The Abolition of Slavery in the United States: Historical Context and its Contemporary Application, William M. Carter, Jr.

The Abolition of Slavery in the United States Historical Context and its Contemporary Application

William M. Carter, Jr.

The Thirteenth Amendment to the Constitution of the United States of America marked the legal end of slavery in the United States. By declaring that ‘neither slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction’,1 the Amendment enshrined freedom in the country’s fundamental charter. As this chapter will demonstrate, the Thirteenth Amendment’s Framers intended to eliminate both chattel slavery and the ‘the badges and incidents’ of slavery. Those Framers, whose worldview was grounded in natural rights and abolitionist theory, knew that abolishing the property relationship of owner and owned would not by itself be sufficient to create enduring freedom. Rather, they believed that the legal practices and social customs surrounding and supporting the system of slavery must also be abolished if the freedmen were to enjoy the full benefits of citizenship.

This chapter discusses those badges and incidents of slavery in American history and suggests lessons that can be drawn from that history to inform the movement to abolish contemporary slavery. In so doing, this chapter suggests that just as the Thirteenth Amendment’s Framers realized that slavery constituted a system of interlocking forms of subordination, so too should modern-day advocates, lawmakers, and judges recognize that abolishing slavery requires a broad and evolving understanding of the conditions that support or arise out of enslavement.

A. Drafting the Thirteenth Amendment

Scholars have traced the history of slavery in the United States in great detail.2 American slavery initially followed the then-prevalent model of time-limited indentures and forced labor for a limited term.3 However, as slavery developed in response to changing social and economic needs, it evolved into a system of perpetual, inheritable, race-based subjugation, under which the slaves were treated as property, and all Africans, even if free, were subject to similar stigma as those enslaved. The system of slavery developed laws and private customs dedicated to maintaining human bondage and the surrounding conditions that made such bondage sustainable.

The national debate regarding slavery began with the founding of the United States and continued with greater or lesser intensity throughout the first century of its history. A variety of compromises were attempted in the original Constitution and in legislation subsequent thereto.4 Ultimately, further compromise would prove impossible in light of a confluence of events, including rising sentiment in the North for the full abolition of slavery rather than mere limitation of its expansion or its gradual demise,5 the radicalization of the abolitionist movement by (among other things) the Supreme Court’s decision in the Dred Scott case,6 and the South’s high degree of economic dependence on slave labor and resistance to its abolition. While scholars have debated whether the Civil War was fought to end slavery or instead to preserve the Union, the result of the Civil War was to accomplish both.

The Thirteenth Amendment marked the dawn of a new era. The Amendment’s Framers strove to turn the United States away from slavery and toward full embrace of the nation’s founding principles, which they believed had been undermined in the service of slavery. As Representative James Wilson of Iowa stated early in the congressional debates leading to the passage of the Thirteenth Amendment:

[The Founders] pronounced life, liberty, and the pursuit of happiness to be the inalienable rights of all men, [yet] liberty and slavery dwell together in our midst … These are ideas which cannot dwell together in harmony … Let slavery die. Let its death be written in our Constitution.7

The congressional debates regarding the Amendment are of critical importance to understanding its intended scope. Those debates, perhaps surprisingly, focused less upon the end of the legal institution of slavery than upon the questions of what the rights and status of blacks would be after the end of slavery and upon the relationship between individual American states and the federal government. The context of those debates, however, makes clear why this was the case. By the time of the debates regarding the Thirteenth Amendment in late 1864 and early 1865, the end of slavery as a legal system of enforced labour was all but assured as a practical matter due to the Union’s impending military victory in the Civil War.8 Given this reality, the debates focused more on what would follow the end of chattel slavery: that is, what steps would be necessary to ensure its permanent end; what rights would be accorded to the freed slaves and other blacks; and whether the state or federal governments would be primarily responsible for enforcing those rights. Thus, while the Thirteenth Amendment clearly intended to enshrine the end of slavery in the Constitution, the debates over the Amendment’s ratification also reveal that its Framers had broader remedial purposes in mind.

The first major theme running through the Thirteenth Amendment debates was the need for a flexible conception of freedom in order to guard against the reemergence of slavery. The Amendment’s proponents spoke of eliminating both slavery and the ‘badges and incidents of slavery’. Senator Lyman Trumbull of Illinois, one of the US Senate’s primary champions of the Thirteenth Amendment, stated that:

With the destruction of slavery necessarily follows the destruction of the incidents to slavery … Those laws that prevented the colored man from 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, were all badges of servitude made in the interest of slavery and as a part of slavery. They never would have been thought of or enacted anywhere but for slavery, and when slavery falls they fall also.9

For their part, radical and moderate Republicans who urged the Amendment’s passage grounded their understanding of its scope in abolitionist and natural rights philosophy as well as a contemporaneous understanding of the degradations of slavery. ‘The radical abolitionists’ ideology [gave] birth to the idea of reinterpreting the Constitution as a means of transforming America from a slave-holding nation to a humanity-upholding nation for the betterment of all …’.10 Thus, whilst identifying many specific laws and private customs that the Amendment would eliminate, Reconstruction Republicans also took a broader view of what slavery wrought and what the Amendment would dismantle. Senator Henry Wilson of Massachusetts, for example, stated that the Amendment was designed to ‘obliterate the last lingering vestiges of the slave system; its chattelizing [sic], degrading and bloody codes; its dark, malignant barbarizing spirit; all it was and is, everything connected with it or pertaining to it …’.11 Senator Charles Sumner of Massachusetts, speaking of the Amendment’s scope, expressed similarly broad principles, stating that the Thirteenth Amendment ‘abolishes slavery entirely … It abolishes its root and branch. It abolishes it in the general and the particular. It abolishes it in length and breadth and then in every detail’.12 The Framers understood slavery to be ‘an evolving, enlarging matrix of both formal and customary relationships rather than a static catalog’.13 Freedom, then, was understood to be more than the absence of shackles and the outlawry of property interests in human beings. Just as the slave power had proven to be infinitely adaptable, the Framers believed that so too must the power to ensure freedom.

The second major theme in the Thirteenth Amendment debates involved the issue of federalism. The former slaveholding states feared that the Thirteenth Amendment would fundamentally alter the nature of the relationship between the states and the federal government. Their allies in Congress argued against the Amendment on this ground. It was argued, inter alia, that the issue of slavery and the status of the freedmen fell within ‘the right of the states to control their domestic affairs, and to fix each for itself the status, not only of the Negro, but of all other people who dwell within their borders’.14 However, this argument did not carry the day. The Thirteenth Amendment was intended to centralize in the national government the power to eliminate slavery and its vestiges. The passage and ratification of the Amendment made clear that the federal government would have primacy over ‘states rights’ with regard to protecting black freedom when the states failed to do so.15 As Senator Trumbull argued, ‘any legislation or any public sentiment which deprive[s] any human being in the land of those great rights of liberty will be in defiance of the [Thirteenth Amendment]; and if the state and local authorities, by legislation or otherwise, deny these rights, it is incumbent on [Congress] to see that they are secured’.16 In order to make clear the constitutional authority of Congress to protect civil rights, the Framers of the Thirteenth Amendment included an enforcement clause in the text of the Amendment (the first time such a clause appears in the Constitution), providing that ‘Congress shall have power to enforce this article by appropriate legislation’.17

The third major theme of the debates surrounding the Thirteenth Amendment involved the issue of separation of powers. The Framers made clear that they intended to give the national legislature the primary role in eliminating slavery and its lasting effects. Republicans had reacted strongly against the US Supreme Court’s decision in Dred Scott v Sandford,18 in which the Court struck down the Missouri Compromise (which limited the expansion of slavery into the yet to be settled Western frontier territories), held that blacks could not be considered legal citizens of the United States, and infamously stated that blacks had ‘no rights which the white man was bound to respect’.19 The congressmen who drafted the Thirteenth Amendment saw the Supreme Court’s disregard of the Missouri Compromise as an arrogant usurpation of the legislature’s (and therefore the people’s) power. The Thirteenth Amendment was intended to conclusively answer the question of which branch of government was to have primacy with regard to the issue of slavery and civil rights and it answered that question in favor of Congress. It is important to remember that ‘[t]he drafters of the Civil War Amendments had known only a Supreme Court which had always had a majority of Justices who sided with slave holders and sought to prevent Congress from giving any legal protection to former slaves’.20 Dred Scott was part of this pattern and, as such, it ‘provided the background paradigm for the Reconstruction Congress’s view of the Court’s relationship to racial equality’.21 The Republican and Northern reaction against Dred Scott was both immediate and vitriolic.22 ‘Anti-slavery Republicans refused to accept the authority of the Court’s ruling in the Dred Scott decision’,23 and the resultant skepticism regarding the Supreme Court carried over into the debates regarding the Thirteenth Amendment. As stated by Senator Trumbull:

I have no doubt that under [the Thirteenth Amendment,] we may destroy all these discriminations in civil rights against the black man; and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States; and it is for Congress to adopt such appropriate legislation as it may think proper …24

Consequently, contrary to contemporary notions of judicial supremacy with regard to civil rights in the United States, the Framers of the Thirteenth Amendment intended to give Congress the primary authority to define and prohibit the badges and incidents of slavery.

B. Reconstruction and the End of Reconstruction

Many of the former slaveholding states reacted to the Thirteenth Amendment’s abolition of slavery by enacting a series of laws known as the Black Codes. These Codes were intended to subvert the Thirteenth Amendment and the new regime of freedom that it embodied by seeking to return the freedmen to a condition of slavery-in-fact, if no longer in law.25 Under the Black Codes’ race-based vagrancy statutes—which essentially defined vagrancy as being black and ‘up to no good’ in the eyes of any white person—a black person convicted of vagrancy who could not pay the fine could be ‘leased out’ to anyone willing to pay the fine.26 If the individual attempted to escape this de facto slavery, he would be guilty of a criminal offense.27 The Black Codes also created separate categories of crimes for blacks and whites, restricted the ability of blacks to enter into enforceable legal relationships with other private parties, denied or limited the standing of persons of African descent before the courts as plaintiffs, victims, jurors, or witnesses, and barred them from participation in the democratic process, whether as voters or as officeholders.28 As scholars have noted, ‘[i]n their totality, the Black Codes created a new system of involuntary servitude …’29 Thus, while Congress had just begun to embark on an affirmative legislative program to aid former slaves, it simultaneously had to decide how to react to certain attempts by states to undermine the Thirteenth Amendment and undo the result of the Civil War. The need to react to such attempts to reinstate slavery-in-fact ‘transform[ed] the abolitionist-Republican expectations [that] the nation would continue the positive task of enlarging freedom, into a need to reply negatively to southern initiatives’.30

Congress reacted by exercising its power under the Thirteenth Amendment to protect civil rights through the enactment of the Civil Rights Act of 1866. The Act, which Congress enacted over President Andrew Johnson’s veto, made illegal some of the more obvious and odious badges and incidents of slavery, such as the Black Codes. The Act provided that:

[All citizens], of every race and color … shall have the same right … to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.31

Thus, within a year of the Thirteenth Amendment’s ratification, Congress used the power granted to it by the Amendment to make clear that it would not accept attempts by states to subvert the ‘new birth of freedom’32 brought about by the conclusion of the Civil War.

Subsequent to the Thirteenth Amendment’s ratification, during what became known as the ‘Reconstruction Era’, Congress adopted a variety of federal laws and programs intended to aid formerly enslaved blacks and to protect civil rights more generally. Such measures included the Fourteenth and Fifteenth Amendments,33 the Freedmen’s Bureau,34

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