Section 1. 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.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
– The 13th Amendment to the U.S. Constitution
This December, the 13th Amendment turns 150 years old. So, while it’s tempting to spend this Constitution Day celebrating George Washington, James Madison, and the “miracle in Philadelphia,” let’s not forget about the constitutional achievements of President Lincoln and his generation, including the transformational 13th Amendment.
In the summer of 1787, Washington and his generation crafted the most durable form of government in world history, and Constitution Day itself commemorates the day that the Framers signed the original document before sending it to the states for ratification. On the issue of slavery, the Framers refused to mention that “peculiar institution” by name, and Madison and his colleagues rejected some of the most radical proposals of the pro-slavery delegates. Nevertheless, in one key compromise—the Three-Fifths Clause (Article I, Section 2)—the Framers skewed the division of political power towards Southern slaveholders in antebellum America. It would take President Lincoln and his generation—including thousands of African Americans willing to fight for their own freedom—to abolish slavery once and for all. Even as Confederate troops fired on Fort Sumter, this outcome was far from inevitable.
Prior to the Civil War, the 13th Amendment’s ambitious remedy—immediate, uncompensated emancipation—was a mere pipe dream. Instead, anti-slavery politicians like Abraham Lincoln focused on more modest goals, such as an end to slavery in the federal territories and gradual, compensated emancipation in the slave states. The 1860 Republican Party platform typified this modest agenda, recognizing the “inviolate … right of each State to order and control its own domestic institutions according to its own judgment exclusively.”
The attack on Fort Sumter altered the constitutional landscape. President Lincoln and his Republican colleagues began with a cautious approach—fearful of losing the four slave states loyal to the Union and still hoping to bring the war to a swift end. A year later, hopes for a short war had diminished, and Republicans began pushing a more aggressive (but still limited) anti-slavery program, ending slavery in Washington, D.C., and banning slavery in the territories.
Finally, on January 1, 1863, President Lincoln raised the stakes by issuing the Emancipation Proclamation. The Proclamation commanded that the millions of slaves in rebel-controlled areas “shall be then, thenceforth, and forever free.” Given this opportunity, African Americans seized it. Slaves left Southern plantations by the thousands, fleeing to the Union lines and severely damaging the Confederate economy. And thousands of free African Americans volunteered for the Union Army, with approximately 180,000 serving overall.
While the Emancipation Proclamation remains a justly famous moment in the history of American freedom, it’s important to remember that it was issued as a war measure under President Lincoln’s war powers. Only a constitutional amendment would settle the issue of slavery for all time. Later in 1863, Rep. James Wilson of Iowa—Chair of the House Judiciary Committee—rightly described slavery as a “condemned [but] unexecuted culprit.” He then asked the obvious question: “Should we not … provide for the execution?”
The idea of a constitutional amendment emerged slowly. Part of the reason may have been simple Founder worship. The Constitution had only been amended twice since the Bill of Rights was added, with the most recent Amendment ratified in 1804. Nevertheless, on December 14, 1863, Rep. James Ashley of Ohio—a longtime opponent of slavery—introduced a constitutional amendment abolishing slavery. Sen. John Henderson of Missouri—a former slave-owner—then introduced a similar measure in the Senate.
The Framers of the 13th Amendment sought to take dead aim at a barbaric, inhumane practice—one that treated African Americans as property and separated husbands from wives and children from parents. In a later debate over our Nation’s first major civil rights bill, Sen. Jacob Howard of Michigan—a Radical Republican—explained the evils of slavery well: a slave “had no rights, nor nothing which he could call his own. He had not the right to become a husband or a father in the eye of the law. … He owned no property, because the law prohibited him. … He did not own the bread he earned and ate. He stood upon the face of the earth completely isolated from the society in which he happened to be; he was nothing but a chattel, subject to the will of his owner, and unprotected in his rights by the law of the state where he happened to live.”
The 13th Amendment was designed to do away with these evils entirely. As Sen. Henry Wilson of Massachusetts—a longtime abolitionist—explained, the 13th Amendment “will obliterate the last lingering vestiges of the slave system; its chattelizing, degrading and bloody codes; its dark, malignant barbarizing spirit. … Then the sacred rights of human nature, the hallowed family relations of husband and wife, parent and child, will be protected by the guardian spirit of that law which makes sacred alike the proud homes and lowly cabins of freedom.”
In April 1864, the Senate passed the 13th Amendment, but the measure failed in the House two months later. The Amendment’s fate would be determined, in part, by the election of 1864—and so it was.
Leading up to President Lincoln’s reelection, many Republican leaders criticized Lincoln for offering (at most) lukewarm support for the 13th Amendment. However, following his reelection in late 1864, Lincoln began to push aggressively for congressional passage of the Amendment. Congress finally approved the 13th Amendment on January 31, 1865. The next day, and even though the President has no formal role in the Amendment process, Lincoln took the unusual step of signing the Amendment before sending it along to the states for ratification, calling it a “King’s cure” for the evils of slavery.
This powerful moment took place a mere two months before President Lincoln’s tragic assassination in April 1865. The American people finally ratified the 13th Amendment on December 6, 1865, forever banning slavery in the United States. Constitutional scholar Akhil Reed Amar places this monumental outcome in historical context: “The 13th Amendment freed everyone—immediately and without compensation—unlike all prior federal laws and most antebellum state emancipation statutes.”
This December, we celebrate the 13th Amendment’s 150th birthday. And the ratification of the 13th Amendment was only the beginning of a five-year period of constitutional transformation, culminating in two additional Amendments to the U.S. Constitution—the 14th and 15th Amendments. Taken together, these three Amendments gave our Nation what President Lincoln promised at Gettysburg—“a new birth of freedom.” It is little wonder that scholars often refer to them and the period surrounding their ratification as our Nation’s “Second Founding.”
Two decades ago, the Nation came together to celebrate the bicentennial of the 1787 Constitution. As the Second Founding turns 150, we should all work to ensure that it receives a celebration that’s worthy of the constitutional achievements of President Lincoln and his generation.
Tom Donnelly is counsel at Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the promise of the Constitution’s text and history. To learn more about our Nation’s Second Founding and efforts to celebrate its 150th anniversary, please visit SecondFounding.org and follow @2ndfounding on Twitter.
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