Legal History’s Debt to Frederick Douglass

Marking his 200th birthday this week, I want to acknowledge the debt legal historians owe to Frederick Douglass. When Chief Justice Roger Taney denied that free black Americans were citizens of the United States in the 1857 Dred Scott decision, Douglass immediately opposed him. Then, across his lifetime, Douglass never forget how Taney had used the high court to demean African Americans. From the podium and the pen, Douglass made a record that has endured and thus ensured Dred Scott will be long remembered as the lowest point in the history of race and law.[1]

We’ve no reason to think they ever met, these two nineteenth century figures with roots in Baltimore. Both Frederick Douglass and Roger Brooke Taney called that city home in 1837 and 1838. The former was an enslaved laborer on the eve of stealing his liberty, while the latter had just recently been appointed Chief Justice of the U.S. Supreme Court. While both inhabited the nation’s third largest city, Douglass and Taney walked very different streets.

Still, Taney and Douglass knew one another, though not in the “they were acquainted” sense. They knew one another as archetypes that took part in on-going struggles over the future of those who managed to throw off slavery’s shackles, free people of color. Taney understood the lengths to which enslaved people would go to free themselves. He was, for example, party to a transaction in which an enslaved man, Cornelius Thompson, purchased his own liberty in 1832. And of course, Douglass knew how law shaped the circumstances of the enslaved. In his 1845 fugitive memoir, Narrative of the Life of Frederick Douglass, he recalled encounters with law, from detention in an Eastern Shore jail to exclusion from courtrooms that disallowed black testimony against white wrong doers.[2]

Their confrontation came in 1857, in a battle waged with pen and ink. By that year, neither called Baltimore home any longer. Taney wrote from Washington, D.C., where he had settled after the death of his wife, his ideas expressed through U.S. Supreme Court opinions. Douglass called western New York’s Rochester home, living in the heart of a radical reform culture that had also given birth to the first women’s rights conventions. There he published news and commentary in the pages of the weekly Frederick Douglass’ Paper.

The two faced off over the case of Scott v. Sandford and a disagreement about the standing of black Americans before the Constitution. It was an old debate, one that had its origins in the 1820s: were black Americans citizens of the United States, or were they mere denizens without any claim to protection under the law?

Taney denied black citizenship. His March 1857 opinion concluded that at the time of nation’s founding black Americans had held no rights that white men were “bound to respect.” Taney reasoned that because they had been excluded from the Constitution’s vision of the body politic, black people, whether enslaved or free, were not citizens of the United States in 1857.[3]

Douglass took the opposite view, asserting that blackness was no bar to belonging. And in a sense, his reasoning was as stark as that of Taney. Douglass viewed his citizenship as self-evident, and he spoke out “as a man, an American, a citizen, a colored man of both Anglo-Saxon and African descent.” Taney’s ideas were, Douglass pronounced, a “perversion of the Constitution, and a brazen misstatement of the facts of history.” He relied upon the Constitution’s plain language, which made no “reference to color, or the physical peculiarities of any part of the people of the United States.” Douglass continued, asserting that no “SECRET and UNWRITTEN understanding” could be imputed to the founders because such men were not of one mind about the status of “the enslaved African race” or its future in the United States.[4]

The debate turned somewhat personal. Douglass mocked Taney as overreaching: “Judge Taney can do many things, but he cannot perform impossibilities. He cannot bail out the ocean, annihilate its firm old earth, or pluck the silvery star of liberty from our Northern sky. He may decide, and decide again…. He cannot change the essential nature of things—making evil good, and good, evil. Happily for the whole human family, their rights have been declared and decided in a court higher than the Supreme Court.”[5] Taney felt the sting as he came to understand how his decision was being discredited. He went so far as to privately pen a “supplemental” Dred Scott opinion and hoped for a chance to reargue his position.[6] It never came.

This clash of views persisted into the Civil War era. One position took black exclusion to be the historic if not the natural order of law and politics. The other perspective understood black citizenship to be self-evident, a natural right derived from birthright and serving as the gateway to political and civil rights. Taney would die in 1864, still on the Supreme Court, and thus he did not live to see the debate settled. For Douglass, the 1868 ratification of the Fourteenth Amendment constitutionalized his view. He, and all black Americans, became birthright citizens.

Despite this, Taney’s reasoning in Dred Scott enjoyed a long life. And it was Douglass who helped ensure that the case was not forgotten. Taney’s views might have been relegated to history’s dustbin, once the Fourteenth Amendment was adopted. But Douglass, in his years of post Civil War activism, frequently referred to the Chief Justice’s view of black Americans as those without rights. He insisted that the case be remembered–variously as a low bar, a touchstone, and a cautionary tale. Dred Scott was then, and remains today, an essential lesson our history of race and rights, and how courts can work against reason, history, and justice.[7] We have Frederick Douglass to thank for that.

 

[1] Thanks to the Frederick Douglass Papers Project and their digital edition for making a broad range of Douglass’s thought on Dred Scott available at http://frederickdouglass.infoset.io/.

[2] Narrative of the Life of Frederick Douglass, an American Slave. Written by Himself (Boston: Published at the Anti-Slavery Office, 1845).

[3] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

[4] Frederick Douglass, “Colored Men’s Rights in this Republic” (May 14, 1857,) and “The Dred Scott Decision” (May 1857,) in The Frederick Douglass Papers, eds., John Blassingame, et al., vol. 3, 143-150; 163-183.

[5] Douglass, “Colored Men’s Rights,” and “The Dred Scott Decision.”

[6] Roger Brooke Taney, “Supplement to the Dred Scott Opinion” (1858), in Samuel Tyler, Memoir of Roger Brooke Taney, LL.D., Chief Justice of the Supreme Court of the United States (Baltimore: J. Murphy, 1876).

[7] “Citizenship in the Spirit of Caste” (May 21, 1858,) vol. 3, 208-212: 210; “Eulogy of William Jay” (May 12, 1859,) vol. 3, 249-276: 275; “Slavery and the limits of Nonintervention” (December 7, 1859,) 276-288: 279; “Progress and Divisions of Anti-Slavery (February 14, 1860,) vol. 3, 323-333: 329; “Slavery and the Irrepressible Conflict” (August 1, 1860,) vol. 3, 366-387; “The Day of Jubilee Comes” (December 28, 1862,) vol. 3, 543-546, 544; “We are Not Yet Quite Free” (August 3, 1869,) vol. 4, 220-240: 229; “Our Destiny is Largely in Our Own Hands” (April 16, 1863,) vol. 5, 59-80; “Great Britain’s Example) (August 6, 1885,) vol. 5, 192-212: 203; “Lessons of the Hour” (January 9, 1894,) vol. 5, 575-607: 591, 607. All from The Frederick Douglass Papers.