Frederick Douglass, Constitutional Faith, and the meaning of "Per sons"

[Scarberry, Mark]

I've just finished reading Sandy Levinson's wonderful book, Constitutional
Faith. In it he discusses the possibility of a charitable reading of
documents, including the Constitution, and he mentions that Frederick
Douglass eventually adopted such a reading of the 1787 Constitution.
Douglass originally agreed with Garrison that the Constitution was an evil
document, because it recognized and protected slavery. But then Douglass
concluded that the Constitution was actually an anti-slavery document.

I've been wondering whether any part of a charitable reading of the
Constitution is based or could be based on the use of the word "Persons" to
describe those who were enslaved. See Art. I, sec. 2 and 9. Perhaps those on
the list who are more familiar with Douglass and with the argument for a
charitable meaning could tell us whether the meaning of "Persons" has been a
part of the argument.

At the risk of belaboring what may for many of you already be obvious, let
me explain why that may be a possibility.

The Oxford English Dictionary entry for "person" includes a usage by
Blackstone (in 1766, I think) in which "person" is contrasted with
"property." Is it possible that the use of the term "Persons" in the
Constitution was a recognition of the personhood of those who were enslaved
and of their entitlement to natural rights? I assume Blackstone was well
known to the Founders and that his usage was not idiosyncratic--could they
in effect have been recognizing that the "Persons" who were being treated as
property were being treated unjustly?

A former colleague, Anthony Baker (now at Campbell law school) told me once
that Jefferson and other southern leaders of that time recognized that
slaves were persons entitled to natural rights. (Jefferson: "Indeed I
tremble for my country when I reflect that God is just, that his justice
cannot sleep forever.") Baker said they recognized that slavery was an
injustice--but for pragmatic, economic reasons those southern leaders were
unwilling to abolish slavery. According to Baker (who has done some really
good historical work on the Dred Scott decision) the idea that African
slaves were not bearers of natural rights was a later development, as
slavery became more important economically and as it came under increasing
fire from the north. (I'm probably oversimplifying what Baker said; any
errors are mine.)

I realize that most of the debate recently on the meaning of "person" in the
Constitution has centered on the question whether the unborn are persons,
which Roe v. Wade answered in the negative.  And I suppose Justice Taney
used the term "person" in two ways in the Dred Scott decision when he quoted
the Constitutional text referring to slaves as "Persons" but then denied
that Africans in the United States were "persons" who had political rights.
But perhaps the Founders used the term "Persons" not just as a euphemism (so
that they would not have to use the term "slaves") but also to recognize
that slavery was unjust.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu