Excerpted From: John M. Kang, The Political Urgency of Black Manhood: Frederick Douglass on Constitutional Theory, 52 New Mexico Law Review 41 (Summer, 2022) (292 Footnotes) (Full Document)


JohnMKangIn 1818, he was born into slavery. He endured it for twenty years. As a young child, he was sundered from his mother and separated from his siblings. He was bought and sold. He was psychologically tortured and physically assaulted by his ostensive owners and their subordinates.

Notwithstanding these ordeals, Frederick Douglass would become perhaps the most important black leader in the history of the United States. Blessed with a formidable talent for words, Douglass tirelessly published antislavery articles in his own newspaper. Douglass's campaign against slavery was also articulated through his best-selling autobiography where he recounted the personal horrors endured under slavery. No less important, Douglass was an electrifying speaker and he barnstormed cities, both in the United States and Europe, where he urged audiences to abolish slavery. Indeed, according to his definitive biographer, Douglass was at once the most important abolitionist in American history and the most sought-after speaker of his time. Government officials took stock of Douglass's power; they had no choice. Eventually, President Abraham Lincoln met directly with Douglass in the White House--the first time that a black person had been so invited. For Lincoln recognized how deeply he depended on Douglass, the one leader who could persuade blacks to support the President's initiatives. Douglass, however, was not an unconditional collaborator. He pressed Lincoln to do more to abolish slavery, and, over time, the ex-slave would become a vocal critic of, but also adviser to, Lincoln. A testament to his stature and influence, Douglass has been lauded by diverse audiences. It is telling that, on the one hand, the conservative Justice Clarence Thomas evoked Douglass to reject race-based affirmative action as unconstitutional, while the liberal President Barack Obama plans--as of the writing of this Article--to produce a film to celebrate Douglass's life as a monumental black leader.

There is much in Douglass's life that invites the public's interest, but within the legal academy, scholars have been drawn to his creative interpretation of the U.S. Constitution. More than an exercise in the craft of exegesis, Douglass's interpretation was an acutely personal affair. For Douglass argued that the Constitution, if read correctly, was antithetical to the practice of slavery. Specifically, Douglass insisted that the Constitution, notwithstanding wording to the contrary in some of its sections, treated blacks as entitled to the equal citizenship enjoyed by their white counterparts. What made Douglass's position particularly noteworthy was that he, a slave who had been brutally oppressed, refused to honor the lofty authority of the United States Supreme Court. In the now infamous case of Dred Scott v. Sanford, the Court had held that blacks, whether slaves or born free, were never intended by the Constitution's Framers to be recognized as citizens. Writing the Court's judicial opinion, Chief Justice Roger B. Taney declared that blacks, simply by virtue of their race, could be enslaved. Douglass rejected the authority of the Court, and he thereby forwarded the proposition that the Constitution may, and should, be interpreted by the citizens themselves. Douglass therefore called into doubt the authority of America's highest Court. He did it, moreover, with unusual skill and panache. His published arguments were sophisticated and brimmed with a vivacious sarcasm that refused to submit to the claims of white supremacy. That Douglass's arguments were the products of a former slave who had been denied formal education made them the subject of curiosity for legal scholars. Understandably, then, legal scholars have focused on the conceptual coherence of Douglass's statements along with their evidential merits and their rhetorical persuasiveness, things that would be of interest to those trained in the law.

What tends to receive much less attention from legal scholars is the psychological aspects of Douglass's interpretation of the Constitution. Namely, few, if any, legal scholars have examined how Douglass's interpretation was motivated and governed by the logic of manhood. The omission is unfortunate. For in his speeches, editorials, and autobiography, Douglass was clearly obsessed with manhood and its associated tropes of patriarchy, emasculation, and violence. It was in part through the conceptual prism of manhood that Douglass made sense of why Taney's interpretation of the Constitution was flawed and why an alternative was in order, or so this Article will argue. By choosing to dwell on the theme of manhood, this Article does not foreclose the possibility that Douglass drew from other sources such as natural rights philosophy, Christianity, and Enlightenment principles of equality; for he did, and copiously so. However, this Article will endeavor to supplement the literature relating to Douglass by suggesting that manhood was a salient paradigm by which he came to comprehend the Constitution's meaning.

While the Article is a work of historical retrieval, it is also meant to serve more contemporary interests. For Douglass provides a potentially attractive paradigm of manhood in our present-day culture where too many men have indulged an ethos of what today goes by the name of “toxic masculinity.” According to the logic of toxic masculinity, to become a sufficiently masculine man in today's culture entails the fulfillment of a lust for domination and violence as its own end. Born in 1818, Douglass would not have heard the exotic neologism of toxic masculinity, but as a slave who had been brutalized by those who were consumed by toxic masculinity, he had known too well what it meant as a matter of practice. In response, Douglass, over time, developed an alternative account of what it meant to be a proper man, and this account was understood by Douglass as consonant with being a proper citizen of the Constitution.

Douglass's conception of manhood was animated in large part by two moral tenets. The first tenet entailed that he should abjure the domination of others, but that he should also refuse to accept being dominated. The second tenet required him to shun opportunities to inflict violence on others, but required too that he should courageously enlist violence to deflect the violence that was inflicted upon him. Douglass thus embodied the virtues of a gentleman in their compound parts: he was gentle in adhering to the norms of civility, but he was also manly in summoning his physical courage. Present-day readers may bristle at such seeming celebrations of male identity, but the need to restore one's self-esteem was a desperate priority for a young Frederick Douglass in the mid-nineteenth century. His manhood, one must remember, had been nearly pummeled out of existence by the emasculating forces of slavery. In the eyes of white supremacists, a male slave who nurtured a sense of manliness was a slave who would insist on his freedom, and hence a dangerous being who could not be tolerated.

This Article is dedicated to examining the origins of Douglass's manliness and how it relates to his thoughts about citizenship, political rights, and constitutional interpretation. Although the subject of the Article is Frederick Douglass, the Article does not discuss him in earnest until the second half. The reason for this seemingly belated introduction is owing to the Article's desire to furnish for the reader the historical context of slavery. For slavery figures profoundly in Douglass's understanding of manliness and its relationship to the Constitution. Absent such background information, the reader will be left with a woefully incomplete record of what Douglass meant as a theorist of manliness and the Constitution.

Accordingly, Part I sets the historical backdrop by discussing the significance of the aforementioned Dred Scott v. Sandford. Dred Scott is one of the most famous Supreme Court cases in the history of the United States and almost certainly its most infamous. What the Court decided in Dred Scott in effect reinforced Douglass's identity as a slave, and Douglass dedicated much of his adult life to challenging the legitimacy of the Court's holding in Dred Scott. After all, Dred Scott was no ordinary case. It was the case where the Supreme Court held in 1857 that the Founding Fathers never intended for the U.S. Constitution to include blacks as American citizens. The Dred Scott Court thus also decided that the Constitution never intended for blacks to be afforded those rights and privileges that the Constitution had afforded white citizens. Dred Scott thus rendered futile the attempt by blacks to assert standing as American citizens. The result was that blacks who were enslaved could not sue in a federal court based on the claim that their rights as citizens had been denied.

Given that Dred Scott turned on issues of standing in the federal courts, it is logical why legal scholars tend to home in on such issues. Part I will address a different aspect of the case, however, one that is more pertinent for the Article's chosen subject of manhood and its relationship to race. As Part I will discuss, it was not only Douglass who was fixated on manhood. Chief Justice Roger B. Taney, writing for the Court in Dred Scott, justified his decision to deny blacks citizenship by turning to the tropes of masculinity. Taney argued that the Founding Fathers could never have intended to include blacks as citizens because blacks were utterly emasculated victims of the former's masculine imposition of white supremacy. In Taney's narrative, whites were entitled to citizenship because they could trace their racial heritage to Anglo-Saxon Founders who had distinguished themselves as heroes by venturing the harrowing journey across the Atlantic to establish a self-governing republic. As Part I will recount, Taney took pains to underscore that blacks had first set foot on America's shores in an entirely different manner, not as heroes, but as a vanquished, and hence degraded, race of slaves. For Taney, the difference was critical, as Part I will explain. According to Taney's judicial opinion in Dred Scott, whites, through their exertion of masculine will, had both founded a republic and enslaved a race of blacks to support it. However, for Taney, blacks had shown themselves as a feeble race that had been enslaved by a stronger one. Described in gendered terms, whites for Taney had proven themselves as extraordinarily manly while blacks had shown themselves as emasculated victims, as Part I will suggest. Taney conscripted this ethos of Might Makes Right as the normative platform for his judicial decision in Dred Scott, as Part I will show.

In mid-nineteenth century America, Taney and his fellow justices were not alone. Part II summarizes how there was conspicuous support in the civil society of the South for the racist worldview represented by Taney in Dred Scott. What made the support particularly noteworthy, Part II will explain, was that it came from leading white intellectuals in the South: sociologists, legal scholars, political figures, and scientists. These experts enlisted the power of their authority to advocate for slavery. Specifically, they insisted that there was ample empirical evidence to establish that blacks were every bit as unmanly as Taney had described. But it was more than unmanliness that was the subject of the pro-slavery advocates. As will be discussed in Part II, a thesis shared among these white supremacists was that the depth of the black's unmanliness was evinced in his yearning for--not his resistance to--slavery, and, in particular, his yearning to be under the authority and protection of a white patriarchal master. In the unvarnished propaganda of pro-slavery advocates, slavery was thus reconfigured as a moral remedy, not an immoral vice.

What Frederick Douglass encountered, then, was not only a racist Supreme Court headed by Chief Justice Taney but a coterie of racist authorities in Southern society. Part III will introduce a thesis for how Douglass mustered the psychological resources to challenge the racist assertions of Chief Justice Taney and his ilk. Part III will delve into Douglass's autobiography for answers. There, one finds a compelling narrative of an adolescent boy who had been born into slavery. In his autobiography, Douglass describes how white supremacy, as enacted through the practice of slavery, was designed to prevent a black male child from developing anything resembling a sense of his manhood. Part III will recount the appalling episodes in which Douglass, as a boy, was whipped, pummeled, and threatened for displaying even a hint of autonomy and confidence--traits that white boys his age were encouraged by white society to embrace as manly virtues.

But there was a turning point in Douglass's life, as Part III will summarize. Never quite succumbing to the emasculating forces of slavery, an adolescent Douglass was seen by his master as requiring intensive reform. The master therefore sent the sixteen-year-old to a “slavebreaker” whose job was to destroy whatever vestige of masculine self-assertiveness remained in Douglass. However, as will be recounted in Part III, the slavebreaker's violent methods backfired. Instead of succumbing to the slavebreaker, the young Douglass fought with unforgettable resolve for two hours against both the slavebreaker and his adult male cousin. The resistance instilled in Douglass an incredible and everlasting sense of his manhood, a gendered awareness that he was deserving the respect of others and that he possessed the power to insist on such respect. It was this moment that, according to the mature Douglass who had accomplished so much, imbued him profoundly with the belief that he could battle racism.

An important means by which Douglass battled racism was by publishing arguments that challenged Chief Justice Taney's decision in Dred Scott. Part IV will examine the substance of these arguments. Part IV will first review Douglass's tenet that the Constitution is an antislavery document. Douglass's position was especially striking because he justified it by reading the Constitution's text alone, without recourse to the methods of what scholars now call originalism. Douglass's interpretation of the Constitution therefore rejected the approach favored by Taney. Taney had appealed to the authority of the Founding Fathers whom he characterized as proud white supremacists who would never have entertained the possibility that a defeated race of blacks should be admitted into the class of American citizens. In lieu of the idiom of hypermasculinity that had been enlisted by Taney, Douglass opted for textualism.

As Part IV will discuss, however, Douglass did not completely renounce the idiom of manliness. Part IV will parse the famous speech by Douglass, “The Meaning of July Fourth for the Negro,” delivered in 1852. The speech made copious use of the symbolism of fathers and sons. Douglass reclaimed the image of the Founding Fathers as Taney sketched them in Dred Scott. What made the Founding Fathers great, Douglass argued, was not their fealty to the hypermasculine anthems of white supremacy. What made them great, he explained, was that they aspired to be morally upright gentlemen who embraced the virtues of equal respect and civility toward all, regardless of race. As Part IV will elaborate, Douglass stressed that the Founding Fathers had failed to fulfill their own ethical aspirations, but the white sons who were listening to him in 1852, could do so by working bravely to end slavery and racism. Douglass thereby propounded a conception of manhood that was compatible with an egalitarian interpretation of the Constitution.

[. . .]

The year was 1968. It was the year that the Supreme Court handed down its decision in Jones v. Alfred H. Mayer Co. In that case, the Court upheld the constitutionality of a federal law that forbade racial discrimination in real estate transactions. The Court's decision was handed down about 150 years after Frederick Douglass's birth. Yet the power of the great man's words endured. For he was invoked as a moral authority by one of the Court's justices, William O. Douglas, whose surname was, in a stroke of serendipity, nearly identical to Frederick Douglass's, missing only the additional s in the latter's name. In his concurrence, Justice Douglas recited Douglass's words from “The Color Line,” a speech from 1881. These words from “The Color Line” were included in Justice Douglas's concurrence:

Of all the races and varieties of men which have suffered from this feeling, the colored people of this country have endured most. They can resort to no disguises which will enable them to escape its deadly aim.

Justice Douglas also excerpted from “The Color Line” Douglass's mention of manhood as a political trope.

[The black man] may not now be bought and sold like a beast in the market, but he is the trammeled victim of a prejudice, well calculated to repress his manly ambition, paralyze his energies, and make him a dejected and spiritless man ....

Justice Douglas did not call attention to Douglass's reference to “manly ambition.” For the case before him did not require Justice Douglas to reflect formally on the meaning of manliness.

Nevertheless, as this Article has suggested, manliness formed an integral part of Douglass's understanding of racial justice and the Constitution. An invigorated sense of his manhood was what had helped Douglass to challenge the brutality of the slavebreaker Covey, and, later, to challenge the Supreme Court itself. When Justice Douglas quoted Douglass's reference to manhood, the former was in effect invoking something more powerful and salient to constitutional interpretation and ideas of justice than may have been apparent to the Court.

Professor of Law, University of New Mexico. B.A., U.C., Berkeley, J.D., U.C.L.A., Ph.D., University of Michigan.