Friday, December 6, 2013

Emancipation Day Reconsidered

December 6: A National Holiday to Celebrate the End of Slavery

By James A. Wynn, Jr.

The time has come for Congress to declare a new national holiday. The movie Lincoln highlights the struggle over the passage and ratification of the Thirteenth Amendment, the historic constitutional choice that officially ended slavery in America. The triumph that the Thirteenth Amendment represents—not just for African-Americans, but for all Americans—should be celebrated, and we should celebrate it today, December 6. No amendment has a greater or simpler declarative force than the Thirteenth. It states uncompromisingly that “Neither slavery nor involuntary servitude . . . shall exist within the United States . . . .” The amendment also empowered Congress to enact laws to enforce its substantive protections.
The significance of the Thirteenth Amendment cannot be overstated. Among other things, it extended the phrase “We the People” in the Preamble to the Constitution to all Americans, it ended the implicit sanctioning of slavery in the original Constitution, and it made clear that abolishing slavery was the sovereign will of the people.

Chief Justice Roger Taney’s opinion for a majority of the United States Supreme Court in the notorious 1857 Dred Scott decision, left no legal argument that the phrase “We the People” in the Preamble to the original Constitution might someday be read to extend to slaves. According to the Court, African-Americans were not intended to be included in “We the People” because “[t]hey had for more than a century before been regarded as an inferior order . . . and so far inferior, that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit.” The Thirteenth Amendment repudiated and effectively overruled Dred Scott and all it stood for, making clear that neither African-Americans, nor anyone else, could “ justly and lawfully” be enslaved in this great country.

Further, the Thirteenth Amendment ended the original Constitution’s implicit sanctioning of slavery. Although the word “slave” appears nowhere in the original Constitution, the document tacitly accepted slavery. For example, as a result of an infamous compromise between Northern and Southern states, Article I of the Constitution based political representation in the House of Representatives on the population of “free Persons” and three-fifths “of all other Persons” in each State. Thus, despite the Declaration of Independence’s majestic pronouncement that “all men are created equal,” the original Constitution indicated otherwise. With the Thirteenth Amendment, the Constitution expressly rejected slavery.

Finally, because it had to be “ratified by the Legislatures of three fourths of the several states,” as required by Article V of the Constitution, the Thirteenth Amendment constituted an exercise of the sovereign will of the people and the democratic process speaking through Congress and then through the ratification by an overwhelming majority of state legislatures. By contrast, the Emancipation Proclamation, an 1863 declaration freeing slaves in Confederate territory, was a wartime measure issued unilaterally by Lincoln.

The Thirteenth Amendment has been the subject of far less litigation than the Fourteenth. As a result, it has suffered unjustly in obscurity. And to the extent we celebrate it at all, we do so on the wrong day, February 1—the anniversary of the day President Lincoln signed a Joint Resolution submitting the proposed amendment to the States for ratification. Addressing a crowd outside the White House after he signed the Joint Resolution, Lincoln remarked that the occasion was one “of congratulation to the country and to the whole world.” In 1948, President Truman declared February 1 “National Freedom Day.”

Yet despite the symbolic significance of Lincoln’s act, the Thirteenth Amendment had no legal effect until the States adopted it. Indeed, Lincoln’s signature was unnecessary, and no other proposed amendment has been submitted to a president for signature.  

The Thirteenth Amendment was put to all thirty-six States, including those formerly part of the Confederacy. Georgia became the twenty-seventh state to ratify the amendment, on December 6, 1865, marking the achievement of the three-fourth supermajority necessary to amend the Constitution. The Supreme Court has held that constitutional amendments take legal effect when ratified. Thus, December 6, 1865, marks the arguably most significant, and yet perhaps most unrecognized, date in African-American history.

Sadly, Lincoln never lived to see the Thirteenth Amendment ratified: He was assassinated on April 15, 1865, nearly eight months before Georgia provided the decisive vote in favor of ratification. No doubt Lincoln would have celebrated the day our nation constitutionally enshrined an abhorrence of further slavery, the evil institution against which Lincoln had fought so hard.

No longer should the Thirteenth Amendment rest in silence. We should begin our holiday season by celebrating today the 147th anniversary of the Thirteenth Amendment’s ratification. It is a day not just for African-Americans, but for all Americans, to commemorate a moment when our Constitution was improved by spelling out the truth that Dr. Martin Luther King, Jr. rightly called self-evident: “All men are created equal.”

As wonderful as the movie Lincoln is, films are fleeting. A more permanent memorial must be erected to recognize the single greatest day for American liberty. It is time for Congress to act.

All Rights Reserved

James A. Wynn, Jr. is a Circuit Judge on the U.S. Court of Appeals for the Fourth Circuit.

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