The Thirteenth Amendment - If Not Now, When? (Article 17)

Over 150 years ago, on January 31, 1865, a reluctant and divided House of Representatives voted to advance the Constitutional process to abolish slavery by sending the proposed Thirteenth Amendment to the states for ratification.

It is difficult to imagine today that many Americans once believed that the ownership of one human being by another was either proper (even Divinely inspired) or it was tolerated as acceptable. Of course there were those who opposed slavery but they had never been able to muster any serious legal steps which would lead to abolition.

In an irony of history, there was an earlier “proposed” Thirteenth Amendment to the Constitution which would have had the exact opposite effect of the one we have today. In 1860, in an effort to appease southern states which were considering secession, a Constitutional Amendment was proposed by the Democratic majority in the U.S. Senate which would “shield domestic institutions (slavery) of the states from abolition or interference from Congress” and would perpetuate the legal status of slavery. It was assigned the next sequential number and was titled “The Proposed Thirteenth Amendment” for legislative purposes. The proposal failed by a narrow margin in Congress and, therefore, was never sent to the states for ratification; so the number “thirteen” again became available for whatever Amendment might be proposed later.

In January 1864, Republicans, who by then had a strong majority in the Senate, proposed a new Constitutional Amendment which would abolish slavery rather than shield it as in the earlier 1860 proposal. In a twist of fate, it was also designated as “The Proposed Thirteenth Amendment” by the Senate.

While President Lincoln supported this newest proposal, he did not inject himself into the Senate debate process, and the act was approved by the Senate in April 1864. It was then promptly forwarded to the House of Representatives.

And there it languished for nearly a year!

The Republican leadership in the House of Representatives had no intention of bringing the proposed Thirteenth Amendment to the floor for a vote. While the Senate had a comfortable Republican majority which made passage easier, there were still sufficient pro-slavery Democrats in the House, combined with a few Republicans who were tolerant of slavery, to prevent the required two-thirds vote for approval. Throughout 1864, President Lincoln quietly supported those who were willing to champion the Amendment in the House but he made no expansive public comments, as he was concerned that his interference might harden the opposition.  Then in the elections of November 1864, many Democrats lost their seats in the Republican landslide. However, because new Congressmen were not seated in January as they are today, those who lost would retain their voting rights for several months until the new Congress began later in 1865.

Lincoln carefully weighed his options and decided it would be best to push for a quick House vote in January 1865, without waiting for the more favorable Congress to be sworn in. That meant, however, that he would need several of these “lame duck” Democrats to vote for the Amendment. The Republican House leadership, and even most in his Cabinet, believed the vote would fail in the current Congressional term and urged the President to hold off. Another issue was that some Republican House members were ambivalent about the Amendment and would have preferred to not have to cast a public vote. (Sound familiar?)

Lincoln certainly was aware that it would be an easier vote if he waited. So why was he willing to risk a failed vote in January? Because, he faced an unprecedented dilemma!

He was confident that the Civil War would end within a few months with complete capitulation by the “states in rebellion” and, on one hand, he sincerely wanted to bring those states back into the Union as quickly as possible with minimal repercussions.

But, on the other hand, Lincoln was concerned that these “reunited” states might combine with the four Border States of Missouri, Kentucky, Maryland, and Delaware where slavery had remained legal, to block ratification which required a “super majority” of three-fourths of all “eligible” states.

With these contrary forces at play, Lincoln thought it would be best to use the month of January 1865 to persuade enough Democrats, and those hesitant Republicans, to support the Amendment and then hold the House vote on, or before, January 31.

The President’s “persuasion process” included personal visits to House members, a tenuous and uncomfortable alliance with abolitionist Thaddeus Stevens who led the Radical Republicans, and even a few patronage job offers to “lame duck” Democratic House members.

But, his gamble paid off!

On January 31, 1865, 119 Congressmen, mostly Republicans and a few Democrats, voted “Aye” while 56 Congressman, mostly Democrats but with a few Republicans, voted “Nay” or abstained; just edging past the two-thirds legislative requirement by 5 votes.  And, because the Senate had already passed the Amendment, it could be sent directly to the states for ratification.

However, the document first made one more stop.  While there was no precedent, nor any legal requirement, for a President to sign a proposed Constitutional Amendment before it is sent to the states for ratification, Lincoln insisted that he sign this one!

Lincoln knew there were many who opposed the Amendment and that there would be difficult debates in most state legislatures; and that some states would reject it. He hoped, however, that before 1865 drew to a close, the Amendment would finally be ratified by three-fourths of the states and become law.

Lincoln was pleased when Illinois became the first state to ratify on February 1, only one day after the House vote (the state had an advance copy and received word of passage by telegraph).  He was then further gratified when two of the Border States, Maryland and Missouri, approved the Amendment within days.  However obtaining a positive vote from 27 of the 36 states was still a large hurdle; and, in fact, by the time of Lincoln’s death on April 15, 1865, only 21 states had ratified the Amendment.

Historians note that there may have been a bit of “sleight of hand” by Secretary of State William Seward when he declared on December 18, 1865 that 27 of the 34 eligible states had ratified the Thirteenth Amendment, which then immediately became the “Law of the Land.”  Seward was well aware that the last four states for which he certified ratification were South Carolina, Alabama, North Carolina, and Georgia, all still under Federal Military control and all with “reconstruction” legislatures.  It soon became a moot point, however, as Oregon, California, Iowa and New Jersey, four states firmly committed to the Union, ratified the Amendment a few days later.

Of course, the Thirteenth Amendment probably did not, at the time, change the beliefs of many on the matter; as it is said that “Laws cannot change the hearts of man, but only changes their actions.”

I have always thought it was tragic that Abraham Lincoln did not live to see the Thirteenth Amendment become part of our Constitution.  But I like to think that, when 119 members of the House of Representatives voted “Aye” on January 31, 1865, he must have celebrated, even if for just a moment.

And, 150 years later, on this date, so should we.