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“Final Freedom” by Michael Vorenberg (Cambridge University Press; 320 pages; $29.95) The infrequently cited 13th Amendment seems to be the wallflower of the Civil War era constitutional amendments. Compared with the 14th, the 13th has tempted few to give it a whirl around the courtroom in a brief or oral argument. On the page, its plainer phrases give no hint of exciting legal victories. Yet it does have one very attractive feature: It abolished slavery. Michael Vorenberg, an assistant professor of history at Brown University, has examined this feature thoroughly in his book, “Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment.” It is a detailed discussion of the events, and particularly the arguments, that led to ratification of the amendment that abolished slavery. Surprisingly, as his account makes clear, ratification was not a certainty. Just before the Civil War, in March 1861, Congress passed what it thought would be the 13th Amendment. This amendment, which was not ratified by the states, was meant to keep Southern states in the Union by prohibiting adoption of a constitutional amendment interfering with slavery in the South — the exact opposite of the actual 13th Amendment. But when war began, the amendment was ignored. At the beginning of the war, President Abraham Lincoln pursued a balanced strategy toward slavery. He and some Republicans adopted an approach they hoped would retain the support of Northern states while having a sufficiently strong appeal to border Southern states (where anti-slavery sentiment was strongest) so that they might make peace. The Emancipation Proclamation was a major part of that strategy. Vorenberg relates that in a preliminary proclamation in September 1862, Lincoln “promised southern states full restoration of their rights (including, implicitly, slaveholding) if they would give up rebellion.” The final version freed the slaves in the rebellious South, but allowed slave owners in Southern regions occupied by Union forces to retain their slaves. In late 1863, a new Congress convened with Republicans in the majority. They now wanted to abolish slavery by more permanent means than a proclamation. In the House, Rep. James M. Ashley (R-Ohio) introduced a constitutional amendment to accomplish this. In the Senate, a similar constitutional amendment was proposed by a Democrat. Significantly for the future of the amendment, Democrats were divided. As Vorenberg recounts, Peace Democrats “preferred an immediate armistice followed by some settlement restoring the Union and granting southerners permanent slave holding rights.” War Democrats supported continuing the war, but like Peace Democrats, opposed emancipation. More and more War Democrats, however, were reconsidering their opposition to emancipation. Freeing slaves would be desirable, not for the good of the slave, but for the harm to the master — it deprived him of valuable property. In addition, voters were beginning to realize that free African-Americans made good Union soldiers. Supporting slavery was becoming a political liability. On Feb. 10, 1864, the Senate Judiciary Committee reported an abolition amendment, and on March 28 debate began on the Senate floor. The Republicans argued that “the Slave Power” started the war and split the nation. For the Union to be rebuilt, the slaves must be freed and the slave owners thereby destroyed. Democrats against the amendment warned that since the Constitution protected slavery the destruction of slavery would destroy the Constitution (perhaps an even more sacred document then than now). Further, they proclaimed a newly freed African-American was the greatest possible threat to racial order. Abolishing slavery would lead certainly to radical racial anarchy. With the latter argument, Democrats raised, although in an extremely inflammatory manner, the key issue of the status of African-American slaves once they were freed. Would they be able to vote, hold property, and sit on juries? While Republicans and Democrats supporting the amendment wanted to suppress discussion of this issue, they were far from united on what was meant by “freedom” or “equality” in this context. In rare responses to the Democrats, they said that dislike of slavery did not mean support of equality. The Senate voted on April 8, 1864. Since secession, senators and representatives of absent Southern states had not been counted in determining whether a measure passed in Congress. This policy was continued for the amendment vote, and it passed with support of a third of the Democrats. Many African-Americans, surprisingly, showed little interest in the amendment’s passage. From the experiences of free blacks in the North, they understood that even if slavery were abolished, they still would not be economically and legally equal. They were more interested in full equality. During the debate, Lincoln said nothing publicly about the amendment. He seemed uncertain about making emancipation an issue in the upcoming presidential election. But when the new “Radical Democracy Party” adopted a platform containing both a constitutional amendment abolishing slavery and a proposal for “absolute equality” for the slaves, Republicans convening in Baltimore on June 7 seized the middle ground. They proposed an amendment abolishing slavery, but made no explicit promise of equality. This led Lincoln finally to speak publicly in favor of the amendment. The House began debating the amendment after the Republican Convention. With the election approaching and Lincoln’s position clear, party lines hardened. On June 15, 1864, the House voted down the amendment roughly along party lines. After his re-election, Lincoln immediately pushed the House to adopt the amendment. This time he campaigned hard for it. Vorenberg makes clear that, with Lincoln’s approval or not, the Republicans used vote-swapping, patronage deals, and possibly outright bribes to gain support for the amendment. Moral and political considerations also moved the amendment forward. Tammany Hall urged fellow Democrats to vote for the amendment to “relieve them from the pro-slavery burden that now ruins the party.” Vorenberg stresses that Democrats in fact played a crucial role in passing the amendment. The final vote in the House came on Jan. 31, 1865. At the last moment, rumors circulated that Confederate peace negotiators were nearing Washington, and cries were raised on the House floor that passing the amendment would inhibit negotiations. Prospective negotiators actually were on their way, but only to Hampton Roads, Va. Asked about the rumor, Lincoln said: “So far as I know, there are no peace commissioners in the city, or likely to be in it.” The amendment received the two-thirds vote needed with two votes to spare. When the vote was announced, the galleries went wild-people applauded boisterously, yelled, threw their hats into the air. African-Americans in the gallery were especially surprised at how much the white people celebrated. Lincoln was so pleased he signed the passed amendment, even though it was not required by the Constitution. State ratification was next. It was determined that seceded states must be counted in the two-thirds needed to ratify. Lincoln always said that these states never legally left the Union. Although the states were particularly concerned with how the amendment would be enforced in their jurisdictions, on Dec. 6, 1865, Georgia voted for the amendment and became the last state needed for ratification. Only after ratification, when Congress began to consider legislation to enforce the amendment, was it clear that the amendment did little for an African-American beyond freeing him from slavery. As Vorenberg relates in a short history of the amendment after ratification, for almost a hundred years it was largely neglected by the courts. Not until the 1960s and ’70s did courts cite the 13th Amendment (frequently with another constitutional amendment or provision) as the basis for upholding federal laws outlawing racial discrimination. Yet except in cases involving some form of forced labor, courts have been reluctant to cite the amendment by itself as grounds for invalidating a law or activity. Few recent cases have cited the amendment at all. In his book, Vorenberg carefully sets forth each argument advanced for or against congressional passage and state ratification of the 13th Amendment — in much more detail than the summary just given. He explains with much skill and subtlety the events, political considerations, and other factors that initiated and limited particular arguments. In doing so, he has written an unusually complete legislative history of the amendment, one that goes far beyond the conventional legislative history, which concentrates on statements made in hearings and committee reports and on the floor of Congress. As general history, on the other hand, the book’s emphasis on detailed analysis of lines of thought or arguments occasionally leads to the neglect of interesting historical facts, such as exactly which Southern states were among the first two thirds to ratify the amendment — some apparently ratifying before the end of the war — and what was the makeup of their legislatures then: old planters, new South opportunists, African-Americans, Northern political appointees, carpetbaggers? In addition, a history less concentrated on legislative debates likely would have explained more fully the factors operating within the general population that led the North to change its mind about the importance of abolishing slavery. However, for an attorney wondering what support the 13th Amendment might lend to his or her position, Vorenberg’s legislative history amply supports one of his primary points: “The quest to determine which interpretation of the Thirteenth Amendment is most credible or most authoritative is endless and, to a certain extent, pointless, for the measure never had a single, fixed meaning.” [Emphasis is the author's.] The amendment lacks a single meaning because the attitudes of the Civil War era people toward it “were never steady; they evolved in relation and reaction to very different sorts of measures and events.” Vorenberg also asserts that “changing conditions in the future [will] require a reconsideration of the Thirteenth Amendment’s scope and meaning” and presumably an expansion of them. Such reconsideration, however, seems doubtful. The rather limited substantive language of the amendment — “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” — contains no positive grant of freedom or equality to justify expansion beyond prohibiting forced labor practices, as has been ruled in the past. As Vorenberg has demonstrated, there is no firm support in legislative history for implying such a grant. The legislative history demonstrates instead that people at the time did not agree on what freedom and equality meant for nonslave African-Americans and were reluctant to even discuss these concepts, at least not responsibly, much less grant them. Courts have been more expansive when the amendment is cited not as a guarantee of freedom by itself, but as a basis for upholding federal legislation that supports civil rights. Congress, however, has shown no inclination recently to legislate in this area. The chances of the 13th Amendment’s losing its wallflower status and being taken for a whirl on the courtroom floor remain as few now as in the past. Still, it did abolish the great evil of slavery. Ted Pulliam is a lawyer with the Department of Energy. His articles have appeared in The Washington Post and The Arlington Historical Magazine . He may be contacted at [email protected].

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