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Macmillan Childrens Publishing Group

Inventing Equality

Reconstructing the Constitution in the Aftermath of the Civil War

Michael A. Bellesiles

St. Martin's Press



“What to the slave is the Fourth of July?”

On July 4, 1852, Frederick Douglass put this question to an Independence Day celebration in Rochester, New York. No ordinary critic of America’s slave system, Douglass existed because a white man had raped an enslaved black woman. Douglass had almost no memories of his mother, from whom he was separated as an infant at the whim of their owner. As a young boy he witnessed slavery’s full range of depravity, on one occasion watching in horror as his new owner stripped his aunt, hung her from a ceiling, and whipped her.

Douglass determined at a young age to violate the rigid and brutal constraints of the slave system. Denied the right to exercise what he saw as the natural curiosity of the young, Douglass educated himself in violation of the law and risked a death sentence teaching other slaves to read. His owner quickly identified the young slave as a troublemaker and handed him over to a specialist in “breaking” unruly slaves. The subject of repeated vicious beatings, Douglass stole himself in 1838, fleeing the South and servitude. That flight failed to bring freedom, as he spent the ensuing eight years as a fugitive from American justice, aware that at any moment he could be seized by slave-catchers and returned to slavery.

In spite of this constant peril in the supposedly free North, Douglass frequently spoke out in public settings against American tyranny. Grievously beaten by a mob in Indiana and closely pursued by slave-hunters, Douglass fled to England in 1845 and then to Ireland, where he spoke to large crowds and became an instant celebrity. The publication of his memoirs that year cemented that fame on both sides of the Atlantic. After British supporters raised the funds to officially purchase his freedom, Douglass returned to the United States in 1846 a free man.

Strikingly handsome and imposing, with a dramatic crown of thick black hair, Douglass possessed a powerful speaking voice, the equal of any contemporary orator’s. Douglass knew how to move an audience, as he did that Independence Day in Rochester’s Corinthian Hall. As he began his talk, the six hundred primarily white men and women leaned forward. At first he set them at ease, praising the nation’s founders for their commitment to human liberty.

Then came a sudden shift in tone. Slowly raising his voice, Douglass directly addressed his audience. They, he pointed out, could safely proclaim the freedoms they possessed as citizens of the United States, but what did “the great principles of political freedom and of natural justice, embodied in that Declaration of Independence,” have to do with Americans like him? Black Americans could not be part of this national celebration, which mocked their aspirations as well as the principles white Americans claimed as their own. The Constitution, while granting liberty to some people, validated the subjugation of millions. Making his audience ever more uncomfortable, Douglass emphasized each use of the pronoun “your”—“your rights,” “your liberty.” He then hit them in the gut by begging their pardon for asking, but “what have I to do with your national independence?” The celebration of American independence only served to underscore the distance between them, demonstrating “the sacrilegious irony” of a country proclaiming its love of freedom while upholding and protecting the institution of slavery.

Douglass spoke a truth few people wanted to hear: that when it came to its own supposed ideals, “America is false to the past, false to the present, and solemnly binds herself to be false to the future.” It was well past time to expose the nation’s hypocrisy.1

The Constitution, in Douglass’s words, “is not an abstraction” but the very bond of the Union, exerting great legal, political, and cultural influence. Its power came down firmly in favor of slavery. The Constitutional Convention betrayed the principles of the Revolution in producing a document that was “radically and essentially pro-slavery,” making every supposedly free American part of “the body guards of slavery.”2 Little wonder that Douglass’s ally William Lloyd Garrison declared the Constitution “a covenant with death, and an agreement with hell.”3 For these reasons, the celebration of American freedom “is a sham … your shouts of liberty and equality, hollow mockery.” Any slave could speak truth to the slave owners’ power, if allowed to speak, and make clear that claims of divine favor and Christian sentiment served as “a thin veil to cover up crimes which would disgrace a nation of savages.”4

The shocked audience had invited Douglass to speak on a day celebrating freedom, and had likely expected him to offer a hopeful message about America’s trend in that direction. Instead, he’d rubbed their noses in their own complicity, revealing the violence and hypocrisy beneath the celebrations of independence and equality. Slaves were also Americans, so the crimes of slavery were visited upon Americans by Americans. How could this perfect document, this Constitution that everyone claimed to venerate, be so flawed, so damaged at birth? No doubt some people dismissed his comments as the bitter rantings of a former slave unable to properly appreciate his good fortune in living in a free state. Yet Douglass raised disturbing points: How could the Constitution defend both freedom and slavery? What happened to the promised ideals of the Declaration of Independence so beautifully expressed in the glorious phrase “all men are created equal”? Why did so few white Americans embrace their own venerated doctrine?

Frederick Douglass saw what so many white Americans could not see or would not admit—that their country promoted and even celebrated inequality. His questions and his doubts about our shared commitment to the ideals we proclaim remain central to the history and development of the United States. We find his words echoing down the years, in documents public and private during the Civil War of 1861–65, and during the conflict for America’s future that we know as the Reconstruction era, 1865 to 1877. The questions arise repeatedly during the dark age of segregation and can be heard in Franklin Roosevelt’s State of the Union address of 1944 charging that those forced into dire poverty can never know true freedom. Douglass’s language lives on in the ringing oratory of the civil rights and women’s rights movements, in the great progressive Supreme Court decisions of the 1960s and 1970s, and in the bitter dissents of the twenty-first century. Through the seventeen decades since Douglass asked about the true meaning of the Fourth of July, the fundamental question persists: do we mean what we say about human equality?

American history can be seen as a battle to reconcile the large gap between our stated ideals and the reality of our republic. It is a struggle that cannot honestly be cast as one of steady progress toward ever greater freedom and equality. Every step forward appears to be matched by a step back. But neither can we just dismiss this history as a series of sad footnotes in a losing battle against intolerance. In so many ways the sweep of our history is the story of people fighting to expand the working definition of what it means to be an American citizen, and to determine who is worthy of that designation. It is a story of resistance to the anti-democratic forces fearful of change, and of courageous individuals who will not abandon the fight for human equality.

This book traces the evolution of that battle for true equality from the Revolution through the late nineteenth century. We begin by examining the bright promise of the Revolutionary period, with the high ideals propounded by the Declaration of Independence and the Constitution, showing how both documents ultimately contained the seeds of their own negation. Moving beyond the obvious contradiction of a slave owner declaring that “all men are created equal,” Chapter 1 identifies systemic legal flaws that ensured the inability of the nation to attain its stated ideal of legal equality. In a bitter irony, the Supreme Court itself made the case for the inherent weakness of the Constitution in its notorious Dred Scott decision, which jettisoned any pretense of respect for legal equality—or historical accuracy—in denying citizenship to millions of native-born Americans. That corruption of American ideals is the subject of Chapter 2, which ends with the fulfillment of Abraham Lincoln’s prophecy that “a house divided against itself cannot stand.”

The Dred Scott decision led inexorably to the bloodiest conflict in this nation’s history, the Civil War. Chapter 3 argues that this war quickly transformed the United States by teaching tens of thousands of Americans the reality and value of equality. For the first time, white Americans took seriously the notion that black men could truly be the equal of whites. Within the global context, an even more dramatic shift came with the spreading perception that maybe women also should enjoy the benefits of legal equality.

By the war’s end, millions of Americans believed that their Constitution needed to be fixed in order to secure the rights of all. Chapters 4 and 5 examine this development, which occurred over the period of a few brief years when Congress acted with vigor to repair the Constitution’s fundamental rent with three amendments ending slavery, defining citizenship while protecting the rights of all those born or naturalized in the United States, and guaranteeing the right to vote to all men. But that last qualifier marked a great betrayal of the principles and promises of the Civil War and Reconstruction, and is the subject of Chapter 6. By excluding women from constitutional protections, Congress validated a second-class citizenship for half the population and ultimately undermined the positive results of the long, bloody war.

A commitment to various forms of inequality did not fade with the passage of the Fourteenth Amendment, with far too many white males finding no reason to share their “democracy.” That counterattack on equality is the theme of Chapter 7, which demonstrates the Supreme Court’s hostility to a humane interpretation of the Reconstruction amendments in favor of restrictive policies establishing distinctive levels of citizenship. This reactionary stance by the nation’s highest court found academic support from the proponents of the pseudo-science of social Darwinism, as well as from southern white politicians intent on restoring slavery under a different guise. Their combined efforts destroyed most of the progressive advances resulting from the Civil War, thrusting the nation back into a primitive white tribalism buttressed by a patina of alleged scientific rationalism.

If we end the story there, we are left with nothing but another historical tragedy. However, the seeming triumph of inequality in the late nineteenth century did not go unchallenged. As the Epilogue suggests, the advocates of equality did not meekly accept either the Supreme Court’s efforts to turn back the clock or congressional quiescence. Often overlooked by historians, large numbers of women and men persisted in their battle for true legal equality. Though they usually lost in their efforts to gain respect and rights, these brave warriors laid the groundwork for later challenges to discriminatory legislation and unjust systems. Over the years these advocates of equality highlighted the remarkable power of the opening paragraph of the Fourteenth Amendment, which promised full legal rights for all citizens. A later war against the forces of tyranny inspired another generation of heroic figures to return to the fight, resuscitating the Fourteenth Amendment and with it the dormant concept of equality.

As we near the 250th anniversary of the Declaration of Independence, Americans continue to debate equality. It is hoped that this book will inform that conversation while reminding the citizens of the United States, a nation whose foundational document promises in its opening sentence to “secure the blessings of liberty” for all people without exception, that our work is not done.

Copyright © 2020 by Michael A. Bellesiles