 2007).