December 6, 2019: AmendmentStudying: On Not Taking the 13th Amendment for Granted

[On December 6, 1865, the 13^th Amendment to the Constitution was ratified. So this week I’ll AmericanStudy that crucial amendment and four others, leading up to a weekend post on three potential amendments to come!]

Given how much all rational 21^st century Americans agree that slavery was a dark stain on America’s identity, it might seem to have been inevitable that, with the Civil War concluded, slavery would be permanently abolished with a Constitutional Amendment. But here are three reasons why we should most definitely not see that amendment as a given:

1)      How it happened: Steven Spielberg’s historical drama Lincoln (2012) is not without its flaws, but the film does an excellent job portraying the tense, difficult, extremely uncertain process by which Lincoln and his Congressional allies secured passage of the 13^th Amendment. I don’t want to suggest for even a moment that the Civil War was not centrally about the issue of slavery—it was, full stop—but that didn’t mean that most Northerners, nor most political leaders, shared the same idea of what should happen with that issue as the war concluded. That what happened was a Constitutional amendment was thus anything but inevitable, and the process by which the amendment passed reflects both that uncertainty and the heroic lengths to which Lincoln and many others went to make it happen.

2)      What happened next: The 13^th Amendment was in many ways the most straightforward of the three so-called Reconstruction Amendments, and that fact, along with the many ways that the 14^th and 15^th Amendments have been extended, deepened, and (unfortunately) challenged in the 150 years since, might lead to it seeming the least significant of the three. But among the many ways (such as the rest of this post) that I would push back on that idea, I would note that neither the 14^th nor the 15^th Amendment would likely have been imaginable, much less possible, had the 13^th not been passed. It’s not just that slavery might well have returned (on which see #3 in a moment), but that in any case there would have been no Constitutional or federal law defining African Americans as anything other than slaves. Without that first step, the rest of the path, fraught and incomplete as it has been, could not have existed.

3)      What might have happened otherwise: I don’t actually believe that slavery could have returned in the immediate aftermath of the Civil War—but I absolutely believe it might have a couple decades later. I wrote at length in my first book, and have written in many places since, about the process by which American culture and society became by the 1880s (as Albion Tourgée succinctly put it) “distinctly Confederate in sympathy.” Indeed, as early as 1877 an editorial in the progressive magazine The Nation opined that with the end of Reconstruction, “the negro will disappear from the field of national politics. Henceforth the nation, as a nation, will have nothing more to do with him.” If (in the absence of a 13^th Amendment) Southern states had wished to re-implement a slave system in the late 19^th century, it’s very possible that neither law nor mainstream white society would have objected. And while segregation and its attendant histories have been called, with justice, “slavery by another name” (and while a seemingly small detail of the 13^th Amendment itself frustratingly opened the door for some of the worst of those histories), the truth is that all that followed was, at least, not slavery—and we have the 13^th Amendment to thank for it.

Special post this weekend,

Ben

PS. Thoughts on this Amendment? Others you’d highlight?