Can Law be an Instrument of Black Liberation?Roundup
tags: legal history, African American history, emancipation, law
Paul Gowder is Professor of Law at Northwestern University. His most recent book is The Rule of Law in the United States: An Unfinished Project of Black Liberation.
In 1860 Frederick Douglass was in exile in Glasgow to avoid arrest in connection with John Brown’s raid on Harpers Ferry. No stranger to revolutionary tactics, Douglass had long known Brown and was accused of being a coconspirator in the raid; after his return to the United States, Douglass even gave a speech in support of Brown. But during his exile, at an event before the Scottish Anti-Slavery Society, he had a different subject: a defense of the potential of the Constitution. In his address, Douglass didn’t contest how the Constitution had been crafted and interpreted to protect the institution of slavery. Nonetheless, he argued that the document had antislavery implications—and, in particular, that “the Constitution will afford slavery no protection when it shall cease to be administered by slaveholders.” Contrary to the followers of William Lloyd Garrison, who understood the Constitution as an ineluctably proslavery document and thought that the dissolution of the Union would be necessary to end slavery, the way forward, as Douglass saw it, was to “vote such men into power as will use their powers for the abolition of slavery.”
While much of Douglass’s argument hinged on specific constitutional provisions that were inconsistent with slavery and with the legal regime put in place to support it—the Fifth Amendment’s Due Process Clause being the most obvious—it also relied on a claim about the nature of law itself. “Law is not merely an arbitrary enactment with regard to justice, reason, or humanity,” Douglass said. As a matter of “legal interpretation,” he went on,
There must be something more than history—something more than tradition. . . . There is another rule of law. . . . Where a law is susceptible of two meanings, the one making it accomplish an innocent purpose, and the other making it accomplish a wicked purpose, we must in all cases adopt that which makes it accomplish an innocent purpose.
As a matter of legal methodology, Douglass was quite right. There is a long tradition in Anglo-American and Commonwealth courts of deploying aggressively narrow judicial interpretation of positive enactments of law in order to preserve an underlying conception of fundamental legality. David Dyzenhaus, for example, has documented the power of common law courts even in systems of parliamentary supremacy to narrowly interpret privative clauses—those that strip individuals of the right of access to courts—in the interests of more fundamental ideas of legal order. The Fugitive Slave Act of 1850 was itself a privative clause that stripped allegedly escaped slaves of judicial protections with which they might defend their freedom.
More broadly, Douglass recognized what we might call the entrepreneurial potential of the law. Because law tends to make its claims in universalistic terms, it provides the intellectual material to ground the demand for inclusion. In the case of the United States, which had in fact deployed the rhetoric of universal rights since its inception, Douglass’s argument amounted to saying: the Constitution does prohibit these forms of oppression—and if you took it seriously, you’d enforce those prohibitions. And in making this argument he could appeal to the universality of law itself, along with a methodological tradition that supported it.
Douglass’s view has been a perennial touchstone in debates about the Constitution, but it is worth revisiting for another reason, as well. In the political sphere, both scholars and activists involved in movements for social justice have often questioned whether a focus on law and on legal rights promotes individualistic remedies over group solidarity. On this point, Douglass’s argument—and the history of Black liberation movements more broadly—reveals how the language of the law can be a basis for collective demands. While skeptics are right to observe that legal victories alone tend to be unstable, the same can be said about other forms of social transformation—as historian David Waldstreicher recently noted in these pages, even “revolutions aren’t all they’re sometimes cracked up to be”—and there is a rich tradition showing how legal and political efforts can reinforce rather than undermine one another. At a moment in which both the rule of law and the progress toward racial and social justice of the last half-century in the United States appear to be under severe threat, this history shows how the law can remain an essential resource in building a more just world.
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