thirteenth amendment and civil rights and doolittle and martindale and william e. nelson and the fourteenth amendment

We saw in the previous essay that the Amendment was approved by the Senate in Spring 1864 but didn't garner the required 2/3 vote of the House in 1864. The First Session of the 38th Congress adjourned in July 1864, therefore, without passing the Amendment. Opponents of the Amendment rejoiced, and Senator Doolittle, a Conservative Repulican from WI and the major voice against the Amendment, intoned that the House vote reflected what everyone already knew, that America was not yet ready to face the implications of the abolition of slavery at this time.

We should pause for a moment on that italicized term, for the argument was made, apparently convincingly, that by accepting the language of the 13th Amendment (text below), certain inevitable consequences followed. In the words of J.H. Martindale, AG of New York, a consequence of passing the 13th Amendment was that there did "not remain a logical argument on which to rest the exclusion of the native born black man from all the civil and political rights inherent in citizenship" (quoted in William E. Nelson, The Fourteenth Amendment, p. 75). That is, passage of the Amendment would bring a parade of horribles, as lawyers are wont to say. Freedom from slavery would soon require citizenship rights for blacks, which would require political rights (i.e., suffrage) which would require social rights (i.e., accommodations--though the AG doesn't expressly make this claim). Passage of the 13th Amendment, then, for Conservative Republicans and Democrats, would lead to the inevitable and rapid mixing of the races so as to produce social chaos.

The Amendment Passes

Nevertheless, when the 2nd Session of the 38th Congress convened in December 1864 (it lasted until Mar. 1865) things changed. Lincoln (who favored the Amendment) had just won re-election, a new and Radical Republican Chief Justice had been appointed (Salmon Chase, from OH, replacing the dreaded and despised Chief Justice Roger Taney of MD, who died in Oct. 1864) and Union victory in the Civil War was all but conceded. Thus, in January 1865 the House voted 119-56 to approve the 13th Amendment and send it to the States for approval (3/4 necessary). The victory in the House was narrow; the numbers reflect only 7 votes exceeding the 2/3 requirement.

Most felt that the States would never ratify the Amendment. There were 36 States at the time, and so 27 (3/4) were needed to ratify it. Since 11 of the States were the Confederate States (they were still called upon to ratify, despite the legal uncertainty of their secessionist position), the Amendment seemed "dead in the water." Until, ironically, Lincoln was shot. Lincoln's murder did not simply bring forth a good-hearted feeling from the Southern States. What happened is that with Andrew Johnson as President, himself a Southerner (from TN), a new Reconstruction plan was developed (by Johnson) in which the Southern States would be readmitted, so Johnson promised them, if they would repudiate the Southern debt, acquiesce to governments set up by the North and adopt the 13th Amendment. By urging the Southern States to ratify the 13th Amendment, Johnson was putting the narrowest possible construction on the Amendment. Only slavery would be outlawed. Period. Nothing more. No talk about political or social rights for Blacks. They simply couldn't be enslaved anymore.

By this plan, which is known as Presidential Reconstruction (i.e., pursued by the President alone between April and Dec. 1865, because Congress was not in session), Johnson was trying to establish as broad a political base as possible. He didn't mind alienating the former plantation owners who were dead-set on preserving the Peculiar Institution; they weren't the majority in the South. In addition, he didn't mind getting his swords crossed with the Radical Republicans in the North. They were far more vocal that their numbers indicated. Most Americans, he felt, wanted a cessation of War and would quickly acquiesce to a minimalist reading of the 13th Amendment if that could mean a restored and peaceful nation.

Maybe not surprisingly, Johnson's plan seemed to work. The Southerns realized that they had their best shot to regain their dignity and position by going along with Johnson, and the Northerners (except for Sumner and other Radicals) believed that a "go slow" approach towards racial mixing might not be a bad idea. So, almost all the Southern States (exception of MS) ratified the 13th Amendment, and its passage was announced by Secretary of State William Seward in mid-December 1865, when the 39th Congress had been in Session but two weeks.

Wording of the Amendment and Conclusion

The text of the Amendment as approved is as follows:

"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."

This Amendment, without equivocation, outlawed slavery, though the "except" clause seems like it can be linked grammatically to the "neither" as well as the "nor" clauses which precede it. The big issue, however, as 1865 turned into 1866, was over which subjects Sec. 2 gave Congress power to legislate. Would Congress' power only extend to statutes or practices which expressly condemned slavery? Or, should the Amendment also be seen to include within its scope some of the "badges" or "incidents" of slavery, which included limitations on property ownership, ability to contract, ability to appear as witnesses in court, ability to own businesses, ability to vote and a host of other rights that might be implied in the extirpation of slavery. It was uncertainty over the "reach" of this Amendment that led to the debate over and passage of the Civil Rights Act of 1866, to which I shall now turn.

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