Opinion: Why Frederick Douglass Was Right

Each year on July 4, we celebrate the birth of the United States of America. While some countries have historical origins spanning millenia, our history has not passed the quarter-millennium mark. Our oft-stated commonality lies  in our overwhelming desire for freedom from the tyranny of monarchy. Differences are fissures in our foundational core which occasionally slide, shake, or erupt on a fairly regular basis. In some ways, the United States of America is its own San Andreas fault line. We are just waiting for the big one to rip apart a well-intended, yet fragile democracy.

As a fragile Jenga-like mixture of federal republic and representative democracy, our nation is a bouillabaisse often celebrated and rarely understood even by our allies. While called a strength, too often our melting-pot differences spill over into the fire that nurtures our community as a whole with its warmth.

A fellow Marylander, Frederick Douglass was among the first, but certainly not the last to point out these problems in a speech he gave on July 5, 1852 about why the celebrations on July 4 mean nothing to the persons enslaved. In 1787, during the convention to make changes to the fledging government, a compromise made the enslaved three-fifths of a person, counted only to establish proportional representation in the new government and tax burden. In short, money was the reason to consider those who toiled as slightly more than just living, breathing, property.

More than nine years would pass before the official Emancipation Proclamation by Executive Order – Proclamation 95, with another decade before the final order would be known on June 19, 1865 (Juneteenth), and still more than 110 years before the August 6, 1965 Voting Rights Act would bring any semblance of true freedom to those enslaved persons in 1776 and their descendants.

Douglass’ point was the irony of a holiday celebrating freedom and equality while a substantial portion of its population remained enslaved. Maps of the division between slave states and free states in 1846, 1858, and 1861 show a sharp division. The abolition of slavery over time in the United States shows progression of nearly 100 years, culminating with the ratification of the Thirteenth Amendment in 1865.

The very values that are lauded each year, not only during July 4 celebrations, but also during the presidential inaugurations as representative of a peaceful transition of power, were not present for the enslaved, as Douglass notes:

Growing up, I did not understand why some celebrated with cheers, while others chose not to celebrate. Recently, after the passage of the Juneteenth law, I am beginning to understand.

Why celebrate a holiday fully if one is not free? In light of this history, the nation is fully free when all of its citizens have the right to full justice, liberty, and yes, the pursuit of happiness.

On Friday, June 24, 2022, our societal fault cracked. Whether this fissure ruptures further remains to be seen. Freedom, like our republic and our democracy, is a slippery surface.

Although I was not born into physical enslavement, during my lifetime certain rights that I presumed were permanent are now fully at stake. I’m a Black gay woman with no daughters. Yet I enjoyed a freedom to designate how and whether to have children through a bodily autonomy that no longer exists in the land after June 24, 2022 with the Supreme Court 6-3 decision to overturn Roe v. Wade with a new decision on Dobbs v. Jackson Women’s Health Organization.

While I currently have the freedom legally to marry the partner of my choice, to have sexual relations in whatever manner I choose in the privacy of my bedroom, and to adopt children with my partner, those rights are also in jeopardy, thanks to the concurring opinion by Supreme Court Justice Clarence Thomas, the second Black person to have held a seat on the court and the replacement for Thurgood Marshall, noted for his efforts in winning the Brown v. Board of Education, Topeka, KS case, among other civil rights cases.

For my partnered friends and colleagues, the supplemental proclamation by Justice Clarence Thomas marks a clear bullseye on every person who does not fit the mold of a white heterosexual monogamous male. If the right to privacy is off the table, then any Fourteenth Amendment provision is also suspect. A partial list for major decisions affected directly by interpretations of this amendment include many hallmarks of progress during the Civil Rights era in the areas of education (Brown v. Board of Education -Topeka,KS)(1954), the right to same-sex marriage and inclusive of the right to adoption by married same-sex couples (Obergefell v. Hodges) (2015), the right to privacy with regard to sexual matters (Lawrence v. Texas) (2003), and the right to interracial marriage (Loving v. Virginia) (1967).

What I found most striking about Justice Thomas’s concurrence as the second Black Supreme Court Justice in 233 years was the following:

Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993); see also, e.g., Collins v. Harker Heights, 503 U. S. 115, 125 (1992).

[…]

Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.

Although Thomas notes that the court does not disturb rights in other areas outside that concerning abortion, he then issues a clarion call to reconsider major “settled” decisions that concern the overall right to privacy:

The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amend- ment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.”

He continues with even more chilling words:

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J.,concurring in judgment) (slip op., at 7), we have a duty to“correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.

The freedom I enjoyed even 10 or 15 years ago to pursue a family using IVF or IUI as a gay woman may be in jeopardy for those living in states where any potential destruction of embryos or any attempts by members of the LGBTQ+ community to grow families is discouraged or even outlawed.

For women or couples suffering infertility issues, miscarriages, medical incapacity to conceive outside traditional vagina-penis sexual encounters, this is a loss of freedom. For anyone seeking to enjoy sexual freedom in the privacy of their own home, this is a warning not to take the current state of affairs for granted.

Although Thomas did not name the case for interracial marriage (Loving v. Virginia), this case is cited as a foundational principle for the eventual ruling in favor of same-sex marriage. Therefore, a reconsideration of whether same-sex marriage should be legal in the United States theoretically would also unearth a re-examination of the legalities of interracial marriage.

Bodily autonomy is a human right

The Thirteenth Amendment abolished slavery under the guise of the oft-quoted statement that “all men are created equal“, first written in the 1776 Declaration of Independence, an irony given that slavery would persist for nearly another hundred years until the final 1865 ratification of the 1864 bill. The Thirteenth Amendment ended the legal power that slaveholders had over the bodies of the enslaved; in the case of Black women, this meant the right to their bodies and most especially, their offspring. The ability to bear children would mean increased capital or wealth; an end to slavery meant an end to access of more slaves through childbirth.

In a similar vein, an end to the formerly settled ruling of Roe v. Wade and the removal of any semblance of a right simply because it does not appear in the original constitution or in earlier debates led by the Founding Fathers or our leaders at the time means that when we  tell our children that in America, “you can be anything you want and you can do (as career) anything you want, that we are spouting lies.

For years, a portion of the United States did not celebrate July 4 because in consideration, the entire nation was not free.

We are still not free.

The only difference is that now more than fifty percent of the U.S. population is affected by this ruling based on gender alone. Between seven and potentially ten percent are openly LGBT with many in same-sex marriages.

The only difference is that our future at present is far more bleak for the many children and human contemporaries living in the US in the twenty-first century than those who fought, bled, and died for  civil rights in the preceding 233 years of our nation’s existence.

The fall of Roe v. Wade and the open call from Justice Thomas, the second African-American U.S. Supreme Court justice, to contest other decisions resulting from the Fourteenth Amendment and “Right to Privacy” presents a future far more bleak for the many children and human contemporaries living in the US in the 21st century.

The words “Equal Justice Under the Law” hearken back to the Fourteenth Amendment and carved into the very Temple of Justice, the hall for the United States Supreme Court.

Freedom dissipates when the mob is in charge of the leadership.

The mob is in charge.

We are someone’s ancestors – Do we act accordingly?

Now is a time to reassess and to challenge the mob, the precepts, the hollow promises of liberty and justice for all. For decades, the cry for equal justice has had its day in the press, and in a variety of cases.

Too many became complacent on the idea of liberty as a basic freedom and a basic right. The importance of Roe v. Wade falling as a death knell for freedom in the United States of America is not about the right to have an abortion, but about the rights that a people have taken for granted as being permanent

The successful demise of Roe v. Wade and potentially other rights based on the Fourteenth Amendment came at the hands of well-crafted planning, strategic judicial opportunities from several states, the appointment of several conservative Supreme Court justices whose judicial and personal background clearly indicated a preference to reduce or to eliminate the ability to secure an abortion in the United States.

Each of us is someone’s ancestor, and we are not acting accordingly.

We honor freedom when we remember the past, when we honor the past by educating ourselves regarding events less well known in our country,  when we choose to shine the light into  dark spaces, and when we learn from the history of the past.

Frederick Douglass correctly posed the question when he spoke in 1852:

What, to the American slave, is your 4th of July? I answer; a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are, to Him, mere bombast, fraud, deception, impiety, and hypocrisy-a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States, at this very hour.

This week celebrates the 170th anniversary to Douglass’s speech. Many Americans might not even know about this speech, its chilling importance, and ramifications.  His cautions against celebrating freely when all are not free, when the benefits and bountiful blessings are not shared by an entire populace are more dire than ever.

While the speech has enjoyed something of a renaissance since Juneteenth became a U.S. Federal holiday in 2021, with celebrations and reading of the speech, it is sad that the most recent decision is a chilling reminder that our nation remains enslaved by political machinations that serve the few, not the many.

We cannot keep the freedom upon which our country is founded and its proclamations of “liberty and justice for all” when we are not choosing to bear witness to what is going on in our country.  This is a time when accurate witnesses are most needed as truth is a rare commodity sliced thin to accommodate a hungry horde.

We cannot have freedom in a country where our basic values are compromised. For those who identify as female, for those who identify anywhere on the LGBTQ+ spectrum, and for those who are people of color, these are dark and dire times. We must stand together by providing information, aid, and mutual respect.

The fault line will hold if we do not allow the fissure to deepen and rupture completely.

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