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In 1851, Frederick Douglass publicly challenged the position of William Lloyd Garrison and the American Anti-Slavery Society that the U.S. Constitution was a proslavery document. As an enslaved child, the self-taught Douglass had identified literacy as “the pathway from slavery to freedom.” The same insight prompted the mature author and editor to part ways with Garrisonian moral suasionists in order to join “legal suasionists” like antislavery constitutionalist lawyers Lysander Spooner and William Goodell. From the 1840s through the 1890s, Douglass promoted the legal literacy of everyday African Americans (free and enslaved) while developing his own legal-critical analysis of American racism. Committed to wielding the “forms of law and . . . rules of hermeneutics” on behalf of freedom and equality, Douglass tirelessly challenged the increasingly biopolitical orientation of post-Reconstruction legislation and jurisprudence. From slavery to mass incarceration, Douglass insisted, racism is incompatible with the rule of law.
In the mid-nineteenth century, Frederick Douglass changed his opinion on the proslavery character of the U.S. Constitution. Most scholarship seeks to locate the core of Douglass’s politics in the critical patriotism of his post-change of opinion oratorical and literary output. However, if we keep the occasion for Douglass’s change of opinion firmly in view, that is, his critical engagement with the question of the pro- or antislavery character of the Constitution, there is a possibility not only of appreciating an experience of crucial significance to the development of his politics, but also of relocating the core of his politics in an ongoing ambivalence about the “moral power” of the United States. This chapter situates Douglass as a political thinker participating in a transatlantic paradigm shift in the rhetoric of sociopolitical change, a shift that gave rise to a new modern dilemma as to which form of change, reform or revolution, best suited one’s problem-solving needs.
This chapter engages in a critical review of the main thesis of Christopher Eisgruber and Lawrence Sager in Religious Freedom and the Constitution (Harvard, 2007), that religion is not “a … category of human experience that demands special benefits and/or necessitates special restrictions” or any “special immunity for religiously motivated conduct.” Against this position, this chapter argues that natural religion of the form manifested in the New York Regents’ prayer outlawed by the U.S. Supreme Court in Engel v. Vitale (1962) is not to be put on the same constitutional level as (or below) other human passionate interests or even conscience. The paper considers the Indian and the European Convention provisions on religious liberty.
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