Advisory Opinions - Frederick Douglass: The Original Originalist

Episode Date: August 17, 2023

Professor Bradley Rebeiro joins Sarah and David to examine Frederick Douglass and the political theories that influenced his thinking. But, before the interview, the two go through a docket of trending political topics, including: -DC’s picky protest arrests -A 96-year-old judge’s continued tenure -Hunter Biden: Deal or no deal? -Trump’s Georgia troubles, revisited (already) Show Notes: -Bradley Rebeiro, Frederick Douglass and the Original Originalists -Bradley Rebeiro's profile at BYU Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgra. That's David French. And I think this is going to be a blockbuster episode because we've got some cool things to talk about. There's an interesting DC Circuit opinion on selective enforcement, the thing I would say you should never use as your defense. It worked. We'll do a little update on the Hunter Biden indictments and then revisit just 48 hours later on the Trump Georgia indictment,

some things that are standing out, maybe given some time. But most importantly, that are standing out may be given some time. But most importantly, we have a special guest, Professor Bradley Ribeiro from Brigham Young University, law professor there. But he is an expert on Frederick Douglass. And for some reason, David, I was just really craving me some Frederick Douglass this summer.

And this has been in the works since May. Well, I'm excited about that conversation because I have been spending my adult life learning about Frederick Douglass when I was never taught about Frederick Douglass when I was younger. I mean, at all, at all. So this will be a fun conversation. I'm really looking forward to it. And, but man, we can't, we can't just skip straight to dessert. We've got some good food here on the table right now to talk about. All right, DC Circuit, summer of 2020.

Take us back, David. Yeah, so summer of 2020, you have a series of protests who are flooding the streets, flooding the streets to protest the, you know, the George Floyd murder. And so, you know, as we saw, they, in the words of this, in this court opinion, they covered streets, sidewalks, and storefronts with paint and chalk. Let me read from the opinion that we're discussing. This is an opinion in a case called Frederick Douglas Foundation,

Inc. at Al, detecting a theme here, Sarah, versus the District of Columbia. And this is an opinion by friend of the pod, Judge Naomi Rao of the DC Circuit. And it says, in the summer of 2020, thousands of protesters flooded the streets of the district to proclaim Black Lives Matter. Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and an open violation of the district's defacement ordinance, yet none of the protesters were arrested. During the same summer, district police officers arrested two pro-life advocates in a smaller protest for chalking Black Preborn Lives Matter on a public sidewalk. Super simple fact pattern, Sarah.

Super simple. Did the fact that D.C. did not arrest one set of protesters make the arrest of the other set of protesters unconstitutional? And to be clear, they didn't challenge the constitutionality of the law itself. That's a time, place and manner restriction. No problem. You can ban graffiti, et cetera, vandalism, things like that. And this was purely selective enforcement. Yeah, this was as you were teasing this case earlier this week, I guess in the podcast that came out yesterday,

saying when you're pulled over by a cop and you go, yeah, sure, I was going 70 in a 55, but so was that guy and that guy and I just got passed by a whole other guy going, no doubt, 85. That kind of, why'd you get me kind of argument really doesn't tend to fly. And by tend to, I've never seen a case where it works. It doesn't really work. It doesn't really work, but here, it worked. And interestingly, I have actually seen selective enforcement cases work as well in other circumstances, particularly in higher education. dealing with things like room reservation policies or student organization governance rules,

things like that, where you allow one group of people free reign and you crack down on another group of people, that stops to look less like prosecutorial discretion, Sarah, and more like actual viewpoint discrimination, rules for thee and not for me. That's the distinction I was going to make is that that's why it's so hard, because you're on this spectrum between discretion and actual selective enforcement, so much so that I wonder if you agree with this. Selective enforcement, when it's successful, is actually going to look far more like the law is written is not the law that you're enforcing. IE in DC, it's not that they couldn't arrest everyone who was chalking, for instance. That's on the discretion side. Here, what they're saying is the law itself was neutral on its face,

but the law as it was applied had something like a little clause added to it. You can't chalk on the sidewalk about that thing, but you can chalk on the sidewalk for this thing. And so it was almost as if these successful cases will look far more like regular viewpoint discrimination in the law, because it has to be enforced pretty ubiquitously as if the law were written that way, not just that they happen to get more conservatives than liberals. You know, again, you could even apply that in the speeding context, but that isn't, in fact, how they believe the law to be written. is the distinction, because that exactly resonates with my experience in the higher education context, where essentially the regulations are so openly flouted for so long by favored organizations that it starts to look like as if there's no policy at all until the disfavored organization engages in similar or identical conduct, and then here comes the law

in full force. And you really sort of have to have that kind of factual record, one of open flouting, as opposed to something that said, well, you arrested all of the protesters who chalked on all of the pro-life protesters and only some of the Black Lives Matter protesters. Well, there they might say, well, look, I mean. It's a thousand on one side and 10 on the other. So that's math is going to work out that way sometimes. But when you have zero out of the thousand and 10 of the 10, it looks like the law said that you could arrest pro-life chalkers and not BLM chalkers. Yes.

By the way, you'll know I'm saying chalk, right? Like the thing you write on a chalkboard with. Just want to be clear. I said something really stupid in the last podcast. And so I said something like, it was my job in 2012 to figure out ways to steal the election, by which I meant, obviously in context, it was my job to figure out ways to steal the election, by which I meant, obviously in context, it was my job to figure out ways other people could attempt to steal the election to thwart them from doing so and ensure a fair election. But I sort of shorthanded it. And someone I worked with on the campaign was like, could you please clarify? Because either basically we weren't doing that or we were really, really bad at our job since we lost.

Right. But, you know, to your credit, Sarah, you stole enough votes to have a higher percentage of votes than Donald Trump did in either of his elections so far. Stop saying we stole votes. This isn't helping. I'm sorry. I'm sorry. I'm sorry. You lawfully turned out enough votes.

Thank you. Thank you. Anyway, back to it. It's as variable as human creativity can be. And you can enact a legally sound regime that is designed, for example, to produce law and order, to maintain cleanliness in a city, et cetera, et cetera. And by your practice, you can display extraordinary favoritism in how that law is enforced favoritism to such a degree and so consistently that it starts to look like as you were saying sarah the actual law in the books is not the law at all in real life um and that's when you're going to be skating into that viewpoint discriminatory that viewpoint discrimination territory that's when you're going to face an actual viable selective enforcement

claim. And it seems like Rao's opinion is about as sound as it can be. And in fact, this is an opinion that was unanimous and wasn't all Trump judges. And some people, I was going to say, some people find this helpful, some people find it annoying. Judge Rao was nominated by Donald Trump. The other two judges on the panel, and it was a unanimous panel, were nominated by Democratic presidents,

I believe one Biden, one Obama. Yeah, and the reason we bring that up, because it does annoy us sometimes as well, but also one of the first things that I think when you talk about a case that's decided absolutely correctly on a culturally salient, hot-button sort of issue, whenever you can demonstrate that, hey, wait a minute, contrary to a lot of popular views about the judicial system, there's a lot more consensus than you might think. I think it's actually helpful for building sort of confidence in the system overall. Oh, I thought it'd be fun to mention

that there was a letter to the editor in the Wall Street Journal this week written by one Judge Edith H. Jones. And yes, that's my judge. So, you know, hashtag Team Jones all the way, of course. But it was an interesting letter to the editor, David, because it has to do with this ongoing saga with Judge Newman on the federal circuit. Remember, this is the judge who's now 96 years old. And the chief judge of the circuit basically files a complaint that Judge Newman no longer has the capacity to serve. But then also the federal circuit is the one reviewing it. And when we talked about this, the allegations against Judge Newman were pretty egregious, but at the same time, it seemed weird not to transfer this to another circuit.

Long story short, I don't know, judges, I guess, are just now very into the Wall Street Journal. This letter to the editor from Judge Jones laying out that absolutely this should have been transferred to another circuit. Even judges get due process. I will put it in the show notes in case you're curious how that is still percolating. And boy, is it. Also, interesting to see a circuit judge calling on the chief justice of the United States to do something. Yeah. Fascinating. And let me just say, look, I respect the wall street journal, but if you want a superior platform for getting your ideas out into the public square, this podcast superior platform, if you're an article three judge and you've got something to get off your chest, right here. David, I can't interview my judge on this podcast.

I can interview your judge. It's too much. I can interview her. You can talk to her. Okay. Yeah. Okay. Next up, updates on the Hunter Biden indictment saga. This is not going to be about the special counsel stuff, but actually the plea agreement. So right after the hearing and the plea agreement had fallen apart, remember the judge rejects both the guilty plea that would apply to the tax charges. And as a result, that kills the pretrial diversion because the two are intertwined. She does so because the pretrial diversion agreement,

oddly and uniquely, would require her as like a second nuclear key to sign off if Hunter Biden violates that. So normally just the prosecution would be the one to say, oh, you violated the pretrial diversion. We're now moving forward with charges. This was negotiated so that both the prosecution and the judge had to agree that Hunter Biden had violated the pretrial diversion agreement. She was like, I don't like separation of powers. What is this? Please come back with briefing. But here was the interesting thing, David.

And we didn't talk about it more because like kind of just waiting to see what would happen. Before they went into the hearing, they had signed the pretrial diversion agreement. So the prosecution and the defense had signed this agreement that normally would only be between them anyway. So what did that mean? Because remember, the pretrial diversion agreement references the plea deal that then didn't happen.

It also references the judge signing off, which didn't happen. But are those severable? Did they have a contract? And if it's close, again, in general, the prosecution is going to get the burden, right? The defense gets the benefit. Well, the defense is saying, we had a deal. We're going to hold you to it. And DOJ is like, what? No, no deal. The whole thing fell apart. That means the whole thing fell apart. I find this very fascinating because I think it's actually, I think it's a close call. Um, for what I just said, like they signed it

and the Biden team is claiming the DOJ drafted the whole thing. They didn't have anything to do with it. That's sort of interesting. DOJ has now responded and said, what? That's not even true. But they have some other reasons as well that basically the agreement never took effect, right? As soon as in the colloquy in the hearing, the judge said, are there any promises from the government that are outside the plea agreement, the guilty plea agreement? And he had to say, yes, the pretrial diversion agreement. They're saying at that point, the whole thing became void. But that actually just to me kind of begs the question of like, yeah, but was it severable? You already signed it. Now, because we are textualists on this podcast, if nothing else, here, David, is the text that I wanted to read to you.

Okay. First sentence of the agreement. The term of this agreement shall be 24 months beginning on the date of approval of this agreement unless there is a breach. Is that approval by the judge? I would, it would have to be, okay? Because when you enter into a contract, I've never seen a contract that says contingent upon approval by whom?

Approval is an interesting term of art there. Not ratification, not, yeah, approval. Approval. So there has to be, I mean, as good textualists, we're saying approval by whom? That applies something, because you would say, upon execution of this agreement, if it was nothing but a contract between two parties.

So I do think it's close because the defense should get the benefit of any close call. But if the term can't start until the approval, then it was so ingrained into the contract, and I'm using contract here in quotes, into the contract itself that I think probably it died at the hearing as well.

Yeah. The end. Good judging. Good judging. Next up, there's two pieces of the Georgia indictment that I wanted to talk about more. One, the free speech implications. And two, this removal part.

And I want to start with the removal because I sort of intentionally gave it short shrift because I wanted to keep the podcast pretty tight and about the indictment itself. This removal conversation is ancillary in a lot of ways. if you were a federal officer charged with a crime in a state who was acting in their capacity as a federal officer in what they're charged with to remove the case to federal court.

And this is interesting, David, because it certainly applies to Mark Meadows, who was chief of staff, Jeff Clark, who was at the Department of Justice. I haven't gone through everyone else, but let's just use those two for now.

Arguably the president of the United States as well at the time. But that one's a little more tenuous to me for reasons that almost don't matter. So when you remove something to federal court, it's just removed like it's automatic. it'll be up to the federal judge whether to accept the case or send it back to the state. So the state judge, the state prosecutor, they get no say over this. This will be decided by a federal court. And this is 28 U.S.C. 1442, the United States or any officer thereof. So that's why I don't actually think it applies to the president because we've said before the president is not an officer of the United States. But whatever. We can haggle over that one later. for or relating to any act under color of such office or on account of any right title or

authority claimed under any act of Congress for the apprehension or punishment of criminals or the collection of the revenue. It's kind of a weird little statute, David. It is. And I'm hard pressed to find a lot of people with experience with this statute. Again, I mentioned on the podcast earlier, the Georgia one, that it comes up most in civil cases where you as a defense contractor, for instance, are sued civilly, even though you were acting on orders from the Department of Defense. I haven't met any prosecutors who have actually had to confront this, but Mark Meadows has already filed his removal into federal court. So this is happening and it's going to get

interesting. I assume we'll hear from Jeff Clark shortly and probably Trump's team as well. Yeah, I would expect, I would fall out of my chair in shock if Trump's team didn't try to remove. I think Meadows and Clark have a really good removal case. They were not double-hatted, so far as I know, in the sense that they were not also employees of the private entity known as the Trump campaign. So I think that there are some issues as to what kind of capacity were they operating in when they were doing what they were alleged to be doing.

But they've got the strongest removal case by far. The distinction between a Meadows and a Clark is between Trump and Meadows and Clark is that Trump was double had it. He was president of the United States. He's also a candidate for president of the United States and a candidate for president of the United States is not an officer of the United States. And so he was operating as a private citizen. And when he's running for president, he's not president. That is not part of his official duties. So I feel if I'm Meadows or Clark, I feel a lot more confident about removal than I do if I'm Trump. But it's not out of the question for Trump, certainly not out of the question for Trump. And also, I think that we need to clarify, what is it, why would they want to be

removed? So a key reason why they might want to be removed is you get a bigger jury pool when you are removed into federal court. So you're going to get not just Atlanta-Fulton County, removed into federal court. So you're going to get not just Atlanta-Fulton County, but you're also going to get that jurors drawn from that district, that judicial, federal judicial district. And it's just going to be a bigger cross-section of Georgians who are going to be part of the jury pool. There's also some question as to whether or not one of the Trump-appointed judges, Some people have sort of engaged in wild speculation that one of the Trump-appointed judges in the district would be more favorable.

I think that's not borne out by the overall record of Trump-appointed judges when it comes to dealing with election issues. We'll put Eileen Cannon to one side in her treatment of the Mar-a-Lago search. But as a general matter, this sort of idea that, boy, you just get the Trump campaign in front of Trump-appointed judges and they're cooking with diesel has not been the way things have worked for them. But there is definitely a bigger jury pool, possibility of possibility, who knows,

of perhaps a more sympathetic judge. But that's why a defendant would want to remove. Interestingly, it doesn't change some other things that are relevant to the conversation we've been having. It almost certainly doesn't change the federal pardon power, meaning you would still be convicted of a state offense, even though you were convicted in federal court and so it doesn't change the president's ability donald trump or otherwise to pardon

someone convicted of a state offense in federal court because of the way article two's pardon power is written it says an offense against the united states that has to be a federal offense also it doesn't change the prosecutor, potentially. It would still probably be Fannie Willis prosecuting this case just in front of a federal judge, which I think is interesting as well. Although, obviously, it does change the judge. And it is very oddly going to change the rules of the court, as in the court will not be sitting with Georgia criminal procedure rules,

it will be sitting with federal procedural rules over a state offense. That part gets real messy, real quick. But I think it goes overall, David, to this problem in the indictment of doing too much, spreading too thin. If you're going to bring a case against 18 other people, did they think about the fact that they were charging things that were going to then shoot off into space, into federal court? They didn't need to bring all of this. They could have had Meadows and Clark

as unindicted co-conspirators three and four or whatever number instead of bringing them into this case, because they absolutely have a different level of removal argument than any other defendant, including Trump. And it is an unnecessary complicator, I'd say. All right, let's move to the First Amendment problems, because this actually is the exact same philosophical problem with the indictment. And look, we've said before, I think this comes in at number two for legal strength. So when I'm talking about problems, some of the charges, legally at least, not prudentially, I would argue, but legally, are narrow and are specific enough.

But it is also the case that there's a lot thrown here that didn't need to be, both in terms of the charges and in terms of the overt acts. And I threw shade on the overt acts criticism of like, yeah, that's what overt acts are. True. But even so, look at the reaction to the indictment and you can see why you might want to narrow your overt acts and narrow your charges to only get to the core of the core of what you can get to. Don't try to come up with novel legal theories or novel application of the law to your legal theories because, A, I think it makes it very messy. I think it makes it easier to attack as a partisan endeavor, but also the First Amendment problems, because there are some. It's actually unclear to me what concretely is

the First Amendment problem in this, because if you actually look at what's charged, what's charged is the lie before the public officials, or what's charged is the forgery or what's charged. Well, let's even get to the lie part. I mean, we're going to have to see where they actually go with some of this. That's the problem. The indictment does not tell us everything we need here. Lies are protected by the First Amendment. We have the stolen valor case. Yes. So a lie qua lie is not enough to charge someone. Correct. But they're not charged for lie qua lie. Yeah. I agree that this is more specific than that. But like, that's where I just mean, like you keep skirting around other issues and pretending they're not there. Not you,

the indictment. Yeah. What are you saying, Sarah? Yeah. It's, I agree when you threw overt act, the words overt act next to every single thing in the indictment that wasn't actually charged, everything that occurred, rather than just creating a narrative and saying these things occurred and these and this, and then add up to a crime in this specific way,

it's a different thing than saying every single thing that occurred was an overt act in furtherance of the conspiracy. That's where I think that you've created this sort of sense where you've created a little bit of a problem, I think, that's unnecessary for the prosecution that a very clever defense attorney could try to use to muddy the waters, which then leads the prosecutor to say, no, no, no, no.

When you're looking at the charge, what is the actual charge? It is lying to the legislature at a hearing. It is lying to Brad Raffensperger when he's on a matter under which he has jurisdiction, that's what we're actually charging. Yeah, you can do that and you can try to mitigate that damage, but there were just some unforced errors in my view when it came to how they were going to phrase every last thing as an overt act in furtherance of the conspiracy when not every last thing that was done that's a prosecutorial let me put it this way

that's a prosecutorial choice to craft the narrative in that manner even if you come back and you say and a georgia attorney might come back and say no no and a Georgia attorney might come back and say, no, no, in a RICO or conspiracy indictment in Georgia law, you list the overt acts. Well, maybe don't list the quote unquote overt acts that are related to what's on OAN. Well, and remember this, none of that was required. All she had to do in the indictment was list the charges. Now, you and I have complained that here a speaking indictment is helpful. And now it sounds like we're saying do less speaking. Yep. Well, that's how Goldilocks works, right? Like, sorry, you didn't want to have some speaking indictment, but also be thoughtful about what you're saying the person did wrong because it provides this fuel, I think, to specifically

to a prosecution that is brought, in my view, in this case, by an elected politician, right? Someone who's running for reelection, fundraising for reelection. Yeah. Be a little thoughtful about, you know, as you say, watching OANN or whatever being an overt act. Like, eh, okay. Yeah, I mean, you've just given a lot of people some unnecessary ammunition that has led to purely a public argument that was purely unnecessary and could lead to confusion in front of the jury that is really extra, especially unnecessary.

So this is when, and I'm glad we're revisiting this because we were talking about sort of the core of the law and the facts yesterday. But this gets to some of the nits that we talked about, we had to pick about this thing. And again, you're at, this is number two. I'm at this is 1B, primarily because of the inability to pardon makes this in some ways just as dangerous, if not possibly more dangerous than the documents case. But I don't think it's a flawless indictment. Yep. And so I stand by my previous conclusion

that in my dream world, I would have much preferred documents case with the obstruction charges. And then only in addition to that, a federal case on the fake electors. I think this Georgia case is either redundant or unnecessary. Although a fake elector's case under Georgia law fits more neatly under Georgia law than it does federal law. I think that could be true. And I'm open to that, by the way. If we want to just haggle over whether that specific charge should have been brought at the state level or federal level, I'm very open to that. But only that charge. Yeah. You know, it's funny. If I had to make a prediction

of what a compromise verdict will look like, you're going to be vindicated. It's going to feel so good. I'm pre-basking in it. You're going to have a, you're going to have, you may, you may have a conviction on fake electors only, which is going to be devastating to everyone who participated in the fake elector scheme, Trump included, but less than the overall indictment. And you're going to be sitting there spiking the football. Yes, I will.

Yes, I will. Yeah, as you should. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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Absolutely. I am so excited. Professor Bradley Ribeiro is with us. And we met on the Legal Eagles trip, which I know you guys have heard way too much about. But it was a life-changing three days in Gettysburg. He is a professor at BYU Law School teaching property and 14th Amendment this fall. But that's not why he's on the podcast today. I mean, it is, but it isn't. He's on the podcast today because he has a PhD in Frederick Douglass, basically.

I don't know if that's how you phrase it, but I don't know those things. And I was like, wow, I would love to do a guest episode on Frederick Douglass, the Constitution, the Reconstruction Amendments. And so here he is. Welcome, Professor. Thank you. Thank you for having me. And yes, a PhD in Frederick Douglass, that's good enough. Good enough for me. I studied at Notre Dame, got my PhD in political science. But yes, political theory and constitutional studies were my main subfields, and Frederick Douglass was the subject of my dissertation.

So Frederick Douglass, as a constitutional theorist, you've written an article about this. Textualism, originalism don't quite fit comfortably on him, and he changed over time. Can you just give us a little Frederick Douglass legal thought 101? Yeah, absolutely. And I think that's right. So my article called Frederick Douglass and the Original Originalist, catchy title, in part with the help of Randy Barnett, I'll give him a little shout out for that title. The reason why I was interested in writing that article in part is because Frederick Douglass is

a constitutional theorist, is a constitutional thinker, at least in previous scholars, never really took that seriously, never took seriously the idea that he had genuine thought when it came to the Constitution and how we understand it. In part, mostly thought either his constitutional thinking was purely political or it was simply mirroring the arguments of others. But I argue that he actually had something not only quite cogent, but also novel and unique, both in his time and something that might be novel and unique for us today in how we understood the Constitution. So Frederick Douglass, he had a unique blend of textualism and originalism that is somewhat unique, not only to his time, but also to ours as well, in part because he sort of cut the Gordian knot, as it were, between originalism and natural law thinking. This is

the argument that I make, because he did use a plain reading of the text, but it was buttressed by sort of historical understandings of that text, much like originalists do today, particularly original public meaning originalism. But this was nevertheless still fused with natural law of thinking. This guided very much his guide into not only reading the text, but also understanding the history that animates and gives more context to the text. So what are the questions? Let's talk about how an abolitionist originalist slash textualist looked at the pre-Civil War amendments, pre-Civil War constitution.

Because I do not have a PhD in Frederick Douglass. I'm working on my GED in Frederick Douglass. But that, of course, includes, you know, what to a slave is the Fourth of July. And, you know, which is a really, really, really fascinating, searingly powerful statement, indictment of the United States of America. So how does an abolicionist slash originalist slash textualist attack the original or approach the original constitution? Okay. Well, first, to be fair, I think they would approach it very differently. And you'll have to wait for my book to get all the niceties there and how that works. But I can give sort of a rundown. There are two major camps, we could say. So the first camp I will call the Garrisonians, right? By William Lloyd Garrison, who's a famous abolitionist, staunchly committed to the cause of abolition everywhere in the United States. He was one camp. And then let's just call the other camp the Douglas camp. So the William Lloyd Garrison camp, which I note in my article,

Douglas was actually originally a part of this camp, read the original constitution actually to be very much a pro-slavery document. And they engaged somewhat of a textualist reading, but more, it might liken unto what we today could understand as original intent originalism. They looked at to the original intentions of the drafters of the constitution. They were citing James Madison's notes on the convention, for instance, and what happened in the convention to understand that, well, you look at, let's say, the purported fugitive slave clause, you look at the three-fifths clause, what some might call the slave insurrection clause. These things all clearly point to protecting and promoting slavery everywhere in the union. And their slogan was no

union with slaveholders. So William Lloyd Garrison would, you know, famously at his conventions, at his meetings, hold up a copy of the constitution and burn it, right? Because this was the only real response or the only, let's say, pure response one could have to the constitution. You could have no place or part with it. So that's the Garrisonian camp. So yes, they used textualism and some originalism there. Now, Frederick Douglass and the way that he eventually evolved into how he understood the Constitution, and you'll find other abolitionists like Garrett Smith, Lysander Spooner, even Sam and Chase in different ways, they fall into this camp where they read the Constitution XB in anti-slavery document. What Frederick Douglass

famously stated was a glorious liberty document. And he's using originalism there too. But the way he uses originalism, he says, no, we don't care what the drafters thought. What we want to know is how the average reader would have understood the words that the drafters adopted. So sure, maybe James Madison thought that the fugitive slave clause was for the protection of fugitive slaves. But if you look at the actual words of the text and how someone at the time would have read and understood that text, that would give us a better sense of the meaning and how someone at the time would have read and understood that text, that would give us a better sense of the meaning than what James Madison thought that that text

meant. So this is how they're sort of using textualism, but also originalism to arrive at sort of an anti-slavery conclusion or an anti-slavery constitution. But again, there are actually several differences, sometimes slight, sometimes major, that I think actually are very important for us today in how we understand the constitution, how we interpret the constitution that I want to bring to bear eventually in my book. But that gives you the basic layout, right? The two camps. Who do you think had the better argument? I think Douglass and others, Douglass et al had the better argument in part because one, I think in some regards, Douglass, you might say Douglass was a little bit more extreme or

a little bit more provocative in his anti-slavery reading of the constitution. But if you just take their camp all together, and actually when you look at the historical evidence, they're much closer to what was actually intended behind the constitution than say William Lloyd Garrison. And some of it might be sort of your political lens, how you view, view certain compromises, right? Well, who won at the end of the day, right? Did pro-slavery advocates win or did anti-slavery advocates win? In this regard, I found helpful and I find, um, you know, quite persuasive.

Sean Williams, Willans book, uh, no property in man, uh, where he goes through several of these compromises, what animated them, what brought them to bear. But I think in a lot of ways, Douglass is right in the sense that, well, we can't simply look to the original intentions of the drafters. So regardless of how these compromises cashed out, I think we really do need to look to the text. And there's some really important points there, right? One of the most major points and points that Wilentz makes is that the word slave never actually makes it into the constitution. Well, why is that? Right? And I actually think Douglas's argument here is quite persuasive. His argument is the reason it never made it in is because the word slave never makes it in, sorry, because slavery ultimately was something,

what he called like a scaffolding to the nation. It was something that because of political compromise, it had to remain at least upon the nation's inception, but it was always meant to come down. It was always meant to sort of, you know, when you're building a building, right, you don't intend to keep all the scaffolding there, you know, it's rather unsightly. And it's always meant to come down to reveal the true nature of the edifice, right? And this is sort of what Douglass's argument was. So basically his sense is, well, maybe there was some original intention around slavery, but that original intention died very shortly after the nation's inception. You know, one thing about the 1788 constitution combined with the Bill of Rights is that it

creates this really incredible tension. Because on the one hand, if you just look at the 1788 constitution, you would say, okay, look at the 1788 constitution, you would say, okay, clearly, clearly slavery is an accommodation in this document. And, and not even really necessarily a reluctant accommodation, just, it's just a fact. And this is how we're treating the fact. And then you have the bill of rights that come in, you know, nearly at the same time. And yeah, in a strictly legal sense, it only binds the federal government initially, right? But as a statement of human liberty, it is utterly incompatible with the values of slavery. And it created in the way I kind of think of it is you just had this unbearable tension that then exists.

So here's the federal government bound by a series of articulations of human rights and human liberty that are among the most powerful ever articulated by a government. And oh, by the way, we also accommodate slavery. Something had to give here. Like those two things couldn't exist side by side indefinitely. And it seems as if that's sort of like your Douglas argument in a nutshell, is if you're looking at the totality of the thing plus the Bill of Rights, one of these things is not like the other, and one had to give way.

Yeah, I think that's right. And I think the one thing that Douglas wouldn't concede one of these things is not like the other and, and one had to give way. Yeah, I think that's right. So, and I think the one thing that Douglas wouldn't concede though, is that that tension might exist if you're bringing different arguments to bear on, well, how do we understand meeting?

But he says there's very, there's clearly one argument that wins, right? And that's the anti-slavery interpretation, but he does concede that you can manipulate the text. And in fact, that's what he thought slaveholders were doing. They were manipulating the constitutional text in a way to import a new meaning onto the constitution. So in Douglass's mind, the meaning is already there, right? We already have this

anti-slavery meaning. So what we need is politics, right? We already have this anti-slavery meaning. So what we need is politics, right? We need people in power that are going to enforce this meaning because after all, the words of a text are absolutely meaningless if they're not enforced in the proper way. And that tension, you're absolutely right. And in Douglass's mind and most other constitutional abolitionists, that tension was resolved fundamentally in favor of what they called the slave power, right? And this bears out, the historical record is very clear that they were right about this because, you know, again, you can argue who ultimately won those compromises, but one way or another, the South basically had control of the federal government,

more or less, right, from 1790 leading up until the late 1850s, right? And I don't think it's any surprise why once suddenly the North gained significant political power and suddenly has control, there's a secession. I don't think there's any surprise there. But yes, this tension was unfortunately resolved in favor of the slave power rather than in favor of anti-slavery causes. Can we go a little big picture here and just talk about compromise? Because it's a bad word right now. And I think that ebbs and flows in the United States over time. I'm a compromise person. I think that part of what makes our system work is the messiness of the legislative process is how you're going to actually be able to fix problems with

longer-term solutions through compromise, which means neither side's getting everything they want. And if you think that there's some overarching moral imperative, I can see why compromise isn't a great way to go about fixing those problems. Slavery obviously is the go-to example for all of this. But also as a culture, I think we're revisiting the legacies of some of these guys, including Frederick Douglass and their legacy of either compromise themselves or accepting compromise from others. I'm wondering, as someone who has studied, studies Frederick Douglass, but in the context of our modern culture, how you think of him and his relationship to that process of self-government, the process of

compromise, but in the face of what we now all accept as, I mean, the most moral imperative. And I don't just mean slavery here, but also we're going to get into some of these post-Reconstruction, or sorry, Reconstruction amendments, particularly the 15th Amendment. And his legacy is one of compromise when it comes to the 15th Amendment. And his legacy is one of compromise when it comes to the 15th Amendment. But by the way, for those playing at home who are not like 15th Amendment, like what? That's the voting amendment. Yeah, absolutely. And in that regard, I argue at least that Frederick Douglass was perhaps the greatest statesman we've ever had perhaps the greatest statesman we've ever had in America's existence. And I know some,

especially Lincolnian fans might, you know, have much ire at that claim. But I think that is absolutely true. It would probably be my only pushback would be Lincoln. But I think Lincoln, Lincoln has, I think, higher pluses, but lower minuses, if that makes sense. So you're really doing sort of a math average here for me between Lincoln and Douglas. Yeah, I think that's fair. And Douglas, because I think he exemplifies what it means to compromise, but also how one goes about doing that in a time of high intense political tension, right? So in the late antebellum period, just think about this, right? So he is a former slave, right? Who is now advocating for an anti-slavery constitution and basically spurring people to act politically in that regard. And this is at a time which, I mean, granted, I don't think it's any secret to anyone that

prejudice still exists today. Just imagine in the 1850s, a black man in the North who was a slave and people are coming in droves to listen to this man. It just shows you sort of the magnanimity of Frederick Douglass and what kind of person he must have been to really break down these barriers in a significant way at a time of even more intense and ubiquitous prejudice. You find this man in the late Antimelon period really convincing people to the point where during Lincoln's first years in his presidency, for instance, Frederick Douglass is not happy with Lincoln and some of his choices and decision making.

So he's writing in his newspaper, the Frederick Douglass paper, right, his critique of Lincoln. And Lincoln at some point tells someone in his administration, OK, who is this Frederick Douglass person? I need to get him in my office. That's how much influence Frederick Douglass has, that Abraham Lincoln felt he had to meet Frederick Douglass and sort of find out what can we do? How can we work together? That was the first moment, I think, in Douglass because he has a very staunch understanding of justice,

what it requires, and I think he's right. But nevertheless, he also recognizes that there are political realities, political necessities, right, that require you to act in a particular way to achieve an ultimate good. So that's the first moment where we find Douglass sort of shift gears. And I don't think he shifts his theory, right? He doesn't shift his understanding of justice, but he shifts his practice, right, what he's doing to affect those ends. And then, yeah, as you want to talk about it,

when we get to the 15th Amendment and advocating for that, that's the most staunch example, I think, of what it means to compromise and what it means to act prudently as a political actor. All right, we got to do 15th Amendment. No, keep going. Don't stop there. Don't stop. Because part of what you've written about is the tension, the fight, the ongoingness of the abolitionist movement, the movement to give universal suffrage to Black men

against the backdrop of who's helping them, which is women. And at the end of the day, women are going to get the bus rolled over them on the way to the 15th Amendment. And it's going to be another 60 years, 50 years, until women actually get the right to vote. And it is within, you know, feminism, actually get the right to vote. And it is within, you know, feminism, somewhere between the ultimate betrayal and totally expected. Yeah, I think that's right. So just to give a little bit of backdrop. Yeah. With the 15th amendment we have this really interesting moment in history, at least before I had studied it. I don't think I understood the full extent, um, to, uh, to the fervor, but also the, the real contention that took place, uh, between, uh, women suffragists, uh, and, uh,

advocates for, uh, black suffrage. Right. Cause at least in my history, the way I always was taught it was that, you know, these things were hand in hand, right? Uh, cause rights for everyone, right. Which is true, but boy, there's this moment in history where that is very not true. Um, and just to give a little bit more context that again, in the late antebellum period, um, you know, blacks were not the only ones fighting for, uh, abolition, right? Obviously you had whites who were involved, but especially among whites, you had white women who were very much involved in the abolitionist movement.

And I think they were very essential also in providing platforms and helping Black advocates have their voice heard, right? So these two, both Blacks as well as women, both who are disenfranchised in a lot of ways, uh, in the Antebellum period are working hand in hand very much so. And they're very close friends. Douglas is very close friends with, uh, Elizabeth Cady Stanton, with Susan B. Anthony, um, leading up to reconstruction, but then you get to reconstruction. So finally the dust is settled, right? Appomattox

settled. Um, the North is one. So what do we do now? Well, we have to reconstruct, right? Appomattox is settled. The North is won. So what do we do now? Well, we have to reconstruct, right, the nation. And as we reconstruct the nation, first and foremost, obviously the 13th Amendment, right? We have to abolish slavery. That was the whole purpose and meaning behind the war. Of course, people will contest that, but I think that's absolutely the case. So the 13th Amendment has to be passed. But then we get to civil rights, right? And Douglass is actually not happy with the Civil Rights Amendment, the 14th Amendment, because of voting, right? It specifically actually sort of creates this caveat for voting. So then it's what do we do about voting? Douglass starts, you know, this is where

he's really starting to ride circuit across the US again, because he needs to make sure that voting rights are secure. Um, and at least initially he is saying like, we don't want voting just for blacks. We want equal suffrage, universal suffrage, but it becomes very clear uh that at least the powers that be um the political will if you will was not going to have universal suffrage so he has to make some compromises there um some of it is things that he thought of himself and you know kind of intuited other things were just you know the politics of the time made it necessary. For instance, um, there was the revolution, right? It's this newspaper that, that was a women's suffragist newspaper, right? Women's rights newspaper. Uh, and they started using the slogan called title,

like educated suffrage. Uh, and they start making this argument, right? That, uh, I think they see the writing on the wall as well, right? Well, if we're not going to get the right to vote, but blacks are suddenly, we're not going to be subjugated just to white men. We're going to be subjugated to black men as well, right? So then they start to advocate for what they called educated suffrage. Their argument was, well, us white women are educated and blacks are not. So if you're going to give the right to vote to anyone, it should be to white women rather than blacks. And Douglass, and this is where I think you really start to learn about compromise, but also prudence, what it means to act prudentially as a political actor.

Instead of, you know, some people use the tact of, well, voting is really in manly endeavor, right? Only men can vote. You have to be strong to vote. Douglass didn't really use that rhetoric. Instead, he just went straight to, um, rhetoric of expediency. He's like, look, yes. Um, voting is a universal right, but nevertheless, um, it is a matter of life and death for blacks that isn't quite for white women. Therefore, if you're going to give the right to vote, it has to be the blacks. So it's purely a political expediency argument there. Right. And he's compromising somewhat, you might say, with his principles. Right. Because his principles say you have to have universal suffrage for everybody.

But he recognizes that this is just not going to make it across the aisle. It's not going to work. Right. And he was aware of the I guess you say the gravity of this move, because like you said, Sarah, it was, you know, some 50, 60 years when women finally got the right to vote. And Douglas, actually, I found this quote. when women finally got the right to vote. And Douglass actually, I found this quote. It was sort of right at the end of the Civil War. Douglass is talking to an audience and he says something to the effect of,

we have a real moment here. Anything we do not capture now, it might take 50 or 100 years to accomplish. So I like to think that he had this in mind when he's making these decisions, which also shows you the difficulty, right, of making sort of these prudential or compromising calculations. It's a little easier when it's not your right to vote, though.

I was almost going to stand in for Sarah and just for... So I'm a couple months older than you guys. I'm a couple months older than you guys. And so I might be the last American generation in the South that was not taught history ever, except for one special history teacher who literally removed me from the normal curriculum. I was never taught anything other than lost cause, sort of the lost cause philosophy of secession, that it was not about slavery. Frederick Douglass was not a person who came up in my textbooks, as I recall.

And if he did, it was an afterthought, a footnote, certainly never read the essay on, you know, the What to a Slave is the Fourth of Julynote, certainly never read the essay on, you know, the, the, what to a slave is the 4th of July or certainly never read that. Um, one of the most eloquent statements in favor of free speech ever uttered in American history, his plea for free speech in Boston in 1860, never knew it existed. I feel as if, and I feel as if I was not taught about a founding father. And I kind of think of Frederick Douglass and Lincoln and Grant in a different way, and maybe William Lloyd Garrison and some of these others is almost as if they're the actual,

they're the founding fathers of the second founding. And do you think Frederick Douglass still doesn't get his due? Because I tend to think he still doesn't get his due in his proper role in American history. Unfortunately, I think that's right. And in part, because when do we hear about Frederick Douglass? Well, it's about July 4th, or if people are, you know, really good with their history, actually July 5th, right? And, and so, uh, that's really the only time we ever really hear from Frederick Douglass, right. At least in contemporary, uh, discourse, right. Uh, Twitter or X, whatever it's called. Yeah. Whatever it is. Um, but that's the

only time we really hear about him. And still, unfortunately you always hear from it, uh, from people who I feel like have not actually read the entire speech because they're only highlighting things that fit with their own political program or their own agenda. But quite frankly, someone like Frederick Douglass actually doesn't quite map onto, especially today, right, our political camps as they were right. The conservative versus liberal camps or Republican versus Democrat. And I just take a second that anytime you're looking at a historical figure and think they map onto our current politics, you're doing it wrong. Like they can't map onto our current politics. So by definition, if you think that they do, you miss something. Well, but I guess given how old the two front runners are for 2024, we can actually ask

what Frederick Douglass wrote about Trump or Biden. I mean, or what they thought of dinosaurs for that. Okay. Last question. And it's to each of you, though frankly, I'm more interested in one of your opinions than the other. Given our conversation, John Brown, thumbs up, thumbs down. Well, again, we're going back to, let's say this question of prudence. As far as a matter of justice, thumbs up. As a matter of prudence, two thumbs down.

And I think that's where Douglas fits as well. Say more though, because as a matter of justice, he was anti-slavery great yes but as a matter of prudence thumbs down because he killed people because it didn't it's at the cause back like say more about the prudential problem because i think so when david's talking about what he was taught i was taught john brown was the bad guy and i've been revisiting that in the last you know decade or so of my life and just struggling with it. It's not that I think he was universally a good guy, but I think it's the easy caricature of John Brown, bad guy, extremist, terrorist, et cetera. Like, well, if there was ever a time to be an extremist or a terrorist,

surely in fighting slavery, there's no better cause. Yeah. I mean, so, cause in that regard, uh, let's say, you know, what he aimed to do, I would say it might be fair because at least when you look at, uh, we haven't talked about it a lot, but if you look at natural right reasoning, right? If you look at what natural rights mean and how it correlates with law, the way Douglas understood slavery, but also most abolitionists, even Sam and Chase and others. Now people might disagree with me on this, but the way they really thought about this was slavery was a lawless enterprise. It was a lawless institution. So yes, you might have laws on the books that protect slavery, but those aren't really laws. So what you really have

is you just have oppression by pure violence, right? There's no law that protects this. And in that regard, what John Brown was trying to achieve might be fair game, right? Because sort of let's arm slaves, right? Let's arm them and let's fight back. In that regard, it's completely fair because, yes, this is just lawless violence. So how do you meet lawless violence? You might have to meet it with more violence. Now, I want to say that was in the context of slavery. I don't want

people to go out and think, oh, anytime I disagree with the law, it's lawless violence, right? That's not the case. You have to read much more closely and understand what they meant by that, i.e. read my book when it comes out. But as far as prudence, it just wasn't prudent. And so in that regard, what John Brown did was not wise in any way, shape, or form, and he should not have done it, in part because it was not well conceived. And this is why Frederick Douglass, for instance, housed John Brown and was actively involved in discussing the idea behind sort of this idea of slave revolt, arming slaves. But the more he learned about John Brown's ideas, the more he realized this is just going to get people killed.

So there was nothing prudent about it. And Douglass disavowed John Brown's approach ultimately. But because of his loose relation with John Brown, he did have to flee the country, right? After Harpers Ferry. But that's why I would say, yes, as a matter of justice, I think he had a fair approach. But as a matter of prudence, it was completely ill-conceived and never should have been done. David, can I tell you what got me rethinking my John Brown thinking? Yeah, absolutely.

Because this has just never happened to me in my whole life. And it stands out as this odd moment. So if you're visiting DC and you go to the national portrait gallery, you can see the portrait of John Brown. And I was, you know, all the museums, Smithsonian's here are free. And so sometimes if you're feeling glum or just need to get away from the

office, you just like sort of wander a Smithsonian as one is want to do, especially when the weather's inclement, which is pretty much all the time here in DC. It's either too hot, too cold, snowing, raining, something. And so I went to the portrait gallery and was looking at his portrait. That's the first time it occurred to me that there was something more complicated here. Like art actually made me rethink philosophy. Oh, I totally get that.

And look, the way I think of it is, look, if an American revolution under the facts of British oppression of the colonists was justifiable, then a slave rebellion against slave power was triple justifiable, right? However, just as an American revolution where if George Washington walked into, say, a Tory community and pulled out a bunch of Tory men and slaughtered them in cold blood in front of their families would not be justifiable. Neither is the, how do you pronounce it, the Pottawatomie Massacre or whatever that John Brown executed before his Harper's Ferry raid, where he just slaughtered five men in front of their families.

No, no. And so I think that the legacy of John Brown is mixed with this fierce understanding that slavery was a moral atrocity that could, in fact, slavery was dealt with by force of arms, including, yes, by arming black Americans, right? By the thousands upon thousands upon thousands. But that armed attack on slavery was conducted according to and in a manner that was consistent with the way, it was not murder, it was warfare. And I know that might sound, well, somebody says, well, yeah, warfare is just murder at scale. No, there is a difference. And I do believe that when you're talking about John Brown, you're talking about fierce conviction and a true vision that, in fact, that there was

justification for an armed rebellion, armed slave rebellion, but also the dude was just a flat out cold blooded murderer at the same time. And that can't really, it's tough to gloss that over. Yeah. And, you know, I would just put in a little plug on Douglas's argument here. When you go to what some people call the slave insurrection clause, right? This idea that when there is domestic violence, you know, the federal government, you can, states can sue for the federal government to quell such violence. And again, if you look at slavery as lawless violence, every slave has a natural right to defend themselves against their master.

They can revolt. They can rebel. slave has a natural right to defend themselves against their master. They can revolt. They can rebel. And Douglass's sense was, well, this domestic violence clause is under the Republican guarantee and you cannot have slavery in a Republican government. So actually what that clause really meant was South, good luck having your slaves. The moment you sue us for protection, which means we have to end slavery, right? Because we have to end the violence, right? Which is to end slavery. That was sort of his, maybe it was a cute argument, but I don't know. I found it persuasive.

All right, professor. Thank you so much for joining us. This was a real summer treat and not on July 5th. Good luck with classes this fall. Shout out to Professor Ribeiro's students. I know you're all looking forward to the 14th Amendment class, but come on, property, you guys, it's the best. So get pumped, get excited. The bundle of sticks is coming.

Yeah, my most popular professor, my 1L year was our property professor, who also happened to be the only non-critical legal theorist I had the entire 1L year. So I don't know if there was a coincidence there. Well, my students will be learning a lot. Unfortunately, Douglas won't fit quite into property, but by golly, he'll fit into the 14th Amendment. That's right. With bells on.

Thanks, Professor. Thank you. Well, David, that was a treat. Yeah, it really was. It really was. And, you know, like I said earlier, that there is such a void in your education about American history

if you have not learned about Frederick Douglass, if you've not read Frederick Douglass. And I have been trying to fill that void, especially in recent years. And so this was just a treat all around and gives us an opportunity to plug Frederick Douglass's work as one of America's key founders. Yeah. I mean, I also love when we get to bounce out of the daily news on this podcast and do something more big picture about, for instance, compromise and the Frederick Douglas versus John Brown debate to me, like I could do that for hours. Yeah. Who's the better person? Who's the better American? Who's the better? I mean, however you want to think about

it, because I don't think it's an easy answer. You know, if you're a woman and Frederick Douglass gave away your right to vote and he's like, look, that was reality. That's all we could get done. I am actually very sympathetic to that. But that's because I think I feel the constraints of political reality more than people who are purists. And I mean, that is a bad thing for me, right? Like that sometimes purists are right. And sometimes if you just

push through and don't just accept what seems probable or likely, you are going to get a better moral outcome. And I probably compromised too quickly. You know, it's interesting. There are echoes, loud echoes of this in the internal debates you see in the pro-life movement because there's a wing of the pro-life movement that says if you vote for a six week abortion ban you're selling out the cause of life because what about abortions before six weeks or if you do a 15 week ban you're selling selling out. There can be, if you do a rape or incest exceptions, you're selling out. And that there, you know, that in fact, there is no such thing as sort of this idea of the perfect being the enemy of the good, because they would say any compromise is not good.

At which point the political realists say, well, it's really, life must be awesome in your little utopia where you actually have a shot at getting everything that you want. And you believe that you can get everything that you want if only us pesky compromisers would step away. Because then the reality is you're not going to get anything at all if you exist on everything. And so therefore, you're actually the impediment to better laws and the cause of life because your totalism means no improvement in the law at all.

And this is something, and it's playing out on Twitter and pro-life circles in very vitriolic ways. And I'm firmly on the side of don't make the perfect the enemy of the good. And many people see me as just like, well, you're not even really pro-life if you adopt that approach. And so this is something that's actually playing out in American

and plays out time and time and time again on key issues. Immigration, climate change, whatever the issue is. So I don't know. I think I will forever find the debate between compromise and absolutism really interesting. And I think it helps to have that debate outside of our current issues. Again, abortion, immigration, climate change, and have it around John Brown and Frederick Douglass because the moral imperative there is without question. It is the highest.

So have it around the thing that is the easiest to all agree. This was a number one moral imperative. Okay. So now what do you do? Yeah. No, it's, it's a tremendous, you know, one of the reasons why I like free speech so much is it protects everybody involved in that debate. Like, if you're somebody who's more predisposed to compromise, you need to hear from the absolutists. You need their perspective, and vice versa. If you're somebody who's more predisposed to be an absolutist, you need to hear from the compromisers. And I think that if we had a public square in which the compromisers

won the final and complete victory over their absolutist foes, it would be bad for all of us. Similarly, if the absolutists won the final and complete victory over their compromising foes, it would be bad for all of us because sometimes the more absolutist position is correct. And sometimes the more compromising position is correct. And how are we going to know if we're not fighting about it? And with that, AO listeners, go fight some compromisers or some absolutists. Or vice versa. Yes. Yeah. Whichever. Whichever you are, go fight the other side. Uh, maybe you'll learn something or just, you know, go read the whole of Frederick Douglass's speech on July 5th, but whatever it is,

have a fabulous rest of your week. I'm signing off three weeks to go here. Um, so, you know, any day, any day now.