Abolition, the Thirteenth Amendment, and Unfinished Business
My notes for the section of my research paper that covers the passage of the 13th Amendment, the abolition of slavery, and the questions left unresolved
The Thirteenth Amendment and the Abolition of Slavery
Emancipation Proclamation did not end slavery
Foner 26: “As a presidential decree, the proclamation could presumably be reversed by another president. Even apart from its exemptions, moreover, the proclamation emancipated people; it did not abolish the legal status of slave, or the state laws establishing slavery. Emancipation, in other words, is not quite the same thing as abolition.”
Lincoln preferred state-by-state abolition, as he believed Congress did not have the power to outlaw slavery.
Foner 27: “Lincoln’s Proclamation of Amnesty and Reconstruction, issued in December 1863, envisioned abolition by state action. It required southern states that desired readmission to the Union to adopt constitutions abolishing slavery.”
This meant that abolition would either need to be done state-by-state or via amendment to the Constitution. Abolitionists argued an amendment was the best route to take.
Sumner’s Broader Amendment
One of the first proposals was by Senator Charles Sumner, the famous Radical Republican who years earlier had been beaten, nearly to death, by a Southern member of the House of Representatives. He proposed an expanded amendment that not only abolished slavery but also enshrined equality before the law
Feb 7, 1864, Sumner: “Everywhere within the limits, and of each State of Territory thereof, all persons are equal before the law, so that no person can hold another as a slave.”
Broader amendment is rejected in favor of narrower language. But Sumner’s language foreshadows the later debates over the 14th Amendment
Final wording of 13th Amendment based on Northwest Ordinance of 1787, which prohibited slavery in US territories north of the Ohio River.
Familiar language that was able to gain consensus compared to more ambitious goals advanced in Sumner’s draft. However, the issues raised by Sumner would soon reemerge.
13th Amendment ushers in new scope of federal government
Republicans by that time were united around the idea that slavery needed to be abolished, but the Thirteenth Amendment contained a provision that reflected the influence of the Radical Republicans and the more expansive vision of how the country would be altered after the war through Reconstruction.
Foner 31: “The amendment’s second section, granting enforcement power to Congress, embodies this new sense of national empowerment. It was “not less significant”, the New York Herald Observed, than the section abolishing slavery. ‘These words,” the paper continued,” record in the Constitution the results of a great war…They are the constitutional guarantee that Congress shall have the power to arrange the new conditions of society in the South, especially so har as it relates to the condition of the Negro race.” Traditionally, the federal government had been seen as the greatest threat to individual liberty. But, as the Chicago Tribune observed, “events have proved that the danger to… freedom is from the states, not the federal government.” The second clause gave Congress seemingly unlimited authority to prevent actions by states, localities, businesses, and private individuals that sought to maintain or restore slavery.”
The 13th Amendment (Foner 32): “first in the nation’s history to expand the power of the federal government rather than restraining it, that initiated this redefinition of federalism.”
This was a significant revision to the American constitutional structure, fundamentally rewriting the relationship between individuals, the state and local governments, and the federal government. Whereas the Founders sought to restrain the federal government, the Radical Republicans were now affording it more power in order to protect individual rights, which in this instance was the right to not be enslaved or forced into involuntary servitude.
Foner 32: “”By this Amendment,” James G. Blaine would later write, “the relation between the national and state governments, respecting the question of human liberty, was radically changed…Freedom of the person became henceforth a matter of national concern.”
Arduous passage process where the amendment barely passed the House, and after a long campaign it was officially ratified on December 18, 1865.
Final wording was powerful but raised questions.
Foner 41: “Most Republicans assumed freedom meant more than not being chained and that abolition would expand the rights of whites as well as blacks.”
What exactly this freedom entailed, and the process for ensuring it would be respected and protected against infringement, was not expressly dealt within the 13th Amendment. Some believed the enforcement section of the amendment allowed for broad protection relating to the “incidents of slavery,” however that view, while held by most Republicans according to Eric Foner, still came up short in the face of the challenges the recalcitrant South would present soon thereafter.
Foner 41: “James Harlan offered a list of the “incidents of slavery,” including denial of the rights to marry, own property, testify in court, and enjoy access to education. Presumably abolition would carry with it these essential entitlements. Most Republicans believed the amendment’s enforcement clause empowered Congress to protect these and other basic rights of the former slaves.”
The broader question of freedom and the rights of individuals, especially black Americans, would soon require a more definite answer than what was provided for in the 13th Amendment, as the situation in the South was quickly deteriorating.