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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