by James Oakes
It was 1864, and the opponents of slavery still faced the same dilemma that abolitionists had faced since the late eighteenth century: slavery was immoral, but the Constitution protected it. “[A] majority of our people believe slavery to be wrong,” Senator Henderson explained, “but a small number, comparatively, believe that Congress possesses the power to abolish it. In other words,” he concluded, “the moral law condemns it, but the Constitution tolerates it.” Slavery has been a festering sore on the body politic since the republic was founded and “should now be abolished,” Henderson said, but “the Constitution as it now stands confers upon Congress no power to abolish it.” He dismissed most of the proposals to attack slavery indirectly through congressional legislation. Territorialization was legally incoherent. Guaranteeing states a “republican form of government” would not work, since seceded States “were republican before secession.” Enforcing the Emancipation Proclamation would do no good if the proclamation itself was limited in its reach. “We act as though a presidential proclamation against slavery would end the rebellion,” he complained. There was really no alternative: there must be “a change of the Constitution.”8
Even Lyman Trumbull, who had no apologies to make for his own antislavery record, doubted that Congress could enforce emancipation, much less abolish slavery, by mere legislation. “I am as anxious to get rid of slavery as any persons,” he declared, “but has Congress authority to pass a law abolishing slavery everywhere?” Not under the terms of the federal consensus. “[I]t has been an admitted axiom from the foundation of this Government, among all parties, that Congress had no authority to interfere with slavery in the States where it existed.” The solution was clear. “[T]he only effectual way of ridding the country of slavery, and so that it cannot be resuscitated, is by an amendment to the Constitution, forever prohibiting it within the jurisdiction of the United States.”9 Only a constitutional amendment would abolish slavery and sanction the various congressional efforts to enforce emancipation.
THE END OF THE FEDERAL CONSENSUS
In retrospect it seems obvious that the easiest way to destroy slavery was to add an amendment to the Constitution abolishing it everywhere in the United States. But until 1864 the amendment never struck Republicans—or even abolitionists—as necessary or desirable. The Constitution had not been amended for over half a century. It was almost universally revered as the capstone of the American Revolution—the near-perfect handiwork of the Founders. No one was eager to tamper with it. In the mid-1830s a few abolitionists had proposed amending the Constitution but the addition of several new slave states soon made it impractical. By 1860 an antislavery amendment would have required the unanimous votes of forty-five free states to secure ratification over the opposition of the fifteen slave states then in the Union. That would be impossible, even today. No wonder some abolitionists were more likely to burn the Constitution than propose revising it. A constitutional amendment was scarcely thinkable as an antislavery strategy until after eleven slave states seceded, yet until December in 1863, hardly anybody suggested it.
Why, having moved so swiftly to attack slavery as soon as the war began, did Republicans come so belatedly to such an amendment? In part it was because all of their antislavery politics were based on the assumption that the Constitution was already adequate to destroy slavery. Under sustained assault from southern slaveholders and northern Democrats that they were trampling on the constitutional rights of the southern states, Republicans always responded by insisting that their antislavery policies were not only constitutional but also consistent with the federal consensus. They could put slavery on the course of “ultimate extinction” without directly abolishing it in the states where it was legal. Convinced that slavery was weak, Republicans initially believed that southern slave society would crumble once they pulled the federal props from beneath the unstable foundations of the Slave Power. In the first year of the war they implemented the basic elements of freedom national—abolishing slavery in the territories and Washington, restricting enforcement of the fugitive slave clause to the states, ratifying a treaty with England suppressing slavery on the high seas—all the while emancipating thousands of slaves coming into Union lines from the rebel states. By mid-1862, having realized that slavery was stronger and white unionism weaker than they had previously thought, Republicans committed themselves to a much more aggressive policy of universal military emancipation in the seceded states and with it the expectation that the “friction and abrasion” of war would quickly undermine slavery in the loyal Border States. That policy was fully implemented when Lincoln issued the Emancipation Proclamation on January 1, 1863. A year later, two things seemed clear to Republicans: the North was going to win the war, and neither military emancipation nor state abolition would be enough to destroy slavery. If something wasn’t done, the thing that caused the war would survive the war.
The Thirty-Eighth Congress opened for business in early December of 1863, and in less than two weeks Republican Congressman James Ashley of Ohio proposed a constitutional amendment “prohibiting slavery, or involuntary servitude, in all the States and Territories now owned or which may be hereafter acquired by the United States.”10 A month later a similar amendment was introduced in the Senate. Both the House and the Senate proposals were referred to their respective judiciary committees. At that point a constitutional amendment was but one of several Republican legal strategies for fixing the problems with military emancipation and state abolition. But as the winter months passed, the amendment emerged as the consensus policy. With each passing week, as Republicans considered the various statutory approaches—legislating federal abolition, emancipating the families of black soldiers, criminalizing re-enslavement, reducing the slave states to territories—it became obvious that none of them inspired general support within the party. To be sure, a majority of Republicans seemed ready to abolish slavery by simple congressional legislation, but key party leaders—notably Trumbull and Lincoln—remained convinced that legislative abolition was both unconstitutional and, just as bad, vulnerable to legal challenge by a later Congress, by the courts, or by the southern states. Gradually the conclusion dawned: if the Constitution did not allow the federal government to abolish slavery in states where it was legal, the problem was the Constitution itself. And the problem suggested its own solution.
Once Republicans settled on a constitutional amendment as their preferred strategy for destroying slavery, the powerful antislavery consensus within the party reemerged. In 1864, winning the war and abolishing its cause by means of a thirteenth amendment were the two positions around which all Republicans could unite. In turn the Democrats lined up in opposition and called for a negotiated peace without regard to slavery. The result, especially in the House of Representatives, was a sustained and vituperative debate. Congressmen called each other names—traitors, Jacobins, war-mongers, slave-mongers, and negro-worshippers. And the reason for the bitterness was elementary: everyone understood that slavery was still very much alive and that the outcome of this debate would determine once and for all whether slavery would survive the war or be destroyed by it. The stakes could not have been higher.
The Republicans were in an awkward position. They had always been scrupulous about the constitutional legitimacy of their antislavery policies, stressing their allegiance to the intentions of the framers. How would they now justify rewriting the framers’ Constitution? Senator Lyman Trumbull established the terms of the Republican debate when he reported the Thirteenth Amendment out of his Judiciary Committee on March 28, 1864. Indeed, the wording of the amendment was designed to shield the party from the charge of repudiating the Founders’ intentions:
SEC. 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.
* * *
SEC. 2. Congress shall have the power to enforce this article by appropri
ate legislation.11
Section 2, the enforcement clause, would give constitutional sanction to the various legislative proposals offered by Republicans to enforce the Emancipation Proclamation.12 The wording of Section 1, however, came almost verbatim from the Ordinance of 1787, restricting slavery in the Northwest territories. It had been adopted by Congress under the Articles of Confederation and readopted by the very first Congress that met under the new Constitution. By importing the 1787 wording, the Senate Judiciary Committee linked the abolition amendment directly to the Founders and in particular to Thomas Jefferson, its original author.
Invoking the Northwest Ordinance, however, was not a purely instrumental move. Among political abolitionists and antislavery politicians, particularly in the Midwest, the Ordinance of 1787 was the touchstone of antislavery constitutionalism. It was widely believed that thanks to the ordinance there was no slavery in Michigan, Ohio, Indiana, Illinois, or Wisconsin. Eastern abolitionists felt no similar attachments, and Charles Sumner actually complained that the Judiciary Committee’s amendment smacked too much of “the Jefferson Ordinance.” Looking instead to Europe for a model, Sumner proposed an alternative wording based on the Declaration of the Rights of Man: “Men are born and continue free and equal in rights.” This was just too . . . well, French, for the Senate. “I would not go to the French Revolution to find the proper words for the constitution,” Trumbull declared. “We all know that their constitutions were failures.” Michigan’s Senator Jacob M. Howard agreed. “I prefer to dismiss all reference to French constitutions or French codes,” he explained. Instead Howard would “go back to the good old Anglo-Saxon language employed by our fathers in the Ordinance of 1787.” Not only was it domestically produced, not only did it tie the antislavery amendment to the Founders, it was also popular language, the familiar language of constitutional politics. The Northwest Ordinance, Howard explained, “is perfectly well understood both by the public and by judicial tribunals.” It is “peculiarly near and dear to the people of the Northwest Territory,” but it is also “well understood, well comprehended by the people of the United States.” Some scholars suggest that the Northwest Ordinance was actually far more ambiguous in its language and effect than the senator believed. Rightly or wrongly, however, by the 1860s the Northwest Ordinance occupied an almost sacred place in the constitutional politics of the antislavery movement. It was a logical, popular choice for the wording of the new amendment. When Howard finished his paean to “the Jefferson Ordinance,” Sumner conceded defeat. “My proposition,” he said, “is withdrawn.”13
If the wording alone were not enough to shield Republicans against the charge of shredding the constitutional fabric so carefully woven by the Founders, Trumbull draped himself in the tapestry as he introduced the amendment to his Senate colleagues. The Founders intended for slavery to disappear, he declared. “They looked forward to the not distant, nor as they supposed uncertain period when slavery should be abolished, and the Government became in fact, what they made it in name, one securing the blessings of liberty to all.” Their intentions, though, were thwarted by a Slave Power that grew year by year more powerful, more belligerent, scuttling the hopes of the Founders. The Thirteenth Amendment merely implements their original intentions.14 This was a familiar argument, long predating the war. The Founders intended to put slavery “in the course of ultimate extinction,” but they were foiled by a Slave Power that dominated the presidency, the Congress, and the courts for seventy-five years. Opponents of slavery had been arguing this way for decades.
But hadn’t the Slave Power been overthrown by the Republican ascendancy in 1860? Wasn’t slavery doomed by the mere withdrawal of federal support? Wouldn’t it crumble under the weight of war? What about all those antislavery laws and presidential proclamations attacking slavery? Weren’t they enough? No, Trumbull answered. Slavery was not yet killed, and so long as it lived the Slave Power lived with it. Trumbull cited the conservative critics who claimed that the two confiscation acts had no effect and the Emancipation Proclamation freed no slaves. Trumbull was not prepared to say that the critics were entirely correct, but he was not going to dispute them either. “It is enough for me to show,” he admitted, “that any and all of these laws and proclamations, giving to each the largest effect claimed by its friends, are ineffectual to the destruction of slavery.” The Democrats may be wrong to claim that Republican antislavery policies had accomplished nothing, for clearly many slaves had been emancipated, but just as clearly, Trumbull acknowledged, emancipation had not been enough to abolish slavery. Full abolition could only be accomplished by rewriting the Constitution.
The Thirteenth Amendment that Trumbull reported out of his Judiciary Committee would do two things that military emancipation alone could not do. “[N]ot only does slavery cease,” Trumbull explained, “but it can never be reestablished by State authority.” Military emancipation could not free all the slaves; the Thirteenth Amendment would. Emancipation was no guarantee against the reestablishment of slavery; constitutional abolition was. Even “if slavery should be abolished by act of Congress or proclamation of the President,” Trumbull warned, “there is nothing in the Constitution to prevent any State from reestablishing it.” A constitutional amendment was the only way to ensure against re-enslavement.15
Thus did Lyman Trumbull spell out the terms on which Republicans would justify the antislavery amendment. Much of his argument was familiar, and over the ensuing months of congressional debate much of it would become repetitive as one Republican after another, in both the House and the Senate, took to the floor to regale his colleagues with yet another recitation of the shocking history of the Slave Power and its decades-long distortion of the true meaning of the Constitution.
It wasn’t all familiar, though. There was a new twist in the history Republicans recited, a different lesson to be drawn that spoke directly to the need for a new amendment. In the prewar telling, slavery would be overthrown when the Slave Power was dislodged and the original meaning of the Constitution was restored. In 1864, Republicans wanted to rewrite the Constitution, and to do that the history of the Slave Power required a new concluding chapter. In the revised version the Founders were certainly well intentioned, yet they had made a fatal mistake. In 1787 they looked around and surmised that slavery was dying, and on that faulty assumption they willingly entered into a series of constitutional compromises with slavery. But slavery didn’t die—it flourished, and the Slave Power flourished with it, thanks to the fatal concessions the Founders had made to slavery at the Constitutional Convention in Philadelphia. “They were good men and were wise in their day and generation,” Congressman William Kelley of Pennsylvania explained, “but all wisdom did not die with them, and we are expiating in blood and agony and death and bereavement one of their errors—the unwise compromise they made with wrong in providing for the toleration and perpetuation of human slavery.”16 Here was the new lesson for 1864: don’t make the same mistake the Founders made.
Slavery “still battles for existence,” Henry Wilson warned. “[L]et not the anti-slavery men forget that the founders of the Republic believed slavery would wither and die beneath rays of the Christian and democratic institutions they founded.” Slavery had “eluded and deceived our fathers.” They had shown it mercy in what they hoped were its final days, but “from a feeble mendicant” slavery went on to become “the master of the Government and the people.” Indeed so arrogant and powerful did slavery become that it finally plunged the entire nation into a brutal, bloody war. It would be a crime for that war to end without its cause having been eradicated. As in 1787, so in 1864. Congress and the president had done much to weaken slavery, and there was more that Congress could do to enforce the Emancipation Proclamation, Wilson argued, but “the crowning act” in this record of executive and legislative attacks on slavery “is this proposed amendment to the Constitution.” Wilson had come to believe that Congress could legislatively abolish slavery, but killing slavery was no longer
enough. All possibility of slavery’s resurrection had to be destroyed as well. A constitutional amendment would not simply abolish slavery; it would also outlaw the reestablishment of slavery. “The incorporation of this amendment into the organic law of the nation will make impossible forevermore the reappearing of the discarded slave system, and the returning of the despotism of the slavemasters’ domination.”17
The Founders made another error when they left slavery under the control of the states. “Our fathers were mistaken,” California’s Republican Congressman Thomas B. Shannon declared, when they compromised with slavery on the assumption that it would become extinct when in reality slavery “was not waning.” On the contrary, every year “added strength to the accursed tree. . . . This mistake,” Shannon concluded, “leaving to the people of the several States the right and authority to establish and regulate the crime of human slavery, has well-nigh proved a vital one.”18 It was time for the Republican Party to correct the error by abandoning the federal consensus. We abided by it, Shannon explained. “We said to the South, we will not interfere with your pet snake while you keep it in the den you have provided for it.” The South, though, was not satisfied. “[E]very pacific overture was rejected, and no alternative was left to freemen of the North but war.” The struggle has to be concluded, now and “for all future time.” And the only way to do that was “by so amending our organic net that slavery can never again be an element of discord among our people.”19
By its denial of federal power to interfere with slavery in the states where it existed, the Constitution had made it impossible to restrain the growth and power of slavery. The Thirteenth Amendment would rectify the error. It would allow the federal government to reach directly into the southern states and destroy forever one of their most cherished “domestic” institutions. It was on precisely this point—the deliberate assault on state authority—that Democrats and Border State congressmen launched their counterattack on the “unconstitutional” constitutional amendment.