Plain Reading the Constitution: Frederick Douglass, Textualism, and the Pursuit of Racial Justice

Emma Brush is a JD/PhD student who studies the intersection of American law and literature across the long nineteenth century. Her dissertation explores the constitutional arguments of abolitionist writers and activists and traces their impact on law and political discourse from the nineteenth century to today. Before beginning her graduate study at Stanford University, she served as the managing editor of the Breakthrough Journal, the publication of an environmental think tank out of Oakland, California.In the legal imagination, Frederick Douglass is often viewed as a “constitutional utopian” for his efforts to salvage the prewar Constitution with an antislavery construction. Rejecting the views of both the Taney Court and the followers of William Lloyd Garrison, who saw the Constitution as “a covenant with death, and an agreement with hell,” Douglass and other political abolitionists put forward a redemptive view of the Constitution rooted in both the letter and the spirit of the document. For Douglass, the fierce contest over constitutional meaning suggested the amenability of the Constitution’s “plain meaning” to abolition and the importance of wresting political power, and thus interpretive power, from pro–slavery forces. The long–term potency of Douglass’s adaptive, literalist, and purposive method suggests the importance of his constitutional interpretation for formulating a racial justice jurisprudence today. The textualism practiced by the current Supreme Court, however, poses multiple challenges to the pursuit of that same goal. The questions that occupied Douglass’s day—whether and how to embrace a document tied to foundational injustice—have come to swirl not only around Douglass’s legacy but also around contemporary questions of constitutional theory, particularly pertaining to the relation of the text and textual interpretation to racial justice. In this paper, I will argue that Douglass’s textualism offers progressive constitutionalists a theory of interpretation that meets originalism on many of its own terms but also insists on a radically revised conception of constitutional meaning, one that centers racial justice first and foremost.La