Michael Vorenberg. Final Freedom: The Civil War, the Abolition of , and the Thirteenth Amendment. Cambridge and New York: Cambridge University Press, 2001. xviii + 305 pp. $25.00, cloth, ISBN 978-0-521-65267-4.

Reviewed by David E. Kyvig

Published on H-Law (August, 2002)

Freeing the Constitution from Slavery Vorenberg, an assistant professor of history at The most signifcant departure from the origi‐ Brown University, begins with the obvious but es‐ nal design of the 1787 United States Constitution sential fact that the Emancipation Proclamations occurred in 1865 with the adoption of the Thir‐ did not free a single slave. Nor did war measures teenth Amendment abolishing slavery. This most directed against the South address the continued transformative of all constitutional amendments existence of slavery in areas that remained loyal has, nevertheless, received far less attention than to the Union and adhered to the 1787 Constitu‐ it deserves. Civil War historians preoccupied with tion. It was only after the Emancipation Proclama‐ the ongoing struggle between North and South tions that serious discussions began in the North have tended to focus on the earlier and strategi‐ about the ultimate resolution of the slavery issue. cally vital, if more limited and legally less impor‐ From such discussions, constitutional abolition tant, Emancipation Proclamations. Constitutional emerged as a possible, but not necessarily fore‐ historians concerned with grasping the full mea‐ gone solution. The surprisingly complex resolu‐ sure of the long-term implications and wide-rang‐ tion of the issue reveals the subtleties of constitu‐ ing consequences of the 1860s upheaval have tional thought in the Civil War era. been drawn to the more complex Fourteenth Slavery was woven into the fabric of the 1787 Amendment, ratifed three years later at the peak Constitution in so many places and ways that it of Radical Reconstruction. Michael Vorenberg's long seemed an irreversible part of the sectional fne and valuable book, Final Freedom, redresses compromise that formed the basis of United these oversights by restoring attention to the Thir‐ States government. With the notable exception of teenth Amendment, providing a careful and thor‐ , abolitionists did not seek an‐ ough accounting of its adoption, and ofering tislavery amendments, sharing the widespread valuable insight into why it marked a pivotal mo‐ belief that preservation of the nation required ment in formal constitutional development. maintaining the Constitution intact. Even the H-Net Reviews

Dred Scott decision did not provoke calls for publicans, Vorenberg notes. Lincoln's initial re‐ amendment because it was treated, by Abraham construction plan did not contemplate federal Lincoln among others, as a sign of a fawed Court amendment but rather called for southerners to rather than a fawed Constitution. With the seces‐ revise their state constitutions to abolish slavery. sion crisis following the 1860 election, amending In discussions of reconstruction that followed the Constitution came into play only as a means of among Republicans, Representative James Ashley protecting slavery where it stood. The frst thir‐ (R-OH) emerged as the leading advocate of a fed‐ teenth amendment, the so-called Corwin amend‐ eral constitutional emancipation amendment as ment of March 1861, adopted by Congress but not necessary to guarantee perpetual freedom for ex- ratifed, was a symbolic gesture to reinforce con‐ slaves. He linked it to a legislative package of re‐ stitutional tradition, though one that failed to construction measures that he regarded as funda‐ achieve its objective. mentally a means of enforcing the antislavery Even after the war came, reluctance to tam‐ amendment. Vorenberg argues persuasively that per with fxed constitutional arrangements on understanding this linkage is essential to compre‐ slavery persisted, in part to assuage loyal border hending Reconstruction. Specifcally, the inability states. Gradually, abolition of slavery gained of Congress to enact a package of enforcement ground as a war tactic and objective, but even measures by the time the Thirteenth Amendment then politicians and lawmakers frst explored ad‐ was ratifed in December 1865 propelled the drive ministrative and legislative solutions. Hesitancy for the Civil Rights Act of 1866 and all that would about constitutional reform remained strong ex‐ fow from it. cept in the most radical circles. President Lin‐ The Thirteenth Amendment itself took shape coln's own constitutionally cautious approach to not in Ashley's House committee but in the com‐ emancipation was exemplifed by his resort to mittee of Senator Lyman Trumbull (R-IL). Lan‐ confscation acts and executive emancipation guage was adopted that was confned to a North‐ proclamations before he turned in December west Ordinance-like prohibition on slavery and 1862 to his frst modest amendment proposals for involuntary servitude (except as punishment for non-compulsory, gradual, compensated emanci‐ conviction of a crime) rather than Charles Sumn‐ pation, Not until the Gettysburg Address, deliv‐ er's much broader phraseology declaring "equali‐ ered on November 19, 1863, did the President ty before the law." Vorenberg contends that Trum‐ even indirectly signal enthusiasm for an immedi‐ bull and his allies thought their own language ac‐ ate and complete emancipation amendment complished all that Sumner (R-MA) sought and yet through his call for "a new birth of freedom." avoided the political hostility from both War In the winter of 1864-1864 the Thirty-eighth Democrats and some Republicans that Sumner's Congress began to craft what became the Thir‐ words provoked. In other words, the language of teenth Amendment. The process was a complicat‐ the Thirteenth Amendment should not be regard‐ ed one, not at all preordained by the Emancipa‐ ed as a retreat on substance but rather as a strate‐ tion Proclamations, as Vorenberg makes clear in gic move to assure the amendment's Senate pas‐ his well-documented narrative. Popular enthusi‐ sage. asm for total abolition rose rapidly in the North Trumbull's proposed amendment generated and even in the border states as wartime casual‐ discussion outside of Congress, in part due to a ties and resentment of the South grew apace. Par‐ rising wave of enthusiasm for constitutional re‐ tisan support for amendment was initially greater form. Yet even a staunch abolitionist and advo‐ among northern Democrats than among most Re‐ cate of constitutional reform such as Francis

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Lieber withheld public expressions of support be‐ however, the issue teetered on the results of mili‐ cause of election-year concerns. Many northern tary action and the fall balloting. Democrats began to think that supporting an anti‐ As debate on the amendment began in the slavery amendment made political sense, but per‐ House of Representatives and then was suspend‐ sistent racism kept the party from embracing such ed for the Republican convention, fundamental is‐ an amendment in 1864. Some African Americans sues of whether the amendment would guarantee expressed enthusiasm for the antislavery amend‐ equality and sufrage remained contested. En‐ ment but others, such as Frederick Douglass, re‐ dorsement of the Senate amendment by Lincoln garded it as inadequate because of its failure to and the Republican platform helped to transform guarantee black sufrage. Congress, as it began to a policy issue into a partisan one. The subsequent debate amendment, was not, Vorenberg con‐ House vote on the amendment followed rigid par‐ cludes, confronting any united support for the ty lines and left the amendment thirteen votes shy measure. of a two-thirds majority. Vorenberg fnds it unfor‐ Congressional debate in 1864 over an anti‐ tunate that the amendment became an election is‐ slavery amendment refected Republican political sue before its legal meaning was clarifed and ar‐ posturing for the fall campaign as much as sin‐ ticulated. cere interest in the objective. Republicans found By mid-1864 the Republican Party was pre‐ the Slave Power- Democratic alliance a useful tar‐ pared to tie its electoral prospects to the abolition get even though some northern Democrats were amendment, but to a considerable degree other embracing constitutional abolition. Democratic matters, especially the military situation, had a opponents raised the specter that abolition would greater impact on the election. Throughout the lead to racial equality and race-mixing. Many Re‐ campaign both sides made an issue of miscegena‐ publicans, unsure of the implications of freedom, tion, the Democrats arguing that it would be the sought to dodge the issue. The strongest and, consequence of black freedom and the Republi‐ Vorenberg concedes, strangest argument against cans contending that it was a result of slavery. amendment was that it would be contrary to the Other matters, peace terms and local issues, also founders' original constitutional intentions, in‐ tended to overshadow the emancipation issue. cluding proslavery federalism and an amending Nevertheless, in the aftermath of Lincoln's 55 per‐ power of limited capacity that did not allow the cent electoral victory, he characterized the elec‐ enlarging or extending of federal powers. Despite tion as a mandate for the abolition amendment. the credit given to Republicans for carrying for‐ Vorenberg fnds this reasonable enough, despite ward the Thirteenth Amendment, it was, says the disappearance of the issue from campaign de‐ Vorenberg, northern Democratic senators such as bate, because of the clear position of Lincoln and Reverdy Johnson of and John Hender‐ the Republican platform. son of Missouri who were responsible for chal‐ In the aftermath of the 1864 election, Lincoln lenging party rivals and making the case that the and other Republican Leaders pressed hard for amending power was unrestricted and allowed the lame-duck Congress to approve the emancipa‐ the overturning of slavery. The Senate's adoption tion amendment, rather than wait for the next of the amendment in April 1864 by a vote of 38-6 Congress with its more than two-thirds Republi‐ demonstrated the inroads that abolition had can majority to adopt the measure. Vorenberg made among Democrats as well as the unity of sees shifting attitudes about the Constitution's ca‐ support among Republicans. For the time being, pacity for amendment together with a growing desire among northern Democrats not to be la‐

3 H-Net Reviews beled proslavery as serving to advance the cause. tives and senators from the former confederate When the House voted on the amendment on Jan‐ states, did accept the Thirteenth Amendment as uary 31, 1865, Republicans stood unanimously in having been ratifed. Indeed, the enforcement favor and, critically, a number of Democrats ei‐ clause was used to justify the Freedmen's Bureau ther reversed their previous position or absented Act and the Civil Rights Act of 1866, the latter go‐ themselves, allowing the amendment to be adopt‐ ing beyond the original intentions for the Thir‐ ed with two votes to spare. teenth Amendment in declaring that blacks pos‐ State ratifcation debates over the emancipa‐ sessed the rights of citizenship. Vorenberg sug‐ tion amendment proved quite revealing. North‐ gests that disputes over the meaning of the free‐ ern states moved quickly to endorse the measure, dom granted by the Thirteenth Amendment, to‐ the overwhelmingly Republican New England gether with a new bipartisan acceptance of consti‐ states doing so refexively. In states where the tutional amendment as the favored means of ar‐ Democratic party was more of a presence, War ticulating principles, soon led to the adoption of Democrats embraced the measure as their own the Fourteenth Amendment, which ever after and provided crucial support. In states that rati‐ would overshadow the Thirteenth. fed (as well as Kentucky and Delaware, which did Supreme Court rulings during the rest of the not), legislators clearly had doubts about the sec‐ nineteenth century narrowed the scope of the ond clause granting the federal government en‐ Thirteenth Amendment. The Justices' holdings forcement power; further, many of them ex‐ that the amendment only addressed slavery and pressed and retained their belief in white not equality dashed the expectations of some of supremacy. Consequently, some Republicans be‐ its architects and weakened its infuence. The gan in the midst of the ratifcation process to amendment failed, therefore, to become the foun‐ think in terms of an additional amendment to de‐ dation for racial justice that had once been the fne citizenship rights. hope of advocates such as Lyman Trumbull and The issue whether former Confederate states James Ashley. Only after a century had passed did could, and indeed were needed to ratify the the Court rule, in the 1968 housing discrimination amendment was a matter of dispute. Lincoln's case of Jones v. Alfred H. Mayer Co., that the Thir‐ view that they had not left the Union led him to teenth Amendment outlawed the use of "badges conclude that they must be a part of the two- of slavery" and give it wider salience. The full im‐ thirds state ratifcation, and held plications of the Thirteenth Amendment for free‐ to this view. Vorenberg perceives concerns about dom will continue to be disputed, Vorenberg sug‐ the enforcement clause and the implications of gests: "We lost sight of the fact that the amend‐ racial equality in southern conventions and legis‐ ment emerged slowly, unpredictably as the pre‐ latures as mirroring those in the north. Neverthe‐ ferred method of abolition and that its adoption less, by December 6, 1865, with Johnson's encour‐ was contingent on developments that had nothing agement, enough southern states had acted that to do with slavery, emancipation, equal rights, or the Thirteenth Amendment was declared ratifed. the law" (p. 249). Those who adopted the Thir‐ On that very day, Vorenberg points out in an iron‐ teenth Amendment may have been committed to ic touch, , the author of the prior abolition but were less focused and more easily Thirteenth Amendment proposal that would have distracted by multiple other matters than we give perpetuated slavery, died. them credit for. Vorenberg concludes, however, that it is indisputable that "Americans now under‐ The new, overwhelmingly Republican Thirty- stood that any generation could challenge and en‐ ninth Congress, while refusing to seat representa‐

4 H-Net Reviews large a previous generation's Constitution without violating the original charter" (p. 250). Michael Vorenberg's assessment of the ulti‐ mate legacy of the Thirteenth Amendment calls fresh attention to the antislavery amendment's revolutionary character in altering the under‐ stood scope of Article V. Final Freedom enlarges our understand of the amendment process as well as the constitutional politics of the Civil War. To‐ gether with his thorough, detailed, and subtle ac‐ count of the creation of the measure itself, Voren‐ berg's observations about the larger importance of the Thirteenth Amendment serve to enhance appreciation for what should no longer be the overlooked member of the trio of Civil War consti‐ tutional amendments.

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Citation: David E. Kyvig. Review of Vorenberg, Michael. Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment. H-Law, H-Net Reviews. August, 2002.

URL: https://www.h-net.org/reviews/showrev.php?id=6564

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