HwtS 219: The Thirteenth Amendment — History with the Szilagyis

The Thirteenth Amendment, the first of the Reconstruction Amendments
—Chrissie

Listen here: https://www.spreaker.com/user/bqn1/hwts219

The United States didn’t come into its modern form until after the Civil War. It was the work of re-unifying the country, an era called Reconstruction, that defined the United States and citizenship thereof in the way it is thought of in the modern day. Though it may seem a matter of semantics, the United States was a plural noun for the first century of its existence; unity as a concept was taken for granted but not found in practice. This is shown in the ease with which the southern states believed they could remove themselves from the United States.

Also, prior to Reconstruction, citizenship was not defined on a federal level; those who were citizens of a state were constitutionally “entitled to all privileges and immunities of the several states.”

At the time of the founding, one of the most important markers of citizenship was slave status: those who were not enslaved were seen as citizens, those who were enslaved were barely considered people. Within a decade or so, that marker was colorized: even free African Americans were not thought of as citizens, particularly in that they could not practice their citizenship with the vote. And equality, for all it seems enshrined in the founding documents, did not exist in a form recognizable in the modern sense. This is where the Reconstruction Amendments come in: they redefined what it meant to be American, to be a citizen of the United States, as well as what the United States meant to itself and to the rest of the world.

The first of the Reconstruction Amendments enshrined in the Constitution the abolition of the institution that started the war: slavery. In 1860, slavery was a legally protected institution in fifteen of the 34 states. In the rest of the country, one could not own slaves, but enslaved people were not freed by entering those states and the Constitution required that enslaved people be returned to those who claimed ownership over them. The questions over these issues and whether slavery could or should be extended are what prompted the American Civil War, beginning in 1861. In the middle of that war, on 1 January 1863, President Abraham Lincoln issued the Emancipation Proclamation, which said that those who were enslaved in the states in rebellion (the Confederacy) were freed. This was an ideological act, one intended to focus the attention of those fighting for the Union and their supporters on this unquestionable moral cause. It was not, however, a law that could be enforced: it applied only to the rebelling states, who did not believe that President Lincoln had any authority over them, but did not apply to those five states where slavery still existed but which had not seceded, over whom Lincoln did have authority. So, while it is often lauded as having done so, the Emancipation Proclamation did not abolish slavery in the United States. However, the means to do so was already in the works.

The idea of a constitutional amendment abolishing slavery had been suggested as far back as 1834, but what would become the Thirteenth Amendment was not officially put in front of Congress until December 1863. The specific language was worked out in a Senate Committee, led by Senator Lyman Trumbull (R-Illinois), over the course of the late winter and early spring of 1864, based on the language which outlawed slavery in the Northwest Territories in the 1787 Ordinance. It is as follows:

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.

This closed all prior discussion about how to go about ending the institution of slavery, it was immediate, offered no compensation to slaveholders, and did not include a scheme of sending former slaves out of the country to African colonies. It also unequivocally took away the option for states to handle the issue on their own, as had been argued for so long. Senator Trumbull included a clause that was new to constitutional amendments and made clear who was responsible to enforce it:

Congress shall have power to enforce this article by appropriate legislation.

This clause was just as radical as the first, perhaps even more so, because it explicitly said that the federal government was the guarantor of this new right to freedom. There is a caveat, however, that those who had been convicted of a crime could have their freedom curtailed and be forced into “slavery or involuntary servitude.” This loophole would be used to keep African Americans enslaved in all but name through improper convictions and bogus apprenticeships for decades to come.

For an amendment to be made to the Constitution, it must be approved by a minimum two-thirds majority in the Senate and the House of Representatives, then by a two-thirds majority of the states. The Senate passed the amendment by a vote of 33 to 6 on 8 April 1864. It was then sent to the House of Representatives for their approval, but failed to get the needed majority. This made it a campaign issue in the 1864 elections, which helped the Republicans maintain their control of the Presidency, the Senate, and the House. The amendment was again presented to the House in January 1865 and passed by a vote of 119 to 56. The state-level ratifications followed fairly quickly: by April 1865, the month in which the war ended and President Lincoln was assassinated, 21 of the needed 27 had approved the amendment. The rest came as the Confederate states were readmitted to the Union, as the abolition of slavery and ratification of the Thirteenth Amendment were made requirements of that readmittance. Georgia ratified it in December 1865, at which point it became part of the Constitution. After this, no other states’ approvals were needed, though the act of ratifying it (or not) was symbolic for both sides of the recent war: Kentucky didn’t ratify it until 1976 and Mississippi waited until 1995.

The specific issue of the legality of slavery was now settled (convicted criminals not withstanding), but what freedom meant was now an open question. The literal chains of bondage had been removed, but what was the legal status of the formerly enslaved. Were they citizens? What rights did they have? The necessary first step of ending slavery had been taken, but it would take two more amendments, and a century of legal action, to completely answer that question.

Next: The Fourteenth Amendment