Douglass and the US Constitution: The Dred Scott Decision | by Randall Kennedy

Frederick Douglass’s restless efforts on behalf of social justice prompted him to embrace  at different stages of his life both of the major camps that have dominated commentary  about the prospects for racial decency in America: the pessimists and the optimists.  The pessimists contend that racial equality in the United States is an impossibility.  Alexis de Tocqueville was in that camp. “I do not believe,” he wrote in Democracy in  America, “that the white and black races will ever live in any country upon an equal footing.  But I believe the difficulty to be greater still in the United States.” Abraham Lincoln  resided predominantly in that camp as well. A fierce critic of slavery, Lincoln repeatedly  investigated the feasibility of repatriating the black population because of his sense that  racism rendered virtually impossible the creation of an egalitarian, multi-racial republic.  Invidious perceptions of racial difference, he declared, “will probably forever forbid  [whites and blacks] living together upon the footing of perfect equality.” 1  By contrast, optimists contend that racial equality in the United States is possible.  In the twentieth century, the outstanding racial optimist was Martin Luther King, Jr. In  August 1963, in his landmark “I Have a Dream” oration, King upbraided America for its  default on its promises of liberty and justice for all. But he insistently refused to believe  that its “bank of justice” is bankrupt. Five years later, in his final speech, King assured his  followers that he had reached the mountaintop and glimpsed the racial Promised Land  and that they would, in time, reach it.

In his early years as a vocal abolitionist, Frederick Douglass was pessimistic, in  line with the views of his mentor, William Lloyd Garrison. He believed that absent a  revolutionary reconfiguration—the amputation of the slaveholding states—“No union  with slaveholders!”—the United States was irredeemable. Addressing a meeting of the  American Anti-Slavery Society in 1847, nine years after his own daring escape from bondage,  Douglass averred:  

Eventually, however, Douglass transformed himself into the outstanding racial optimist  of the nineteenth century. Abjuring certain tenets of Garrisonianism, Douglass  became a committed Unionist, urged abolitionists to engage in pragmatic conventional  political action (e.g., supporting the Republican Party even though it was not an abolitionist  party), and switched his view of the federal constitution. Repudiating the position  that the Constitution was an utterly disgraceful pro-slavery compact warranting total  condemnation, he later contended that the Constitution as written was actually antislavery  in tendency.  An example of Douglass’s newfound optimism and revised constitutional interpretation  is contained in his May 1857 response to the Dred Scott decision. He acknowledged  the challenge posed by this dreadful ruling, the acme of Supreme Court pro-slavery constitutionalism:  

Douglass’s reply, however, was undaunted. “[Henry] Clay, [John C.] Calhoun, and  [Daniel] Webster each tried his hand at suppressing [emancipationist] agitation,” Douglass  remarked, and they all “went to their graves disappointed and defeated.” The same would  be true, he predicted, of Chief Justice Roger Taney’s effort. Despite this “devilish decision,”  Douglass asserted, “my hopes were never brighter than now. I have no fear that the  National Conscience will be put to sleep by such an open, glaring, and scandalous tissue  of lies.”

Douglass put his faith in God. “You may close your Supreme Court against the black  man’s cry for justice,” he declared, “but you cannot . . . shut up the Court of Heaven.” He  put his faith in the text of the Constitution. Ignore Taney’s invocation of original intent,  Douglass argued, and instead focus on the Constitution’s language. “Neither in the preamble  nor in the body of the Constitution,” Douglass noted, “is there a single mention of  the term slave or slave holder, slave master or slave state, neither is there any reference to  the color . . . of the people of the United States.” He put his faith in the American people.  “If it were at all likely that the people of these free states would tamely submit to this demoniacal  judgement,” Douglass confessed, “I might feel gloomy” and think that “it might  be necessary for my people to look for a home in some other country.” But “we, the abolitionists  and colored people, should meet this decision, unlooked for and monstrous as it  appears, in a cheerful spirit. This very attempt to blot out forever the hopes of an enslaved  people may be one necessary link in the chain of events preparatory to the downfall and  complete overthrow of the whole slave system.”

At a nadir in African American history, Douglass voiced an inspirational message  that turned out to be thoroughly realistic. “Oppression” he observed, “will appear invincible  up to the very hour of its fall.” On December 6, 1865—eight years and nine  months after the Supreme Court announced the Dred Scott decision—the Thirteenth  Amendment, abolishing slavery, became part of the federal constitution. But as we have  seen, even before the ratification of the Thirteenth Amendment, Douglass had articulated  an extraordinary statement of faith in the American democratic project. Speaking  in May 1863, Douglass asked whether “the white and colored people of this country can  be blended into a common nationality, and enjoy together . . . under the same flag, the  inestimable blessings of life, liberty, and the pursuit of happiness, as neighborly citizens.”  He answered boldly: “I believe they can.” 4  

1. Abraham Lincoln, Speech at Columbus, Ohio, September 16, 1859 in The Collected Works of Abraham Lincoln, ed. Roy Basler (New Brunswick NJ: Rutgers University Press, 1953), 3:402.
2. Frederick Douglass, Frederick Douglass Papers. Series One: Speeches, Debates and Interviews, ed. John Blassingame, vol. 2, 1847–1854 (New Haven: Yale University Press, 1982), 60.
3. Frederick Douglass, “The Dred Scott Decision . . . May 14th, 1857” in Two Speeches by Frederick Douglass; One on West India Emancipation, Delivered at Canandaigua, August 4th and the Other on the Dred Scott Decision, Delivered in New York . . . May 1857 (Rochester NY, 1857), 31.
4. Frederick Douglass, “The Present and Future of the Colored Race in America” in The Life and Writings of Frederick Douglass, ed. Philip Foner (New York: International Publishers, 1952), 347 and 352.