“If Slavery Is Not Wrong, Nothing Is Wrong”

Could anything be clearer than the Thirteenth Amendment? A model of succinctness, it reads in full:

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.

From its modest yet revolutionary text some contemporary legal commentators have derived governmental power to address every category or practice that involves a form of discrimination or inequality: racial profiling, poverty, migrant workers, pregnant women (for abortion rights), and more.[1] Such a Thirteenth Amendment might devour the rest of the Constitution, marking the demise of constitutional government that protects individual rights, as any means would be justified to attack every ill that might have some relationship to freedom. The fight to end slavery would have become the fight to end freedom.

Properly alarmed by the possibility that such perverse interpretations might gain judicial support, Gail Heriot and Alison Somin criticize the use of the Thirteenth Amendment to justify a statute, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.[2] Their fears may well come to pass through the recent Fifth Circuit Court of Appeals decision in United States v. Cannon (issued April 24, 2014).[3] While abhorring the crime committed, they find no Thirteenth Amendment basis for punishing it, and to that end would narrow the meaning of “badges and incidents of slavery” that the amendment forbids. Though in general agreement with their legal purpose, I believe a historically prescient originalist analysis of the Thirteenth Amendment would not only convey its justice but also recognize its nobility and splendor. The fight against judicial abuse needs to acknowledge the amendment’s sweeping, revolutionary authority.

For the Thirteenth Amendment, properly understood, is nothing less than a reconciliation of the contradictions of the Constitution regarding slavery and thus a return to the Declaration of Independence as the basic document of America. It is a practical and a theoretical marvel of American constitutionalism and self-government. In ending slavery, the amendment spoke to Lincoln’s characterization of America in his Second Inaugural Address, as a nation torn apart by war in only partial expiation of its great sin of slavery. It distills the logic of his 1864 pronouncement, made in his letter to Albert Hodges, that “If slavery is not wrong, nothing is wrong.”

The recent Lincoln film (about which I commented here) focuses on the 16th President’s attempts to secure its passage in the weeks following his reelection. Despite some questionable dramatizations, the movie works as a synecdoche of historic political tensions within the Union, which the President had to reconcile, even before the Civil War came to a close.

Ultimately the amendment’s political context is the entire, morally problematic constitutional history of the United States concerning slavery.[4] It gives to that history an unambiguous conclusion, while also clarifying the meaning of the Constitution’s three-fifths clause, privileges and immunities clause, fugitive persons clause, and the very definition of republican government (in the guarantee clause).

An originalist reading of this language would restore the moral self-understanding of the American people. We citizens, by exercising restraint in realizing what it promises, both acknowledge our flaws and honor our commitment to the rule of law. The Thirteenth Amendment is the legal culmination of the American Iliad, the prosaic expression of profound Lincolnian oratory, the reconciliation of the Constitution and the Declaration of Independence.

It is, as well, the political culmination of Lincoln’s first notable speech, his Perpetuation Address of January 27, 1838. Young Lincoln, not quite 29, had warned of a politically ambitious man who would gain distinction and glory “whether at the expense of emancipating slaves, or enslaving freemen.” The fight against evil may produce even greater evils; that is one peril in self-government.

Thus does this terse amendment emphasize that it relies, for its enforcement, on the deliberative capacity of Congress. A written Constitution is not only a legal document but even more fundamentally an expression of a people’s purposes. The Thirteenth Amendment reminds us that the early state constitutions listed the separation of powers among the fundamental liberties protected by legitimate governments. In fact, that is the only way one could respect the Constitution as the written “supreme law of the land.”

In prohibiting the private relationship of master and slave, and thus allowing the federal government to enter the household, the amendment simultaneously gave Congress the authority to foster liberty. As Justice Harlan contended in his Plessy v. Ferguson dissent, the Thirteenth Amendment eliminated badges of slavery as well as the institution itself. (More in another post on the significance of Harlan’s contention, an overlooked part of his famous dissent.) It granted Congress authority to legislate on behalf of the newly created freedmen. And under its auspices Congress passed the radical Civil Rights Act of 1866, which protected in colorblind fashion essential civil rights of freedmen.

Let’s recall the great questions asked in just the 20 years preceding its passage in December 1865:

Abolitionists and slaveholders alike grew more and more aware that the United States was on its way to becoming “the slaveholding republic.”[6] The South was expanding more rapidly than the North, padded in the House of Representatives and the Electoral College by the non-consentual “votes” accrued under Constitution’s three-fifths clause, and eyeing imperialistic thrusts into the Caribbean and Latin America. The Compromise of 1850 repudiated the Missouri Compromise and added federal fugitive slave laws allowing the South to protect its peculiar institution. The Democratic Party’s lock on power—at the presidential level interrupted only by two Whig military heroes—threatened to debase the character of the country.

Finally, Chief Justice Taney’s opinion in the Dred Scott case of 1857 cleaved the Constitution from the Declaration and implied that a slaveholder might legally take his property into any state, slave or free. It followed from Taney’s separation of the Declaration from the Constitution that: “The Negro had no rights which the white man was bound to respect.” At a minimum, in the face of secession, the Civil War had to halt this trend and restore the Union.

The attractive alternative posed by Democratic Illinois Senator Stephen Douglas would have led to accommodation of slavery—and much worse, would have done so under the auspices of “popular sovereignty.” Might the United States have entered the 20th century “as the first and foremost of totalitarian powers”?[7] The events leading up to the Thirteenth Amendment’s adoption encompass the drama of all these challenges to equality and liberty. And with its adoption, the Constitution now repudiated tyranny as well as affirming a procedure to defeat it.

The pathos and the peril of this situation are strikingly anticipated by Lincoln, who reenters political life following the spiking of the slavery crisis in the Compromise of 1850 and the Kansas-Nebraska Act of 1854. He begins to focus on the political centrality of the Declaration of Independence for America, in his lengthy Peoria address delivered on October 16, 1854. He boldly describes the nation’s founding document as “the white man’s charter of freedom.” By using a phrase that should shock us today, Lincoln teaches how the principle of “all men are created equal” puts the authority of self-government in the hands of the native-born, the new immigrants, and rich and poor alike. It checks the power of elites in favor of a striving people. But once equal citizen rights are based on a principle, the people must reject exceptions to the principle and thus include even black freedmen.

Slavery, as a violation of government by consent, cannot be legitimate—otherwise the German immigrant, whose vote Lincoln sought, might lose his rights. Of course Lincoln hastens to add—as Illinois then prohibited the migration of free blacks—that their not being slaves does not mean they have all the rights of white citizens. Thus, in disputing Stephen Douglas, Lincoln shrewdly compares a black woman’s equal natural right “to eat the bread she earns with her own hands” with any man’s right to do the same, “without asking leave of any one else.” The Lockean natural right of property acquisition and retention is the core of what is needed for all future rights. That was “all” she was asking. The Thirteenth Amendment demands the abolition of slavery and implicitly the vindication of natural rights.

Lincoln’s views, whether before or during the Civil War, have often been construed to be more dictated by politics than principle. But here one must recognize a crucial distinction made at the time by all but the most radical abolitionists: A nation might logically reject slavery while also rejecting the equality of political and civil rights. Before the Civil War, it would have been futile to argue for the latter. Thus, Lincoln, for all his expressed hatred of slavery, never campaigned as an abolitionist but always as one who advocated restricting the expansion of slavery. In fact, on several occasions, he even conceded a case for constitutional protection of slaves in the current slave states.

Throughout the Civil War, until the decisive moment, Lincoln resisted proposals for emancipation and for the formation of black army units, fearing the effect these would have on the slave states such as Kentucky that remained loyal to the Union. Thus the fabled Emancipation Proclamation freed only those slaves in territory under control of the Confederacy—in other words, as a military measure, it freed only the slaves Lincoln had no direct legal control over.[8] The limitation advanced the purpose of this most famous of executive orders: war victory for the Union.

And of course notwithstanding that limitation, Lincoln continued to articulate the equality principle in conjunction with the war effort. Because he did so, the era of universal freedom could begin. To be sure, it stalled for 100 years—and was accompanied by the rise of the anti-republican administrative state. To properly understand this tragedy, we need to realize that there is nothing authorized by the amendment adopted three years after his assassination—the Fourteenth—that cannot be legitimately accomplished through the color-blind Thirteenth, which makes the Congress the primary (albeit not the sole) enforcement authority.

Although today’s Thirteenth Amendment radicals resemble the anti-Constitution fanatics about whom young Lincoln warned, that should not gainsay its inherent radicalism. It stands as an affirmation of the most radical document ever written: the Declaration of Independence. Civil rights, equal rights for the descendants of slaves, becomes the means by which all Americans can recover their history and their rights as self-governing people. For freedom, too, is a color-blind concept.

[1] See the essays in The Promises of Liberty: The History and Contemporary Relevance of the 13th Amendment, edited by Alexander Tesis (Columbia University Press, 2010).

[2] See their “Sleeping Giant?: Section Two of the 13th Amendment, Hate Crimes Legislation, and Academia’s Favorite New Vehicle for the Expansion of Federal Power,” Engage, Volume 13, Issue 3, October 2012 http://www.fed-soc.org/publications/detail/sleeping-giant-section-two-of-the-13th-amendment-hate-crimes-legislation-and-academias-favorite-new-vehicle-for-the-expansion-of-federal-power. For a brief review of some of the work on the Thirteenth Amendment, see as well Ilya Somin’s post on the Volokh Conspiracy blog. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/24/fifth-circuit-rules-that-a-federal-law-punishing-hate-crimes-is-a-permissible-exercise-of-congress-power-under-the-13th-amendment/

[3] Judge Elrod reluctantly concludes—see the 1968 case of Jones v. Alfred H. Meyer—that “Under our 13th Amendment jurisprudence, we must respect Congress’s determination unless it lacks a rational basis.”

[4] See, among many founding documents, Thomas Jefferson’s original draft of the Declaration and Federalist Papers 11, 42, 43, and 44.

[5] Historian Herman Belz concludes that the Thirteenth Amendment “nationalized freedom” and guaranteed “personal liberty against infringement by state or individual private action.” A New Birth of Freedom: The Republican Party and Freedmen’s Rights, 1861-1866 (Fordham University Press, 2000), p. 176. See also Michael Zuckert, “Fundamental Rights, the Supreme Court, and American Constitutionalism: The Lessons of the Civil Rights Act of 1866” in The Supreme Court and American Constitutionalism, edited by Bradford P. Wilson and Ken Masugi (Rowman and Littlefield, 1988). The scholarship of David R. Upham should also be consulted. http://www.libertylawsite.org/author/david-upham/

[6] Don E. Fehrenbacher, completed and edited by Ward M. McAfee, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (Oxford University Press, 2001).

[7] Harry V. Jaffa, Crisis of the House Divided (University of Chicago Press, 1982, first published 1959), p. 408.

[8] In Freedom National: The Destruction of Slavery in the United States, 1861-1865 (W.W. Norton, 2013), James Oakes shows more persuasively than others that the Emancipation Proclamation is a high point in a stream of anti-slavery policies, advanced by, among others, the Union military, Lincoln’s Department of Justice, and the President himself.

[9] W. B. Allen discusses the implications of going to first principles in “Our Civil Rights Rest on Fundamental Arguments, Not Racial Ones.” http://www.libertylawsite.org/liberty-forum/our-civil-rights-rest-on-fundamental-arguments-not-racial-ones/