The Promises of Liberty

The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment

Edited by Alexander Tsesis
Copyright Date: 2010
Pages: 368
https://www.jstor.org/stable/10.7312/tses14144
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    The Promises of Liberty
    Book Description:

    In these original essays, America's leading historians and legal scholars reassess the ratification of the Thirteenth Amendment and its relevance to issues of liberty, justice, and equality. The Thirteenth Amendment abolished slavery in the United States, reasserting the radical, egalitarian dimensions of the Constitution. It also laid the foundations for future civil rights and social justice legislation. Yet subsequent reinterpretation and misappropriation have curbed more substantive change. With constitutional jurisprudence undergoing a revival, The Promises of Liberty provides a full portrait of the Thirteenth Amendment and its potential for ensuring liberty.

    The collection begins with Pulitzer Prize-winning historian David Brion Davis, who discusses the failure of the Thirteenth Amendment to achieve its framers' objectives. The next piece, by Alexander Tsesis, provides a detailed account of the Amendment's revolutionary character. James M. McPherson, another Pulitzer recipient, recounts the influence of abolitionists on the ratification process, and Paul Finkelman focuses on who freed the slaves and President Lincoln's commitment to ending slavery. Michael Vorenberg revisits the nineteenth century's understanding of freedom and citizenship and the Amendment's surprisingly small role in the Reconstruction and post-Reconstruction periods. William M. Wiecek shows how the Supreme Court's narrow interpretation once rendered the guarantee of freedom nearly illusory, and the collection's third Pulitzer Prize winner, David M. Oshinsky, explains how peonage undermined the prohibition against compulsory service.

    Subsequent essays relate the Thirteenth Amendment to congressional authority, hate crimes legislation, the labor movement, and immigrant rights. These chapters analyze unique features of the amendment along with its elusive meanings and affirm its power to reform criminal and immigration law, affirmative action policies, and the protection of civil liberties.

    eISBN: 978-0-231-52013-3
    Subjects: History, Political Science, Law, Sociology

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Foreword: The Rocky Road to Freedom—Crucial Barriers to Abolition in the Antebellum Years
    (pp. xi-xxvi)
    David Brion Davis

    The Thirteenth Amendment, finally approved by Congress on January 31, 1865, and ratified on December 6, 1865, almost eight months after the Confederate surrender at Appomattox, outlawed slavery and involuntary servitude, except as punishment for crime, in the United States and its territories. The amendment repeated the words of the Northwest Ordinance (1787), which drew in turn on Thomas Jefferson’s rejected words in the Ordinance of 1784, banning slavery after the year 1800 in all the western territories. It was Jefferson who chose the phrase “neither slavery nor involuntary servitude,” followed by the significant exception that sanctioned even slavery as...

  4. 1. Introduction: THE THIRTEENTH AMENDMENT’S REVOLUTIONARY AIMS
    (pp. 1-24)
    Alexander Tsesis

    The origins of the Thirteenth Amendment are found as much in the American Revolution as they are in the period of Reconstruction, when the American people ratified it into the Constitution. During both eras Americans emphasized the human value of liberty.

    This chapter explores the dominant understanding of liberty that informed congressional debates on the proposed amendment. It first reflects on Revolutionary notions of liberty and then demonstrates how abolitionists relied on them. The chapter next turns to the principles that animated House and Senate debates about the proposed Thirteenth Amendment. I argue that with the ratification of the amendment...

  5. PART 1: Historical Settings
    • 2. In Pursuit of Constitutional Abolitionism
      (pp. 27-35)
      James M. McPherson

      The abolitionist movement of the 1830s hoped to end slavery in the United States by converting slaveholders into abolitionists in the same way that evangelical preachers converted sinners into Christian believers. This optimistic crusade soon confronted the reality of self-interest and racism buttressing slavery. The expectation that “moral suasion” would liberate America from the sin of human bondage gave way to a political movement to elect a national government that would curb the expansion of slavery as the first step, in the words of Abraham Lincoln, toward bringing it “in the course of ultimate extinction.” When Lincoln was elected president...

    • 3. The Civil War, Emancipation, and the Thirteenth Amendment: UNDERSTANDING WHO FREED THE SLAVES
      (pp. 36-57)
      Paul Finkelman

      In December 1865 all slavery came to an end in the United States with the ratification of the Thirteenth Amendment. That amendment was not the beginning of emancipation, but rather the last piece of a process that began more than four years earlier. To understand the meaning of the Thirteenth Amendment—to even understand why the Constitution has the Thirteenth Amendment—we must first look at the process of emancipation that began during the Civil War. This phase of emancipation—what might be called military, congressional, and presidential emancipation—led to the piecemeal liberation of millions of slaves. The central...

    • 4. Citizenship and the Thirteenth Amendment: UNDERSTANDING THE DEAFENING SILENCE
      (pp. 58-77)
      Michael Vorenberg

      Almost from the moment that the Fourteenth Amendment was ratified, in 1868, the Thirteenth Amendment, ratified three years earlier, was regarded as little more than a vestigial appendage to the Fourteenth, a sort of younger, if better-known, sibling. The Thirteenth Amendment has had its moments, to be sure, but they have been short-lived. In 1948, President Harry Truman signed an act declaring February 1 “National Freedom Day,” in honor of that day in 1865 when Lincoln signed the Thirteenth Amendment before sending it to the states for ratification. Scholars will tell you that Lincoln did not have to sign the...

    • 5. Emancipation and Civic Status: THE AMERICAN EXPERIENCE, 1865–1915
      (pp. 78-99)
      William M. Wiecek

      What is the legal effect of abolition through the Thirteenth Amendment on the civic status of a formerly enslaved person?¹ When an individual or an entire people become free, what place do they occupy in the society that had formerly enslaved them? What rights and immunities may they claim? What disabilities and inequalities may be imposed on them? A spectrum of answers to these questions is theoretically available. At one extreme the former slave might be treated as an outlaw, subject to being killed or reenslaved with impunity, unable to claim any rights or status in society. At the other...

    • 6. Convict Labor in the Post–Civil War South: INVOLUNTARY SERVITUDE AFTER THE THIRTEENTH AMENDMENT
      (pp. 100-118)
      David M. Oshinsky

      In the fall of 1865, the year the Thirteenth Amendment was ratified, Governor Benjamin Humphreys, of Mississippi, addressed the “Negro problem” before a special session of the state legislature. A planter by profession and a general during the war, Humphreys had just been pardoned by President Andrew Johnson, allowing him—and hundreds of other Confederate leaders—to reenter the political arena. His speech about the Negro was a major event, the first of its kind by a Southern governor in the new era known as Reconstruction. “Under the pressure of federal bayonets,” Humphreys began, slavery had been abolished. That decision...

    • 7. The Thirteenth Amendment and a New Deal for Civil Rights
      (pp. 119-137)
      Risa L. Goluboff

      Like much of the United States Constitution, the Thirteenth Amendment is what its interpreters make of it. Scholars, lawyers, and the occasional judge have found in the Thirteenth Amendment prohibitions against not only the chattel slavery the amendment most directly targeted but also a whole host of other wrongs: child abuse, forced reproduction, hate crimes, segregation and discrimination of all kinds, and various constraints on the freedom of workers. Unsurprisingly, dominant currents of political thought have influenced interpretations of the amendment at any given moment.¹

      This chapter explores the ways in which political developments affected the understanding of the Thirteenth...

    • 8. The Workers’ Freedom of Association Under the Thirteenth Amendment
      (pp. 138-160)
      James Gray Pope

      Long before the Thirteenth Amendment, white American workers claimed the freedoms to organize and strike under principles of both natural law and republican citizenship.¹ Enslaved black workers did not issue public claims of right, but they did join together to engage in job actions and “forms of collective labour bargaining customarily associated with industrial wage labourers.” At the risk of flogging and other harsh punishments, they limited the pace of work, secured the dismissal of abusive overseers, and established norms limiting the master’s power.² Following emancipation, black workers promptly formed unions and staged strikes to improve conditions and defend their...

  6. PART 2: Current Legal Landscapes
    • 9. The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment
      (pp. 163-181)
      George A. Rutherglen

      The Supreme Court has rarely considered the scope of the Thirteenth Amendment, perhaps because of nearly unanimous agreement on two basic propositions: first, that the amendment reaches private action because, unlike the Fourteenth Amendment, it has no “state action” restriction on its coverage; and, second, that Congress has the power under section 2 of the amendment to eliminate the badges and incidents of slavery. It follows from the first proposition that the only limit on congressional power to enforce the amendment depends upon the elusive meaning of the second proposition and, in particular, the phrase “badges and incidents of slavery.”...

    • 10. The Promise of Congressional Enforcement
      (pp. 182-195)
      Rebecca E. Zietlow

      In recent years, the Supreme Court has placed restrictions upon congressional power to enact civil rights laws. For example, in City of Boerne v. Flores, the Court articulated a stringent “congruence and proportionality” test for evaluating Congress’s power to enforce the Fourteenth Amendment, and in subsequent rulings, the Court applied that test to strike down several federal statutes making civil rights enforceable against both state governments and private actors.¹ In U.S. v. Lopez, the Court tightened its scrutiny of the Commerce Power, and in U.S. v. Morrison, the Court applied that test (as well as the congruence and proportionality test)...

    • 11. Protecting Full and Equal Rights: THE FLOOR AND MORE
      (pp. 196-225)
      Aviam Soifer

      In Grutter v. Bollinger,¹ a major recent Supreme Court decision in the realm of affirmative action, Justice Sandra Day O’Connor famously noted for the narrow majority, “Context matters when reviewing race-based governmental action under the Equal Protection Clause.”² It is perhaps surprising that O’Connor needed to emphasize context at all. Even more sobering is the fact that Grutter’s contextual approach has become quite controversial, to say the least. In the Court’s more recent affirmative action decisions, for example, a new majority appears to have rejected the importance of contextual analysis in favor of more rigid, formalistic reasoning about race.³

      In...

    • 12. Forced Labor Revisited: THE THIRTEENTH AMENDMENT AND ABORTION
      (pp. 226-244)
      Andrew Koppelman

      Dawn Johnsen, who was President Obama’s first nominee to head the Office of Legal Counsel (OLC), wrote an amicus brief arguing in passing that restrictions on abortion “are disturbingly suggestive of involuntary servitude, prohibited by the Thirteenth Amendment, in that forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest. Indeed, the actual process of delivery demands work of the most intense and physical kind: labor of 12 or more grueling hours of contractions is not uncommon.” After she was nominated as the OLC head, Senator Arlen Specter declared...

    • 13. The Slave Power Undead: CRIMINAL JUSTICE SUCCESSES AND FAILURES OF THE THIRTEENTH AMENDMENT
      (pp. 245-265)
      Andrew E. Taslitz

      From the time of its ratification until today, the Thirteenth Amendment has had a major impact on the American criminal justice system, a matter too often ignored by modern courts. That impact was felt in two ways: first, by section 1’s declaration of the nonexistence of slavery or involuntary servitude in the United States; second, and today more important, by section 2’s empowering Congress to pass appropriate legislation to enforce the amendment. Such legislation sometimes explicitly acknowledges its roots in the amendment, other times seemingly being merely inspired by it. Yet the criminal justice legislation has largely tended to prohibit...

    • 14. Toward a Thirteenth Amendment Exclusionary Rule as a Remedy for Racial Profiling
      (pp. 266-278)
      William M. Carter Jr.

      This chapter addresses a particular remedy for a specific type of Thirteenth Amendment violation: namely, the exclusion from criminal trial of evidence obtained by racial profiling. As a matter of constitutional interpretation and historical context, racial profiling should be treated as a badge or incident of slavery prohibited by the Thirteenth Amendment. The victims of racial profiling should both be able to sue violators and to prevent evidence obtained by racial profiling from being used against them in criminal proceedings.

      The exclusionary rule bars the use of evidence in a criminal trial where that evidence was unconstitutionally obtained. Whatever the...

    • 15. Immigrant Workers and the Thirteenth Amendment
      (pp. 279-290)
      Maria L. Ontiveros

      Imagine a group of nonwhite workers laboring in fields, slaughtering livestock, tending children, and cleaning houses. Some are controlled by guns, chains, and overt threats of beatings; others by psychological coercion and fear. Imagine that the state can separate them from their children. Churches that shelter or hide them to prevent separation are prosecuted for breaking the law. Imagine these workers are systematically denied access to the courts and remedies for violations of workplace rights. Imagine a group of workers being smuggled or running to freedom, pursued by dogs and armed guards. Imagine that these workers are excluded from the...

    • 16. A Thirteenth Amendment Agenda for the Twenty-first Century: OF PROMISES, POWER, AND PRECAUTION
      (pp. 291-299)
      Darrell A. H. Miller

      Over forty years ago, in Jones v. Alfred H. Mayer Co.,¹ the Supreme Court recognized that the Thirteenth Amendment empowers Congress to proscribe private racial discrimination in the sale of property. Even sympathetic readers were surprised by the Court’s apparent abandonment of the Fourteenth Amendment state-action civil rights paradigm in favor of direct regulation of private behavior under a Thirteenth Amendment “badge and incident” of slavery analysis. Perhaps most revolutionary was the Court’s conclusion that a right to own property “can be impaired as effectively by those who place property on the market as by the State itself.”² According to...

  7. 17. Epilogue: The Enduring Legacy of the Thirteenth Amendment
    (pp. 300-318)
    Robert J. Kaczorowski

    This extraordinary collection of essays on the Thirteenth Amendment shows how it encompasses the sweep of U.S. history. These essays demonstrate that the Thirteenth Amendment connects the promise of liberty that spawned and justified the American Revolution with our current struggles to protect individual liberties in the areas of personal rights, criminal justice, and immigration reform.

    Several scholars explore the Thirteenth Amendment’s antecedents in the American Revolution and the antebellum abolitionist movement and the nation’s failure to achieve the amendment’s promise of freedom. Alexander Tsesis persuasively argues that the Thirteenth Amendment, interpreted in light of its revolutionary and abolitionist foundations,...

  8. ACKNOWLEDGMENTS
    (pp. 319-320)
  9. List of Contributors
    (pp. 321-324)
  10. INDEX
    (pp. 325-336)