This is the second piece in a month-long blog series that celebrates Black History Month by highlighting the contributions of Black thinkers and leaders to the development of American constitutional thought.

Only two national holidays celebrate individual Americans. Presidents Day honors George Washington (born February 22^nd) and Abraham Lincoln (born February 12^th) and Martin Luther King Jr. Day honors Dr. King (born January 16^th) and his contributions to civil rights. There is no corresponding holiday honoring Frederick Douglass, a towering figure in U.S. history, who celebrated his birthday on February 14^th.[i]

Washington is lauded as the “father of the nation,” Lincoln is credited with preserving it, and King is praised for holding it to its constitutional ideals. And yet, we would do well to pay equal or arguably greater attention to Douglass, the figure, perhaps more than any other, who laid the intellectual and political foundation that put America on course to become a multiracial democracy.

Consider some counterfactuals. What if we’d had Lincoln without Douglass? Although Lincoln personally opposed slavery, he was far from an abolitionist. For most of his career, Lincoln recoiled at the idea of free Blacks living alongside whites (“What next? Free them, and make them politically and socially, our equals?”) and declared his opposition to Black people having the right to vote, to serve on juries, and to hold office.

Until the eve of the Civil War, Lincoln did not imagine that slavery would end in the United States within his lifetime. It’s not hard to imagine that, without Douglass (and other abolitionists) pushing him and pushing the slavery debate to its boiling point, Lincoln would likely have steered the nation towards another 50 years of Southern appeasement.

Without Douglass, even Dr. King’s legacy would be in doubt. There could be no March on Washington without the Emancipation Proclamation, which preceded it 100 years prior. There could be no Civil Rights Act or Voting Rights Acts without the Fourteenth and Fifteenth Amendments, which forever transformed American conceptions of citizenship, equal protection, and suffrage.

Of course, these counterfactuals share a fatal flaw. They rely too heavily on the Great Man theory of history, which tends to overemphasize the contributions of individuals—usually white, male ones—in shaping the course of human events, underestimating the way events shape us.

We can’t know for sure whether, in the absence of Douglass, abolition and equality for Black Americans would have progressed more or less quickly. We can only point to the indelible fingerprints that Douglass did leave on the nation’s psyche—and the tools and methods he left for future generations of freedom seekers.

Progressives are generally familiar with Douglass’ history as a fierce critic of injustice, underlining the flagrant inconsistencies between America’s founding myths and its practices. It’s become something of a ritual in social justice circles. Every Independence Day, someone will resurface Frederick Douglass’s iconic question: “What to the Slave is the 4^th of July?” and its equally iconic answer—"a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim.”

Fewer are familiar with Douglass’ full-throated defense of the Constitution as a “glorious liberty document,” within the same speech and the positive vision of what America could be that he strived to promote throughout his life.

Douglass described the Constitution as a document with “principles and purposes entirely hostile to the existence of slavery,” a constitutional vision set him apart within contemporary discourse. Meanwhile, Lincoln held the more widely shared viewpoint that the Constitution restrained the federal government from abolishing slavery. On the eve of the Civil War, as a last-ditch effort to compromise with the South, Lincoln supported a constitutional amendment that would have made this interpretation explicit, permanently enshrining slavery in the Constitution.

Douglass’s approach was also distinct from that of white abolitionist radicals, led by William Garrison who denigrated the Constitution a “pact with hell” because it contained provisions protecting the power of slaveowners. Because he considered the republic irreparably tainted, Garrison refused to engage in electoral politics and called for dissolution of the Union. While this stance was in theory more radical than Douglass’ (and perhaps more accurately reflected the founders’ intentions), in practice, both Lincoln’s and Garrison’s interpretations conceded that there would be no abolition of Southern slavery in the foreseeable future.

It was certainly not lost on Douglass that many of the so-called founding fathers had owned slaves or that oblique references to slavery were peppered through the document.[ii] He simply refused to let these inconveniences stand in the way of using the Constitution as an instrument to push for justice and equality—especially when more favorable readings were available. As Douglass put it, “nothing but absolute necessity, shall, or ought to drive me to such a concession to slavery.”

Rather than focusing on the founder’s intentions, Douglass centered the polity and purposes set forth in the Constitution’s preamble. Douglass noted that, by its own terms, the Constitution’s protections transcended lines of race, gender, or even citizenship.

"We, the people"—not we, the white people—not we, the citizens, or the legal voters—not we, the privileged class, and excluding all other classes but we, the people; not we, the horses and cattle, but we the people—the men and women, the human inhabitants of the United States, do ordain and establish this Constitution.”

Douglass found similar support for abolition in the terms of the Fourth, Fifth and Eighth Amendments, which refer to persons without reference to color or other status.

Centering his own common sense and lived experience, Douglass declined to give anyone else, even the Supreme Court, the last word on interpreting the Constitution. In the aftermath of the Supreme Court’s 1857 Dred Scott decision, in which the Court declared that Black Americans were not citizens and were therefore ineligible for the Constitution’s protections, Douglass’ reminded his listeners, “the Supreme Court of the United States is not the only power in this world.”

Incredibly, despite the devastating ruling, Douglass declared that his hopes for abolition were “never brighter” and predicted that “this very attempt to blot out forever the hopes of an enslaved people may be one necessary link in the chain of events preparatory to the downfall and complete overthrow of the whole slave system.” Even more incredibly, he was right.

Although Douglass’ interpretation of the Constitution was not widely shared before the war, it gained support over the course of the Civil War and in its aftermath. Under heavy pressure from Douglass and the abolitionists, Lincoln issued the Emancipation Proclamation on January 1, 1863, even though in the leadup and aftermath of the proclamation, many in the legal community expressed serious doubts of his constitutional authority to do so.

By 1865, Douglass’ expansive view of the anti-slavery constitution had found considerable support in Congress. Both houses passed a bill that would require Southern states to abolish slavery in order to be readmitted to the Union, claiming the requirement was within the United States’ constitutional authority “to guarantee a republican form of government to every state.” While Lincoln would veto the bill as unconstitutional, it set the tone for Radical Reconstruction, an unprecedented federal effort to secure the rights of Black Americans through a mix of legislation and constitutional amendments.

Douglass’ theory of the Constitution was most readily reflected in the language and text of the Fourteenth Amendment, which famously extended the equal protection of the law to “all persons” and enshrined the principle of birthright citizenship in the Constitution, overturning once and for all the shadow of Dred Scott and planting the seeds for a truly multiracial democracy.

One can find echoes of the eighteenth century’s battle over the potential and limitations of the Constitution in current debates. Analysts report that the United States is at its most divided since the Civil War. The nation reels in the wake of Dobbs v. Jackson Women’s Health, a deeply polarizing decision which, like Dred Scott, relied upon the purported intentions of the founders to limit constitutional rights.

A considerable segment of progressives and radicals believe that our country’s institutions are irreparably tainted and should be cast off entirely. Meanwhile, progressives in positions of power frequently bemoan the injustices that they would like to see eliminated, but point to constitutional or institutional limits that prevent them from taking action.

In this moment of national crisis and opportunity, President Biden speaks often about “restoring the soul of the nation” and has made a point of referring back to Lincoln, including in his State of the Union address.  If we are to repair the nation’s divides and restore its soul, however, it’s not Lincoln whom we should look to, but to Douglass.

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[i] Like many people born into slavery, Douglass never knew the exact day of his birth. He chose to celebrate his birthday on Valentine’s Day based on one of his few clear memories of spending time with his mother—her presenting him with a heart shaped piece of cake. In his life as in his politics, he chose to place love at the center of everything.

[ii] Some examples include clauses that prohibited Congress from ending the African slave trade before 1808 but did not require that it ever be ended, counted slaves for the election of the president through the electoral college and the three-fifths clause, and, guaranteed that fugitive slaves would be returned to their owners.

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Taonga Leslie is ACS' Director of Policy and Program for Racial Justice.

This is the first piece in a month-long blog series that celebrates Black History Month by highlighting the contributions of Black thinkers and leaders to the development of American constitutional thought.

Black people have been excluded from the decision-making process at nearly every significant moment in constitutional law. We were not present for the drafting of the Constitution itself, or for the Thirteenth and Fourteenth Amendments. We did not gain a voice on the Supreme Court until 1967—and by that point, our interests were about to be pushed to the margins by an increasingly right-wing judiciary. Only eleven senators have ever been Black. Our role in constitutional law tends not to be that of the decision maker, but of litigants against the government, employers, or landlords. Very often, we are the ordinary people seeking to vindicate our rights—yet the standards set to adjudicate those rights (including the so-called “originalism” currently dominant on the Supreme Court) frequently center the perspective of an “ordinary person” who looks nothing like us. Centering our understandings of the Constitution—and particularly the Reconstruction amendments, in what they meant to newly enfranchised Black citizens (and their abolitionist white allies in Congress)—would dramatically expand our view of what the Constitution makes possible, and provide powerful tools to support modern movements for liberation.

Even prior to the Civil War, Black thinkers like Frederick Douglass departed from mainstream interpretations to highlight the potential of the Constitution as an abolitionist document, by underlining the fundamental tension between slavery and democracy. During the Civil War, Black Americans played a key role in ensuring the Union’s victory by defying slavery and abandoning plantations to work in service of the Union Army. After the war, Black Americans moved swiftly to make their freedom tangible. As Dorothy Roberts describes it:

"four million formerly enslaved people grabbed the opportunity Emancipation afforded them to create their own economic, social, and political lives independent of white domination. They gathered their family members, established farms and businesses, and ran for public office. Black Americans elected to southern legislatures helped to install egalitarian state constitutions, enact civil rights legislation, and establish public education. . . . Thus, by resisting white domination and acting like citizens, [B]lack people have secured greater freedom apart from official recognition of their rights, thereby changing the Constitution’s meaning to encompass their freedom."

To Black Americans, the Reconstruction Amendments guaranteed their right to establish and protect this new society. A proper understanding of the Reconstruction Amendments’ original public meaning must be consistent with that project.

The Meaning of the Abolition Amendments

For the freedmen and their abolitionist allies, the Thirteenth Amendment’s prohibition of slavery meant not merely to eradicate the prior institution of chattel slavery, but to prevent its return or replacement in all but name. In arguing for the Amendment’s passage, Sen. Henry Wilson—a lifelong abolitionist who had himself spent 10 years in indentured servitude—declared that it would “obliterate the last lingering vestiges of the slave system; its chattelizing, degrading, and bloody codes; its dark, malignant, barbarizing spirit; all it was and is, everything connected with it or pertaining to it.” To this end, the Amendment was designed to encompass not only the conditions of subjugation but also the badges and incidents of slavery. Congress made some of those badges and incidents—including restraints on marriage, family relations, speech, property, education, and status within the legal system clear in their debate, but reserved the power to legislate against additional ones.

The Fourteenth Amendment went farther, clarifying that abolition was to mean equality before the law. The Citizenship Clause embedded the abolitionist concept of birthright citizenship in the Constitution, pushing back against Southern state efforts to restrict Black liberties after slavery’s abolition. The Privileges or Immunities Clause was meant to be the heavy lifter of the Fourteenth Amendment, extending the Bill of Rights (and unenumerated rights) to apply against the states. The Due Process Clause meant to extend the mid-19th Century concept of due process, including substantive due process, to all those within the United States. The Equal Protection Clause was meant to have its emphasis primarily on protection— in addition to guaranteeing that whatever protection state and federal governments offered be applied equally, it also imposed a positive duty on them to protect all people within their borders from private violence and exploitation.

The Fifteenth Amendment did not deal in abolitionist terms of art, and it’s fairly straight-forward. It was meant to clarify that the protections the Constitution guaranteed to all citizens included the franchise. Congress recognized that Black people’s interests could only be meaningfully advanced if they were able to advocate for themselves, and the franchise is a critical component of that.

Finally, it’s worth noting that all of these amendments included powerful enforcement clauses.  Congress gave itself the power to legislatively enforce all three, setting a high floor for enforcement of constitutional rights.

The Power of the Abolition Amendments

I’ve said in prior writings that the Abolition Amendments have the power to uphold the entire canon of progressive constitutional decisions, and that’s important. But I want to make it clear just how much more powerful they are than that. The Thirteenth Amendment’s power to redress badges and incidents of slavery could provide the basis for police and prison abolition, and for ending felon disenfranchisement. It supports the strong protection of reproductive rights on a much stronger basis than Roe ever did. It would also provide a basis for the enactment of property reparations, both for slavery and subsequent systems of subjugation.

A full reading of the Fourteenth Amendment could produce similarly powerful results. Rather than the current patchwork of legislative enactments, the Citizenship Clause should be read to extend birthright citizenship to the territories. The Privileges or Immunities Clause would extend broad protection against state interference with any general rights of citizenship—whether or not they were clearly established as such in 1868. The Due Process Clause, given its abolitionist reading, would extend significantly more substantive procedural rights than it does now. For instance, the good faith exception to the Fourth Amendment’s exclusionary rule would be untenable under an abolitionist reading. The Equal Protection Clause would see perhaps the largest change, as it would come to support race-conscious remedies so long as Black people remain disadvantaged in American society. Furthermore, it would establish the government’s duty to protect people, whether against domestic violence, rising sea levels, polluted drinking water, or a pandemic.

The Fifteenth Amendment, while less radical than its cousins, would still be substantially more powerful under an abolitionist reading. Critically, it would shape the analysis of any voting legislation to evaluate whether the policy materially disadvantages communities of color, and provide a basis for striking down those that do. Gerrymandering, polling place closures, voter ID requirements, and other restrictions on the right to vote would be subject to considerably greater scrutiny than they currently receive.

Congress gave itself broad powers under the Reconstruction Amendments; broad enough to support the creation of abolition democracy.

What Abolition Constitutionalism Can Accomplish

Simply stating a theory of abolition constitutionalism won’t be enough to achieve the transformations described above. We have to start by believing it. We’re currently in a position where constitutional law—as it is—represents a deeply harmful system, supporting a wide range of abuses against Black people, trans people, unhoused people, Jewish people, and all sorts of marginalized communities that make powerful, conservative white people uncomfortable. But that isn’t what constitutional law has to be. It can be a tool for liberation, if enough of us believe and make it one.

Originalism didn’t spring immediately from Robert Bork’s 1971 law review article into jurisprudence—the process took over a decade to begin in earnest, and the theory didn’t really rise to dominance until the Roberts Court. The originalists like to imagine that their theory represents the law as it truly is, and so long as they hold a majority on the Supreme Court, it will be. But we can adopt a better way of approaching constitutional law in preparation for the day when the originalists don’t hold a majority. The tools of abolition are already in the Constitution, if we choose to give them meaning and power.

I’m asking you, dear reader, to believe in those tools, and your ability to give them meaning. Many of you who will read this piece are, or soon will be, lawyers. There are times when the legal profession can feel tedious or disconnected from the major challenges facing our society. But we must remember that in this profession, we have the ability to use our words to change the world. We have to believe in the power within the Constitution to build a better approach to constitutional law. And we have to believe in ourselves, and our power to shape a more just and equitable society.

Brandon Hasbrouck is Associate Professor of Law at Washington and Lee University. His scholarship and advocacy centers movements and works in solidarity with them to advance transformative understandings of our Constitution.

Learn more about Professor Hasbrouck and follow him on Twitter @b_hasbrouck.