Frederick Douglass as Constitutionalist

Jack M. Balkin & Sanford Levinson

Frederick Douglass has become a powerful symbol in American constitutional memory; Justice Clarence Thomas has regularly invoked Douglass in his opinions. The casebook that we co-edit reprints Douglass’s 1860 speech given in Glasgow, Scotland on constitutional interpretation. Yet Douglass’s views about the American Constitution changed over the course of his career, and were largely ambivalent, sometimes even contradictory.

In this Essay, we explore Frederick Douglass’s constitutional philosophy by contrasting his views about the U.S. Constitution with those of Abraham Lincoln, who was so committed to the Constitution that he accepted slavery where it already existed as the price of constitutional government, and those of John Brown, who led the 1859 raid on Harper’s Ferry Virginia to incite an armed revolt against slavery. As we will discover, in many ways Douglass’s views about recourse to violence were closer to Brown’s than to Lincoln’s, and should discomfit those who use him to legitimate and buttress the constitutional order. Indeed, as we point out in the final pages of this Essay, in a famous case the Supreme Court held that people with Douglass’s views about violence and the rule of law could be denied admission to the bar.