African Americans and the Inadequacy of Constitutional Emancipation

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If neither the Republicans nor the Democrats united behind the amendment early on, who, then, were the real champions of the measure? The slaves who had sought their own freedom certainly deserved much of the

57 Blair to Barlow, December 25, 1863, Samuel L. M. Barlow MSS, HEH.

58 Barlow to Blair, December 23, 1863, Samuel L. M. Barlow letter books, HEH.

credit for the Union's emancipation policy so far.59 Perhaps then, as one legal scholar has suggested, the slaves were the real "authors" of the amendment.60

There is much to commend this approach to the Thirteenth Amendment. Free and enslaved blacks played no small part in forcing Congress and Lincoln to construct an emancipation policy that culminated in the Emancipation Proclamation. And once Lincoln issued the proclamation, African Americans continued to be aware - often in the most personal ways - of the need for even firmer emancipation legislation. Annie Davis, a slave living in northern Maryland, spoke for many African Americans frustrated by their ambiguous legal status when she wrote in 1864 to President Lincoln, "you will please let me know if we are free. [A]nd what I can do."61 Blacks well understood that there was much work still to do if emancipation was to become a fact and not simply a stated policy, and they swarmed across Union lines in unprecedented numbers during the last years of the war. These African Americans were engaged not only in a project of self-emancipation but in a joint operation with the Union government and army to free all the slaves. As one former slave of South Carolina testified after the war, "I wanted the Union army to succeed over the rebels so I and all colored men would be free, I knew we could never be free if the Confederates were victorious."62

In addition to leaving their masters and joining Union armies, African Americans often acted in ways that were more overtly political. Many free blacks, for example, took part in the petition drive of the Women's Loyal National League for a universal act of emancipation. Originally, the league's petitions had purposely avoided specifying how slavery should be abolished, but after Trumbull reported the antislavery amendment out of

59 On the controversial question of whether slaves were the primary agents of their own freedom, see Ira Berlin, "Who Freed the Slaves? Emancipation and Its Meaning," in David W. Blight and Brooks D. Simpson, eds., Union and Emancipation: Essays on Politics and Race in the Civil War Era (Kent, Ohio: Kent State University Press, 1997), 105-21, which presents a convincing argument as well as citations to the relevant literature.

60 Guyora Binder, "Did the Slaves Author the Thirteenth Amendment? An Essay in Redemptive History," Yale Journal of Law and the Humanities, 5 (Summer 1993), 474. For a similar view, one that presents African Americans as the "best interpreters" of the reconstruction amendments, see David A. J. Richards, Conscience and the Constitution: History, Theory, and Law of the Reconstruction Amendments (Princeton: Princeton University Press, 1993), 257.

61 Annie Davis to "Mr president," August 25, 1864, in Ira Berlin et al., eds, Freedom: A Documentary History of Emancipation, 1861-1867 (Cambridge: Cambridge University Press, 1985), ser. 1, vol. 1, The Destruction of Slavery, 384.

62 Testimony of Mack. Duff. Williams, August 24, 1872, in Berlin et al., Freedom, ser. 1, vol. 1, The Destruction of Slavery, 812. See Mary Frances Berry, Military Necessity and Civil Rights Policy: Black Citizenship and the Constitution, 1861-1868 (Port Washington, N.Y.: Kennikat Press, 1977), 61-74.

committee, the petitions began to call specifically for a constitutional amendment.63 At the same time, editors of black abolitionist newspapers started to include the amendment in their demands. One paper heralded the amendment as a sign that "the freedom of every slave must result at a day not far distant," while another touted the measure as a preferred alternative to federal colonization efforts.64 If abolitionists' self-appointed role as spokespersons for the slaves was legitimate, then perhaps they and the slaves they represented should indeed be credited as the "authors" of the antislavery amendment.

This interpretation has its problems, however. Most abolitionists in 1864 did not think that the amendment was, by itself, the surest path to black freedom. The white abolitionist Gerrit Smith, for example, feared that the amendment jeopardized abolitionist unity. "The proposition to amend the Constitution tends to produce divisions amongst ourselves," Smith warned. "It will be time enough to amend the Constitution after we shall have ended the Rebellion."65 Smith was worried that the amendment would stir up the old feud between radical constitutionalists like himself, who believed that the Constitution was antislavery and thus needed no amendment, and Garrisonians, who saw the Constitution as proslavery.

Black abolitionists were even less likely than their white allies to throw their weight behind the amendment. By early 1864 they had begun to shift their attention away from slavery and toward the fate of the freed people. An anonymous black correspondent captured the spirit of much black abolitionist thought when, in January 1864, he complained about two recent antislavery speeches: "We have had enough of politics and slavery -of the latter we are nearly tired to death. We read it, we sing it, we pray it, we talk it, we speak it, we lecture it, and the whole United States is in arms against it. You come to tell us it is dead. Well, if that is so, I thank God. Don't bother its carcass. Let us improve the living who have been under slavery. . . . Don't come anymore riding that old weather beaten horse, anti-slavery."66

63 See Susan B. Anthony to Charles Sumner, March 1, 1864, Charles Sumner MSS, HL; Wendy Hamand Venet, Neither Ballots nor Bullets: Women Abolitionists and the Civil War (Charlottesville: University Press of Virginia, 1991), 119-20; and James M. McPherson, The Struggle for Equality: Abolitionists and the Negro in the Civil War and Reconstruction (Princeton: Princeton University Press, 1964), 125-26.

64 Pacific Appeal, February 20, 1864; letter of Thomas H. C. Hinton, Christian Recorder, April 16, 1864.

65 Gerrit Smith, "To My Neighbors," February 24, 1864, in Smith, Speeches and Letters of Gerrit Smith (New York: American News Company, 1865), 2:5.

66 Anonymous, Washington, D.C., to Robert Hamilton, January 17, 1864, Weekly Anglo-African, in C. Peter Ripley et al., eds., The Black Abolitionist Papers (Chapel Hill: University of North Carolina Press, 1992), 5:270.

African Americans well understood that a constitutional amendment that emancipated the slaves might do little to prevent economic and legal inequality. For evidence of the potential shortcomings of emancipation, black activists had only to look at free African Americans in the North, most of whom were the victims of disfranchisement and discrimination.67 An anonymous black writer derided those who agitated for emancipation, arguing that freedom for the slaves would do little to change the degraded condition of African Americans in general: "The slave bears the irons of slavery; the other [the free black] has been relieved from them, but, enclosed in the same dark dungeon with the former, they are both pris-oners."68 Nor had the military service of African Americans improved their legal status. In April 1863 Douglass had promised free blacks that "to fight for the Government in this tremendous war is ... to fight for nationality and for a place with all other classes of our fellow-citizens." But by the spring of 1864, black soldiers still did not receive the same pay as white soldiers, and Congress had yet to pass an act assuring the freedom of enslaved wives and children of black recruits.69 Far from making the antislavery amendment their primary political objective, black Americans sought empowerment in forms more immediate and tangible.70

At the very time that Congress was poised to debate the emancipation amendment, African Americans tended to look at three other objectives as more likely to secure permanent freedom and equality. The first of these was equality before the law - not merely equal pay and equal treatment in the military, but equal access to civilian institutions such as courts and public conveyances. "We at the North are contending for and shall not be satisfied until we get equal rights for all," the prominent attorney John S. Rock told a black artillery regiment in May 1864.71 By 1864 black lobbyists already had persuaded Congress to pass laws allowing African Americans the right to carry the U.S. mail and to serve as witnesses in District of Columbia courts. African Americans now took aim at the all-white streetcars in the district. While black newspapers remained relatively silent on

67 See Field, The Politics of Race in New York; V. Jacque Voegeli, Free but Not Equal: The Midwest and the Negro during the Civil War (Chicago: University of Chicago Press, 1967); McPherson, The Struggle for Equality, 221-37; Leon Litwack, North of Slavery: The Negro in the Free States, 1790-1860 (Chicago: University of Chicago Press, 1961).

68 "A Negro" to the Pacific Appeal, reprinted in Christian Recorder, January 9, 1864, p. 1.

69 Douglass' Monthly, April 1863, in Philip S. Foner, ed., The Life and Writings of Frederick Douglass (New York: International Publishers, 1952), 3:345.

70 Eric Foner, "The Meaning of Freedom in the Age of Emancipation," Journal of American History, 81 (September 1994), 451-54.

71 Ripley et al., The Black Abolitionist Papers, 5:274.

the amendment in the early months of 1864, they gave much publicity to the initiative of Major A. T. Augusta, a black army surgeon who tried to ride in a streetcar but was forcibly removed. Augusta's efforts spurred Charles Sumner to introduce a bill in the Senate to desegregate the street-cars.72 But Frederick Douglass still feared for the future of African Americans, because he saw "looming up in the legislation at Washington in almost every bill where rights are to be guaranteed and privileges secured, that the word white is carefully inserted."73 Douglass's apprehension was justified: most of the black initiatives for civil rights legislation met with success only after the war was over.

Along with civil rights, blacks held dear the goal of economic self-sufficiency. From their experience as free but economically oppressed laborers in the North and South, those African Americans free before the war knew that emancipation did not necessarily lead to unimpeded economic opportunity. The abolition amendment might still leave African Americans as something other than free agents in the labor market. As the veteran abolitionist James McCune Smith predicted, "the word slavery will, of course, be wiped from the statute book, but the 'ancient relation' can be just as well maintained by cunningly devised laws."74 Thus African American reformers focused their efforts less on the antislavery amendment than on measures promising more palpable forms of economic security. The editors of the New Orleans Tribune, for example, suggested the formation of labor courts, modeled on the French counseils de prud'hommes, composed of government-appointed officials and representatives of employers and employees.75 In their plea for courts of arbitration, the editors revealed the great extent to which African Americans, while embracing much of free-labor ideology, rejected that strain of it that envisioned labor and capital working out equitable arrangements organically, without government intervention. Eventually, the movement for an institution regulating relations between freed people and former slave holders was fulfilled - but only partly - by congressional legislation

72 David Donald, Charles Sumner and the Rights of Man (New York: Alfred A. Knopf, 1970), 152-61; James M. McPherson, ed., The Negro's Civil War: How American Negroes Felt and Acted during the War for the Union (1965; repr., Urbana: University of Illinois Press, 1982), 261-62.

73 Douglass, "Representatives of the Future South," in John W. Blassingame et al., eds., The Frederick Douglass Papers (New Haven: Yale University Press, 1991), ser. 1, 4:27.

74 Smith to Robert Hamilton, in Weekly Anglo-African, August 27, 1864, in Ripley et al., Black Abolitionist Papers, 5:300-301.

75 James D. Schmidt, Free to Work: Labor Law, Emancipation, and Reconstruction, 1815-1880 (Athens: University of Georgia Press, 1998), 172. See Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Harper and Row, 1988), 62-65.

creating the Freedmen's Bureau, which was proposed in early 1864 but not passed until 1865. By concentrating their efforts on that legislation rather than on the antislavery amendment, African Americans revealed their preference for explicit rights for free labor over a constitutional decree against slavery.

A sophisticated system of labor regulation such as the editors of the New Orleans Tribune envisioned certainly had its appeal to African Americans, but even more popular was the method most commonly asserted by blacks as the truest path to economic self-sufficiency: land owning. "When the plantations of the South shall be parcelled out to the hardy sons of toil who have made them, under the system of slavery, what they are," exhorted one African American writer, "... war shall cease in our fair land; prejudice shall die by the force of a just moral sentiment; the descendants of Africa shall no longer be despised because God has been pleased to make them black, but . . . they will be received on the broad principles of their manhood."76 The plea for land for the freed people arose everywhere - from the freeborn editors of the New Orleans Tribune, from the former slaves in the South Carolina Sea Islands working under new, northern planters, and from northern legislators like George Julian and Thaddeus Stevens.77 For many blacks as well as whites, land redistribution was a solution to a problem of class more than race. Reformers of all colors carried on the antebellum tradition of promoting land distribution as the key to what Lydia Maria Child termed the "individualizing of the masses."78 The absence of any explicit promise of land for the freed people within the antislavery amendment gave black Americans another reason to regard the measure as insufficient.

Of all the reasons African Americans had for concentrating their efforts elsewhere than on the antislavery amendment, the most important was the absence of voting rights within the measure. Whereas the notion of an antislavery amendment captured the attention of northern white editors, jurists, and politicians, the question of black suffrage, even more than the issues of civil rights and land and labor reform, dominated the rhetoric of African Americans.79 "Emancipation without affranchisement," wrote

76 "Junius" to the Christian Recorder, February 13, 1864.

77 LaWanda Cox, "The Promise of Land for the Freedmen," Mississippi Valley Historical Review, 45 (December 1958), 413-40.

78 Child to George W. Julian, March 27, 1864, Joshua R. Giddings and George W. Julian MSS, LC.

79 See Xi Wang, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860-1910 (Athens: University of Georgia Press, 1997), 1-48; Brooks D. Simpson, "Land and the Ballot: Securing the Fruits of Emancipation?" Pennsylvania History, 60 (April 1993), 176-88; Herman Belz, "Origins of Negro Suffrage during the Civil War,"

the black editor Robert Hamilton, was "a partial emancipation unworthy of the name."80 Frederick Douglass all but ignored the proposed amendment during late 1863 and early 1864 because he believed that only suffrage would provide African Americans with the power necessary to make themselves truly free. As Americans began considering the merits of the proposed antislavery amendment, Douglass advised them to strive "not so much for the abolition of slavery . . . but for the complete, absolute, unqualified enfranchisement of the colored people of the South."81 The amendment was for Douglass an abstraction, a promise of freedom with no teeth, whereas the right to vote translated into real equality.

The loudest calls for black suffrage came from free black communities in the South, most notably from the African Americans of New Orleans. In February 1864 white voters in Louisiana elected a slate of Unionist candidates pledged to statewide emancipation. The constitutional convention scheduled to meet in April would definitely outlaw slavery, but many of the state's African Americans demanded as well an extension of voting rights to people of color. Northerners watched and debated among themselves as New Orleans residents took up the issue of voting rights. Leading the movement for an expanded franchise were two prominent free men of color from the Crescent City, Jean-Baptiste Roudanez and Arnold Bertonneau, who toured the North in the spring of 1864 to stir up support for their cause. They came to Washington and presented Lincoln with a petition demanding black suffrage signed by over one thousand African Americans.82 Lincoln was impressed. The day after the meeting, he wrote to the newly elected Louisiana governor Michael Hahn suggesting that intelligent African Americans and black veterans be allowed to vote.83

The struggle for equal suffrage, which yielded little in the way of actual legislation until the last months of the war, revealed the extent to which African Americans initially - and perhaps correctly - mistrusted the anti-slavery amendment. They were not interested in "authoring" the amendment, for the amendment lacked the explicit political rights that they

Southern Studies, 17 (Summer 1978), 115-30; and McPherson, The Negro's Civil War, 27I-9I.

80 Weekly Anglo-African, September 26, 1863, reprinted in Ripley et al., Black Abolitionist Papers, 5:256.

81 Blassingame et al., The Frederick Douglass Papers, 4:28.

82 McPherson, The Negro's Civil War, 277-80; Belz, "Origins of Negro Suffrage during the Civil War," I2I -24. The petition, it should be noted, initially restricted black suffrage to those African Americans "born free before the rebellion."

83 CW, 7:243. Lincoln may have told the delegation that he would support black suffrage - or at least given them that impression. See the Indianapolis State Sentinel, March 5, 1864, p. 3; and the Springfield Illinois State Register, March 11, 1864, p. 2.

thought necessary to end slavery. White politicians might contend that slavery was abolished once the Constitution said so, but African Americans tended to follow Frederick Douglass's decree that "slavery is not abolished until the black man has the ballot."84

Any suggestion that African Americans were responsible for the creation of the Thirteenth Amendment is a distortion that threatens to neglect their separate, more farsighted legal, economic, and political goals. The struggle to write abolition into the Constitution was not a grass-roots movement initiated by African Americans. Rather, it was a legislative solution to the problem of how to make emancipation legal and permanent. Moreover, it was a peculiarly moderate solution, because many who backed the measure - Montgomery Blair and James Gordon Bennett, for example - believed that ex-slaves would have no positive rights beyond the right not to be owned. In the disparaging words of one of the editors of the New Orleans Tribune, too many white politicians looked coldly at the slaves and said, "it is enough to free them ... let them be free as the beasts in the fields."85

Over time, an increasing number of Washington lawmakers would come to share with African Americans a sharper sense of the positive rights that should be attached to freedom. But in 1864 lawmakers' understanding of the meaning of freedom was still inchoate, and many still believed that the mere absence of slavery was enough to guarantee equal opportunity and equal rights. In 1864 the antislavery amendment was still incomplete and would remain so until lawmakers understood all that constitutional emancipation should accomplish. For the time being, African Americans would concentrate their efforts elsewhere.

African American reformers may have had a clear sense of the sort of legislation needed to secure their version of freedom, but they did not help their cause by being so inattentive to the antislavery amendment. In their haste to look past the legal mechanics of emancipation toward the fulfillment of equal rights, they threatened to undermine the lesser goal of abolishing chattel slavery. African Americans were right to assume that the war had dealt slavery a deathblow, but they were too neglectful of the possibility that the institution might linger on longer than they expected. Had blacks early on embraced the constitutional amending process as a potential avenue of reform, they might have strengthened the popular momentum for the antislavery amendment. Moreover, had blacks at this

84 Douglass, "In What New Skin Will the Old Snake Come Forth?" in Blassingame et al., The Frederick Douglass Papers, 4:83.

85 Jean-Charles Houzeau, My Passage at the New Orleans Tribune: A Memoir of the Civil War Era, ed. David C. Rankin, trans. Gerald F. Denault (Baton Rouge: Louisiana State University Press, 1984), 92.

early stage looked more favorably on the idea of amendments, more of them might have seen, as Charles Sumner, Horace Binney, and Francis Lieber had seen, that the amending process was an ideal way not only to abolish slavery but to establish equal rights.

Only after Congress passed the Thirteenth Amendment in early 1865 did large numbers of African Americans come to embrace the amending process as a superior method of securing legal equality. In early 1864, many African Americans still regarded the Constitution with suspicion. It was, after all, a document that had authorized the reenslavement of runaways and the exclusion of blacks from citizenship. How could this same charter now be used to secure emancipation or equality? Other African Americans like Frederick Douglass stood at the opposite extreme. Like many of the old radical constitutionalists, Douglass overly trusted the unamended Constitution as an instrument for securing individual rights. "Abolish slavery tomorrow," Douglass said, "and not a sentence or syllable of the Constitution need be altered."86 The orator failed to take full stock of northern whites' acceptance of the Constitution as a safeguard for the slave-owning rights of loyal southerners. Most northerners did not see in the original Constitution the power to abolish slavery universally, and most agreed that the wartime emancipation legislation of the federal government would be legally precarious once the war was over. Only by changing the document, and not by simply reading it in a favorable light, would the Constitution become an aid rather than an obstacle to social and institutional change.

In the early months of 1864, as the proposal for an antislavery amendment awaited debate in Congress, the measure received praise from people of diverse backgrounds and varying political affiliations. But the measure had yet to find its champion. Republican constitutional theorists like Francis Lieber and Horace Binney liked the idea of amending the Constitution, but they also believed amendments needed to do more than simply prohibit slavery. Fearing that the more expansive amendments they envisioned would hinder the war effort, they kept their opinions private. Meanwhile, and with only a few exceptions, Republicans seemed indifferent toward the amendment. They did not yet see how the measure put the slaves' freedom - as well as their own political future - on a surer footing. Some Democrats, however, did see political capital in the amendment: endorsing it meant renouncing the party's vulnerable stand on slavery. But Democratic attitudes toward race and the Constitution kept the

86 Douglass, "Address for the Promotion of Colored Enlistments," in Foner, Life and Writings of Douglass, 3:365.

party leadership from incorporating the amendment into party policy. Not even African Americans appeared particularly interested in the amendment. Although they approved of any assault on slavery, they assumed that the amendment would do less than other measures to secure legal, economic, and political equality. As Congress prepared to debate the anti-slavery amendment, the fate of the measure was uncertain, and its popularity unclear.

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