Bonds of Citizenship: Law and the Labors of Emancipation

3 Fugitive Bonds: Contract and the Culture of Constitutionalism

107 3 Fugitive Bonds Contract and the Culture of Constitutionalism Dead letters! does it not sound like dead men? —Herman Melville, Bartleby, the Scrivener The dominant critical account of Frederick Douglass interprets his writings as framed by his attempts to persuade Americans to adhere to the original founding principles, and to live up to the egalitarian promise of the American Revolution.1 Similarly, accounts of Douglass’s split with the Garrisonians, and their interpretation of the Constitution as a “proslavery compact,” insert Douglass into a historical narrative of natural law interpretations of the Constitution, arguing that Douglass’s embrace of political abolitionism was based on his belief in the universalist ideals of the founders. While this chapter does not discount the possibility that Douglass may have been motivated by the ideals of the Revolutionary founding, the focus of its analysis—Douglass’s reading of the Constitution , and the history and context of his new interpretive strategy—highlights some of the limitations of such critical commonplaces, recovering both a more complex Douglass and his engagements with the antebellum labor history ignored in these accounts. Through reading Douglass’s own reading practices, we can reinterpret the very historical narratives into which he has been inserted. This reading practice likewise provides new insight into the broader transformations in the “culture of constitutionalism ” caused by the social struggle and political economic debates over slavery.2 Attention to Douglass’s reading practice will also supplement another historical narrative, of the development of free labor ideology and its antislavery interpretation of the Constitution. In Eric Foner’s account of free labor ideology and the rise of the Republican Party, it was the antislavery 108 Fugitive Bonds lawyer Salmon Chase who developed the interpretation of the Constitution that would provide the legal philosophy and unifying strategy for the development of political antislavery (a political abolitionism opposed to the moral abolitionism of the Garrisonians). According to Foner, “at the core of Chase’s interpretation of the Constitution was his description of the founding fathers’ intentions regarding slavery. Publicly and privately, [Chase] insisted, the founders deplored the institution and hoped for its early abolition.”3 Based on his argument that the “original intent” of the framers was in fact to limit slavery as a local institution of the then- existing slave states, Chase argued further that the 1793 Fugitive Slave Act, and later the Fugitive Slave Act passed with the 1850 Compromise, were both unconstitutional because the Constitution had not delegated to Congress such legislative authority. While Chase argued, against both the Garrisonians and slavery’s defenders, for an opposite “original intent,” he and the antislavery politics he helped shape retained the same category of “original intent” invoked regularly by slavery’s defenders: in Chase’s view, the Constitution’s antislavery “original intent” could be ascertained by way of close study of the historical record of the framers’ views on slavery. Chase catalogued the various statements of the founders to support this point. (He focused mainly on the writings of the slaveholding founder Thomas Jefferson: the natural law principles of the Declaration of Independence, and of the Northwest Ordinance, which barred slavery from the original territories of the United States.) According to Chase (and later, Abraham Lincoln), framers such as Jefferson intended to prevent the extension of slavery, and to finally secure abolition by the individual actions of the states.4 The story of the development of Douglass’s political abolitionism is usually folded into this broader one. Yet if we look at Douglass’s speeches and writings from this period, we discover a different and much more radical hermeneutic. Throughout his writings on the Constitution, Douglass does not merely argue, along with Chase, for an antislavery “original intent.” As we have seen, Douglass began to complicate the very concept of “original intent” even before he announced his “Change of Opinion” in 1851. Douglass’s 1849 editorial on Calhoun’s “Southern Address” conceded the proslavery “intentions” of the Constitution’s “slavery provisions” while arguing as well that the ambiguous language of those provisions left their meaning open to a radically different interpretation: “The language in each of the provisions to which the address refers, though doubtless intended to bolster up slavery and to respect slave property, has been so ambiguously Fugitive Bonds 109 worded as to bear a very different construction; and taken in connection with the preamble of that instrument, the very opposite of the construction...