Thirteenth Amendment to the Constitution of the United States: Consummation to Abolition and Key to the Fourteenth Amendment

Abstract

This article in a somewhat altered form is a portion of a book to be published during 1951 by the University of California Press as rENBROF-x, THE ANri-SLAVERY ORiGINs or TnE FOURTEENTH A ENDM ENT.

Toward A Renewed Sociological Jurisprudence: From Roscoe Pound to Herbert Blumer and Beyond

“…One such “play of events” that bid fair to shift “the objective position” of African Americans and evoke much “inner discussion” by both blacks and whites occurred more than a century ago, on December 18, 1865, when the abolition of slavery by leave of law, specifically by the addition of the Thirteenth Amendment to the U.S. Constitution, was declared in force. A revisionist analysis of the proactive intent of that amendment (tenBroek 1951: 171–203; Vorenberg 2001), when read together with empirical data showing how well its mandate has been effected, will do much to clarify both African Americans'current claims for affirmative action benefits and recently revived demands for monetary restitution. TenBroek advanced the important but all‐too‐neglected thesis that the makers of the Thirteenth Amendment sought to accomplish much more than the abolition of the institution of slavery.…”

“…Weber (1954: 138) asserted, “The capitalistic slavery of the Southern United States was doomed once the supply of free land was exhausted and the cessation of the importation of slaves had raised slave prices to monopolistic levels […; while its] elimination through the Civil War was accelerated by the purely political and social antagonism of the democratic farmers and the Northern plutocratic bourgeoisie against the Southern planter aristocracy.” In contrast, tenBroek (1951, 1965) focused his analysis on the broad meaning intended by law‐made abolition and the affirmative duties it imposed on those charged with implementing it. Thus tenBroek (1965: 165) not only places emphasis on Pennsylvania's senator William D. Kelley's statement that “This proposed [Thirteenth] Amendment is designed…to accomplish the…abolition of slavery in the United States, and the political and social elevation of Negroes to all the rights of white men” but also, and most significantly, calls attention to the then acknowledged fact that the “free colored person” is also a victim of slavery, “only less degraded, spurned, and restricted than his enslaved fellow [… but bearing] all the burdens, badges and indicia of slavery save only the technical one” (tenBroek 1951: 179). Eliminating the scourge of servile bondage meant, then, emancipation for both the “hapless bondman” and those formally free persons whose liberty had been restricted by the concomitant effects of the “peculiar institution” (Genovese 1974; Stampp 1963), namely, the effects identified as the “badges,” “burdens,” and “indicia” of slavery (tenBroek 1965: 177).…”

“…What would become a long‐lasting virtual repudiation of the Civil War amendments'aim to obliterate slavery “with all its badges and incidents” occurred in 1883 when, in the majority opinion he wrote for the Civil Rights Cases , U.S. Supreme Court Justice Bradley struck down provisions of the Civil Rights Act of 1875, prohibiting race discrimination in hotels, restaurants, theaters, and public transportation, arguing that “[i]t would be running the [badges of] slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or…take into his coach[,]…or admit to his…theater” (Nieman 1991: 96–97). However, Justice Harlan ( Civil Rights Cases [1883]) dissented from this decision, pointing out that not only would it permit race “discrimination [to be] practiced by corporations and individuals in the exercise of their public or quasi‐public functions,” but that such practices of discrimination constituted a “badge of servitude the imposition of which Congress may prevent under its power, by appropriate legislation, to enforce the Thirteenth Amendment.” Recognition of both the value and the validity of Harlan's argument, namely, that the Thirteenth Amendment was, in tenBroek's words, “meant to be a direct ban against many of the evils radiating out from the system of slavery as well as a prohibition on the system itself,” did not occur until a century after the adoption of the Fourteenth Amendment (of which tenBroek [1951] holds the Thirteenth was both an adumbration and a key), when the Supreme Court's majority ( Jones v. Alfred H. Mayer [1968]) upheld a congressional statute granting “all citizens of the United States…the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real property” on the ground that it implemented the original intent of the Thirteenth Amendment. Specifically, the Court's majority opinion asserted that “Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery and the authority to translate that determination into effective legislation.”…”

“…With victory not yet achieved, those who are the victims of slavery's vestiges might look to such positive efforts as the only seemingly undeserved preferential programs, as ways to secure the final triumph. Further, as tenBroek (1951: 194) notes, the “civil liberty…one gets in society [is] a result of governmental restraint on the conduct of others.” Therefore, African Americans and all civil rights advocates might very well conclude that the failure of the government to put a halt to the discriminatory policies of educational, occupational, and political institutions during the many decades after the adoption of the Thirteenth Amendment constitutes a withholding of the very protections to which they were entitled from the onset of their emancipation—and to which they are entitled still. By the same token, entitlement to restitution as a compensation might be justified for the same reason—the government's defalcations on its constitutional duty.…”