Rebeiro on Frederick Douglass and the Original Originalists @RebeiroBradley @BYULaw

Bradley Rebeiro, Brigham Young University Law School, is publishing Frederick Douglass and the Original Originalists in volume 48 of the Brigham Young University Law Review. Here is the abstract.

Constitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into a defender of the Constitution with a robust theory of constitutional interpretation that addressed the constitutional evil of slavery. For example, in 1847, Douglass stated: “The Constitution I hold to be radically and essentially slave-holding . . . [t]he language of the Constitution is you shall be a slave or die.” Yet, five years later in his famous speech, “What to the Slave is the Fourth of July?”, Douglass declared: “interpreted as it ought to be interpreted, the Constitution is a glorious liberty document.” Because Douglass was primarily a political and constitutional actor that never wrote a treatise of jurisprudence, his understanding of constitutionalism must be gleaned from his many speeches and other writings. I therefore take on the task of welding together these speeches and writings to demonstrate how Douglass’s theory fuses historical meaning, established legal rules of interpretation, natural rights principles, and a conception of justice into a cohesive approach that addresses the problem of constitutional interpretation and construction. Though Douglass was one of the most prominent political thinkers and constitutional actors of the 19th century, his constitutional thought has been overlooked by most legal scholars and mostly mischaracterized by political scientists. Due to the aforementioned lack of a singular treatise on the subject, as well as Douglass’s constitutional transformation over the course of his life, this comes as no surprise. Legal scholars tend either to dismiss his constitutional theory as incoherent or to assume that Douglass’s reformed theory was not sincere, but merely a smokescreen for political purposes. Others have referred to Douglass as a living constitutionalist or offered wholly new categories to explain Douglass’s position, such as “reform textualism.” However, Douglass’s theory, similar to his contemporaries, may be seen as anticipating the modern shift to originalism. But this claim challenges the conventional scholarly wisdom in two ways. First, the current literature mostly characterizes Douglass as, at the very least, anti-originalist. Second, though Douglass’s theory shares many elements with originalism, originalism’s current formulations leave little room for philosophical inquiry, which Douglass’s theory admittedly does. His theory does not fit perfectly into any of the many variations of originalism today, thereby offering present-day originalists new possibilities. I will thus refer to Douglass’s theory as “natural rights originalism.” Natural rights originalism deviates most importantly in not abandoning the original philosophical principles that animated the Constitution’s framing. This theory, the product of an insatiably inquisitive mind, transformed Douglass’s constitutional thinking—no longer was the Constitution an instrument of oppression, but one of freedom.

Download the article from SSRN at the link.