UCLA National Black Law Journal Title The Thirteenth Amendment and the North's Overlooked Egalitarian Heritage Permalink https://escholarship.org/uc/item/2f4345nk Journal National Black Law Journal, 11(2) ISSN 0896-0194 Author Cottrol, Robert J. Publication Date 1989 Peer reviewed eScholarship.org Powered by the California Digital Library University of California THE THIRTEENTH AMENDMENT AND THE NORTH'S OVERLOOKED EGALITARIAN HERITAGE* Robert J. Cottrol** It is ironic during this period of celebration of the Constitution that we retain severe, dark and only partially justified misgivings concerning many of the authors of that document. Our misgivings are with respect to race, for we know that the drafters of the original document, however apologetically, how- ever much they resorted to euphamistic language, sanctioned slavery.1 If that were the sum total of our misgivings in this area that would be understanda- ble, perhaps even valuable as a necessary corrective balance to our national tendency towards over-celebration. But the misgivings go deeper. The belief persists, much recent scholarship to the contrary notwithstanding, that even the Civil War amendments, designed to correct the fundamental flaw in the original Constitution, had limited purposes and nonegalitarian premises that did not completely overturn the fundamental racism found in the original document.2 This view represents an inaccurate but widespread consensus. It helped inhibit the development of civil rights law for much of this century. In the years after World War II the prevalence of this view cast doubt on the consti- tutional legitimacy of many of the legal triumphs of the civil rights move- ment.3 Even today this view still enjoys amazing power and ability to distort among other things our debates on constitutional methodology. The belief that such measures as the Supreme Court's decision in Brown v. Board of Edu- cation,4 or Congress' enactment of the Civil Rights Act of 1964 could only be justified by radical departures from the original purposes of the fourteenth amendment is the focus of most civil rights debate. Such measures have long been a staple in arguments of conservative commentators who have deplored such departures as distortions of the nation's fundamental charter. Ironically, many liberals have also assumed that fidelity to the intentions of the framers of the fourteenth amendment would have essentially precluded many of the judi- * An earlier version of this paper was presented at the seventeenth annual conference of the American Society for Legal History, October 1987. The author would like to express his appreciation to Boston College School of Law for its research grant which in large part made this Article possible. ** A.B., Ph. D., Yale University; J.D., Georgetown University Law Center. Associate Profes- sor, Boston College Law School; Visiting Associate Professor, University Viriginia School of Law. 1. It is significant that the term "slave" does not appear in the original Constitution. The three sections directly bearing on slavery, the representation and slave importation clauses of Article I and the fugitive slave clause of Article IV both avoid explicit use of the term. See U.S. CONST. art. I §§ 2, 9 and art. IV § 2. 2. That is the view put forward by Raoul Berger, among others. He argues that the key to an understanding of the Fourteenth Amendment is that the North was shot through with Negrophobia. R. BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMEND- MENT 10 (1977). 3. Id. 4. 347 U.S. 483 (1954). NATIONAL BLACK LAW JOURNAL cial and legislative remedies that have wrought a revolution in race relations in recent decades. Indeed, many cite the supposed incompatability of civil rights legislation and court decisions with the original intent of the fourteenth amendment as part of the brief against originalism as a methodological strat- egy in constitutional interpretation.' At the center of these beliefs is the view that racism in the antebellum North was so virulent that any serious commitment to the goal of equal rights before the law on the part of northern politicians must be seriously discounted. The Civil War amendments and other Reconstruction era legislation should, according to this view, be seen primarily as attempts to insure regional and partisan hegemonies. Concern with Black rights was at best a distant and secondary consideration. Northern Republicans reflecting their own racism and the even stronger racism of their constitutents could not have had a long- term egalitarian agenda, or an idealistic commitment to Black rights. The egalitarian measures that they enacted are best explained as having 6 been dic- tated by expediency and as having limited purposes. This Article seeks to address that set of beliefs. It focuses on the thir- teenth amendment to the United States Constitution, in many ways the sim- plest and least radical of the Civil War amendments.7 The Article explores the view that the framers of the thirteenth amendment believed that this in- strument, and particularly its second section, conferred on Congress broad powers to legislate on behalf of the freedmen. These powers were not simply confined to measures that would insure minimal freedom for former slaves by alleviating their former condition as chattel. Instead, in the view of many of the amendment's supporters, the new constitutional provision would enable Congress and the executive to begin, at least in the states formerly in rebellion, fulfilling what had long been a goal of some abolitionists. That goal was not only emancipation, but a significant measure of equality for Blacks as well.' That many saw such broad possiblities in the amendment's purposes under- scores a certain irony in the historiography of American law and thought. The authors of the thirteenth amendment believed it enabled them to change the Negro's status not merely from slave to free, but from noncitizen to citi- zen, from nonequal to equal. They realized that such changes could be readily nullified without constitutional support, hence the passage of the fourteenth and ultimately the fifteenth amendments. 9 Yet the belief persists that the au- 5. Perry, Book Review, 78 COLUM. L. REV. 685 (1978). 6. See infra note 11. 7. See infra note 83. 8. See H. HYMAN and W. WIECEK, EQUAL JUSTICE UNDER THE LAW: CONSTITUTIONAL DEVELOPMENT 1835-1875, at 390-92. (1982). 9. Section 2 of the Fourteenth Amendment reads: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice- President of the United States, Representatives in Congress, the Executive and Judicial of- ficers of a State, or the members of the Legislature thereof, is denied to any of the male members of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of repre- sentation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. The Fifteenth Amendment reads: Section 1. The right of citizens of the United States to vote shall not be denied or abridged 200 NATIONAL BLACK LAW JOURNAL thors of the Civil War amendments and accompanying statutes were relatively unconcerned with advancing the cause of racial equality. This belief has en- joyed a long life. It was nurtured by a long line of Supreme Court decisions. io During this century it was further fed by historians."1 Recently, the view has been sustained in current works documenting the history of racial discrimina- tion in the North, providing supporting evidence for the view that a region where racist sentiments were so strong could not have been enthusiastic about imposing an egalitarian agenda on the nation.12 While historians have, in re- cent decades, reconsidered this view, it is still a view that many, 13 including some lawyers, find persuasive. This Article takes the opposite view. It views the thirteenth amendment as the outgrowth of an antebellum northern egalitarian heritage, a heritage that our political and social histories have generally overlooked or under-esti- mated. It asserts that our political and social histories have under-estimated or overlooked the degree of egalitarian sentiment in the antebellum North. This Article maintains that in the decades between the Revolution of 1776 and the Civil War a northern view of emancipation developed which saw free Blacks as citizens with rights under law. This view is at sharp variance with the southern vision. Furthermore, this Article argues that a significant minor- ity of ordinary White northerners, and not simply abolitionist activists, sup- ported the concept of equality before the law, regardless of their private prejudices. This history must be examined and understood if we are to fully comprehend the import of the thirteenth amendment. This Article is divided into three sections. The first, "Equality: Gained, Lost and Partially Restored," examines the equal rights struggle in the North as a part of the heritage of the thirteenth amendment. The second section, "Towards Citizenship, Towards Freedom" looks at Congressional and execu- tive efforts to bestow citizenship upon free Blacks during the Civil War. "The Necessary Corollaries," the third section, assesses the framers' view that the thirteenth amendment enabled Congress to enact far reaching legislation to establish legal equality for Blacks, particularly in the rebellious states. It ex- by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.