Saturday, June 19, 2021

Not Too Much, Not Too Little: Frederick Douglass in Kurt Lash’s Reconstruction Volumes

Guest Blogger

For the Symposium on Kurt Lash, The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021)(2 vols.).

Bradley Rebeiro 

In his introduction to his two volumes of essential Reconstruction documents, Kurt Lash explains that he sought to produce a collection that would be neither excessively long nor unhelpfully narrow. Lash has hit the Aristotelian mean, providing just the right amount of primary material to facilitate insight into the political and constitutional complexities leading up to and engulfing the Reconstruction period. Scholars, judges, and citizens who seek to investigate the intricacies of Reconstruction will find Lash’s The Reconstruction Amendments: The Essential Documents invaluable. 

Lash manages to do for the Reconstruction Amendments what Ralph Lerner and Philip Kurland did for the Founding era: assemble the most important primary documents in one collection. From the relevant Federalist Papers to Dred Scott to debates in the Thirty-Ninth Congress, Lash includes the central works that informed the antebellum Constitution, as well as the major debates in Congress concerning the Reconstruction Amendments. He also highlights public debates, including the voices of many insufficiently-known participants that the conventional narrative too often forgets. Here especially, Lash’s work will assist in both broadening and deepening future Reconstruction scholarship. 

There are many public figures and several facets of Reconstruction that can one could highlight in Lash’s volumes, but I will focus here on Frederick Douglass and the Fifteenth Amendment. Douglass is one of the underappreciated voices that Lash brings back into the spotlight. To be sure, most look to Douglass for an interesting, if not inspiring example of how to cope with the constitutional evil of slavery during the antebellum period. But few seem to find a use for Douglass in the context of Reconstruction. Interestingly, however, Douglass is one of only a few political actors that Lash mentions in his introduction to the whole collection (Vol. 1, X). But this was no accident. Studying Douglass in Lash’s work can teach us two things. First, it gives us a glimpse into the complexities of the time period. Douglass provides an example of how a political actor with a theory of justice is, at times, forced to act contrary to that theory in practice. An adamant advocate for equal natural, civil, and political rights for all people during the antebellum period, Douglass curiously minimized claims of justice during Reconstruction. This is seen most prominently in Douglass’s approach to the suffrage question for blacks and women. Second, studying Douglass provides an example of how Lash artfully straddles the line between information overload and information deficiency. Without wading through all of the minutiae, the researcher can consult Lash’s two-volume set to get a sense for the intricacies of Reconstruction and understand the circumstances that caused Douglass to pursue his chosen course.


Frederick Douglass’s Antebellum Constitutionalism 

Douglass desperately held to natural rights principles in the antebellum period. His speech on the anti-slavery dimensions of the Constitution illustrated how Douglass understood the nation’s foundational principles and the demand those principles had on constitutional development and reform (Vol. 1, 303–07). Douglass, along with other constitutional abolitionists (Lysander Spooner (Vol. 1, 230), Joel Tiffany (Vol. 1, 237), etc.), argued that the Constitution was properly understood as an anti-slavery document that, executed properly, could eradicate slavery everywhere in the Union (Vol. 1, 303). Achieving justice for the slave was only a matter of interpreting the Constitution properly—in light of its undergirding natural rights principles. 

Aside from constitutional abolitionists, Douglass also found allies in women leaders. Susan B. Anthony, for example, urged women to “make the slave’s case our own . . . let us feel that it is ourselves . . . who are despoiled of our inalienable rights to life, liberty and the pursuit of happiness” (284). Both the abolition movement and the antebellum women’s rights movement shared a similar cause. Both wanted to witness the day where the principles of the Declaration of Independence were realized in the American republic. Both movements believed that this could be achieved by taking seriously the statement that “all men are created equal” and endowed with certain rights, including “Life, Liberty, and the pursuit of Happiness”—this was the proper means for achieving freedom, liberty, and equality for all (Vol. 1, 5). 


Well before the surrender at Appomattox, the Reconstruction Amendments were already underway. Congress started with securing the physical freedom of enslaved persons everywhere in the Union. Soon thereafter Congress turned to securing natural and civil rights, and for good reason. Despite the federal government abolishing nominal slavery, the rebel states instituted Black Codes to ensure the de facto continuance of their peculiar institution (see Vol. 2, 26). 

Douglass, meanwhile, was already advancing the cause for equal suffrage. Douglass believed that, even if ratified, the Thirteenth Amendment was unequal to the task of liberating blacks: “I am for the ‘immediate, unconditional and universal’ enfranchisement of the black man in every State in the Union . . . if he is not the slave of the individual master, he is the slave of society, and holds his liberty as a privilege, not as a right” (Vol. 1, 522). The only real safeguard for blacks was political rights, and it was imperative that Congress secure them immediately. Douglass understood that Reconstruction represented a moment of opportunity, and whatever was not achieved in that moment would be even more difficult to accomplish in the future (Id.). 

Douglass’s perspicacity on this matter was validated as the Thirty-Ninth Congress met and deliberated over the Civil Rights Bill and what would later become the Fourteenth Amendment. As Congress struggled over the meaning of natural and civil rights and on what terms the federal government ought to protect them, perhaps no subject was met with more resistance than the prospect of granting political rights to freedmen. Douglass, feeling the moment slipping away, implored his fellow citizens to settle for nothing less than equal rights and exact justice. He advised southern loyalists, for example, to remember the assistance blacks provided in crushing the rebellion and to honor their sacrifice by joining the black suffrage movement. Douglass feared that, like the fox who received aid from the goat to get out of the well on the unfulfilled promise that the fox would return the favor, white citizens would forget the sacrifices blacks made and fail to give them the justice they deserved (Vol. 2, 270). The prospect of black suffrage looked bleak indeed—the best Congress could do in 1866 was create a disability for states that denied political rights in the form of section two of the Fourteenth Amendment.

Douglass and the Fifteenth Amendment 

As the question of black suffrage became more central, Douglass went from relying on true principles of equality and justice to focusing on political expediency. Two political developments in Reconstruction precipitated Douglass’s shift. First, the course of Reconstruction taught Douglass that calls for equal rights and justice were simply not enough. He needed to appeal to the public’s self-interest: “For in respect to this grand measure [black suffrage] it is the good fortune of the negro that enlightened selfishness not less than justice, fights on his side. National interest and national duty, if elsewhere separated, are firmly united here” (Vol. 2, 325) (emphasis added). Douglass reminded his northern audience that it was in their interest to give blacks the vote because they presented an additional voting bloc that would support northern Republican interests in the South. It would be foolish for the Republican-led Congress to not take advantage of such a valuable resource. 

Second, and more troubling, Douglass found the women’s suffrage movement to be a hindrance to the black suffrage movement. Once friends in the antebellum period, Douglass and women leaders Elizabeth Cady Stanton and Susan B. Anthony fell out of favor with one another in Reconstruction. Early on in Reconstruction there were hints from both sides that a clash between the two might be inevitable (see Vol. 2, 30; 304). In the past Douglass advocated for the equal rights of all citizens, including women. But as Reconstruction wore on, Douglass’s rhetoric noticeably changed from matters of right to matters of prudence—while women’s suffrage was a question of right, black suffrage had an added dimension of expediency, and thus was more important. Developments in Congress did not help, as Democrats occasionally brought up the question of women’s suffrage in an effort to derail efforts to secure rights for blacks. Representative James Brooks, for example, brought before Congress a petition for women’s suffrage, noting, “. . . I prefer the white women of my country to the negro” (Vol. 2, 50). 

Conflicts between the two movements finally erupted during the Fifteenth Amendment’s ratification process. The American Equal Rights Association convened in May of 1869 with many in attendance, including Douglass, Anthony, and, acting as chair, Stanton. Stanton began the meeting amicably enough, excoriating the nation for never having truly tried republic principles on account of its denying equal rights to blacks and women. But discourse soured quickly when it was pointed out that Stanton and others had supported the Revolution, a feminist newspaper which championed the motto “Educated Suffrage”—a motto particularly harmful to black suffrage given that one of the main arguments against it was that blacks were presumed too ignorant to vote. Douglass took the stage, denounced the Revolution, and clarified that blacks had a more pressing claim than women. Black suffrage was “a question of life and death” (Vol. 2, 571). When questioned whether black women also experienced this existential crisis, Douglass curtly responded: “Yes, yes, yes, it is true of the black woman, but not because she is a woman but because she is black” (Vol. 2, 572). Anthony did not take kindly to Douglass’s statements, declaring that if the country was going to give the vote to anyone, it ought to “give it to the most intelligent first” (Id.). Douglass tried to respond, but Anthony quickly cut him off, stating: “. . . we are in for a fight today” (Id.). 

Lessons Learned from Reconstruction 

            Just as it is fitting that Lash gives the last word concerning the Fourteenth Amendment’s ratification to John Bingham (Vol. 2, 428), it is perhaps apropos that Douglass receives the last word after the ratification of the Fifteenth. Douglass reflected: “Henceforth we live in a new world, breathe a new atmosphere, have a new earth beneath and a new sky above us . . . We were always men – now we are citizens and men among men” (Vol. 2, 597) (emphasis original). Such words may seem glib coming from the man who vociferously and strikingly advocated for the equal rights of all persons in the antebellum period, only to exchange claims of justice and equality for claims of expediency in Reconstruction. True, Douglass acted contrary to his principles in the heat of Reconstruction. Compounding the conundrum, Douglass likely recognized the gravity of tabling the woman question, since he acknowledged in 1865 that moments like Reconstruction needed to be seized upon to their fullest, lest justice be made to wait some indefinite period of time for another opportunity. (In this case, it would take nearly half a century until the adoption of the Nineteenth Amendment, which guaranteed women the right to vote). But, unlike the fox, Douglass did not forget women. Later in the same year of the Fifteenth Amendment’s ratification, Douglass picked up his pen and raised his voice again, this time in favor of women’s suffrage. In fact, Douglass’s very last public act was attending a meeting of the National Council of Women (see The Life and Writings of Frederick Douglass, ed. Philip S. Foner, vol. 4, at 143). Political exigencies forced Douglass to make prudent decisions during Reconstruction to help the nation at least bend towards justice, even if justice could not be fully achieved. 

Frederick Douglass is a fine example of how Lash adroitly captures Reconstruction’s many complexities through the careful selection and arrangement of primary materials. Though Douglass is a voice too often missed in Reconstruction scholarship, Lash demonstrates why Douglass is key to understanding some of the difficulties surrounding Reconstruction and its many actors. Douglass, like many others, went into Reconstruction with a clear vision of how to reorient the nation towards its nascent principles declared in the Declaration of Independence. But political realities forced even Douglass, a man with strong egalitarian principles, to shift his approach. Indeed, Douglass’s example may encourage us to reconsider other important moments in our constitutional history, the constitutional and political actors involved, and how theory and practice clashed in unexpected ways. This is just one of many insights that Lash’s important contribution provides our shared constitutional memory. 

Bradley Rebeiro is an Associate Professor of Law at BYU Law School. You can reach him by e-mail at

Older Posts
Newer Posts