an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
"No man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own neck."
- Frederick Douglass, Speech given on Oct. 22, 1883, in Washington, D.C.
American literature of the nineteenth century evolved some distinct genres, and among them was the rags-to-riches tale which seems somehow a hallmark for the American character of this period. In these stories, an individual born to modest means and humble social status achieves wealth and fame through perseverance and strength of character. Apart from this genre, we also have autobiographies which seem to chart a parallel trajectory. In the period of the early republic, one series of autobiographical writings seems to tower above all the others: the life story of Frederick Douglass. It is not a rags-to-riches story in a material sense. It is an account of emancipation – Douglass' flight to freedom in the north, but more importantly, his exorcism of the spirit of slavery and entry into a world of great thoughts and causes. It is the story of a great soul. The period produced very few writings of equal power.
Among the most poignant passages of Douglass' narrative is his account of brutal mistreatment at the hands of Edward Covey. Douglass was owned by a wealthy Maryland family, and he spent his childhood between their town residence in Baltimore and a farm on the Eastern Shore in St Michael's. Early in 1834, Douglass writes that he was sent to Edward Covey, the owner of a near-by property known as Mount Misery. Covey was known in the community as a "slave breaker," a trainer for high-spirited and uncooperative slaves. While on the Covey farm, Douglass performed agricultural labor from dawn to dusk. Throughout this time he and his fellow slaves were spied upon by Covey, who would leap out and begin to beat any slave who took an unpermitted rest break.
Not long after he arrived, Douglass was disciplined for not tending after a team of oxen. Thereafter, he says he was whipped continuously and the cumulative effect of captivity, strenuous labor and beatings indeed began to make him feel "broken." He described how on an intensely hot summer day, he suddenly felt overwhelmed and fell to the ground, unable to continue to work. Covey was on the scene quickly, kicking and beating him – but Douglass refused to rise and resume working. He fled back to his master's farm, seeking shelter, which was denied. He prepared for the worst, but suddenly a different spirit settled upon him. "At that moment - from whence came the spirit I don't know - I resolved to fight," Douglass writes. "I seized Covey hard by the throat, and as I did so, I rose." Covey and Douglass fought for almost two hours until Covey finally gave up, telling Douglass that his beating would have been less severe had he not resisted. "The truth was," said Douglass, "that he had not whipped me at all." In later life, Douglass recounted this incident frequently, and he derived his maxim from it: "Men are whipped oftenist who are whipped easiest."
Douglass dated his resolve to secure his own freedom by whatever course necessary from this point. And indeed, it was clear that Douglass was prepared to risk his life to secure it. Even for raising his hand against Covey, he could have been put to death under Maryland law at the time. It seems likely that he was saved by Covey's arrogance, and his refusal to admit publicly that a slave under his custody had stood up to him.
As Douglass said, Covey thought himself a man of might and importance. He believed that his brutality, his chains and his whips gave him power over his fellow humans and importance in the world. But in the end it was clear that Covey was more enchained than the black men he held captive; morally and spiritually, he was the "broken" man, not Frederick Douglass.
Two summers ago, I found myself visiting a friend on the Eastern Shore of Maryland, in St Michael's. In the course of a discussion, I learned that Mount Misery has found a new master. The successor in title to Edward Covey is named Donald Rumsfeld. The two share more in common than simply being master of Mount Misery; both forged their own chains through lives marked by inhuman treatment of those they held captive.