The Drafting of the Thirteenth Amendment

The Senate Judiciary Committee began meeting in January 1864 to draft an abolition amendment. It is difficult to reconstruct the committee's deliberations because no record of them survives.55 Whatever went on in those meetings, the committee had completed its task by February i0. On that day, Trumbull announced that he would report "at an early day" an amendment declaring that "neither slavery nor involuntary servitude, except as a punishment for crime, whereof a party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction; and also that Congress shall have power to enforce this article by proper legislation."56 It was no coincidence that Trumbull's announcement came only two days after Sumner had proposed his amendment making all persons "equal before the law." The Massachusetts senator had spurred the committee into final action.

In drafting their amendment, the senators on the Judiciary Committee drew from various amendments proposed to both houses of Congress. They built upon Henderson's amendment, incorporating into it some of the language of Ashley's version in the House and adding an enforcement article similar to the one offered by James Wilson.

54 Ibid. (February 9, 1864), 536; Donald, Charles Sumner and the Rights of Man, 14849; Venet, Neither Ballots nor Bullets, 119; James M. McPherson, The Struggle for Equality: Abolitionists and the Negro in the Civil War and Reconstruction (Princeton: Princeton University Press, 1964), 126.

55 The National Archives holds various bills, resolutions, and petitions presented to the Judiciary Committee, but no record of the actual discussions. See 38th Congress, RG 46, sec. 8E2, NA. No newspaper correspondents in Washington - at least none I have found - offered any account of what transpired in the committee room. Also, committee members said nothing of the committee's deliberations. This silence was unsurprising, for congressional committees were expected to keep committee discussions secret unless a dissenting committee member wished to record his objections.

56 CG, 38th Cong., 1st sess. (February 10, 1864), 553.

Although it made Henderson's amendment the foundation of the final amendment, the committee rejected an article in Henderson's version that allowed the amendment to be adopted by the approval of only a simple majority in Congress and the ratification of only two-thirds of the states.57 With this article, Henderson probably hoped to get around two of the thorny questions involved in the amendment process: were the empty seats of southern representatives and senators supposed to count toward the total number of congressmen, and were the Confederate states supposed to count toward the total number of states? If Henderson's language were adopted, the amendment could easily be ratified regardless of whether southern congressional seats and Confederate states were included in the various counts. Indeed, any future constitutional revision would be a fairly simple matter. Ordinary Americans as well as United States senators were reluctant to adopt these or any new rules for constitutional change. A Pennsylvania man pleaded with his congressman not to approve Henderson's modification of the amending process: "The present Constitution is good enough, and should never be touched, other than to prohibit the existence of Slavery in the future in all the states."58 Committee members agreed, and they scratched Henderson's provision. Recent scholars - most notably Bruce Ackerman - have correctly observed that Civil War-era Americans seemed to take a carefree attitude toward the formal rules of amendment.59 But the fact remains that, regardless of how we might judge their respect for the amendment process, these Americans judged themselves to be formalists. That is, they genuinely believed that they held true to the rules of amendment, and thus they rejected every attempt to change those rules.

Although committee members dismissed Henderson's approach to the problem of the South in the amending process, they did not offer a solution of their own. It is fair to assume, however, that, for the purposes of a vote on an amendment, the committee did not expect the absent southern congressmen to count toward the total number of congressmen. Ever since secession, congressmen had voted as if the Congress assembled was the whole Congress. That same logic did not apply to the southern states, however. Because the joint resolution for the amendment said nothing about excluding any states, and because the proscription of states from the ratification process was unprecedented, many legislators must have believed that the rebellious states would take part in ratification. Most Republicans, including Lincoln, refused to acknowledge that southern

58 D. W. Patterson to Thaddeus Stevens, January I4, I864, Thaddeus Stevens MSS, LC.

59 Bruce Ackerman, We the People, vol. 2, Transformations (Cambridge, Mass.: Harvard University Press, I998), pt. 2.

states had left the Union. How could they then exclude those states for the purpose of ratification? Those Republicans who did accept the legitimacy of secession - and thus believed that the seceded states should not count toward the total number of states - were reluctant early on to make a stand on this issue lest they split the party and jeopardize the amendment. Because most congressmen assumed that the southern states would be included in ratification, and because others with contrary views kept their opinions to themselves to ensure the amendment's adoption, there was almost no discussion of southern ratification until after Congress passed the amendment in early i865.

Perhaps the most important decision of the Judiciary Committee was the rejection of Sumner's explicitly egalitarian language in favor of the language of the Northwest Ordinance, which simply prohibited slavery and involuntary servitude. At first glance, this decision might suggest that the committee did not believe that the amendment secured equality before the law. But, in fact, some committee members may have thought that the final amendment went as far as Sumner's in guaranteeing legal equality. Indeed, two of the committee members later claimed that the final amendment was intended to extend civil rights to black Americans. The occasion for this claim was a debate in early 1866 over the civil rights bill and the Freedmen's Bureau bill. Senators Trumbull and Jacob M. Howard of Michigan, both members of the committee that drafted the Thirteenth Amendment, argued that the two bills were precisely what their committee had in mind when it wrote the amendment in 1864. The amendment, Trumbull said, was meant to abolish "absolutely all provisions of State or local law which make a man a slave. . . . Those laws that prevented the colored man going from home, that did not allow him to buy or to sell, or to make contracts; that did not allow him to own property; that did not allow him to enforce rights; that did not allow him to be educated." Howard went even further. He said that it was in anticipation of southern state discriminatory legislation that the committee drafted an amendment that would give "to persons who are of different races or colors the same civil rights."60

Obviously, there was some embellishment here, for committee members in 1864 could not have envisioned all that southern state governments would do to undercut black freedom in 1865 and 1866. It was understandable, then, that a number of lawmakers in i866 did not accept Trumbull and Howard's story. The Pennsylvania senator Edgar Cowan, a conservative Republican who had served with Howard and Trumbull in

60 CG, 39th Cong., 1st sess. (January 19, 1866), 322 (Trumbull); (January 30, 1866), 503-4 (Howard).

the Thirty-eighth Congress, denied his colleagues' version of events. Cowan argued that the amendment was meant only to outlaw traditional forms of bondage; it "never was intended to overturn this government and revolutionize all the laws of the states everywhere."61

Trumbull and Howard may have overstated their case, but there was still much truth to their claims. Although the Senate Judiciary Committee rejected Sumner's explicit promise of equality, at least a few members of the committee assumed that the final amendment still carried an implicit guarantee of the same rights promised by Sumner's measure. During the Senate debate of the amendment in 1864, Trumbull assured Sumner that the committee's decision against Sumner's language represented a preference in style, not content. "The words we have adopted," Trumbull promised, "will accomplish the [same] object."62 Sumner himself was persuaded by Trumbull's argument. When later explaining why he preferred his own version to Trumbull's, the Massachusetts senator did not object that Trumbull's bill came up short on equal rights but only that it allowed slavery to exist as a punishment for crime.63 This clause was indeed an unfortunate flaw, for it allowed involuntary servitude to survive the war in the form of peonage and convict labor.

It seems, then, that Trumbull's claim in 1866 that the Thirteenth Amendment offered the promise of equality was not entirely a later inven-tion.64 But if members of the Senate Judiciary Committee in 1864 saw their amendment as accomplishing the same object as Sumner's, why did they reject Sumner's wording?

In part, the committee was opting for the simplest language possible. Sumner's phrasing confused even the highest law officer in the Union, Attorney General Edward Bates. Upon reading Sumner's amendment, Bates asked, "What is equality before the law? . . . Does that equality necessarily prevent the one from becoming the slave of the other?"65 Much preferable, argued Senator Howard, was "the good old AngloSaxon language employed by our fathers in the [Northwest] ordinance of 1787, an expression which has been judicated upon repeatedly, which is

62 CG, 38th Cong., 1st sess. (April 8, 1864), 1488.

63 Sumner to George William Curtis, April 13, 1864, in Beverly Wilson Palmer, ed., The Selected Letters of Charles Sumner (Boston: Northeastern University Press, 1990),

64 For a fuller discussion of this point, see Akhil Reed Amar, "Remember the Thirteenth," Constitutional Commentary, 10 (Summer 1993), 403-8; VanderVelde, "The Labor Vision of the Thirteenth Amendment"; and Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development, 1835-1875 (New York: Harper and Row, 1982), 386-438.

65 Beale, Diary of Edward Bates, 330.

perfectly well understood both by the public and by judicial tribunals."66 Whereas Sumner's amendment might take the law in a new direction, the committee's measure simply took the Northwest Ordinance, already a cornerstone in northern antislavery law, and applied it to the South.67 In the same way that committee members avoided the appearance of disrupting constitutional norms, they eschewed language suggesting a social revolution. When faced with Sumner's use of a phrase from the French Declaration of Rights, Trumbull explained, the committee decided not to "go to the French Revolution to find the proper words for a constitution. We all know that their constitutions were failures, while ours, we trust, will be permanent."68 Senator Howard even saw in Sumner's proposal the potential for a dangerous leveling of gender hierarchies. An amendment that made "all persons" equal before the law, said Howard, would naturally lead to legal equality between the sexes, a reform that few of the legislators condoned.69 The committee's amendment, by contrast, steered clear of the issue of female emancipation.

The committee's choice of language was also the result of personal animosities and short-term political strategy. Sumner's uncompromising nature had alienated many of his fellow senators, including some of those on the Judiciary Committee. "If I could cut the throats of about half a dozen Republican Senators," wrote Senator Fessenden to his cousin, ". . . Sumner would be the first victim, as by far the greatest fool of the lot." To his son, Fessenden added that Sumner "is not a mean but a malignant scoundrel," and he provided a list of ten Republican senators who despised the Massachusetts senator. Four of them were on the Judici

66 CG, 38th Cong., 1st sess. (April 8, 1864), 1489. James Ashley, the amendment's sponsor in the House, also claimed to be aiming for familiarity when he used the Northwest Ordinance as the basis for his own proposed amendment. See J. M. Ashley to Benjamin W. Arnett, November i4, i892, in Benjamin W. Arnett, ed., Orations and Speeches: Duplicate Copy of the Souvenir from the Afro-American League of Tennessee to Hon. James M. Ashley of Ohio (Philadelphia: A.M.E. Church 1894), 331.

67 On the use of the Northwest Ordinance in antislavery legislation and legal opinion, see Peter S. Onuf, Statehood and Union: A History of the Northwest Ordinance (Bloom-ington: Indiana University Press, 1987), esp. 109-52; and Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981), 82-87. Prior to the Civil War, it should be noted, the Supreme Court under Roger B. Taney had denied the applicability of the Northwest Ordinance to slaves entering the northwestern states: the ordinance, said Taney, had concerned slaves there only when that region was still a territory. See Finkelman, An Imperfect Union, 27274. The Thirteenth Amendment, then, was a reassertion of the primacy of the Northwest Ordinance in the law of slavery.

68 CG, 38th Cong., 1st sess. (April 8, 1864), 1488.

69 Ibid. See Amy Dru Stanley, "Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation," Journal of American History, 75 (September 1988), 471-500.

ary Committee.70 Little wonder, then, that committee members rejected Sumner's amendment, even if some of them agreed with the principle of equality that it embraced.

Committee members also understood that the more the amendment was associated with Sumner, the more it would be regarded as dangerously radical. During the early months of the Thirty-eighth Congress, Sumner introduced legislation ending prohibitions against black testimony in federal courts, removing racial discrimination from Washington streetcars, and granting equal pay to black soldiers. All of these measures met with race-baiting blasts from the Democratic opposition as well as disaffection from allies like William Lloyd Garrison, who tried to warn Sumner off these issues and to keep him focused on "the proposition to abolish slavery."71 The senators on the Judiciary Committee, who consistently voted more conservatively than Sumner on issues involving African American rights, knew that it would be impossible to carry an amendment identified as Sumner's.72

The committee had to consider in particular the wishes of the War Democrats. The amendment could receive the necessary two-thirds support of Congress only if a sizable minority of Democrats supported it, and there was good evidence that some of them would. Republican leaders did not forget the light chirping of antislavery sentiment among War Democrats after the elections of 1863, and they must have been aware of the rumors that some Democratic congressmen were preparing to support an antislavery amendment. They were sure to lose that support if they allowed either Sumner's name or his pet phrase, "equal before the law," to become attached to the amendment. The Democratic Cincinnati Enquirer, for example, ridiculed Sumner's amendment for promoting "the dogma that the negro is exactly like the white man."73 By rejecting Sumner's proposal, a decision that one War Democratic sheet called "the wisest thing that could have been done," Trumbull and his committee

70 William Pitt Fessenden to Elizabeth Fessenden Warriner, June 1, 1862, Fessenden to William H. Fessenden, March 2, 1864, and May 7, 1864, all in Fessenden family Papers, BC. See Donald, Charles Sumner and the Rights of Man, 143-45.

71 Garrison to Sumner, April 19, 1864, in Walter M. Merrill, ed., The Letters of William Lloyd Garrison, vol. 5, Let the Oppressed Go Free, 1861-1867 (Cambridge, Mass.: Harvard University Press, 1979), 199. See Donald, Charles Sumner and the Rights of Man, 152-61.

72 Of the six committee members, three - Lafayette Foster of Connecticut, Ira Harris of New York, and John C. Ten Eyck of New Jersey - may be classed as conservatives, and only one, Howard, as a radical. Trumbull defied classification. The final member of the committee, Lazarus W. Powell of Kentucky, was a consistent Peace Democrat. See Benedict, Compromise of Principle, 28; Allan G. Bogue, The Earnest Men: Republicans of the Civil War Senate (Ithaca: Cornell University Press, 1981), 104-5, 109-11.

73 Cincinnati Enquirer, February 17, 1864, p. 2.

kept antislavery Democrats open to the idea of a less explicitly radical amendment.74 A onetime Democrat himself, Trumbull played to the War Democrats by claiming that the committee simply borrowed the language of Thomas Jefferson, the father of the Democratic party and the author of an early version of the Northwest Ordinance. The "Jeffersonian" label stuck to the amendment throughout the congressional debates.75

This short-term strategy for securing the amendment's adoption had an unanticipated, powerful long-term effect on civil rights law. Trumbull and some of his colleagues may have thought that their measure accomplished all that Sumner's did for equal rights, but by rejecting Sumner's language, they unwittingly placed an effective cudgel in the hands of later jurists and legislators who beat down any attempt to broaden the amendment into an extension of civil equality for African Americans.

It is somewhat inappropriate to dwell so long on the difference between the final amendment and Sumner's, because it was not Sumner's proposal but rather Lincoln's Reconstruction Proclamation that the committee had most in mind when it drafted the amendment. The committee's main purpose was to put emancipation on firm constitutional ground, something Lincoln's plan failed to do. Under the Reconstruction Proclamation, Congressman Isaac Arnold explained, there remained the "danger under a state government of the re-establishment of slavery."76

The precise nature of Arnold's anxiety must be understood. Like most northerners, the Illinois congressman doubted that slavery could be reestablished as a viable system of labor in the South. Nevertheless, the war might end with some black Americans still legally enslaved, and the lingering institution might then create further sectional conflict. Charles Francis Adams, the minister to England, put the matter best when he wrote to his son: "the repentant class of slave owners with their old democratic allies of the north [may] . . . attempt to re-establish the Union as it was. . . . Not that I doubt the fact that in any event slavery is doomed. The only difference will be that in dying it may cause us another sharp convulsion, which we might avoid by finishing it now."77 The congressional movement toward a constitutional amendment grew in large part from the conviction of congressional Republicans that they knew better than Lincoln how to free the slaves - and thus how to prevent another future civil war.

74 Rochester Democrat and American, February 12, 1864, p. 2.

75 See, for example, CG, 38th Cong., 1st sess. (April 8, 1864), 1487-88; and the Indianapolis Daily Journal, April 13, 1864, p. 2.

76 Isaac N. Arnold to Nathaniel P. Banks, February 14, 1864, Nathaniel P. Banks MSS, ISHL.

77 Charles F. Adams, Sr., to Charles F. Adams, Jr., August 24, 1863, in Worthington Chauncey Ford, ed., A Cycle of Adams Letters, 1861-1865 (Boston: Houghton Mifflin, 1920), 2:76-77.

But, while congressional Republicans may have differed with Lincoln on the method of emancipation, most shared the president's belief that the future of the Union mattered more than the future of African Americans. Trumbull was a perfect example. He thought Lincoln's reconstruction program was weak and suspected that the president would not be re-elected.78 What was needed, Trumbull explained in a private letter to his friend General Nathaniel P. Banks, was an abolition amendment: "If this can be accomplished and our arms are successful, it ends all future trou-ble."79 Clearly, Trumbull thought of his committee's proposal mostly as a means of removing the cause of the present war. Like Lincoln, Trumbull believed that the primary objective was union, but unlike the president, he assumed that an abolition amendment was just as necessary as military victory to reach that goal.

Sumner was not so sanguine about the amendment's potential. For him, the measure was but an incident in the larger struggle for freedom and equality. Trumbull may have believed that Union victory and the antislav-ery amendment guarded against "all future trouble," but the Massachusetts senator had the prescience to see that "much else must be done."80

78 Trumbull to H. G. McPike, February 6, 1864, Lyman Trumbull MSS, LC.

79 Trumbull to Banks, February 18, 1864, Nathaniel P. Banks MSS, ISHL.

80 Sumner to Lieber, February 10, 1864, in Palmer, The Selected Letters of Charles Sumner, 2:225.

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