The road to and past the Thirteenth Amendment
on Dec 21, 2015 at 1:35 pm
The past year, as part of the Leon Silverman Lecture Series, the Supreme Court Historical Society explored the history of the Supreme Court during the Civil War and the Reconstruction era with a particular emphasis on the Fourteenth Amendment. Making a slight shift to mark the sesquicentennial of the Thirteenth Amendment, which abolished slavery, the society invited Eric Foner, a history professor at Columbia University, to discuss what exactly it meant to abolish slavery, how the nation got to the point of passing such an amendment, and how the nation responded to it.
In 1860, at the beginning of the Civil War, the end of slavery hardly seemed inevitable. More slaves lived and worked in the United States at that time than at any previous point in its history, and more slaves lived in the Western hemisphere (including Brazil and Cuba) than ever before. More than factories or railroads, slaves represented the largest concentration of property in the nation. The Chicago Tribune, a proudly anti-slavery newspaper and leading abolitionist force, resigned itself to the likelihood that “no man living would see the end of American slavery.”
If anything, the legal entrenchment of slavery seemed more likely than its demise. At the time of the Confederate states’ secession, Congress was considering an amendment to the Constitution (known as the Corwin Amendment) to make clear that it was not allowed to interfere with any interference with “domestic institutions” of the states, specifically slavery.
Abraham Lincoln himself shared this mindset. He had declared (and Foner believes that there is no reason to doubt his sincerity) before the outbreak of war that he had “always hated slavery,” and he decried the institution as a “monstrous injustice,” a “cancer” on the nation, and a horrible violation of the Declaration of Independence’s call for equality. At the same time, Foner described Lincoln as a lawyer, politician, constitutionalist, and especially a pragmatist who worried about attacking slavery too much “lest the entire edifice [of the nation] fall to pieces.”
Lincoln advocated an end to slavery through the process of colonization, in which freed slaves would be settled in a new homeland outside the United States. Although this idea may seem clumsy, naïve, and racist today, for many at the time – including abolitionists more idealistic and zealous than Lincoln – it represented the pragmatic approach to the legal difficulty of ending slavery.
Foner at this point provided some helpful context concerning three possible ways that existed at the time to end slavery. The first was individual manumission – that is, slave owners deciding on their own to free their slaves. This did occur, but in amounts vastly insufficient to see an end to the institution. Lincoln preferred the second option: ending slavery through legal process. The problem with this approach was that the Constitution was widely understood at the time to bar interference with the states on this issue (even without the Corwin Amendment). And, as a practical matter, slave owners wielded so much political power in many states that a legal end to the institution could come about only with their own cooperation and consent. Generally speaking, this cooperation would entail monetary compensation to the owners for their slaves and the resettlement of the now-freed slaves outside the country; the owners had no interest in a free labor, bi-racial society with the negative economic and political consequences that, in their view, would result.
Lincoln did speak of a society without slavery, albeit one in the distant future. To many in the slave-holding states, this was enough to mark him off as dangerous, even as he always couched efforts by fellow Republicans as a long-term battle on the institution rather than a frontal assault. The distrust of Lincoln in the slave-holding states of course helped to usher in the third way by which slavery could be eliminated: military emancipation. This had happened throughout the hemisphere, freeing slaves but often not destroying the system of slavery. (A fourth, related possibility, slave rebellion, was possible but considered unlikely.)
Despite the Confederacy’s premonitions about Lincoln, he insisted at first that the war did not begin to end slavery. Even still, Republicans quickly began taking steps in this direction, although Lincoln still held to the idea of gradual emancipation. Lincoln introduced a proposal, ultimately unsuccessful, in which state action coupled with federal support would end slavery in Delaware by providing compensation to the owners and colonizing the former slaves. At the same time, early military expansion resulted in freedom for many slaves as the return of fugitive slaves ceased and slaves inside Union lines instead won their freedom.
By 1862, congressional measures, such as the abolition of slavery in the District of Columbia, increased in urgency as military strategy faltered. In September 1862, Lincoln began bolder moves with preliminary drafts of the Emancipation Proclamation. As late as December, however, he still seemed to favor long-term abolition, as evidenced by an end-of-the-year request to Congress for funds on pace to end slavery by 1900.
On January 1, 1863, caught between various proposals, Lincoln opted for a more immediate path and issued the Emancipation Proclamation, immediately changing the policy and nature of the war. Lincoln did not, as it is sometimes explained, free slaves with the stroke of a pen; the proclamation did not include border states and exempted parts of the Confederacy under Union control. Nevertheless, the proclamation covered thirty-one million individuals, making it the largest act of emancipation in world history and sounding the death knell for American slavery should the Union prevail in the war. Frederick Douglass helped to organize scouts to spread news of the proclamation among slaves in the areas still controlled by the Confederacy, and other abolitionist efforts increased as well. Nevertheless, the proclamation only emancipated slaves; it did not eliminate the legal status of slaves or the laws upholding the apparatus of slavery. Abolition would still require something more.
Following the issuance of the proclamation, Lincoln never again mentioned colonization. Cooperation with slave owners no longer mattered. Lincoln’s rhetoric from this point on focused entirely on the entry of former slaves into free competition in the marketplace of labor, yet it was unclear what exactly a post-slavery, bi-racial society could be. Previous attempts, including an apprenticeship system tried in the British Caribbean, had produced disastrous results.
Even still, Lincoln focused on establishing Unionist state governments in Confederate states as they came under Union control. By 1865, seven states had formally abolished slavery either through their wartime legislatures or a convention for a new state constitution – crucial steps making plausible a national amendment abolishing slavery.
At the same time, Lincoln still hesitated. Scholars are quite divided on who should be considered the “father of the amendment,” but there are plenty of candidates besides Lincoln. Indeed, the New York Herald actually called the first attempt at an amendment, which ultimately fell short in the House of Representatives, a “rebuke” to Lincoln – not for its failure but because it had come so close to passing.
Republicans, largely but not uniformly calling for an amendment about slavery and equality, had done well in the elections the preceding fall. This success allowed Lincoln to put extra pressure on Democrats, many of whom hoped to present themselves as compromising as they looked ahead to an eventual Confederate re-entry into the Union, hopefully to them on somewhat favorable terms. Andrew Johnson, a representative of yeoman farmers who criticized the entrenched political power of slave owners (and who viewed himself as a modern Moses figure despite or perhaps in keeping with his incorrigible racism), played a crucial role in the passage of the amendment in key border states. In the recent movie Lincoln, the vote on the amendment on the House floor takes place amid an atmosphere of urgency: there is a sense that, if it does not pass, the Confederacy may immediately surrender and thus support for the amendment may collapse. Foner informed the audience that in reality the passage of the amendment on the final day of the exiting Congress was not so dramatic. Lincoln authorized the Speaker of the House to announce that, were the amendment to fail, it would be brought up again in just a little over a month when the next Congress convened, and it almost certainly then would have passed.
Although “one question of the age is settled,” in one congressman’s words, a host of others emerged. What exactly had been abolished? What was a free person in post-war America? And what really is meant by freedom? Many blacks criticized the amendment for not going far enough, and one paper, The Black Press, reported that the amendment was “not sufficient to deal with freedom. The ancient relation can be maintained by cunningly devised laws.” On the one hand, there seemed consensus that “mere exemption from servitude is a meager idea of freedom,” as one congressman put it, and that the amendment did more than abolish the legal status of slave: it ushered in a new, bi-racial society based on equality. On the other hand, division persisted about the extent of federal authority.
Disagreement over federal authority centered on a distinction between state and private action: did the amendment empower Congress to rule with regards to individuals? This uncertainty proved to be a major impetus to the Civil Rights Act of 1866, based on individual rights and protections. The act meant that, for the first time in the United States, race served not as a boundary to exclude but instead a baseline by which equality before the law would be measured. Ironically, even poignantly, this law drew the enforcement mechanisms first devised through the Fugitive Slave Act of 1850. But while that act had been used to protect the rights of owners to reclaim slaves, now it served the right of all Americans to their freedom.
As Foner would emphasize, all of these moments – the Emancipation Proclamation, the Thirteenth Amendment, the Civil Rights Act of 1866 – represented not final solutions but resting places in a dynamic process, especially given the defeats these advances met at the Supreme Court. The Court interpreted the Fourteenth and Fifteenth Amendments in the narrowest possible manner, and both were seen as implying limiting definitions, rather than additional specifications, over the Thirteenth Amendment. At the overturning of the Civil Rights Act of 1866, Justice Marshall Harlan lamented that the Court had sacrificed both the substance and spirit of the Thirteenth Amendment, which — as seen before the Civil War – “did more than prohibit slavery.” Although the Court had a long jurisprudence before the Civil War of securing rights of owners, it did not extend this jurisprudence to the rights of the now-freed slaves. The Thirteenth Amendment fell into disuse, and with the notable exception of a 1968 private housing discrimination case was hardly ever cited by the Justices in either opinions or dissents.
As Foner concluded, he proposed a re-discovery of the Thirteenth Amendment that might inspire a re-thinking of the dichotomy between state action and private action – which, he suggested, few historians take seriously anymore. In Lincoln’s second inaugural address, he identified slavery as the cause of the Civil War and challenged the nation to “strive on to finish the work we are in, to bind up the nation’s wounds.” Foner left the audience by renewing this same challenge.
