my family for their unwavering support of my intellectual pursuits. My sisters, Dao and Loan, and my brother, Khai, encouraged these pursuits long before any of us imagined what might come of them, and cheered me along the way these many years. This book is dedicated to my parents, Tho Chanh Phan and Lien Diep Phan. To them I owe my greatest debts, and my deepest bonds.
Introduction. “A Man from Another Country”: Citizenship and the Bonds of Labor
What will the people of America a hundred years hence care about the intentions of the scriveners who wrote the Constitution?
—Frederick Douglass, “The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery?”
In 1849, as the Union crisis escalated over yet another likely compromise with American slavery, Frederick Douglass startled the antislavery movement with an unusually equivocal statement of his view of the Constitution as a slavery-sanctioning text: “On a close examination of the Constitution, I am satisfied that if ‘strictly construed according to its reading’ it is not a pro-slavery instrument.…I now hold that the original intent and meaning of the Constitution (the one given to it by the men who framed it, those who adopted it, and the one given to it by the Supreme Court of the United States) makes it a proslavery instrument.”1 Douglass’s concluding claim that “the original intent and meaning of the Constitution” made it “a pro-slavery instrument” was uncontroversial, the reiteration of an interpretation widely accepted by abolitionists and slaveholders alike in antebellum America. Indeed, this view of the original Constitution as a slavery-sanctioning document remains accepted by most modern historians. What startled so many in 1849 was Douglass’s first claim, one that seemed to contradict this interpretation of the Constitution. How could one hold the view that the “original intent and meaning” of the Constitution was to sanction and safeguard slavery, while simultaneously arguing that “if strictly construed,” the Constitution was not a proslavery document? How could the meaning of this founding legal document be construed against that “intended” meaning “given to it by the men who framed it”? These were the central hermeneutic questions of the debate over what would come to be called the 1850 Compromise and its federal Fugitive Slave Act.
In his editorial entitled “The Address of Southern Delegates in Congress to their Constituents; or, the Address of John C. Calhoun and Forty Other Thieves,” appearing in the same 9 February issue of the North Star, Douglass elaborated upon this distinction between the conception of a law’s “original intent and meaning” based on the historical context of its framing and its legislative intent, based on the “strict construction” of its language. Douglass observed: “It will be seen that [Calhoun’s] “Address” assumes a clear recognition of slavery in the United States Constitution, by the clause relating to taxation and representation—that relating to the return of fugitive slaves, and that respecting the importation of slaves.”2 The problem for these political representatives of the slaveholders, Douglass argued—and here we have the first articulation of the emerging shift in Douglass’s interpretation of the Constitution—is that the so-called “slave clauses” contained no such clear recognition of slavery: “We deem it unfortunate for these honourable menstealers, that in no instances have they been able to find a word in either of these clauses which bears the definition of slaves or slavery. The word slave in all these references is the word of this conclave, and not the Constitution.”3 According to Douglass, slaveholders were confounded in their attempts to read the Constitution as a slavery-sanctioning document because, just as the word is absent from their own “Address,” it is absent from that founding law whose legitimating authority they invoke. If slavery’s political representatives avoided using the “gross form of the word slavery” to name that system they defended, the Constitution’s framers also avoided this word, likewise referring to slavery and its subjects only through euphemism and indirection. As Douglass argued further: “The fact is, the framers of that cunning instrument were ashamed of the name, while they had not the honesty to renounce the thing, slavery; and it is the same sense of shame today which leads the friends and defenders of this inhuman system to use the term ‘peculiar institution,’ ‘the relation existing between the European and African races’ and the like.”4 In Douglass’s reading, this shared “way of sliding over of the hateful word slavery” links the rhetorical practice of the slavery-defending southern delegates to the writing practice of the slavery-sanctioning constitutional framers.5
Douglass’s reading practice thus extends beyond the “ambiguous terms” of Calhoun’s “Address” to the “ambiguously worded” Constitution itself: “The language in each of the provisions to which the address refers, though doubtless intended to bolster up slavery and respect slave property, has been so ambiguously worded as to bear a very different construction; and taken in connection with the preamble of that instrument, the very opposite of the construction given it by this wily band of slaveholders.”6 Douglass is not arguing here that the framers’ “original intent” was actually an antislavery Constitution. Instead, Douglass concedes throughout this 1849 editorial that the slave clauses were “doubtless intended to bolster up slavery and respect slave property,” but argues that the ambiguous terms used in the final text of the Constitution leave its meaning open to a much more radical “construction.”
Douglass elaborates upon this significant disjunction between the letter of the law and the “original intent” of the law by proposing a hypothetical scene of reading: “Suppose a man from another country should read that clause of the American Constitution which Calhoun alleges refers to fugitive slaves, with no other knowledge of the character of American institutions than what he derived from the reading of that instrument, will anyone pretend that the clause in question would be thought to apply to slaves? We think not.”7 On the one hand, Douglass extends his local critique of the proslavery interpretation of the Constitution to situate the founding document within an international context. Such contextualization was a popular rhetorical gesture; Douglass and other antislavery writers often alluded to the idea that slavery undermined the United States’ reputation as an enlightened republic.8 On the other hand, Douglass’s hypothetical scene of reading is a provocatively decontextualized one: this “man from another country,” unfamiliar with the peculiar context of the Constitution’s inscription and the nation’s history, would necessarily be a “strict constructionist.” This “man from another country” could not imagine that the “fugitive slave clause” and its terms of labor subjection were intended to apply to slaves, “nor dream of such an outrage, such a savage monstrosity, on reading any other part of the Constitution.”9 In this hypothetical scene of reading, the true “spirit of the law” is to be located only through a reading of the letter of the law, regardless of its “original intent.”
What is of further significance to our understanding of the constitutional debates of the Union crisis is that this “man from another country” interprets the Constitution the same way Douglass will throughout the next decade, after publishing his “Change of Opinion” in 1851. Douglass’s “man from another country” is the figure for the type of reading practice modeled by Douglass himself in this critique. As a figure of reading, the trope allows Douglass to brush history against the grain, interpret the famous “slave clauses” otherwise, and thus conceive of an alternative spirit of the law. As Douglass concludes: “Blot slavery from existence, and the whole framework of the Constitution might remain unchanged.”10 In 1849, as the debates over yet another national compromise regarding slavery raged; and as the antislavery movement splintered into different factions, this experiment in reading against “original intent” signaled a radical transformation in Douglass’s political perspective.
For cultural history, this “man from another country” provides a view into the ways in which antislavery politics led to transformations in “literary” and legal hermeneutics, as well as the “culture of Constitutionalism.”11 Reading the text of the Constitution against the grain of “original intent,” Douglass’s strategy is to focus on the elisions and ambiguities of reference within the very letter of the law. Douglass first zeroes in on what he calls the “ambiguous…inappropriate…and equivocal language” of the fugitive slave clause:
If