From The Root:

 

‘The Consummation of the Great Game’

Abraham Lincoln freed the slaves, right? Well, the truth is a bit more complicated than that; actually, the truth is very complicated, leading even usually sober commentators such as the venerable historian Lerone Bennett Jr. to cry “foul,” and to do so quite bitterly, suggesting that black people have been sold a bill of goods when it comes to “The Great Emancipator.” This week’s column, honoring another important anniversary of the Civil War, attempts to answer that question, a question as complex as Lincoln’s attitudes toward the black people he was seeking to liberate, attitudes that led Frederick Douglass himself to call Lincoln, a decade following his assassination, “the white man’s president.”

The simple answer is yes, and no. As we saw in my column last month (“Who Legalized Arming Black Men to Kill Confederates?”), the Emancipation Proclamation, despite its enormous symbolic significance, did not abolish the institution of slavery in the United States. Rather, it “freed” any slave in the Confederate states (that’s right—it did not apply to states in the Union in which slavery remained legal) who could manage to flee her or his plantation and make their way behind liberating Union lines. Historians estimate that as many as 500,000 black people managed to do this. So we might say that these black people freed themselves. To put this number into a bit of perspective, in 1860 there were about 3.9 million enslaved African Americans, which means that by the end of the Civil War, some 3.4 million black people remained in bondage, in spite of the Emancipation Proclamation. So why are African Americans free today? Because of the 13th Amendment to the Constitution, which Lincoln, especially, knew was essential for the permanent abolition of slavery.

Friday, Jan. 31, marks the 149th anniversary of the 13th Amendment’s triumphant passage through the House of Representatives en route to Abraham Lincoln’s desk and then eventual ratification by the states. Not only was the amendment’s command abolishing slavery the climax of Steven Spielberg’s 2012 film Lincoln, it was the high point of the American Civil War, fulfilling in the timeless book of law what President Abraham Lincoln had initiated only as a wartime measure in the Emancipation Proclamation two years before. As Lincoln himself would explain in his second inaugural address on March 4, 1865, the 13th Amendment (he didn’t refer to it by name) offered redemption for what many believed was the original sin of slavery—a sin North and South had shouldered since the nation’s founding.

Reaching for a deeper understanding of the Almighty’s mysterious ways—His felt but unseen presence hovering over the war—Lincoln orated:

“If we shall suppose that American slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope—fervently do we pray—that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord, are true and righteous altogether.’ ”

The 13th Amendment, embodying that repayment—at least in part—is the only amendment in American history to be ratified with a president’s signature on it, a testament to Lincoln’s close, personal identification with its mandate. (That’s because it isn’t necessary for the president to sign; to reach ratification, as Article V of the Constitution outlines, an amendment needs only the support of 1. two-thirds of both the U.S. House and Senate, and 2. three-quarters of the states.)

As Lincoln commented when the band came playing at the White House on the day he signed it on Feb. 1, 1865, the 13th Amendment went well beyond the Emancipation Proclamation of 1863. Not only did it erase any lingering doubt that abolition would pass constitutional muster (at the time, there was still a worry that the Supreme Court could strike down the Emancipation Proclamation as an abuse of executive power). The amendment was to reach all of the United States—not just the Confederacy—across generations, whereas the more modest Emancipation Proclamation, in Lincoln’s telling, had been limited by perceptions “that it only aided those [slaves] who came into [Union] lines and that it was inoperative as to those who did not give themselves up, or that it would have no effect upon the children of the slaves born hereafter.” In other words, contrary to what we were taught in school, it was the 13th Amendment that finally put an end to the institution of slavery in the United States and not the Emancipation Proclamation.

Unlike the Emancipation Proclamation, the words of the 13th Amendment were both sweeping and spare: “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.” Embracing it, Lincoln told those gathered outside the White House, “this amendment is a king's cure for all the evils. It winds the whole thing up.” And, according to the reporter on the scene for the New York Tribune, Lincoln “repeat[ed] that it was the fitting if not indispensable adjunct to the consummation of the great game we are playing. He could not but congratulate himself, the country and the whole world upon this great moral victory.”

The Crittenden Compromise

What may be remarkable to some—and proof of the revolutionary course the Civil War had taken as it dragged on—is the fact that when the war began, the same President Lincoln had been ready to sign an altogether different version of the 13th Amendment, a first draft, if you will. (Remember, in our Constitution, we only see numbers assigned to the versions that were successfully ratified, not those that died somewhere between the drafting and debating, the House and Senate and the various states. They all had numbers, too, until they were superseded.)

The earlier versions of what would have become the 13th Amendment had little to do with the one that was finally adopted. Though each addressed the issue of American slavery, they came about at different times, in different Congresses and under starkly different circumstances. The first was debated during the “secession winter” of 1860-1861, those four dreary, tumultuous and seemingly interminable months between Abraham Lincoln’s election on Nov. 6, 1860, and his inauguration on March 4, 1861. In that time, seven states seceded, beginning with South Carolina on Dec. 20 (Mississippi, Florida, Alabama, Georgia, Louisiana and Texas followed). In Washington, D.C., members of Congress scrambled to find any shred of compromise in what appeared to be an uncompromising age.

While we have our various “gangs of six and eight” in Congress today, the secession winter Senate had its so-called “Committee of Thirteen,” organized on Dec. 18, 1860 (just two days before South Carolina departed the union), with Democratic President James Buchanan still wringing his hands in the White House. What came to be known as “the Crittenden Compromise” (for the committee member behind it, Sen. John Crittenden of Kentucky) emerged in short order. Really, it was a package of proposals—a “grand bargain,” you might say—consisting of six constitutional amendments and four congressional regulations, which aimed to revive and render permanent the old geographical boundary between free and slave territories in the Missouri Compromise of 1820, except this time, that line would extend all the way to the Pacific Ocean, defying Lincoln’s biblical maxim, “a house divided against itself cannot stand.”

The Crittenden Compromise, in attempting to stave off further state defections, hung itself on the belief that the house could stand. It would be too much to quote the proposed amendments in full, but here are the relevant passages:

“ARTICLE I. In all the territory of the United States now held, or hereafter acquired, situated north of latitude 36° 30', slavery or involuntary servitude, except as a punishment for crime, is prohibited while such territory shall remain under territorial government. In all the territory south of said line of latitude, slavery of the African race is hereby recognized as existing, and shall not be interfered with by Congress, but shall be protected as property by all the departments of the territorial government during its continuance ...

“ARTICLE II. Congress shall have no power to abolish slavery in places under its exclusive jurisdiction, and situate within the limits of States that permit the holding of slaves.

“ARTICLE III. Congress shall have no power to abolish slavery within the District of Columbia, so long as it exists in the adjoining States of Virginia and Maryland, or either, nor without the consent of the inhabitants, nor without just compensation first made to such owners of slaves as do not consent to such abolishment …

“ARTICLE IV. Congress shall have no power to prohibit or hinder the transportation of slaves from one State to another, or to a Territory in which slaves are by law permitted to be held …

“ARTICLE V. … Congress shall have power to provide by law, and it shall be its duty so to provide, that the United States shall pay to the owner who shall apply for it, the full value of his fugitive slave in all cases when the marshal or other officer whose duty it was to arrest said fugitive was prevented from so doing by violence or intimidation, or when, after arrest, said fugitive was rescued by force, the owner thereby prevented and obstructed in the pursuit of his remedy for the recovery of his fugitive slave under the said clause of the Constitution and the laws made in pursuance thereof …

“ARTICLE VI. No future amendment of the Constitution shall affect the five preceding articles; nor the third paragraph of the second section of the first article of the Constitution, nor the third paragraph of the second section of the fourth article of said Constitution and no amendment shall be made to the Constitution which shall authorize or give to Congress any power to abolish or interfere with slavery in any of the States by whose laws it is, or may be allowed or permitted.”

Did you get all that? The Crittenden Compromise, responding to what it described as “serious and alarming dissensions” in the country, offered to make slavery of the “African race” explicitly and permanently part of the U.S. Constitution, so that no future Congress could ever undo it where it existed. Still, as compromises often go, it failed to attract support outside the political dead center. On one hand, President Lincoln’s Republican Party had campaigned on the idea of leaving slavery alone in the states where it already existed while blocking its extension further into the territories. So, right away, the Republican members of the Committee voted against it.

 

 

On the other hand, the Crittenden Compromise stopped short of a full embrace of the Dred Scott decision by resurrecting the Missouri Compromise, which, in his (long and confusing) opinion for the Court in 1857, Chief Justice Roger B. Taney had ruled unconstitutional as a violation of slave-owners’ property rights. As a result, the two Deep Southerners on the committee didn’t think the honorable John Crittenden had done nearly enough to protect their constituents’ interests in the territories (and, if the expansionists among them had had their way, the Caribbean, too). Thus they refused to support it.

On Dec. 30, 1860, the Committee of Thirteen reported its impasse to the Senate. In a telegram back home, Robert Toombs, a member of the committee from Georgia who would go on to serve as Confederate Secretary of State, blamed the failure of the Crittenden Compromise on “black Republicans.” “I tell you, upon the faith of a true man,” Toombs wrote, “that all further looking to the North for security for your constitutional rights in the Union ought to be instantly abandoned. It is fraught with nothing but ruin to yourselves and your posterity.” 

The Corwin Amendment 

As the winter rolled on, so, too, did another version of a potential 13th Amendment—this time in the House. It was known as the Corwin Amendment for Rep. Thomas Corwin of Ohio, though, as historian Eric Foner points out in his Pulitzer-prize winning book, The Fiery Trial: Abraham Lincoln and American Slavery, it had been “originally drafted by” Lincoln’s incoming secretary of state, William Seward, the former senator of New York. The Corwin Amendment proposed a diluted version of the Crittenden pledge not to interfere with slavery in any state where it existed—essentially a reprint of the Republican Party platform of 1860. Its language reeked of evasion and weakness, however: 

“No amendment shall be made to the Constitution which will authorize or give to Congress power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

In other words, the Corwin Amendment was to be the anti-13th Amendment. Instead of abolishing slavery, or even calling it out by name, it referred vaguely to “domestic institutions” and “persons held to labor or service,” while attempting to close the door on any future amendment authorizing Congress to “abolish or interfere” with slavery in the states. While to us it reads like an outrageous sell-out, it was, at the time, a perfect illustration of Republicans’ calculating efforts to place responsibility for any pending war on the shoulder of secessionists while enticing those slaveholding states that had yet to depart to remain in the Union.

And, in his first inaugural address on March 4, 1861, President Lincoln suggested he was open to signing it:

“I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.”

The Confederate Constitution

Turns out, he, too, was putting lipstick on the pig known as the slave and free union of 1861. Only, the Confederacy wasn’t buying. After all, the thinking ran, why should they remain part of a federal government that had already proven shaky on the issue they held most dear? No, the Confederacy didn’t want to be encumbered. And without any need for compromise with the Lincoln government, here’s what the Confederate Constitution said on the matter, as it was adopted on March 11, 1861, just a week after Lincoln’s first inaugural:

“Sec. 2. (I) The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.”

Once the Civil War begin in April 1861, four more slave states signed on: Virginia (after the national Peach Convention it called in February, using the Crittenden Compromise as a jumping-off point, failed to generate any more viable path than what became the Corwin Amendment, as Foner notes in The Fiery Trial), Arkansas, Tennessee and North Carolina.

We live in a time when people bemoan the lack of compromise in Congress. The Civil War generation had had enough of it. While professional historians don’t engage in counterfactuals, can you imagine if the Crittenden Compromise or Corwin Amendment had actually been ratified? (Incidentally, the Confederacy, like the original United States, continued counting slaves as three-fifths of a person for purposes of Congressional apportionment, a sign of the Deep South’s influence; it also retained the U.S. Constitution’s ban on the foreign importation of slaves—a way to keep the market price high).

 

 

In The Fiery Trial, Eric Foner makes clear the Corwin Amendment never really had a chance. In fact, after it moved through Congress and Lincoln sent it to the states on March 7, 1861, only three states ended up ratifying it: Ohio, Maryland and Illinois. Many Republicans opposed it, Foner explains, because it “violated [the] principle” that “the Constitution did not explicitly recognize property in slaves.”  It was one thing to turn a blind eye on slavery in states where it existed; it was quite another to say explicitly nothing could ever be done about it. The way I see it, the Corwin Amendment was one more desperate attempt by a failed Congress to rescue the Union as it was and without any loss of life. While there may have been men of good faith behind it, let’s also admit they weren’t exactly ‘bending the moral arc of the universe toward justice’—they were just trying to hang on.

The 13th Amendment as We Know It

Instead, the Civil War took its course, and in a nation reunited on the North’s terms (at least initially), the 13th Amendment, as we know it, was ratified on Dec. 6, 1865, except Lincoln didn’t live to see it. Before then, it passed the Senate in April 1864, the House in Jan. 1865 and the president’s desk on Feb. 1. When Rep. George Julian (pdf) of Indiana tried to put the meaning of his vote down in words, he wrote, “I have felt, ever since the vote, as if I were in a new country.” (I imagine those who had signed onto the Confederate Constitution in 1861 felt the same way. Now they were returning to a “new” but altogether different country than they had dreamed up.)

Not long after the Civil War, the 13th Amendment, for all its revolutionary might, lost its currency, first to the 14th Amendment’s guarantee of “equal protection” and citizenship, then to the Supreme Court’s unraveling of those guarantees in cases like Plessy v. Ferguson (1896). Really, the 13th Amendment seemed to be all but a dead-end to until, in the 1940s, lawyers in the Justice Department began using its words to argue against employment contracts and conditions tantamount to “involuntary servitude,” as Risa Golubuff writes in her April 2001 article for the Duke Law Journal, “The Thirteenth Amendment and the Lost Origins of Civil Rights.”

“Beyond the war years the grim and tortured struggle of Negroes to win their own freedom is an epic of battle against frightful odds,” Martin Luther King Jr. said in a recently rediscoveredaudio-version of his speech on the meaning of the Emancipation Proclamation in New York City on Sept. 15, 1962. “If we have failed to do enough, it was not the will for freedom that was weak, but the forces against us which were too strong.”

Not surprisingly, the first state to ratify the 13th Amendment was Illinois, Lincoln’s home state, within a single day of its passage in Congress on Feb. 1, 1865 (the same day he signed it). The state that put it over the top was the former Confederate state of Georgia, on Dec. 6, 1865. Even more remarkable, it took until 1995 for the state of Mississippi to sign onto the 13th Amendment, and even then a paper-work snafu delayed it reaching the federal government until last year!

One may wonder if Mississippians would’ve acted faster if the amendment before them had been the original 13th. All of the South might have taken that deal, but by the time they came back, Lincoln was no longer offering it, thank God.

In his second inaugural, Lincoln alluded to this history, and now we all can have a deeper appreciation for what he is telling us (bold added):

“One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern half part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that thecause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has His own purposes.”

I would never profess to know those “purposes,” but, Amen, I say, that the Almighty to which Lincoln referred—and the nation the Almighty hovered over—didn’t allow the 13th Amendment to be written into the timeless book of law as anything less than “fundamental and astounding.” 

 

Author Bio:Henry Louis Gates Jr. is the Alphonse Fletcher University Professor and founding director of the Hutchins Center for African and African American Research at Harvard University. He is also editor-in-chief of The Root. Follow him on Twitter and Facebook.

 

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