"A Nation Utterly Destitute of Power to Protect the Rights of its own Citizens Upon its own Soil": Fourth of July Guest Post by Frederick Douglass
[N.B. It is customary among those who regard the birth of our American republic as either a mixed blessing or an unfulfilled promise to point to the July 5, 1852 speech of Frederick Douglass, commonly known for the line "What to the Slave is the Fourth of July?". It is a great speech, to be sure, but for this year's Fourth of July, I thought instead to post a speech that Douglass delivered over three decades later, on October 22, 1883. I do so for three related reasons. First, in the 1852 speech, Douglass makes the dubious claim that he and some other abolitionists made elsewhere--that the ante-bellum Constitution, properly understood, is not pro-slavery. Second, even those who are more Garrisonian in their outlook might be tempted to think that the Civil War and Reconstruction addressed the Constitution's most glaring defects. And third, in light of last week's SCOTUS decisions using the Fourteenth Amendment to undercut equality, I thought it more fitting to hear Douglass's words denouncing another SCOTUS ruling that undercut the promise of Reconstruction.
The 1883 speech denounces The Civil Rights Cases decided earlier that year, in which the Court held that Section 5 of the Fourteenth Amendment did not authorize Congress to enact civil rights legislation reaching private action, based on the dubious assumption (skewered by Douglass in the speech below) that states are separate from the persons who comprise them. The principle remains good law in the Supreme Court, which relied on The Civil Rights Cases to invalidate the civil remedy provision of the Violence Against Women Act in 2000.
One more word of introduction before I turn the platform over to Douglass: in the speech, he invokes the "intentions" of the framers at various points. However, Douglass was not what we would now call an intentionalist, originalist, or textualist. The invocation largely serves to call out the Court for its hypocrisy, in light of the role of attributed intentions in Dred Scott. As Douglass's reference to the "spirit" of the Constitution indicates, he was more nearly a purposivist in legal interpretation. Okay, here's the great man in his own words.]
FRIENDS AND FELLOW-CITIZENS:
I have only a very few words to say to you this evening, and in order that those few words shall be well-chosen, and not liable to be misunderstood, distorted, or misrepresented, I have been at the pains of writing them out in full. It may be, after all, that the hour calls more loudly for silence than for speech. Later on in this discussion, when we shall have the full text of the recent decision of the Supreme Court before us, and the dissenting opinion of Judge Harlan, who must have weighty reasons for separating from all his associates, and incurring thereby, as he must, an amount of criticism from which even the bravest man might shrink, we may be in better frame of mind, better supplied with facts, and better prepared to speak calmly, correctly, and wisely, than now. The temptation at this time, is of course, to speak more from feeling than reason, more from impulse than reflection.
We have been, as a class, grievously wounded, wounded in the house of our friends, and this wound is too deep and too painful for ordinary and measured speech.
"When a deed is done for Freedom,
Through the broad earth’s aching breast
Runs a thrill of joy prophetic,
Trembling on from east to west."
But when a deed is done for slavery, caste and oppression, and a blow is struck at human progress, whether so intended or not, the heart of humanity sickens in sorrow and writhes in pain. It makes us feel as if some one were stamping upon the graves of our mothers, or desecrating our sacred temples of worship. Only base men and oppressors can rejoice in a triumph of injustice over the weak and defenceless, for weakness ought itself to protect from assaults of pride, prejudice and power.
The cause which has brought us here to-night is neither common nor trivial. Few events in our national history have surpassed it in magnitude, importance and significance. It has swept over the land like a moral cyclone, leaving moral desolation in its track.
We feel it, as we felt the furious attempt, years ago, to force the accursed system of slavery upon the soil of Kansas, the enactment of the Fugitive Slave Bill, the repeal of the Missouri Compromise, the Dred Scott decision. I look upon it as one more shocking development of that moral weakness in high places which has attended the conflict between the spirit of liberty and the spirit of slavery from the beginning, and I venture to predict that it will be so regarded by after-coming generations.
Far down the ages, when men shall wish to inform themselves as the real state of liberty, law, religion and civilization in the United States at this juncture of our history, they will overhaul the proceedings of the Supreme Court, and read the decision declaring the Civil Rights Bill unconstitutional and void.
From this they will learn more than from many volumes, how far we have advanced, in this year of grace, from barbarism toward civilization.
Fellow-citizens: Among the great evils which now stalk abroad in our land, the one, I think, which most threatens to undermine and destroy the foundations of our free institutions, is the great and apparently increasing want of respect entertained for those to whom are committed the responsibility and the duty of administering our government. On this point, I think all good men must agree, and against this evil I trust you feel, and we all feel, the deepest repugnance, and that we will, neither here nor elsewhere, give it the least breath of sympathy or encouragement. We should never forget, that, whatever may be the incidental mistakes or misconduct of rulers, government is better than anarchy, and patient reform is better than violent revolution.
But while I would increase this feeling, and give it the emphasis of a voice from heaven, it must not be allowed to interfere with free speech, honest expression, and fair criticism. To give up this would be to give up liberty, to give up progress, and to consign the nation to moral stagnation, putrefaction, and death.
In the matter of respect for dignitaries, it should never be forgotten, however, that duties are reciprocal, and while the people should frown down every manifestation of levity and contempt for those in power, it is the duty of the possessors of power so to use it as to deserve and to insure respect and reverence.
To come a little nearer to the case now before us. The Supreme Court of the United States, in the exercise of its high and vast constitutional power, has suddenly and unexpectedly decided that the law intended to secure to colored people the civil rights guaranteed to them by the following provision of the Constitution of the United States, is unconstitutional and void. Here it is:
"No State," says the 14th Amendment, "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."
Now, when a bill has been discussed for weeks and months, and even years, in the press and on the platform, in Congress and out of Congress; when it has been calmly debated by the clearest heads, and the most skillful and learned lawyers in the land; when every argument against it has been over and over again carefully considered and fairly answered; when its constitutionality has been especially discussed, pro and con; when it has passed the United States House of Representatives, and has been solemnly enacted by the United States Senate, perhaps the most imposing legislative body in the world; when such a bill has been submitted to the Cabinet of the Nation, composed of the ablest men in the land; when it has passed under the scrutinizing eye of the Attorney-General of the United States; when the Executive of the Nation has given to it his name and formal approval; when it has taken its place upon the statute-book, and has remained there for nearly a decade, and the country has largely assented to it, you will agree with me that the reasons for declaring such a law unconstitutional and void, should be strong, irresistible and absolutely conclusive.
Inasmuch as the law in question is a law in favor of liberty and justice, it ought to have had the benefit of any doubt which could arise as to its strict constitutionality. This, I believe, will be the view taken of it, not only by laymen like myself, but by eminent lawyers as well.
All men who have given any thought to the machinery, the structure, and practical operation of our Government, must have recognized the importance of absolute harmony between its various departments of powers and duties. They must have seen clearly the mischievous tendency and danger to the body politic of any antagonisms between its various branches. To feel the force of this thought, we have only to remember the administration of President Johnson, and the conflict which then took place between the National Executive and the National Congress, when the will of the people was again and again met by the Executive veto, and when the country seemed upon the verge of another revolution. No patriot, however bold, can wish for his country a repetition of those gloomy days.
Now let me say here, before I go on a step further in this discussion, if any man has come here to-night with his breast heaving with passion, his heart flooded with acrimony, wishing and expecting to hear violent denunciation of the Supreme Court, on account of this decision, he has mistaken the object of this meeting, and the character of the men by whom it is called.
We neither come to bury Caesar, nor to praise him. The Supreme Court is the autocratic point in our National Government. No monarch in Europe has a power more absolute over the laws, lives and liberties of his people, than that Court has over our laws, lives, and liberties. Its Judges live, and ought to live, an eagle’s flight beyond the reach of fear or favor, praise or blame, profit or loss. No vulgar prejudice should touch the members of that Court, anywhere. Their decisions should come down to us like the calm, clear light of Infinite justice. We should be able to think of them and to speak of them with profoundest respect for their wisdom, and deepest reverence for their virtue; for what His Holiness, the Pope, is to the Roman Catholic church, the Supreme Court is to the American State. Its members are men, to be sure, and may not claim infallibility, like the Pope, but they are the Supreme power of the Nation, and their decisions are law.
What will be said here to-night, will be spoken, I trust, more in sorrow than in anger, more in a tone of regret than of bitterness.
We cannot, however, overlook the fact that though not so intended, this decision has inflicted a heavy calamity upon seven millions of the people of this country, and left them naked and defenceless against the action of a malignant, vulgar, and pitiless prejudice.
It presents the United States before the world as a Nation utterly destitute of power to protect the rights of its own citizens upon its own soil.
It can claim service and allegiance, loyalty and life, of them, but it cannot protect them against the most palpable violation of the rights of human nature, rights to secure which, governments are established. It can tax their bread and tax their blood, but has no protecting power for their persons. Its National power extends only to the District of Columbia, and the Territories—where the people have no votes—and where the land has no people. All else is subject to the States. In the name of common sense, I ask, what right have we to call ourselves a Nation, in view of this decision, and this utter destitution of power?
In humiliating the colored people of this country, this decision has humbled the Nation. It gives to a South Carolina, or a Mississippi, Rail-Road Conductor, more power than it gives to the National Government. He may order the wife of the Chief Justice of the United States into a smoking-car, full of hirsute men and compel her to go and listen to the coarse jests of a vulgar crowd. It gives to a hotel-keeper who may, from a prejudice born of the rebellion, wish to turn her out at midnight into the darkness and the storm, power to compel her to go. In such a case, according to this decision of the Supreme Court, the National Government has no right to interfere. She must take her claim for protection and redress, not to the Nation, but to the State, and when the State, as I understand it, declares there is upon its Statute book, no law for her protection, the function and power of the National Government is exhausted, and she is utterly without redress.
Bad, therefore, as our case is under this decision, the evil principle affirmed by the court is not wholly confined to or spent upon persons of color. The wife of Chief Justice Waite—I speak of respectfully—is protected to-day, not by law, but solely by the accident of her color. So far as the law of the land is concerned, she is in the same condition as that of the humblest colored woman in the Republic. The difference between colored and white, here, is, that the one, by reason of color, needs legal protection, and the other, by reason of color, does not need protection. It is nevertheless true, that manhood is insulted, in both cases. No man can put a chain about the ankle of his fellow man, without at last finding the other end of it fastened about his own neck.
The lesson of all the ages on this point is, that a wrong done to one man, is a wrong done to all men. It may not be felt at the moment, and the evil day may be long delayed, but so sure as there is a moral government of the universe, so sure will the harvest of evil come.
Color prejudice is not the only prejudice against which a Republic like ours should guard. The spirit of caste is dangerous everywhere. There is the prejudice of the rich against the poor, the pride and prejudice of the idle dandy against the hard handed working man. There is, worst of all, religious prejudice; a prejudice which has stained a whole continent with blood. It is, in fact, a spirit infernal, against which every enlightened man should wage perpetual war. Perhaps no class of our fellow citizens has carried this prejudice against color to a point more extreme and dangerous than have our Catholic Irish fellow citizens, and yet no people on the fact of the earth have been more relentlessly persecuted and oppressed on account of race and religion, than the Irish people.
But in Ireland, persecution has at last reached a point where it reacts terribly upon her persecutors. England to-day is reaping the bitter consequences of her injustice and oppression. Ask any man of intelligence to-day, "What is the chief source of England’s weakness?" "What has reduced her to the rank of a second-class power?" and the answer will be "Ireland!" Poor, ragged, hungry, starving and oppressed as she is, she is strong enough to be a standing menace to the power and glory of England.
Fellow-citizens! We want no black Ireland in America. We want no aggrieved class in America. Strong as we are without the negro, we are stronger with him than without him. The power and friendship of seven millions of people scattered all over the country, however humble, are not to be despised.
To-day, our Republic sits as a Queen among the nations of the earth. Peace is within her walls and plenteousness within her palaces, but he is a bolder and a far more hopeful man than I am, who will affirm that this peace and prosperity will always last. History repeats itself. What has happened once may happen again.
The negro, in the Revolution, fought for us and with us. In the war of 1812 Gen. Jackson, at New Orleans, found it necessary to call upon the colored people to assist in its defence against England. Abraham Lincoln found it necessary to call upon the negro to defend the Union against rebellion, and the negro responded gallantly in all cases.
Our legislators, our Presidents, and our judges should have a care, lest, by forcing these people, outside of law, they destroy that love of country which is needful to the Nation’s defence in the day of trouble.
I am not here, in this presence, to discuss the constitutionality or unconstitutionality of this decision of the Supreme Court. The decision may or may not be constitutional. That is a question for lawyers, and not for laymen, and there are lawyers on this platform as learned, able, and eloquent as any who have appeared in this case before the Supreme Court, or as any in the land. To these I leave the exposition of the Constitution; but I claim the right to remark upon a strange and glaring inconsistency with former decisions, in the action of the court on this Civil Rights Bill. It is a new departure, entirely out of the line of the precedents and decisions of the Supreme Court at other times and in other directions where the rights of colored men were concerned. It has utterly ignored and rejected the force and application of object and intention as a rule of interpretation. It has construed the Constitution in defiant disregard of what was the object and intention of the adoption of the Fourteenth Amendment. It has made no account whatever of the intention and purpose of Congress and the President in putting the Civil Rights Bill upon the Statute Book of the Nation. It has seen fit in this case, affecting a weak and much-persecuted people, to be guided by the narrowest and most restricted rules of legal interpretation. It has viewed both the Constitution and the law with a strict regard to their letter, but without any generous recognition of their broad and liberal spirit. Upon those narrow principles the decision is logical and legal, of course. But what I complain of, and what every lover of liberty in the United States has a right to complain of, is this sudden and causeless reversal of all the great rules of legal interpretation by which this Court was governed in other days, in the construction of the Constitution and of laws respecting colored people.
In the dark days of slavery, this Court, on all occasions, gave the greatest importance to intention as a guide to interpretation. The object and intention of the law, it was said, must prevail. Everything in favor of slavery and against the negro was settled by this object and intention. The Constitution was construed according to its intention. We were over and over again referred to what the framers meant, and plain language was sacrificed that the so affirmed intention of these framers might be positively asserted. When we said in behalf of the negro that the Constitution of the United States was intended to establish justice and to secure the blessings of liberty to ourselves and our posterity, we were told that the words said so, but that that was obviously not its intention; that it was intended to apply only to white people, and that the intention must govern.
When we came to that clause of the Constitution which declares that the immigration or importation of such persons as any of the States may see fit to admit shall not be prohibited, and the friends of liberty declared that that provision of the Constitution did not describe the slave-trade, they were told that while its language applied not to slaves, but to persons, still the object and intention of that clause of the Constitution was plainly to protect the slave-trade, and that that intention was the law. When we came to that clause of the Constitution which declares that "No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due," we insisted that it neither described nor applied to slaves; that it applied only to persons owing service and labor; that slaves did not and could not owe service and labor; that this clause of the Constitution said nothing of slaves or the masters of slaves; that it was silent as to slave States or free States; that it was simply a provision to enforce a contract; to discharge an obligation between two persons capable of making a contract, and not to force any man into slavery, for the slave could not owe service or make a contract.
We affirmed that it gave no warrant for what was called the "Fugitive Slave Bill," and we contended that that bill was therefore unconstitutional; but our arguments were laughed to scorn by that Court. We were told that the intention of the Constitution was to enable masters to recapture their slaves, and that the law of Ninety-three and the Fugitive Slave Law of 1850 were constitutional.
Fellow-citizens! while slavery was the base line of American society, while it ruled the church and the state, while it was the interpreter of our law and the exponent of our religion, it admitted no quibbling, no narrow rules of legal or scriptural interpretations of Bible or Constitution. It sternly demanded its pound of flesh, no matter how much blood was shed in the taking of it. It was enough for it to be able to show the intention to get all it asked in the Courts or out of the Courts. But now slavery is abolished. Its reign was long, dark and bloody. Liberty now, is the base line of the Republic. Liberty has supplanted slavery, but I fear it has not supplanted the spirit or power of slavery. Where slavery was strong, liberty is now weak.
O for a Supreme Court of the United States which shall be as true to the claims of humanity, as the Supreme Court formerly was to the demands of slavery! When that day comes, as come it will, a Civil Rights Bill will not be declared unconstitutional and void, in utter and flagrant disregard of the objects and intentions of the National legislature by which it was enacted, and of the rights plainly secured by the Constitution.
This decision of the Supreme Court admits that the Fourteenth Amendment is a prohibition on the States. It admits that a State shall not abridge the privileges or immunities of citizens of the United States, but commits the seeming absurdity of allowing the people of a State to do what it prohibits the State itself from doing.
It used to be thought that the whole was more than a part; that the greater included the less, and that what was unconstitutional for a State to do was equally unconstitutional for an individual member of a State to do. What is a State, in the absence of the people who compose it? Land, air and water. That is all. As individuals, the people of the State of South Carolina may stamp out the rights of the negro wherever they please, so long as they do not do so as a State. All the parts can violate the Constitution, but the whole cannot. It is not the act itself, according to this decision, that is unconstitutional. The unconstitutionality of the case depends wholly upon the party committing the act. If the State commits it, it is wrong, if the citizen of the State commits it, it is right.
O consistency, thou art indeed a jewel! What does it matter to a colored citizen that a State may not insult and outrage him, if a citizen of a State may? The effect upon him is the same, and it was just this effect that the framers of the Fourteenth Amendment plainly intended by that article to prevent.
It was the act, not the instrument, which was prohibited. It meant to protect the newly enfranchised citizen from injustice and wrong, not merely from a State, but from the individual members of a State. It meant to give him the protection to which his citizenship, his loyalty, his allegiance, and his services entitled him; and this meaning, and this purpose, and this intention, is now declared unconstitutional and void, by the Supreme Court of the United States.
I say again, fellow-citizens, O for a Supreme Court which shall be as true, as vigilant, as active, and exacting in maintaining laws enacted for the protection of human rights, as in other days was that Court for the destruction of human rights!
It is said that this decision will make no difference in the treatment of colored people; that the Civil Rights Bill was a dead letter, and could not be enforced. There is some truth in all this, but it is not the whole truth. That bill, like all advance legislation, was a banner on the outer wall of American liberty, a noble moral standard, uplifted for the education of the American people. There are tongues in trees, books, in the running brooks,—sermons in stones. This law, though dead, did speak. It expressed the sentiment of justice and fair play, common to every honest heart. Its voice was against popular prejudice and meanness. It appealed to all the noble and patriotic instincts of the American people. It told the American people that they were all equal before the law; that they belonged to a common country and were equal citizens. The Supreme Court has hauled down this flag of liberty in open day, and before all the people, and has thereby given joy to the heart of every man in the land who wishes to deny to others what he claims for himself. It is a concession to race pride, selfishness and meanness, and will be received with joy by every upholder of caste in the land, and for this I deplore and denounce that decision.
It is a frequent and favorite device of an indefensible cause to misstate and pervert the views of those who advocate a good cause, and I have never seen this device more generally resorted to than in the case of the late decision on the Civil Rights Bill. When we dissent from the opinion of the Supreme Court, and give the reasons why we think that opinion unsound, we are straightway charged in the papers with denouncing the Court itself, and thus put in the attitude of bad citizens. Now, I utterly deny that there has ever been any denunciation of the Supreme Court on this platform, and I defy any man to point out one sentence or one syllable of any speech of mine in denunciation of that Court.
Another illustration of this tendency to put opponents in a false position, is seen in the persistent effort to stigmatize the "Civil Rights Bill" as a "Social Rights Bill." Now, nowhere under the whole heavens, outside of the United States, could any such perversion of truth have any chance of success. No man in Europe would ever dream that because he has a right to ride on a railway, or stop at a hotel, he therefore has the right to enter into social relations with anybody. No one has a right to speak to another without that other’s permission. Social equality and civil equality rest upon an entirely different basis, and well enough the American people know it; yet to inflame a popular prejudice, respectable papers like the New York Times and the Chicago Tribune, persist in describing the Civil Rights Bill as a Social Rights Bill.
When a colored man is in the same room or in the same carriage with white people, as a servant, there is no talk of social equality, but if he is there as a man and a gentleman, he is an offence. What makes the difference? It is not color, for his color is unchanged. The whole essence of the thing is a studied purpose to degrade and stamp out the liberties of a race. It is the old spirit of slavery, and nothing else. To say that because a man rides in the same car with another, he is therefore socially equal, is one of the wildest absurdities.
When I was in England, some years ago, I rode upon highways, byways, steamboats, stage coaches, omnibuses; I was in the House of Commons, in the House of Lords, in the British Museum, in the Coliseum, in the National Gallery, everywhere; sleeping sometimes in rooms where lords and dukes had slept; sitting at tables where lords and dukes were sitting; but I never thought that those circumstances made me socially the equal of lords and dukes. I hardly think that some of our Democratic friends would be regarded among those lords as their equals. If riding in the same car makes one equal, I think that the little poodle I saw sitting in the lap of a lady was made equal by riding in the same car. Equality, social equality, is a matter between individuals. It is a reciprocal understanding. I don’t think when I ride with an educated polished rascal, that he is thereby made my equal, or when I ride with a numbskull that it makes me his equal, or makes him my equal. Social equality does not necessarily follow from civil equality, and yet for the purpose of a hell black and damning prejudice, our papers still insist that the Civil Rights Bill is a Bill to establish social equality.
If it is a Bill for social equality, so is the Declaration of Independence, which declares that all men have equal rights; so is the Sermon on the Mount, so is the Golden Rule, that commands us to do to others as we would that others should do to us; so is the Apostolic teaching, that of one blood God has made all nations to dwell on all the face of the earth; so is the Constitution of the United States, and so are the laws and customs of every civilized country in the world; for no where, outside of the United States, is any man denied civil rights on account of his color.