Frederick Douglass was a monumental presence in the antebellum era, a leader in the antislavery movement, and an essential figure in the Reconstruction Era. Until now, however, legal scholars have largely neglected to plumb the depth and breadth of his philosophical works. In Douglass’s Constitutional Citizenship, Bradley Rebeiro presents Douglass as not only a skilled political strategist, but also a sophisticated philosopher who articulated a detailed theory about the link between citizenship and fundamental rights.
According to Rebeiro, Douglass adopted a broad vision of citizenship rights to support his argument that Black people were part of “the People” protected by the United States Constitution. Rebeiro explains, “The Constitution’s Preamble set out a citizenship worthy of one’s allegiance and devotion, if only the Union were to embrace fully the promise of its own aspirations as articulated in the Declaration of Independence and reimagined in the Gettysburg address.” In Dred Scott v. Sandford, the United States Supreme Court reached the opposite conclusion. By contrast, Douglass’ writings provided a blueprint for the full emancipation of enslaved people. It was this emancipatory project—one that entailed not only the end of enslavement, but inclusion as equal citizens in the national polity—that eventually animated the Reconstruction Congress.
Although historians refer to the Reconstruction Era as the Second Founding, constitutional scholars know far too little about the second founders. In recent years, constitutional scholars have turned their attention to the leaders of the antislavery movement who developed constitutional arguments that influenced the Reconstruction Era. Frederick Douglass stands out among those antislavery constitutionalists because of his personal experience, his effective advocacy skills, and his sophisticated analysis of the legal and philosophical issues raised by the fight against slavery and for human rights.
Douglass spoke from a lived experience of enslavement and effectively drew on that experience as an advocate. During the antebellum era, Douglass travelled throughout the United States and abroad to garner support and raise funds for the antislavery effort. During the Civil War, Douglass was one of the few Black leaders to meet personally with President Abraham Lincoln. Douglas helped persuade Lincoln to allow people who had been freed from slavery to serve in the Union army, a key to the success of the Union effort and to the fight for measures granting rights to newly freed slaves. After the war, Douglass continued to advocate for the rights of free Black people, including those freed from slavery. He maintained a high-profile political role for the next thirty years, fighting for voting rights and women’s rights and resisting the era of retrenchment after the demise of Reconstruction.
Rebeiro’s article is part of a group of papers presented at the Salmon P. Chase Symposium, this year, organized by Randy Barnett, who himself has highlighted Douglass in his writings on antislavery constitutionalism. Douglass has also received attention from other libertarian scholars, and Justice Clarence Thomas quoted Douglass in his dissent to the Court’s decision in Grutter upholding race-based affirmative action. Douglass was a controversial figure in his own time. He began as a protégé of William Lloyd Garrison, who condemned the U.S. Constitution as a “covenant with death and an agreement in hell.” Douglass created a major rift in the abolitionist movement when he announced that he had changed his mind and had come to believe that the Constitution condemned slavery. Regardless of the reason for his change of heart, it is clear that Douglass understood the power that claiming the Constitution as his own would have for his antislavery agenda. Rebeiro’s article helps us to understand why.
In this article, Rebeiro details Douglass’ vision of belonging, community, and allegiance in his writing on the rights of citizenship. Douglass describes an inclusive national community built by its own members, including newly freed slaves. In this inclusive community, government would protect the natural rights of its members in return for their allegiance to the community. As Rebeiro explains, Douglass based his views on the social contractarian ideology of Locke and Hobbs. But by contrast to libertarians like Barnett, Rebeiro argues that community membership, not individual rights, were central to Douglass’ vision of citizenship.
According to Douglass, the central goal of the community is to “maximize the health and well-being of its members” and protect the common good. Among the most important rights in a healthy community is the self-ownership of its members. This right, previously denied to enslaved persons, lays the foundation for self-governance and the primacy of natural rights for all. Other leaders of what historian Kate Mazur has called the first civil rights movement, the movement for equal rights for free Black people, also employed the language of citizenship. Antislavery activists such as John Bingham also seized on citizenship as a source of fundamental rights.
Who would belong to Douglass’s envisioned American political community? Douglass advocated birthright citizenship—that every person born in this country automatically became a citizen. Birthright citizenship was a radical idea in Douglass’s time, although it was shared by some other antislavery constitutionalists, such as Lysander Spooner and Joel Tiffany. Douglass understood that in order to fully belong, free Black people needed to demonstrate their allegiance to the national community. It was especially important to show that free Black people belonged in the country to combat the antebellum colonization movement, leaders of whom argued that free Black people should be sent “back” to Africa. Thus, he encouraged Black men (including those who had just been freed from slavery) to show their allegiance to the national community by volunteering to fight for the Union Army. At the same time, Douglass pushed President Abraham Lincoln to allow Black people to serve in the army. Lincoln eventually agreed, and issued the Emancipation Proclamation as a war measure, justified by the need of the Union army for reinforcement by newly freed slaves. Douglass’s strategy proved successful. During Reconstruction-era debates, members of the Reconstruction Congress cited the sacrifices of Black Union soldiers as they spoke in favor of granting them birthright citizenship and fundamental rights.
Throughout his life of political advocacy, Douglass wrote volumes of political and philosophical works, full of insight that can help scholars to understand the constitutional changes wrought—and promises soon betrayed—by the Reconstruction Era. Readers of Rebeiro’s article will begin to appreciate the depth of Douglass’ insights and yearn to learn more about this fascinating figure. Douglass’ Constitutional Citizenship is an important contribution, not only to the field of legal history but also to the emerging field of scholarship about the constitutionalism of social and political movements. Douglass is finally getting the attention that he deserves from legal scholars, and Rebeiro is poised to be a leader in the field of Douglass studies.
