The Civil War Amendments Generally

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 1056

In addition to the Equal Protection and Due Process Clauses of the 14th Amendment, the Civil War Amendments provide four major individual rights protections. These are the 13th Amendment ban on slavery or involuntary servitude, discussed at ß 25.1; the 14th Amendment Citizenship Clause, discussed at ß 25.2; the 14th Amendment Privileges or Immunities Clause, discussed at ß 25.3; and the 15th Amendment ban on race discrimination in the right to vote, discussed at ß 25.4.

The circumstances surrounding the ratification of the Civil War Amendments is relatively unique. As one author has noted:

When it proposed the Thirteenth Amendment on January 31, 1865, and the Fourteenth Amendment on June 13, 1866, Congress lacked the full representation of the eleven southern states. The Thirty-Eighth Congress that proposed the Thirteenth Amendment denied seats to southern delegates except to senators and representatives from West Virginia. As for the proposal of the Fourteenth Amendment, it received 33 votes in the Senate, and 120 votes in the House, but had the Southern states been fully represented in the Thirty-Ninth Congress, 48 votes in the Senate and 162 votes in the House would have been needed to meet the two-thirds requirement.

. . . Secretary of State William H. Seward certified on December 18, 1865, that twenty-seven out of thirty-six states had ratified the Thirteenth Amendment and that it was therefore valid. According to this count, no state had ever left the Union of thirty-six, yet among the twenty-seven ratifying states were the loyalist legislatures of Virginia, Louisiana, Tennessee, and Arkansas. Alabama (which ratified on December 2), North Carolina (December 4), and Georgia (December 6) acted following indications that the President viewed ratification as necessary to restore their full participation in the Union.

Ratification of the Fourteenth Amendment came about through plain coercion. The March 2, 1867 Military Reconstruction Act required ten of the former confederate states, as conditions to readmission to the Union, to form new republican governments with suffrage extendedPage 1057 without regard to race, and to ratify the Fourteenth Amendment. [Based on this Act, ratification of the 15th Amendment banning race discrimination in voting rights was a foregone conclusion.] By July 1870, all of the former confederate states had been readmitted.1

Despite these irregularities, it can be argued that the drafting and ratification of the Civil War Amendments met the technical procedural requirements of the Article V constitutional amendment process.2 In any event, the Court has routinely viewed questions of the proper ratification of constitutional amendments as political questions, as noted at ßß &, and the validity of the Civil War Amendments is also confirmed as a matter of "settled law." Settled law is defined at ß 4.3.2 nn.79-85.

ß 25 1 The Thirteenth Amendment

Passed in Congress by January 31, 1865, and declared ratified by 3/4 of the states on December 18, 1865, the 13th Amendment provides: "Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their protection. Section 2. Congress shall have power to enforce this article by appropriate legislation." By its text, which provides "[n]either . . . shall exist," this provision bans public and private conduct that involves slavery or involuntary servitude, and makes this right "inalienable." Any attempt to waive this right would be unenforceable.

The background to the 13th Amendment was the practice of slavery in the American South before the Civil War, and the practice in the North during the colonial period of indentured servitude. These practices were justified at the time as consistent with pre-Enlightenment classic and Christian natural law doctrine. It has been noted, "Throughout most of the colonial period, opposition to slavery among white Americans was virtually nonexistent. Settlers in the 17th and 18th centuries came from sharply stratified societies in which the wealthy savagely exploited members of the lower classes. Lacking a later generation's belief in natural human equality, they saw little reason to question the enslavement of Africans."3 During the period surrounding the United States Civil War in the 1860s, Jefferson Davis, President of the Confederate States of America, stated, "[Slavery] is sanctioned in the Bible, in both Testaments, from Genesis to Revelation. . . . It has existed in all ages, has been found among the people of the highest civilization, and in nations of the highest proficiencies in the arts." A prominent reverend at the time, Reverend R. Furman, D.D., Baptist, of South Carolina, reflecting the view of many Southerners, similarly noted, "The right of holdingPage 1058 slaves is clearly established in the Holy Scriptures, both by precept and example."4 More generally:

The religious defense of slavery was rooted in the Bible, and apologists found numerous references there to justify slavery. Mosaic law was said to authorize the buying, selling, holding, and bequeathing of slaves as property. Abraham and other prophets held slaves, and the New Testament failed to condemn slavery. The Apostles were said to have received slaveholders into the church. But the most important Biblical reference Southerners pointed towards was Genesis 9:25, Noah's curse on Ham, father of Canaan, for Ham's indiscretion towards Noah, which clerics read as specifically authorizing African-American slavery.

In the Bible's words, Noah became drunk and lay "uncovered inside his tent." Ham "saw his father's nakedness and told his two brothers outside." But the brothers, Shem and Japheth, walked into the tent backwards and covered their father with a garment without ever looking at him. When Noah awoke and discovered what his youngest son had done, he said: "Cursed be Canaan! The lowest of slaves will he be to his brothers . . . . Blessed be the LORD, the God of Shem! May Canaan be the slave of Shem . . . . May God extend the territory of Japheth; may Japheth live in the tents of Shem, and may Canaan Be his slave."

A Georgian in 1844 summarized the masters' interpretation of this passage thus: "From Ham were descended the nations that occupied the land of Canaan, and those that now constitute the African or Negro race." J.B. Thrasher of Mississippi added that blacks "are the lowest and most degraded of the descendants of Canaan." And South Carolinian Iveson L. Brookes explained that Ham deserved "decapitation" for his crime, but a merciful God chose to punish him "by flattening his head, kinking his hair, and blackening his skin, thereby making him black and subject to slavery."5

Of course, as noted at ß 8.4.1 nn.77-80, this analysis is inconsistent with the basic biblical imperative that all individuals are created by God, and thus entitled to equal natural rights, and with Jesus' and St. Paul's general statements concerning love, the equality of all persons, and the "Golden Rule" (treating one's fellow humans as one expects to be treated by others). It is also inconsistent with the modern ban on slavery in the 1948 United Nations Universal Declaration of Human Rights.6

As part of the compromise to get approval from all state delegations at the Constitutional Convention in 1787, a number of constitutional provisions acknowledged slavery. The Constitution states in Article I, ß 2, cl. 3, "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other PersonsPage 1059 [slaves]." Under Article I, ß 9, cl. 1, "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person." Under Article IV, ß 2, cl. 3, the Fugitive Slave Clause, "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service of Labour may be due."

Congress passed the first Fugitive Slave Law in 1793. The 1793 law dealt generally with fugitives from justice, but it was applied primarily to fugitive slaves. In 1818 and 1820, Congress passed laws that punished participants in the importation of slaves, although by that time children born to slaves in the United States predominantly satisfied Southern economic needs. In 1820, Congress passed the Missouri Compromise, which limited slavery predominantly to Southern states, by providing that "slavery and involuntary servitude . . . shall be, and is hereby forever prohibited" in all of the territory acquired from France in the Louisiana Purchase, which lies "north of thirty-six degrees and thirty minutes north latitude," as long as the fugitive laws were enforced in those territories and states. In 1850, as part of a grand Compromise between Northern and Southern interests, California entered the Union as a free state; the slave trade ended in the District of Columbia; the rest of the land in the West other than California acquired from Mexico after the Mexican-American War of 1848 was open to both slave and free...

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