The 13th Amendment clearly states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” But the process by which an antislavery amendment was adopted is not quite as clear. Sure, Steven Spielberg’s biopic of Abraham Lincoln, titled simply Lincoln, has done much to educate the common movie goer of the political intricacies surrounding the passing of the amendment, but the film still fails to do justice to the intense levels of political wrangling needed to get from the Emancipation Proclamation in 1863 to an amendment to the Constitution in 1865. Michael Vorenberg’s Final Freedom: The Civil War, Abolition, and the Thirteenth Amendment takes the reader into the halls of the congress and into the minds of political leaders across the country to chart emancipation’s legal evolution from antislavery executive proclamation to constitutional law, an evolution that effectively finalized black freedom and reshaped the contours of American society.
From the very beginning of book, Vorenbeg is quick to point out the varying ways in which 19th century Americans viewed the Constitution. Almost all looked upon it as a sacred text and revered those who brought it into existence. Therefore, the idea of amending it, carried very little traction. As Vorenberg points out, between the ratification of the Bill of Rights in 1791 and the 13th amendment in 1865, the Constitution had only been amended twice, once in 1794 and once more in 1894. Amend, after all, means change, so why would anyone want to change something as brilliant and comprehensive as the U.S. Constitution? The process of amending the document, as a result, took on new meaning in the eyes of the nation’s politicians and legal scholars. Amend came to mean “add to” not “alter,” making the idea of amending the document much more promising.
When confronted with the question of slavery, however, the view of the Constitution becomes muddied, and the question of how to deal with slavery within the legal confines of document becomes even murkier. Some abolitionists viewed the Constitution as an explicitly antislavery text, pointing to the 5th amendment and the passing of the Northwest Ordinance, a document outlawing slavery in the Northwest territories, as proof. To these “Radical Constitutionalist,” the constitution needed no amending as an amendment would only be an admission that the original Constitution was, in fact, a proslavery text, faulty in its intent not in its interpretation. Others, like William Lloyd Garrison, believed the Constitution to be an explicit proslavery pact with the devil. Garrison and his constituents wanted not to amend the constitution but tear it asunder so a new document, one outlawing slavery and making good on the promise of the Declaration, could be written. Still others found a way to establish a middle ground between these two views. Men like Salmon P. Chase argued that the Constitution was neither antislavery nor proslavery. Instead, they contested that the framers wanted to protect slavery in the states where it already existed so it could be abolished by state legislation but federally prohibit it in the territories where slavery did not yet exist so as to not infringe upon the rights of free laborers.
The legal contention over slavery’s place in the Constitution was only compounded when the issue of what course to take to abolish slavery arose during the tumultuous war years. The Emancipation Proclamation was issued, theoretically freeing the slaves in the Southern states, the slaves in the border states notwithstanding. But the Emancipation Proclamation was, first and foremost, a war measure designed to strike at the heart of the Confederacy. As a war measure, it could be revoked at war’s end; not to mention that its enactment was completely contingent on complete Union victory. An official constitutional prohibition of slavery was needed, especially since with the passing of the Emancipation Proclamation, the meaning of the war had changed. It was no longer a war to simply maintain the Union but a war to put an end to the question of slavery once and for all. The allure of reconciling the Union and readmitting the South with slavery intact, however, would prove to be a major thorn in the side of those hoping to push an amendment through congress.
If you have seen the movie Lincoln, then you know the major issue with the amendment had to do with racial equality. The famous scene, of course, being when Thaddeus Stevens, a leading Republican and abolitionist played by Tommy Lee Jones, stood at the front of the House of Representative and declared that he did not believe in social equality only equality before the law even though he was known to believe the opposite. The same issue haunted the amendment from its initial inception: does the amendment sanction or imply social equality? If so how would it be enforced?
In the drafting stage, Charles Sumner took a hardline stance by proposing an amendment that decreed “all men equal before the law,” a phrase he borrowed from the French Declaration of rights. His language, in essence, coalesced the intent of the antislavery amendment with that of what would later be the 14th amendment, the omnibus bill guaranteeing civil rights. The committee ultimately decided against Sumner’s phrasing, choosing instead to stick with the more moderate wording of the Northwest Ordinance that prohibited both slavery and involuntary servitude. To Sumner’s credit, the moderate wording left open the question of how the new antislavery amendment would be enforced. Vorenberg suggests that the committee members believed the amendment did, in fact, secure legal equality for all races and that they envisioned its enforcement would come through what would later come to be known as the Freedmen’s Bureau Bill and the Civil Rights Act of 1866. They, of course, could not foresee the potential challenges awaiting the fates of both of those bills as well as the antislavery amendment at the hands of Southern intransigence. It should also be noted that a simpler bill, void of any hint of racial or social equality would be much easier to pass. If the writers put together an amendment prohibiting slavery, explicitly securing equality, and allowing for the creation of a government agency designed to help former slaves transition into freedom, the bill would take years to pass, if it was passed at all. The writers knew they had to strike quick while the war was still raging so they could procure the votes of the “War Democrats” who saw constitutional abolition as a mode of military expediency.
The amendment was without a doubt highly controversial, but it was made even more so by the tactics of the opposing Democrats. They immediately charged the Republicans with promoting what they referred to as “miscegenation,” essentially the genetic mixing of the races. Employed specifically as a fear tactic to shift the crux of the public debate away from slavery, the Democrats argued that by pushing for an antislavery amendment that may or may not endorse racial equality, the Republicans were therefore sponsoring a bill that would promote interracial sex and the dilution of white anglo-saxon blood. The Republicans repudiated the claim, but instead of writing it off as nonsense, they struck back by declaring the Democrats to the true miscegenationists since slavery, long protected by Democrats, allowed for the illicit rape of slave women by their masters. Fortunately, though, the rhetoric of miscegenation, as Vorenberg points out, remained mostly in the public sphere as the subject of stump speeches. For all of its bluster, rarely did it come up in the debates in the Senate. It would, however, take center stage during the house debates and the election cycle of 1864 as images of “Miscegenation Balls” depicting provocative images of delicate white women dancing with grotesque black men filled the newspapers.
The prevalence of miscegenation rhetoric should, at the very least, speak to the Democrats’ knowledge that abolition would fundamentally reshape American society. They knew that the passage of such legislation would dismantle the old social order, bringing with it the possibility of radical change and social realignment. The threat of miscegenationists, therefore, played off of American desire for stability, a facet of life long forgotten during the war years. In the minds of many, the Republicans, by advocating for an end to slavery, were seemingly adding to, not detracting from, the country’s dreadful state of instability. Yet, ideas about miscegenation should also speak even more clearly to the intense levels of racism found in the North. The idea that black freedom would somehow dilute white purity or even threaten white womanhood was a popular trope employed by white vigilante groups, like the Ku Klux Klan, roaming across the South. It was also a mainstay in the oppressive years of Jim Crow. The presence of miscegenation rhetoric in the antislavery debates, however, discloses the fact that Northern Americans, much less Americans from the border states, possessed deep fears about what they considered to be a form of “mongrolization.” They, just like their Southern counterparts, were deeply disturbed by the possible consequences of an interracial society.
Of course, the amendment passed, and if you have seen Lincoln, you know that it was not without drama or political arm-pulling in the form of patronage. Nevertheless, it passed, and those in favor lauded it as a linchpin of freedom. Yet, as Vorenberg belies in his rather pessimistic conclusion, the amendment proved to be a rather weak linchpin. Southerner’s, recognizing there was no way the law could be enforced, quickly developed their notorious black codes, trampling on the freedoms of the newly emancipated slaves. As a result, in 1868, Congress passed the 14th amendment, announcing citizenship and ensuring civil rights for all. Over time, the 14th amendment, not the 13th, became the beacon of freedom everyone had pinned on the antislavery act. The 13th amendment, as groundbreaking as it was, was quickly supplanted in hearts and minds of Americans and, more importantly, the American court system. The power of the 13th amendment still resonates, though, as it, not the hopelessly toothless Emancipation Proclamation, procured a Final Freedom for the country’s four million slaves.
Vorenberg, Michael. Final Freedom : The Civil War, The Abolition Of Slavery, And The Thirteenth Amendment. Cambridge ; New York : Cambridge University Press, 2001.
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