Frederick Douglass as Constitutionalist

21 Pages Posted: 9 Aug 2023 Last revised: 3 Jan 2024

See all articles by Jack M. Balkin

Jack M. Balkin

Yale University - Law School

Sanford Levinson

University of Texas Law School

Date Written: August 7, 2023

Abstract

Frederick Douglass is an important symbol in American constitutional memory, cited in U.S. Supreme Court opinions and invoked by people with very different political ideologies. In this essay, we explore Douglass's constitutional philosophy by contrasting his views about fidelity to the U.S. Constitution and the rule of law with those of Abraham Lincoln and those of John Brown, who led the 1859 raid on Harper's Ferry, Virginia to incite an armed revolt against slavery. Douglass's views about the U.S. Constitution changed over the years, and were often in tension with each other, but he was at best an ambivalent constitutionalist. In many respects his views about the Constitution were closer to those of John Brown, who believed that violence was necessary to redeem constitutional government, than those of Abraham Lincoln, who advocated obedience to law in his Springfield Lyceum speech and who accepted slavery as the price of constitutional government in his First Inaugural address. Although politicians and judges today may prefer a sanitized version of Frederick Douglass, his actual views about how faithful one should be to an unjust constitution raise important questions for us today.

Keywords: Frederick Douglass, John Brown, Abraham Lincoln, Slavery, Constitutions, Constitutionalism, Constitutional Fidelity, Compromise, Rotten Compromises

JEL Classification: K10

Suggested Citation

Balkin, Jack M. and Levinson, Sanford V., Frederick Douglass as Constitutionalist (August 7, 2023). Maryland Law Review, Forthcoming, Yale Law School, Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=4413720

Jack M. Balkin (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

Sanford V. Levinson

University of Texas Law School ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-471-3273 (Phone)

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