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The Thirteenth Amendment

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Index to posts in this series

I’m moving on to Eric Foner’s book The Second Founding: How the Civil War and Reconstruction Remade the Constitution. It’s a detailed description of the history of the adoption of the 13th, 14th, and 15th Amendments, and their aftermath.

The Emancipation Proclamation did not end slavery. A large number of enslaved people lived in areas not controlled by the Union and thus unprotected. Many more lived in the Border States and Tennessee which were exempt. Abraham Lincoln and his Republican Party were concerned that the Supreme Court, led by the odious Roger Taney, would declare it unconstitutional, or rule that it terminated when the Civil War ended. By this time there was a strong belief that slavery sullied the nation’s principle of equality of all people before the law. Foner doesn’t say it, but by this point it must have been obvious that, as Lincoln puts it in his Second Inaugural Address:

These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war.

These and other considerations led to the introduction of several versions of the Thirteenth Amendment in December 1863.

The opposition party, the Democrats, offered a number of objections. One was the slippery slope argument. Give freedom to enslaved people and they’ll demand the vote, the right to own property, the right to testify in court, and and even “racial amalgamation” P. 33. This sometimes took the form of outright racism bellowed on the floor of the House and Senate.

Fernando Wood, the former mayor of New York City now a member of the House of Representatives, painted a lurid picture of the amendment’s consequences: “It involves the extermination of the white men of the southern States, and the forfeiture of all the land and other property belonging to them.” P. 33.

Others took a states rights position, that each state should make its own decision. Still others warned against the intrusion of the federal government into property rights. If the government could free slaves without compensation, what prevented it from taking the factories of the north? Some opposition Democrats even thought slavery should be permitted after the war.

The debates went on throughout 1864. The bill received fewer than the required ⅔ in the House. It was brought back in the lame duck session after the election of 1864, and passed January 12 with Lincoln in full support. The story of his change of mind is fascinating: here’s a review of a book Foner wrote about it.

The 13th Amendment does more than abolish slavery. Section 2 gives Congress unprecedented power to enforce it. Foner says this provision changed the relationship between the federal and state governments in our dual sovereignty system. For the first time, Congress was specifically empowered to legislate in the area of the rights of citizens of the states.

Ratification required the votes of ¾ of the states. That took the rest of the year, and the 13th Amendment became part of the Constitution on December 19, 1865. Foner points out that Mississippi abolished slavery in in its post-war constitution, but refused to ratify the 13th Amendment until 1995.

… [I]ts legislative Committee on Federal and State Relations explained why: the second section might in the future be interpreted to authorize Congress “to legislate in respect to freedmen in this state. [We] can hardly conceive of a more dangerous grant of power.” P. 39.

The 13th Amendment didn’t answer a basic question: what does it mean to be free. As one Democratic congressman put it, “mere exemption from servitude is a miserable idea of freedom”. P. 41. The matter was debated extensively throughout the Reconstruction Era, and the debate continues today. There was general agreement that freedom included a man’s right to control his own person, to earn his living by his labor, and to keep the proceeds of his labor to support himself and his family. But the entire agricultural system of the slave states was based on unfree labor, on slavery, and to change to a system of free labor was an enormous undertaking.

Slavers and White Supremacists seized on the punishment clause of the 13th Amendment: slavery was abolished “except as a punishment for crime whereof the party shall have been duly convicted”. Foner notes that this clause was added without much attention, simply because it was part of a similar provision in the Northwest Ordnance.

Starting with Mississippi the slave states enacted Black Codes. These made it a crime for Black men not to have jobs, and the punishment was to be leased out by the State to plantation owners where they would be forced to work for free. They also grabbed Black children and forced them into unpaid apprenticeships on the ground that their parents couldn’t afford to take care of them.

Foner points out that very few people thought the 13th Amendment changed the common law of coverture: men were entitled to their wives’ unpaid home services and sexual relations. Black women probably didn’t think coverture was much af an improvement for themselves, but at least they could marry and keep their children.

It was apparent that much more would be necessary if Black people were to be truly free.

Discussion

1. This material is infuriating. It’s horrifying that I didn’t know much of this history. Surely somewhere I heard about the Black Codes? But I’m sure it wasn’t in any history class I took in my 19 years of schooling. And in the slave states (sorry, I mean Red States), politicians are trying to stamp out this history altogether, supported by slabs of money from people afraid to put their names on the checks.

2. The historical links between the Black Codes and the carceral state, are, I trust, obvious.

3. Dual sovereignty has proven itself to be a disaster for many of us. US citizenship confers few meaningful political rights. Your political rights depend almost entirely on the state you live in. Your right to vote, your right to medical treatment, your right to a decent education, your right to walk the streets without being terrorized by gun freaks, and most other rights we think of as basic to our liberty, all come from state law. If you live in a Red State you have the right to shorter life, poorer working conditions, lower wages, an indifferent education, restricted voting rights, and whatever health care you can buy. If you live in a Blue State, you live better.

That’s not true in other countries. Germany doesn’t let Bavaria decide to provide a different health care system than Saxony. Japan doesn’t let the kids in Osaka use vastly different textbooks than kids in Hiroshima. India doesn’t let Uttar Pradesh decide who can vote; in fact there are no countries that let political subdivisions create voting restrictions. That’s because being German or Indian or Japanese means you are a citizen of a nation, not of a province.

What does it mean to be a citizen of the US? We’re still arguing about that after 250 years. And SCOTUS says you are not an American, you’re a Georgian or a Californian when it comes to the important parts of your daily life. SCOTUS, of course, stands firmly on the side the the successors to the slavers.

Problems With The Standard Story Of The Revolutionary War And The Constitution

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Index to posts in this series

The standard story of the origin of our nation tells us that the Declaration of INdependence asserts that all men are created equal and naturally endowed with certain rights including the right to life, liberty and the pursuit of happiness; that the Revolutionary War was fought to uphold these principles; and that the principles are instantiated in the Constitution. We didn’t always live up to those principles but we’ve always worked towards them, and we get closer all the time. P. 9 et seq. In the first post in this series, we saw that the Declaration doesn’t fit well with the standard story. What about the Revolutionary War and the Constitution?

The Revolutionary War

Roosevelt doesn’t think there was a single cause for the War.

Different people sought independence for different reasons, and likely they sometimes said what they thought would advance their cause rather than what they truly believed. History requires interpretation, and a claim to possession of the one singular truth is a hallmark of ideology. P. 55.

The Declaration explains the decision of the Colonists to throw off English rule. It claims that governments derive their just powers from the consent of the governed. The Declaration complains that the King cut off trade between the Colonies and the rest of the world. It claims that the King ignores the laws and even the courts of the Colonists. The King attacks the Colonies directly, keeps a standing army in the Colonies, and quarters troops on the population. The King imposes taxes on the Colonies even though they are not represented in Parliament. The King stirs up the “merciless savages” to attack and murder the Colonists. The only reference to slavery is oblique: the King “… has excited domestic insurrections amongst us….”

No doubt one or more of these claims were a factor for some of the Colonists. The principle of consent itself may have motivated some of them. The listed claims may have motivated others. Perhaps some were motivated by a desire to bring about equality or at least to end slavery (Thomas Paine and Benjamin Franklin, for example.) Roosevelt points out that protecting slavery may have brought others into the war:

There isn’t much evidence supporting the idea that slavery was an issue. Of course just as people say things they don’t believe to advance their cause, others may keep quiet about their actual reasons if they would hurt the cause. There was little to be gained by saying we’re rebelling because we want to enslave people. Roosevelt suggests that

… for some of the Patriots, a desire to preserve slavery was one reason—and maybe a strong one—to declare independence[.] On its face, this is pretty plausible. Just as it seems unlikely that northern Patriots had slavery at the front of their minds, it is unlikely the southern ones didn’t have it at least at the back of theirs. P. 53.

In any event it’s hard to argue that the War was fought over the principle of equality for anyone except white men and especially white men with property. A telling detail: the British offered slaves freedom if they fought for the King. After the War the Colonists demanded the return to slavery of those people. The British refused.

Nor was the Revolution fought to advance a broad principle of equality. Roosevelt says that the statement that all men are created equal is a reference to the fictional state of nature assumed to exist in the beginning. The broader concept of equality would have to wait for the French Revolution and the Declaration of the Rights of Man and of the Citizen in 1789. It asserts that “Men are born and remain free and equal in rights.” This is a statement about real people living in real societies, not imaginary savages in the wild.

The Constitution

The Constitution was necessary because the Articles of Confederation failed to create a strong enough central government. The states were fighting among themselves, refusing to adhere to treaties, imposing trade restrictions and refusing to pay the debts incurred in the Revolutionary War. The preamble states the reasons for adoption of the Constitution, starting with “to produce a more perfect union”, and ending with “to secure the blessings of liberty to ourselves and our posterity.” Roosevelt says that the chief goal of the Constitution was unity, with liberty at the bottom of the list.

If the Constitution were actually about individual human rights, it would include provisions that protected the rights of individuals. It doesn’t. The Founders Constitution restricts the Federal Government’s right to intrude on the specific rights in the Bill of Rights, but the states were free to intrude as much as their own constitutions allowed. It took the 14th Amendment to change that, and to make the Federal Government the guarantor of individual rights against itself and against the states.

As to slavery, there are three provisions that directly or indirectly support its continuation: the Three-Fifths Clause, a provision barring the Federal Government from ending the international slave trade until 1808, and the Fugitive Slave Clause. Each of these cemented the power of the slave states.

The Three-Fifths Clause redressed the population imbalance between the slave states and the rest, allowing slaves to be counted at ⅗ of a person for purposes of calculating the number of Representatives allocated to each state. It worked with the provision giving each state two senators to insure a balance in the legislature between slave and free states. In addition it gave the slave states an edge in the Electoral College with respect to population. Thomas Jefferson would have lost the election of 1800 to John Adams without the Three-Fifths Clause. Ten of the first 12 presidents were slavers. P. 76.

The prohibition on ending the slave trade before 1808 enabled slavers to rebuild their holdings by importation after losses in the Revolutionary War. The British offered freedom to any slave who fought for the King, and thousands of slaves accepted this offer. Others escaped their bonds. The Colonists demanded return of these escapees, but the British refused. The outcome is that slave population rose from 697,497 in the first census of 1790 to 1,191,362 in the 1810 census.

The Fugitive Slave Clause says that slaves who escaped to a free state did not gain their freedom, and that the free state was required to return them to their enslavers. This was a big win for the slavers. Under the Articles, each state determined how it would treat slaves in their territory; in fact that rule remained in effect as to slaves brought to free states by their masters. The Constitution stripped the States of their right to decide the question of slavery as to escapees, which today we would call a violation of States Rights.

As South Carolina delegate Charles Cotesworth Pinckney boasted upon his return from the Constitutional Convention, “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.” P. 79.

Discussion

1. The standard story has a central place in our understanding of ourselves as Americans, regardless of other political views. Other nations have national stories, but it seems like we put a lot of emphasis on this story and the two documents, more than citizens of other countries do.

2. One consistent element of our self-image as Americans is that we consent to our government. In prior posts I’ve discussed the theoretical idea of the social contract. That’s not what I’m talking about. We believe that government only works if people consent to it.

Apparently that belief is not shared by a substantial of Republicans today. In this they are like the secessionist Confederates, as Heather Cox Richardson shows.

“We do not agree with the authors of the Declaration of Independence, that governments ‘derive their just powers from the consent of the governed,’” enslaver George Fitzhugh of Virginia wrote in 1857. “All governments must originate in force, and be continued by force.” There were 18,000 people in his county and only 1,200 could vote, he said, “But we twelve hundred . . . never asked and never intend to ask the consent of the sixteen thousand eight hundred whom we govern.”

3. Regardless of what Jefferson meant with the phrase all men are created equal, today we flatly mean that we’re all born equal, we’re all entitled to equal rights, and that one function of government is to guarantee that equality.

Apparently that belief is not shared by a substantial number of Republicans.

What Family Rifts at Funerals can Teach Us About Pardoning Presidents

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Exhibit A of Step Two Behavior

Watching the coverage of the death of Elizabeth II, two questions seem to be on a constant loop. The first is political: “How will Charles change the monarchy?” The second is personal: “Will the funeral heal the rift between Harry and William/Charles/the rest of the family?” The discussions that follow, between television anchors, reporters, and “royal watchers” have provided me with great amusement. “Oh look: Charles said something nice about Harry and Meghan in his first broadcast after the Queen’s death! Perhaps all is well again!!” The wishfulness of the discussion — “Surely the funeral of their beloved mother/grandmother will bring the family together, and they can heal from the past unpleasantness” — says much more about the hopes that these media folks have and much less about the reality of how a family torn apart acts as a family funeral approaches.

As a pastor for more than three decades, I’ve never done a royal funeral, but I’ve done plenty of regular funerals, including those of matriarchs who had presided over a divided family. Most of the time, what I’ve seen is that either (a) the family members manage to sit on their frustrations with one another for a week or so as the funeral goes forward, and then they return to their earlier fighting, or (b) the funeral intensifies the fighting, as they argue about the decisions made around the funeral itself. Occasionally, the funeral does help to begin a healing process, as folks who have not seen “those monsters” in years are now in the same room for the first time again, and they realize that these other folks aren’t the monsters they have seen them to be in the past. It doesn’t happen five minutes after the burial, but with a willingness to work on both sides, healing is possible. But it sure isn’t the magic “If only Harry and William can sit next to each other at the funeral, everything will be fixed!” that so many commentators are looking for.

Which brings me to the other crazy question I’ve seen popping up more and more often between anchors, reporters, and political pundits. This is the question posed by Chuck Todd that NBC chose to highlight as they tease the Meet The Press interview with VP Kamala Harris that airs in full tomorrow:

Let me try to go to 60,000 feet. What do you say to the argument that it would be too divisive to the country to prosecute a former president?

Earth to Chuck Todd, and anyone else who asks this question: the country *is* deeply divided already.

Giving Trump a pass to “avoid division” is like that scenario (a) at the family funeral, except you are betting that everyone can sit on their frustrations not for a week but forever. Turning the question around — “Would it be too divisive to the country to give a former president a pass for illegal behavior?” — ought to make it clear how silly both questions are.

Step One in dealing with divisions — either at a family funeral or in national politics — is admitting your family/nation is already divided.

As an interim pastor, I work with congregations whose previous pastor has left. Maybe that pastor retired, died, took a new call elsewhere, or was run out of town on a rail. One of the things I often have to help the congregation deal with is conflict, either between the old pastor and the members, or between the members themselves. Whenever I hear “Yes, we had divisions, but now that the old pastor is gone, everything is just fine now” I have to figure out how get them to pull their heads out of the sand. “What’s going to happen when you disagree with your next pastor?” I ask them, knowing that for the immediate future, I am that next pastor. “What do you have to say to the folks around here who loved that old pastor and blame you for running that pastor off?”

Within the House of Windsor, simply coming up with the right seating chart at the funeral for Elizabeth will not wash away the pain that led the Duke and Duchess of Sussex to withdraw from royal duties and decamp to the US. Similarly, pardoning Trump, either by choosing not to prosecute or by an act of President Biden, will not heal the nation either.

What *will* help both the House of Windsor and the United States is to admit that divisions already exist.

Step Two in dealing with divisions, then, is to explore that divided reality. What, specifically, does that painful divided reality look like? What are the presenting issues, that anyone can see at the surface? What are the underlying issues, that lie deeper down, at the heart of the trouble? What are the triggers, that bring all that buried pain out into the open again? How is everyone being hurt by these divisions?

Looking at all that is not easy. It requires a willingness to dig into a painful past, to admit to past bad behavior (your own as well as that of others), and to accept just how bad things have gotten for everyone involved. Until you do that, all you are doing is papering over division and pretending things aren’t that bad.

In the US, the arguments about race and the causes of the Civil War are a perfect illustration of this. So long as a non-trivial part of the country denies that the Civil War was about slavery (“it was the war of Northern Aggression, fought over state’s rights”), our country will never be able to fully deal with how race continues to divide our country today. If you don’t think racism divides our country today, please go back to step one and try again.

Only when the divided congregation or family or nation has done the hard work of examining its own ugly past are they ready to move to Step Three.

Step Three is to look at what you’d like the future to be. What would a healthy House of Windsor look like? How would members treat one another, in ways that are different than what caused the fractures in the past? What would a healthy United States of America look like? How would those with different political views treat one another, in ways that are different from what caused the fractures in the past?

Step Four, then, is to figure out how to get to that future. That’s a conversation about rules, roles, and responsibilities, with unstated assumptions put out in the open and mixed expectations clarified. It’s about crafting behavior that rebuild trust, dignity, and belonging for everyone involved.

The big lesson in all of this is that THERE IS NO SHORTCUT.

You can’t just jump to step four, without doing all the work of the other three steps. You can try, but you’re just sticking your fingers in your ears and singing “La la la – I can’t hear you.” You don’t need to take my word for this. Just look at the House of Windsor.

When the Duke and Duchess of Sussex announced they were leaving their royal roles behind, that was Step One behavior. “Our family is painfully divided.” No more smiling masks, no more pretending all is well, and no more trying to ignore the pain.

When they sat down for their interview with Oprah, that was Step Two behavior. “Here’s what happened, at least from our point of view.”

Ever since then, the royal family had various private conversations to sort things out further, including such things as whether Harry and Meghan would be part of the Platinum Jubilee celebration last summer. (The answers at that time were that they were included in small family gatherings, but not the big public ones.) Now they are having similar conversations around the Queen’s funeral and the coming coronation ceremony that will follow in a few months. This is all Step Three and Step Four behavior.

To the extent that things are getting better for the House of Windsor, it’s because they’ve been working hard at Steps One through Three, not that they simply came together magically at a funeral and jumped to Step Four.

The US political press and political actors could learn a lot from the House of Windsor. Those who worry about prosecuting a past president need to recognize that this doesn’t cause division, but is a step along the way to healing – part of the hard work of Step Two that explores the divided reality in all its painful, ugly depth. The work of the January 6 Committee in the House of Representatives is Step Two behavior, and so is the work of the DOJ to investigate possible criminal behavior of the former president and his minions.

Until we as a nation are willing to honestly look at our ugly reality, we will never heal.