thirteenth amendment and war powers and lincoln

In order to understand the contours and meaning of the 14th Amendment, which was passed by Congress in 1866 and by 3/4 of the States in 1868, we must know something about the 13th Amendment, which became part of the Constitution in December 1865. Indeed, the 13th-15th Amendments, usually referred to as the "Anti-slavery Amendments" really are one long, if multicolored and ornately designed, cloth that requires patient exposition in order to understand them.

Some Background to the Amendment

We really need to begin in 1863 to understand the Amendment (of course, if we wanted to consider the tangled skein of slavery that underlies the Amendment, we could keep going back until we nearly ran into Adam and Eve, but I will spare you that here). After the Battle of Antietam in late Summer 1862, Lincoln issued the Emancipation Proclamation providing that, effective January 1, 1863, all slaves in states in opposition to the Union would be free. (Exceptions were for some counties in VA in Union hands, the counties of VA that would soon become the State of West Virginia and several parishes in LA). The Proclamation may have been more symbolic than real in its effect; many were arguing at the time that the legal status of the 11 Southern seceding states was that they were no longer part of the Union, and that therefore Lincoln's proclamation had no effect in those States. Even some who felt that the South could never leave the Union believed that Lincoln had overstepped his powers by issuing the Proclamation.

Lincoln himself believed that the power to do so was implied by the War Powers provision of the US Constitution. The actual words of the Proclamation were: "Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion..." The particular constitutional provision the President referred to is Article II, Section 2: "The President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States..."

Congressional Efforts

The questionable legality of the Proclamation forms the background for efforts to pass the 13th Amendment. Indeed, if you have something express in the Constitution you are in a much stronger legal position than if you simply rely on general language in that document which Courts or the Executive try to construe. To that end, beginning in the first session of the 38th Congress (Dec. 1863-July 1864), two approaches were introduced to the issue of eliminating slavery. The first was an effort by the irrepressible, visionary and obnoxious Senator from Massachusetts, Charles Summer, to create a special committee which he would of course chair, "to take into consideration all propositions and papers concerning slavery and the treatment of freedmen." The second, which actually was what happened, was to charge the Senate Judiciary Committee with responsibility for coming up with an amendment to end slavery.

Sumner never got his committee, but this did not keep him from putting language before his colleagues that would become part of the congressional linguistic architecture of the next five years. His proposed amendment read: "all persons are equal before the law, so that no person can hold another as a slave." As David Donald shows in his Pulitzer Prize-winning biographies of Sumner, this language was derived from Sumner's study of the 1791 French Declaration of Rights. Sumner believed that by this proposed amendment he was the first to introduce the notion of "equality before the law" into American jurisprudence. [David Donald, Charles Sumner & the Rights of Man, p. 149).

The Senate Judiciary Committee, chaired by the moderate Republican Lyman Trumbull, reported out a less sweeping proposed Amendment in March 1864. This language, which became the language of the Amendment later approved [and, indeed, as Prof. Garrett Epps reminds us, since the Constitution had not been amended in almost anyone's memory at the time, the 13th Amendment was just known as "The Amendment" in popular talk], provided that neither slavery nor involuntary servitude would be permitted in the United States,* and that Congress would have power to enforce this Amendment by appropriate legislation.

[*One of the reasons why some Radical Republicans opposed the Amendment was that it had a clause arguably allowing slavery or involuntary servitude as a punishment for crime. Thus, the Amendment was not as sweeping as they desired.]

One More Historical Background Issue

What few know is that this proposed Amendment, approved by the Senate in April 1864, was then rejected in the House of Representatives. And this was from a House that had no members from the seceded states. But the fact that the vote didn't pass in the House indicates the rather radical nature of an attempt to eliminate slavery during the middle of the Civil War. Some of the States that remained in the Union were border states which permitted slavery (MO, DE, MD, KY), and many still felt that the institution should "die off" on its own, as the more moderate abolitionists had been arguing for decades. Certainly Sumner's comprehensive approach to "equal rights" would be impossible to realize within the scope of a single contitutional amendment, especially if one really wanted to eliminate slavery. But because the Proclamation put the issue of slavery's demise on the front burner, the issue would return again in the next session of Congress, in December 1864.

The next essay completes our treament of the 13th Amendment.

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