Thirteenth Amendment (Framing)

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Scholars and jurists have virtually ignored the Thirteenth Amendment, the Constitution's first formal addition in sixty-one years. Reasons for this indifference seem, initially, to be both obvious and adequate. The Thirteenth Amendment, ratified in December 1865, appears to be a simple, brief statement of the noble, limited effect of the civil war.

Its succinct text, written by Illinois Senator lyman trumbull, echoed clauses of the northwest ordinance. In the Civil War's last weeks, during the closing session of the 38th Congress, Senator charles sumner tried to substitute for the proposed Amendment's second section one specifying that every person was equal before both national and state laws. Trumbull, a constitutional specialist, favored section 2 in its present form. Sumner and many other congressmen assumed that all parts of the Constitution, including amendments, implicitly authorized enforcement; Trumbull wished to have the amendment empower enforcement explicitly. There was almost no other discussion on the amendment. In a sense, abolition had been before the congressmen and the nation since 1861.

Persons who celebrated abolition's arrival in 1865 did not foresee that race problems and derivative strains in federal relations were to require a fourteenth and a fifteenth amendment plus enforcement legislation, and would lead to the first impeachment of a President. Celebrants of 1865 stressed the "war-gulf" that separated the ratified Thirteenth Amendment from one in early 1861 that Congress had proposed and three states had ratified in a desperate effort to seduce the South from seceding. The aborted Thirteenth Amendment would have forbidden the nation perpetually from curtailing slavery in states where it existed. Thereafter the nation steadily raised both its sense of self-interest and its moral sights. Union troops in the South reported that the only trustworthy residents were black. Though few Negroes lived outside the South, most Northern states had long been racist in laws and customs, if never so fiercely as in the slave states. During the war Northern racism softened, partially as a result of pro-Negro reports from Union soldiers and partly from the diffusion of abolitionist constitutional theory. Before the war, abolitionists, long hard-pressed even in the North, had come to scorn the Constitution, for it did not protect them against unpunished harassments. But once the war started, Union and abolition became identified. Gradually, Congress and abraham lincoln caught up to Union soldiers' needs, constituents' altering race sentiments, and abolitionists' aspirations and perceptions.

In 1861 and 1862, confiscation acts threatened disloyal individuals with the loss of their title to property, including slaves, after individual prosecutions in federal courts. In September 1862, Lincoln's emancipation proclamation, an executive, war-power order, offered slave-owners ninety days in which to give up the rebellion or lose their slaves. That grace period having expired, Lincoln in January 1863 ordered also the recruitment of Negroes, most of whom lived in the South, into the Union's armies. In December 1863 and July 1864 respectively, Reconstruction policies issued by the President and the Congress provided for emancipation as a prerequisite for state restorations. The fall 1864 election proved the growth of a Northern consensus in favor of irreversible emancipation as a war result, though, save for abolitionists, it had not been an original war aim. Therefore the 38th Congress, with Lincoln's warm support, prepared the present Thirteenth Amendment, and when the war ended it sent it to the states for ratification.

Despite its simplicity, the Thirteenth Amendment was a momentous, perhaps revolutionary change in constitutional relationships. It prohibited not only the national or state governments or officials but every American institution and person from allowing slavery or involuntary servitude to exist, and it specifically authorized Congress to enforce the prohibition. If states, the traditional parents of slavery, did not comply with the prohibition and allowed individuals to hold other people in a slave status, the nation now had authority to punish directly either the oppressing persons or the states.

Democrats strongly opposed ratification. Even before the Civil War, most Democrats rejected a view of the Constitution as an adaptable, organic instrument. The amendment's enforcement clause allowed Congress to initiate changes in race relationships beyond abolition. Some Democrats insisted that abolition was illicit even by means of an amendment; that slave property remained totally a state's right to define; and that the unrepresented Southern states could not properly be asked to ratify the amendment.

Republicans argued for the amendment's ratification, in part because Lincoln's Emancipation Proclamation might have left slavery alive in the unseceded border states and in some Confederate areas earlier reconquered. It was clear also that individual confiscation trials could never reach the millions of slaveholders and slaves. Republicans also worried because the amendment voided the Constitution's three-fifths clause. The South's Negroes were now to count as whole persons in determining the size of a state's congressional representation. Ironically, the South, after initiating and carrying on a civil war for four years, would substantially increase its strength in the House of Representatives. "Radical" Republicans looked at the Thirteenth Amendment as the culmination of abolitionist constitutional theory. Radicals asserted that the amendment, freeing slaves, also equalized all Americans in the protections due to them in their states for the exercise of both public and private rights. The declaration of independence and the bill of rights defined the duties all states owed to every resident; the nation's duty was to see to state performance. State justice, down to the remotest hamlet, must protect every resident equally against hurtful positive acts or discriminatory nonacts by public officers and private persons, in both civil and criminal relationships.

No Republicans advocated centralization; all Republicans were states ' rights nationalists. State sovereignty was dead but state rights flourished. State wrongs that diminished individuals' rights as defined by state laws, were, however, unacceptable; they again threatened the nation's stability. Republicans assumed that the ex-rebel states would emulate, in their formal law at least, the lessened racism of the rest of the nation, and afford Negroes the same protections that whites enjoyed. But it became apparent from evidence such as the black codes that the South would not behave as expected.

All through 1865, Democrats criticized the fact that President andrew johnson required the reconstructing states to ratify the Thirteenth Amendment, and they insisted that those states were entitled to be represented in Congress. The Johnson provisional states, excepting Florida and Texas where reconstruction proceeded slowly, did ratify the Thirteenth Amendment, though reluctantly, with spokesmen expressing special distaste for the enforcement clause. Johnson pressured recalcitrant states with threats of indefinite military rule if ratification failed; Secretary of State william seward calmed Southerners by asserting that the amendment restricted Congress to enforcing only a prohibition of formal slavery, a dubious interpretation. On December 15, 1865, Seward proclaimed the amendment to be in effect. Were the southern states truly states for the purposes of ratification? The question asked in 1865 and again in 1868 and 1870 when the Fourteenth and Fifteenth Amendments were ratified, and repeated endlessly since, has a metaphysical quality. Ratification was a mandate to the nation by a clear majority of the American people, not an act of the national government. Lincoln's insight that the South's states were still states, although out of their proper relationship to the Union of states, neither supported immediate restorations of those states nor diminished their capacities to perform certain state functions including ratification of amendments. In 1865 the southern states ratified in number beyond the Constitution's requirement (Article V) that three-fourths of the states approve an amendment. Additional states ratified subsequently to end all doubts as to the amendment's validity. But in 1865, those doubts existed and enhanced the doubts that Democrats spread, and Republicans also felt, about President Johnson's unlimited authority over the South.

The 39th Congress assembled in December 1865 for its first postwar session. Its Republican members, upon examination of the Black Codes and other evidence from the South of lingering vestiges of servitude, resorted immediately to the just-ratified Thirteenth Amendment's enforcement clause. Sharing a mobile, organic view of the Constitution, Republicans were ready to confirm that the nation had an interest in and a duty to personal equality in states, as defined by state law and customs; their readiness is evident in the quick formulation of the civil rights bill (the world's first), the second freedman ' sbureaubill, and the Fourteenth Amendment. Republicans created these measures in light of the Thirteenth Amendment, a far more complex and inclusive statement than most accounts suggest.

Harold M. Hyman


Buchanan, Sidney G. 1976 The Quest for Freedom: A Legal History of the Thirteenth Amendment. Houston: Reprint from Houston Law Review.

Howe, Mark A. De Wolfe 1965 Federalism and Civil Rights. [Massachusetts Historical Society] Proceedings 77:15–67.

Hyman, Harold M. and Wiecek, William M. 1982 Equal Justice under Law: Constitutional Development 1835–1875. Chaps. 10–11. New York. Harper & Row.

Ten Broek, Jacobus 1951 The Antislavery Origins of the Fourteenth Amendment. Chap. 13. Berkeley: University of California Press.