Finkelman on Frederick Douglass's Constitution

Paul Finkelman, University of Pittsburgh, School of Law, Albany Law School, Government Law Center, has published Frederick Douglas's [sic] Constitution: From Garrisonian Abolitionist to Lincoln Republican at 81 Missouri Law Review 1 (2016). Here is the abstract.

This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave – and thus an “object” of the Constitution – to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, as an antislavery activist, and then as a spokesman for African Americans during the Civil War. This Article provides insights into antebellum constitutional thought and the background to the Fourteenth Amendment. This Article also explores our understanding of the Constitution and its relationship to slavery through the lens of Frederick Douglass. First, the Article looks at how the Constitution impacted Douglass and how Douglass was himself a “constitutional actor,” even though he held no public office and was not even considered a U.S. citizen under the holding in Dred Scott v. Sandford. For example, Douglass was a constitutional actor when he escaped from slavery – and thus came under the Fugitive Slave Act of 1793 and Article IV, Section 2, Clause 3 of the Constitution; when he married in New York but was still a fugitive from Maryland; when he applied for, and received, a copyright for his first autobiography, even though he was a fugitive slave at the time; and when he left the United States for Great Britain without a passport. This Article also explores Douglass’s constitutional theories and understandings and how he used the Constitution to oppose slavery. I argue, in part, that his understanding of the Constitution and his approach to constitutional interpretation changed as his life circumstances changed. Thus, when he returned from England, he was a free man because British friends had purchased his liberty. This led him to a new understanding of how to approach the Constitution and how to fight slavery under the Constitution. While essentially a work of legal history, this Article also offers ways of understanding constitutional theory and the elements of being a constitutional actor. The Article also raises issues of interstate comity and the recognition in one state of a status created in another. While not explicitly stated – because this is a work of legal history – this Article obviously has implications for modern issues surrounding marriage equality, child-custody based on interstate recognitions of status changes, the interstate recognition of gender transitions, and the legal rights of non-citizens within the United States.

Download the article from SSRN at the link.