Transcript 0:00 Abraham Lincoln endorsed an amendment to the Constitution directly relevant to slavery, but it might not be what our listeners think it was. 0:11 If this had been ratified by the states, this would have been the 13th Amendment to our Constitution, and this is a pro-slavery amendment. 0:17 The uproar that it sparks, as dark as this moment seems, this is gonna be the undoing of slavery. 0:22 William Lloyd Garrison, the great Boston abolitionist, he calls it a covenant with death and an agreement with hell, and he publicly burns the Constitution. 0:29 So is there a way to constitutionally safeguard the Union's anti-slavery positions and make them bulletproof against the Taney Court, which is this racist pro-slavery court during the Civil War? 0:38 [instrumental music] Welcome to the Liberalism.org Show. I'm Aaron Ross Powell, senior director of liberal projects at the Institute for Humane Studies. 0:49 I'm joined today by Damon Root, senior editor at Reason and the author of the new book Emancipation War: The Fall of Slavery and the Coming of the 13th Amendment. There were two 13th Amendments. 1:01 The first, which Lincoln endorsed in his 1861 inaugural, would have barred the federal government from ever touching slavery in the states, a pro-slavery amendment meant to stop secession. 1:13 Damon's book tells how the country got from that one to the amendment that abolished slavery instead. 1:19 We walk through the rival readings of the Constitution that were then fighting for dominance, the shaky legality of the Emancipation Proclamation, and the bottom-up movement that eventually brought slavery's abolition. 1:31 We close on what that movement could teach our own moment. 1:36 [instrumental music] Abraham Lincoln endorsed an amendment to the Constitution directly relevant to slavery, 1:54 but it might not be what our listeners think it was. Can you talk a bit about that first version of the 13th Amendment that Lincoln expressed being on board with? So this is 1861. 2:10 This is Lincoln's first inaugural address. Uh, you know, the first time he's addressing the American people as, as president. 2:17 And he, and he, and he s- and he endorses this constitutional amendment that had just passed Congress that said the federal government would be forever prohibited from interfering with slavery in the states, in the states in which slavery existed. 2:31 You know, and this is, uh, it's a kind of an olive branch to the seceding states. At this point, seven states had left the Union since Lincoln's election, and it's this a- you know, this attempt to avert a civil war. 2:43 But it's also... You think about it, this, this, if this had been ratified by the states, this would have been the 13th Amendment to our Constitution, and this is a pro-slavery amendment. 2:54 And, um, so what I was interested in, in, in this book is, is you start with this, this failed 13th Amendment of 1861, and then we get to the 13th Amendment of 1864 when it's, you know, uh, drafted in Congress in 1865 when it's ratified by the states. 3:09 And that is the one we, we all know today that abolishes slavery everywhere, in every state. 3:14 And, and what were the, what were the forces, what were the pressures, what were the factors, military, legal, and political, that all go into, go into this, this tr- this kind of transformation in, in terms of, like, what made Lincoln change his mind, but also more importantly, all of the, the, the... 3:32 You know, I, in the book I say that to understand the 13th Amendment, you have to look at it from the top down and the bottom up, you know? So the top down, that's what is, what is the president thinking? 3:42 What, uh, what are the prominent members of Congress thinking? Or maybe what are some generals thinking and doing? 3:47 But then the bottom up is the, the abolitionists, the anti-slavery activists, enslaved people themselves who are, who are, uh, have tremendous agency and tremendous role to play in all of this, and those forces, those bottom-up forces and how they're also acting and, and all of these things coming together to give us this 13th Amendment that, that we know today. 4:06 So let's talk through some of that story. Um, and maybe start with Lincoln. So was he in, in 1861, was Lincoln pro-slavery 4:18 himself and then he changed his views to be anti-slavery, or was he anti-slavery but for strategic tactical reasons? Lincoln is, he is not an abolitionist, and he's, and he says that. But he is anti-slavery. 4:35 He's opposed to, um, opposed to slavery on moral and, and political grounds, but also argues that the, that what the federal government can do or what he can do as president and his thinking changes on this. 4:47 But at, in 1861, what, what he can do, um, is, is, is quite limited. 4:53 So one of the, one of the things, the first chapter of my book is about these roiling debates, late 1840s and in the 1850s, among different, different factions of, of abolitionists and anti-slavery activists, but also pro-slavery theorists. 5:07 And there's kind of three views of slavery in the Constitution that are all sort of jostling for, for dominance at this point. You know, the one view, that's, is the pro-slavery view. Uh, people like John C. 5:19 Calhoun, Jefferson Davis of Mississippi, you know, they say the Constitution is entirely pro-slavery, and what that means is that slaveholders should be able to bring their, what they call their property with them everywhere the flag flies. 5:31 So that's not just in the slave states, but also in the, in the Northern states, but also most importantly, federal territories. You know, new states are forming to come enter the Union. Are they gonna be slave states? 5:42 Are they gonna be free states? It's this huge kind of huge, huge controversy. And so that's this pro-slavery view. And interestingly, there are abolitionists who kind of have the same view. 5:52 Uh, William Lloyd Garrison, the great Boston abolitionist, he also thinks the Constitution is pro-slavery. 5:56 He calls it a covenant with death and an agreement with hell, and he, he, you know, he publicly burns the Constitution 6:03 Frederick Douglass, he is a Garrisonian for the first 10 years of his career, but then he changes his mind. He breaks with Garrison. 6:09 He says, "Actually, the Constitution interpreted as it ought to be interpreted is a glorious liberty document." 6:14 So Douglass comes to this very radical view, the Constitution's entirely anti-slavery, and you don't have to change a word in it to abolish slavery everywhere. 6:23 And then the third view, which is where Lincoln falls in, is, uh, this idea, it's a doctrine, goes by the name sometimes freedom national. Freedom national, slavery local, or slavery sectional. 6:34 And this, and this view says that slavery's a creature of state law, local law, and under the American system of federalism, the federal government can't reach down and interfere with it in the states. 6:45 But the federal government can, should, and must go after slavery in all the places that are under clear federal authority. So the national capital, Washington, DC, banned slavery in DC, and the federal territories. 6:57 Outlawed slavery in the federal territories. No more slave states. No more slave states form. No more slave states enter the union. Eventually, the free states outnumber the slave states. 7:05 So this is actually a pretty, pretty radical view in some ways. Or it's seen, uh, the pro-slavery folks see it as very radical. They see it as a huge threat to, uh, to, to the peculiar institution. 7:16 And Lincoln ultimately falls in with that camp of freedom, freedom national, and that is the credo of the anti-slavery Free Soil Party and then of the Republican Party also. 7:26 It's part of the national platforms of those political, those anti-slavery political parties. So it's not the radical abolitionist view of Frederick Douglass or someone like that. 7:33 It, uh, d- d- doesn't go anywhere near that far. But it, it very much would use federal power in, in ways in which th- these folks thought it was, it was appropriate to use. 7:45 And so then for Lincoln, there becomes this, this argument, this wrestling with himself and with others, "Can slavery be abolished as a war measure?" 7:53 And so then there's the whole debate around the Emancipation Proclamation. Is that even, is that something that's lawful? 7:58 And Lincoln ultimately comes to the view that, yes, as, as commander-in-chief, under his executive authority, he can, he can issue this Emancipation Proclamation. 8:06 However, there's also, he has these nagging doubts about its constitutionality, 'cause he, he changes his mind on the legality of the Emancipation Proclamation. 8:14 He, in 1860, '61, 1862, he thinks the president can't do it, and then by the fall of 1862, he decides he can, and then he does. And then in January 1st, 1863, it goes into effect. 8:26 But there's always these nagging doubts about it, and so that's one of the things also that prompts the 13th Amendment, is we, is this need to constitutionalize the anti-slavery federal stance that emerges during the Civil War. 8:36 Get a constitutional amendment, it races, erases all the, all the doubts, and makes freedom, truly makes the freedom national idea. 8:43 It takes it, takes it seriously, enshrines it in the Constitution, but then, but then takes it all the way to the states. 8:49 So not just in the, the federal territories and the places where it applied before, but, but all the, but everywhere. 8:55 So I have to ask, because you have been studying and writing about the Constitution for quite a long time. Um, this is not your first book on constitutional topics. Of those three, 9:09 call it interpretive parties that you mentioned, and Lincoln falls into the third one, who had it right? 9:16 So a few years ago, I wrote a book about Frederick Douglass and his constitutional views and his, and, and how he, ba- basically tracing his intellectual, um, odyssey as he went from the Garrisonian view to the, to this, the, the radical, uh, glorious liberty document view of the Constitution. 9:34 And, and that is a very stirring view. I find it very, very compelling. Douglass is a sort of a hero of mine, an incredibly, incredibly admirable figure in so many ways. 9:44 But I d- but I, but I did say in that book that I, as a, as a, in terms of 9:51 history and text, and certainly the way the, the way the, the, the f- the f- the Founding Fathers, the Framers of the Constitution understood it, Douglass' view does not quite line up with, with, with them. 10:02 So, you know, in the Federalist Papers, James Madison is talking about slavery. 10:06 You know, it's, it's, it's understood that even though the word slavery doesn't appear in the Constitution anywhere until, until the 13th Amendment, that's the first time it's used, these, these kind of weasel words like persons and, and, you know, uh, are, are used instead, that is what's being talked about. 10:20 So as a historical matter, as, as appealing as I find the, the Douglass argument, I don't, I don't think it's f- it's f- it fully works historically. 10:29 And, and I think that the, the freedom national view is closer to what the, what the right view is, even if I might prefer, you know, prefer the other one in some ways. 10:38 And so my, and so my interest in that freedom national argument is what led to this 13th Amendment book because I was, I was fascinated by someone like, um, Salmon P. Chase, who was this Ohio anti-slavery lawyer. 10:49 He's a founder of the Liberty Party, of the Free Soil Party, the Republican Party. He's maybe the great legal theorist of the freedom national position. He goes on to be chief justice of the United States. 10:59 He replaces, uh, Roger Taney, the author of the Dred Scott decision, this kind of very fitting, um, repudiation of everything that Taney and the Dred Scott and all, everything stood for, that you get this, you know, anti-slavery lawyer like Chase in his place. 11:14 And, um, so I wanted to, I wanted to spend more time with, with their ideas and, and with those people, and that's kind of what led me to the 13th Amendment because you don't get the 13th Amendment without this freedom national position and, and the, and the, and the important questions it raises. 11:28 You know, such as for, as I was saying, the Emancipation Proclamation, is it, is it legal? Um, or maybe the other way to put it would be, if it comes before Chief Justice Roger Taney, will he strike it down? 11:39 And so is there a way to constitutionally safeguard the, you know, the Union's anti-slavery positions and make them bulletproof against, against the Taney Court, which is this racist, you know, pro-slavery court at, at the time during the Civil War. 11:52 So can we talk then about that abolitionist coalition, whether it was self-consciously one or lots of people pursuing abolition in various ways? 12:03 So you mentioned there's the political angle, there's the military angle, there's the slaves themselves. Can you just talk about, like, what that coalition looked like, how it emerged, and 12:12 And how it coalesced into something that led to this, I mean, extraordinarily significant change in the United States. 12:20 Well, it's a, it's a wide-ranging movement, you know, against slavery, where you have the, you know, have the kind of radical pamphleteers, you know, beating, beating the drum. 12:29 You've got the, the, the much more kinda canny political tacticians. 12:32 And I-- You could put Lincoln, I think, in that category as someone who's, who's, who's thinking about the public, thinking about what the American people are gonna let the government do and the support. 12:42 Um, but then the-- and then the-- and then someone like Frederick Douglass, who's kind of a, the conscience of this movement in many ways, you know? Whether making these historical and legal and moral arguments. 12:52 So it's, yes, it's very much this wide-ranging movement. There's a lot of, a lot of, uh, arguments and infighting. I mean, I think anyone who's involved in any kind of political 13:03 organization, you know, in the modern world would cert- and, and certainly, like, something like third parties or if you're, if you're even remotely in the world of maybe a more esoteric, whether it's, uh, maybe kinda the socialists or the libertarians or kind of whatever it is, you know, there's always a lot of infighting. 13:17 You know, there's the, the one true view. 13:18 And so the Frederick Douglass and William Lloyd Garrison having a very bitter divorce, bitter fallout, you know, very public kinda breakup over slavery and the Constitution when both of them hate slavery. 13:28 You know, and they were friends. They toured the country together, spoke on stages together, but still, you know, the importance of these ideas to each man, um, caused this sort of bitter divide. 13:38 So there's, there's that whole intellectual element of it, and then there's, there's the role of, of people themselves. 13:45 Um, I was, I was very interested to write about, um, the role that fugitives from slavery, enslaved persons who escaped slavery and then came to the Union lines and, and, and, and liberated themselves, and the role that that played in shaping Union military policy but-- and then also the, uh, political policy of, of the North. 14:05 And so one of the, one of the examples I write about in the book is in, 14:09 i- in 1861, the Civil War has, has barely gotten started, and three enslaved men, um, come to Fortress Monroe, Virginia, this Union stronghold, um, kind of on the seacoast, and they show up and present themselves at the Union lines. 14:23 And the, and the commander, General Butler, you know, he brings them in. He takes them in and says, "Well, you're, you're contrabands of war. We're gonna put you to work on behalf of the, you know, the Union cause." 14:33 And, um, the word of their freedom, they've-- these men have liberated themselves, and the word of their freedom gets out. 14:39 And so then in the weeks and months to come, dozens and then hundreds more enslaved persons a-arrive. 14:46 And, and now you have not just, uh, kind of working-age men, but also, uh, children, women, old folks, you know, just the, the whole, the whole spectrum of humanity. 14:56 And Butler s-writes to his superiors in Washington, DC, writes to the Secretary of War and says, you know, "What, what, what, what is-- what do, what do I do with these people? 15:04 What is the relation of these people to the f- to the federal government?" Uh, the states, state law says they're property. 15:12 Uh, we don't recognize them as property, but even if they are property, they have in many cases been abandoned by their, by their owners who have fled the area because the Union forces are there. 15:22 So are we their salvers, the salvers of property? But if we don't recognize them as property, are they just free people? You know, they've been s- effectively manumitted. 15:30 And so th-this, this pressure that, that these, that these, it-- that these people are, are exerting on the, on the, on Union military and political authorities is, it's felt in Washington, DC. 15:43 Congress is feeling it, so there's, there's, there's, there's a push towards practical abolitionism happening. 15:51 You know, the Civil War has barely gotten started, and already, you know, the bonds of slavery are being loosened in all these ways because, because, because people are acting themselves. 15:58 And so that's, you know, I call that bottom-up, you know, bottom-up pressures that push the, push the war in an anti-slavery direction. So that's very much something that's happening. 16:06 And, and the Lincoln administration has to wrestle with this immediately, and you have this general in the field who's basically saying, "Look, as a war measure, we should, we should free all the slaves and put them to work on our side." 16:15 The, the Confederates say they're fighting a war to preserve slavery. You know, that's what, um, Alexander Stephens says. This is, it's the cornerstone of the Confederacy. He's the Confederate vice president. 16:23 He says that slavery's the cornerstone of, of our, of our slavocracy. So if, if that's what the, if that's what the rebels say, Butler argues, you know, "Why, why shouldn't we put them to use for the Union?" 16:34 And, and this is something that starts to drive, drive Union policy. Is there a moment when things really flipped? So the mo- Like, we, we start off in this Corwin Amendment 1861 world, 16:52 where that was the view, we're not going to try to abolish it in all of the states. And then we eventually end up in a wor- world where the US is finishing up a war to finally abolish this institution. 17:10 Is there a moment, maybe, maybe for Lincoln in particular, where it just, like, really flipped, where all of this cohered into, "Okay, we're in a radically different place than we are now. There's no going back. 17:24 This is the mission"? Well, one, one turning point moment I would say is i- is July 1863. This is-- There's sev- some very famous battles fought that month. 17:35 That's the Battle of Gettysburg as, and, and also the Battle of Vicksburg. So Robert E. 17:39 Lee, the Confederate general, his inva- his invasion of the North is repulsed at the Battle of Gettysburg, and then meanwhile out west, uh, General Grant, Ulysses S. 17:47 Grant, he wraps up the Siege of Vicksburg, and so now the Mississippi River is, is, is, uh, in Union control in very important ways rather than Confederate control. 17:56 And so that's a military turning point, uh, in the war in, in, in, in important ways. 18:02 And shortly after those, those key Union victories, uh, Senator Charles Sumner of Massachusetts, this is a, a towering abolitionist anti-slavery figure. 18:12 This is, this is, for people who remember, you know, high school history, this is the guy who was, who was beaten over the head with a cane in the US Senate after giving an anti-slavery speech. 18:20 So he's this kinda martyr to the abolitionist cause in many ways. And he writes a letter saying Well, you know, the God of, uh, of battles has smiled upon us, but I hope it, the smiling, you know, slows down. 18:32 Um, you know, that we- I don't want us to win too many more victories so quickly. And, you know, this is, it's not because he's suddenly a, you know, a, a rebel turncoat or something. 18:40 He is worried that the, that the, that the Union's gonna win the war before the kind of abolitionist transformation that he's, that he hopes to see brought about comes to pass. 18:51 And so he's, he's worried that the, you know, that the, the Confederacy's gonna be beaten on the battlefield, but this is before, um, the, the, the, the Union has really welcomed and made widespread use of Black troops, before Northern sentiment has fully, has fully kinda come around on slavery. 19:09 And so for, for, for him, this, this kick-starts the need for an anti-slavery constitutional amendment. 19:16 So he starts working at this point, right, a- as a direct result of, of, of the, the, these military events, which are in favor of his side, but he's kind of worried that, like, maybe the, maybe the war's gonna start to go too well. 19:28 And so he starts working behind the scenes with anti-slavery activists and others to, to, to, to, to build up a groundswell of public support for an anti-slavery constitutional amendment. 19:37 And he wants to write this amendment, and he wants to be the one who shepherds it through Congress. 19:40 And it doesn't quite, you know, work out that way for him, but it, but it does in many ways start this process in Congress, 19:48 where by the end of, um, or by the, by 1864, you have multiple competing would-be 13th Amendments. Sumner's, Sumner's amendment and then several others. And, and Sumner's is not the one that's adopted. 20:00 There's other ones that are. And so that's-- There, there's something about 20:04 the, the anti-slavery movement recognizing that things are going in its direction, and, and Sumner clearly does, but not, you know, not sufficiently enough to s- to shore up these, these wins. 20:16 So something like the Emancipation Proclamation, that's done as a military necessity that ends slavery in the states that are then in rebellion. 20:23 So the border states, which are loyal to the Union but slavery is still lawful, they're not covered by the Emancipation Proclamation. So what happens if the Union wins the war totally in 1863? 20:33 The Emancipation Proclamation has freed, forever freed slaves in the rebel states, but the border states are-- What's, what's the status of slavery there? 20:42 There's, as well as what I was talking about earlier with the Supreme Court and the federal courts maybe being more sympathetic to the slave, the pro-slavery side. 20:50 What if some of these wartime measures come before the courts? And so all these concerns are in the mind of Sumner. They're in the mind of Lincoln and others. 20:57 And so by 1864, the, when, when Congress puts out what becomes the 13th Amendment, it, it, it's, it then becomes a, a political issue. It becomes a centerpiece of the Republican platform. 21:10 1864, you know, Lincoln is, Lincoln's up for re-election, and at the Republican National Convention, the, the 13th Amendment, this is the-- We rally the Republican troops, rally the voters. 21:20 This is, this is, like, kind of the centerpiece, and this is... 21:23 So now you have the saving the Union, which is what the war originally is about, and then freeing the slave become intertwined, whereas they had been at odds in many ways in the, you know, the early months and, and year, year or two of the war. 21:38 What does public opinion look like through all of this? Because we've talked about Lincoln and Sumner and others in, in government. 21:47 We've talked about, I don't know that you'd refer to Douglas as a, an elite, but in contemporary terms, that might be what he was. He's going around giving talks and writing and whatnot. 21:58 We've talked about the slaves themselves, who obviously wanted to end this. But, like, just general public opinion, did that follow a similar sort of arc, like a similar Lincoln-esque sort of arc? 22:12 Were most ordinary people in the North on board with this pivot you just described? 22:21 The, it, th- there, the, the arc is similar, I would say, in that, in that the, a, a war to preserve the Union is something that public opinion more generally supports and supports the president on that. 22:34 A war to liberate slaves, to end slavery, to abolish slavery, that is something that even, even, um, people in the North who are, who are, who are not in favor of slavery, you know, but they're may, they're more moderate on, on the issue, or they say, "Well, of course I'm, I'm, I'm opposed to slavery, but this idea of this, of we fight a war for that," that's, yeah, that's something that public opinion does need to be brought about on. 22:56 And that's one of the ways that, you know, if you look at the, you look at the debates, if, if you look at the anti-slavery movement in the 1850s, it's, it's, uh, this is not a mainstream political movement, even though, uh, uh, what becomes a mainstream political party, the Republicans ultimately comes out of all this anti-slavery activism. 23:13 This is still, you know, this is, these are very radical ideas. They're unpopular. 23:17 And it's, it's precisely that kind of pressure on the mainstream, you could say, um, throughout this period that helped, that, that does help push public opinion and the var- and the different things that happen. 23:28 And so what-- Let me give you one example of, of a way that something that, that, that I think has an important kind of public opinion role as well as a practical, practical role also. 23:40 There's a, there's a furious debate about the use of, of Black troops in the Union. Um, African Americans are part of the war effort from the beginning, but in a, 23:49 in a, in a capacity of, you know, well, you can, you can help us build the fortifications or haul, haul supplies or something like that, but you're not gonna wear the uniform. You're not gonna bear arms. 23:57 You're not gonna be fighting, fighting for your country. Um, and Lincoln is opposed to, to, to Black troops, um, and, and many others are. 24:05 But there, but there, there are some abolitionist-minded, liberty-minded g- Union generals who are in favor of it. 24:12 Certainly, the, there are many, many, um, people like Frederick Douglass, I mean, from the start of the war, he says, you know, 24:19 "Arm African Americans, create this liberating interracial army, and, and send, and send it, send it into the heart of Confederacy, and the war will be over." You know, he's, he's saying that from the beginning. 24:28 But there is this, there is this, this, this debate about the use of Black troops, and then finally by the Emancipation Proclamation, Lincoln has come around on this issue and says, "Okay, we, we can do it." 24:38 Um, and so there's a couple of, you could call it, uh, showpiece all Black regiments that are formed. So one in the North, the 54th Massachusetts Volunteer Infantry. 24:50 Uh, Frederick Douglass serves as a recruiting agent for the 54th Massachusetts. Uh, he-- one of the fir- first people he signs up is one of his sons. 24:57 And the 54th is involved in this, um, this, this, this sort of v- extremely brave but kind of doomed charge, um, on a Confederate stronghold in South Carolina. It's the Battle of Fort Wagner. 25:09 There's a, there's a great movie about this, uh, from some decades ago, uh, called Glory. Um, not entirely historically accurate, some of the parts of the movie, but a tremendous, tremendous film. 25:20 And, and this, they, they, they are the tip of the spear on this attack, and it is a, it's, it's almost a suicide mission in many ways. 25:28 But what this does is kind of forever dispel these, these lingering racist notions that, that African Americans are, you know, can't be relied upon to be troops. They won't fight. They won't... 25:39 You know, all these, all these terrible ideas that, that we look at, I mean, I look at now and I, yeah, how could people think this? 25:43 But this was, they, this w- these were widespread ideas at the time, including within the, you know, Union officer corps. 25:49 You know, there was, it was seen as a sort of disgraceful thing to be the, be the officer for these Black troops. You know, this was a, this was a common idea. 25:55 And so something like that, even though this is not a Union military victory, this is a, this is a defeat, but it's this, there's, there's a, you know, that's, that's why the film's called Glory. 26:03 There's this, this heroic nature to the charge that does something for public opinion. 26:09 And there is a, there's another all Black, uh, uh, force, the 1st South Carolina, that's the, and they, they are all former, formerly enslaved men who are in the 1st South Carolina. 26:19 So the, the, the, there, there, there's a joke that it's the, it's the only loyal regiment raised in South Carolina during the war. 26:25 And they also, um, are involved in heroic deeds on the battlefield, um, military successes. They get, gets a lot of media attention. 26:32 It's, you know, their, their, um, commanding officer, Thomas Wentworth Higginson, is this k- this, this literary figure who writes these, um, wonderful write-ups, you know, these official reports that are republished in the newspapers. 26:43 And so the, all of these kind of things start to help, helped change the opinions of many, many people who, who at the start of the war in the North were happy to see the rebellion quashed, but in the name of preserving the Union, and then start to see that, 26:57 well, this is, this is about something bigger and more important than that, and which was, which was the view of Frederick Douglass and Thomas Wentworth Higginson and, and these, all of these, these liberty-minded individuals. 27:08 This was their view from the beginning and what they were always pushing the Lincoln administration to do and to come around on and, and the public as well. 27:15 And so by s- 1863, 1864, you really start to see that happening as a result of all of these, these factors kind of coming together. I wanna get into lessons from this story for 27:31 current and ongoing struggles for greater liberty. But before we turn to that, I wanted, in the end of the book, um, 27:43 you engage with an alternative interpretation of the 13th Amendment and this story and what it accomplished coming from Ava DuVernay and Angela Davis. 27:56 Um, and it's one that, I'm gonna ask you to describe what their, their argument is, but it's one that I'm sure a lot of listeners will find familiar, and you're pushing back hard on that. 28:07 Can you tell us a bit about that? 28:09 Well, the, it's, so the, the language of the 13th Amendment says, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, 28:22 shall exist within the United States or any place subject to their jurisdiction." 28:26 So that language, "except as a punishment for crime whereof the party shall have been duly convicted," the ex- the exception clause it's sometimes called, or a loophole is, is its, it's, is, is it's also sometimes, sometimes called. 28:40 So Angela Davis, great kind of radical theorist, writer, activist, um, you know, she has this argument that the 13th Amendment essentially legalized or constitutionalized, um, penal servitude, which would, which, which was one of the downfalls of Reconstruction. 28:56 It allows, um, slavery to be continued or reinstituted by another name, by, um, 29:04 uh, uh, you know, the f- the former Confederate states through the Black Codes and various other, you know, horrific measures would, would, you know, would, um, 29:14 you know, the freed people would be, you know, f- sort of forced, forced to, forced to labor without, without, you know, basically be, be kind of re-enslaved. 29:21 Um, and that that w- and that, that was, that was allowed under the 13th Amendment. 29:25 And so the, the kind of the, the strongest version of that argument that, that, that she makes and, and the, and the, the documentary film "The 13th" makes is that this is the kind of the modern age of mass incarceration is, is directly comes about as a result of this, the, the exception clause or the loophole clause in the 13th Amendment. 29:43 And, um, you know, there, there, there are many parts of their argument that I do a- agree with. Um, certainly 29:50 the, the, the ways that Reconstruction were undermi- was w- w- was, the various ways in which Reconstruction was undermined and, and thwarted, it did include, um, you know, something like there'll be a law that says, you know, a, you know, a Black person can't own property in town, a Black person can't, um, has to have the permission of, uh, of an employer before they can, they can go a certain place, can't, you know, the, all these kind of vagrancy laws and loitering laws, all these kind of excuses basically to arrest people and then just put them to work, back to work on the plantations. 30:23 And then now they're prison labor, and they're basically like slaves all over again. Um, th- those things happened. 30:28 I mean, that, that, that, that really was something that was going on in Reconstruction and was a problem. 30:33 Um, it's I think the Angela Davis and others overstate the degree to which that is the, the driving, um, thing that's undermining Reconstruction. 30:44 I think there's a lot of other factors that they sort of don't, don't give enough attention to. 30:49 I mean, the US Supreme Court plays a [chuckles] plays a key role in, in, um, undermining Reconstruction through a series of, of, of very bad decisions starting in the 1870s, um, kind of culminating in Plessy v. 31:00 Ferguson in the 1890s. That's a separate but equal case. So there's, there's that. There's that part of it. 31:06 But then the, the other sort of problem I have with their-- with the, the sort of strong version of their argument is that the 13th Amendment do- doesn't, doesn't create this situation. 31:17 Um, penal servitude was something that has existed in the United States since before it was the United States. 31:22 You know, the, the language that the 13th Amendment is modeled on comes from the Northwest Ordinance, which was enacted by the Continental Congress and then kind of re-upped by the first Congress and signed into law by George Washington. 31:33 And the Northwest Ordinance banned slavery in the federal territory north and west of the Ohio River. 31:38 And that ordinance, there's a reason why it's-- that's what the 13th Amendment is based on, because that language, the Northwest Ordinance, was a, was a key weapon used by the free-- in this, in the freedom national argument throughout the 1850s and 1860s. 31:50 Anytime someone like Jefferson Davis said, "Well, we should be able to take slaves anywhere in the United States, that's the policy of the Founding Fathers," you know, Abraham Lincoln or Frederick Douglass or anybody else could say, "Well, wait a minute, the Founding Fathers are the ones who passed the Northwest Ordinance, which banned slavery in the federal territory." 32:05 So clearly, that's the original intent of the Founders, if you wanna, you know, call it that. Um, and the language in Northwest Ordinance 32:14 has the exception clause language in it also, which shows that this was something that was the sort of longstanding policy. And so it was, it was, um... 32:23 So on the one hand, this language is in the 13th Amendment for extremely noble anti-slavery reasons because the Northwest Ordinance language had been so pivotal as part of the freedom national arguments that were being fought. 32:35 So, you know, the, the, the i-... 32:37 And so when it's called a loophole, that always bothered me because, you know, the, the, the people who put this language in the Constitution in the 13th Amendment were anti-slavery, were abolitionists. 32:47 So they, they thought they were working to end slavery, so whatever it, it allowed to continue was maybe that's, maybe you could call that an oversight or a mistake on their part if you, if you wanted to. 32:59 But the idea that they kind of put a loophole in there is, um, I think is, is wrong as a, as a matter of history. Um, but then also this was... 33:10 You don't need this language in the 13th Amendment for there to have been penal servitude that the s- that the former Confederate states could use, because it was a, it was a, it was an established police power of the states since the founding of the country. 33:22 So it was the status quo already. 33:24 So even if the 13th Amendment had been written in different language, and there was a competing, um, 13th Amendment that Charles Sumner had, had, had drafted that didn't, that, that reads very differently, um, and doesn't have this, the exception clause language in it. 33:37 So even if that had been the 13th Amendment abolishing slavery, and it would've, it would abolish slavery everywhere also, this problem of penal servitude in the, in the former Confederate states to undermine Reconstruction still would've arisen because that tool was, was there to use or to, to misuse already. 33:54 And the 13th Amendment doesn't do that. 33:56 So what I g- where I kinda come down in the book is that the 13th Amendment in, in this kind of Angela Davis argument is it's being blamed for something that it didn't, that it didn't do. 34:05 So they're, they're identifying, I think, a real problem, but putting the blame in, in the wrong direction. And I think in a way that's... It's-- I guess I would... 34:13 You know, it's maybe too simplistic, I, I'd say maybe is my, my problem with, with that argument. 34:18 Like I said, I agree with, with, with parts of the critique, and certainly I, I'm very interested in all the, in cataloging the ways that Reconstruction is thwarted and, and its downfall 'cause it's, well, it's a, it's a, it's a terrible, it's a terrible thing for our country that, that, that Reconstruction fails in the way that it does. 34:32 But, um, you know, I want, I want to, I think to, you know, we gotta assign the blame in, more correctly. So what are the lessons in this story that your book tells? Um, we're, we're in a moment of retreating freedoms. 34:51 We're not facing anything as abhorrent as chattel slavery, but the, the movement that brought chattel slavery down in the US, what, what lessons can we draw from that in trying to further expand the reach of freedom? 35:10 Well, you know, to me, it's this kind of big story of the 13th Amendment that I try to tell is a very inspiring story, um, be- precisely because th- there, there... 35:20 You know, we know, we know some of these famous names, you know, Abraham Lincoln, Charles Sumner, Frederick Douglass, but there's so many people whose names have been lost to history that are, that are key parts of this story and whose, whose pressures and, and whose actions and whose brave decisions, whether it's, you know, it's fleeing slavery, liberating yourselves or, or, uh, political activism or all these other things, they all, they all add up to a, to a s- this sum that's greater than, than its parts. 35:43 The sum total is greater than its parts. And that's very inspiring to me. Um, you also think about how outside of the mainstream some of these anti-slavery ideas are. 35:53 You know, I, I r- you know, I write about in the book these, these kind of radical abolitionists in the 1830s, 1840s who are pushing these, these constitutional arguments that ultimately do, are adopted. 36:05 It takes a, it takes a long time, um, but you know, th- this idea that Congress can abolish slavery in Washington, DC, that was hugely debated and hugely controversial. 36:15 And, um, but it- it's something that Congress does do in 1862, and it's a, it's a milestone. It's a, in, on, on this, on this anti-slavery path. Um, so that, that bottom-up aspect of it, I think, is, is quite inspiring. 36:32 And it, and I think it shows that, that political leaders, um, you know, they're, they are res- they do respond to these kinds of pressures, including things that might seem Very far flung at the time. 36:45 Um, and, you know, you never know how these things are gonna turn out, and obviously the people living through this, you know, they don't know. They don't-- We know how it ends. 36:53 We know how the story ends, and we know slavery's abolished, and the Constitution en-enshrines the abolition of slavery, and that's this kind of wonderful ending, um, to it. 37:02 E-people, people living it don't know, but it, it, it, it is something that happens. And I think about, in terms of this question, 'cause it's a really interesting question to me, um, 37:11 a-after the Dred Scott decision comes down, that's in 1857, and that's, you know, that's the notorious case where the Supreme Court says the, the, you know, "The Constitution has no right," or, "The Black man has no rights which the white man is bound to respect," and says that African Americans can never be citizens of the United States under the Constitution 'cause they're no part of we, the people. 37:31 And that's wrong. It's wrong as a matter of history, that there's several dissents in the case that detail how that's just historically wrong. 37:37 Um, even if there is all this racism at the founding, which of course there is, but there still were, there were African Americans who actually do take part in the, the, the, the, the bringing the Constitution to life, so it's just sort of wrong as a matter of history. 37:48 For Frederick Douglass has-- gives this kind of tremendous response to Dred Scott decision, and one of the things he says is that, you know, that the, that the f-f-the furor and the, the uproar that it sparks, as dark as this, this moment seems, this is gonna be the undoing of slavery, you know? 38:03 It's kind of-- It's-- You read it now, and it seems very prescient in some ways because just a couple years later, it's like the, it's the outbreak of the Civil War, and suddenly someone like Douglass has, has an, has a kind of an audience with the powers that be, you know, that he didn't have before. 38:17 But, but, but, but he's right in a way that, that this, we can, we can see this, you know, now looking back on it, that the, that the, the way that it mobilized, that this decision is so outrageous to people, so it, the way that it mobilizes, 38:32 um, opposition, but also it, it radicalizes so many people, too. 38:35 So suddenly these anti-slavery arguments that just seem so, you know, off the wall, it's sort of like, "Oh, well, you know, maybe they have a point 'cause look at what the Supreme Court just did." 38:43 You know, and you, I think people could probably relate to those kind of sentiments, you know, you know, nowadays for sure. Um, and so I think that's one of the takeaways. 38:53 I mean, there's probably more specific things about organizing and the role of ideas and even like the kinda little publications, little journals, you know, which, you know, I've been involved with, like, you know, small publications, little magazines and stuff for, you know, for many years. 39:06 And, and so that, that even those kind of in the war of ideas, that those kind of things can cut out in the end, you know, that's, that's interesting and inspiring to me. 39:13 But it's especially, as I said, you know, the, the, the role of, of everyday people, people whose names we don't know, um, as, a-as part of this constitutional story 'cause th-when I-- I, I've said it a couple times, you know, top down and bottom up, but I was really thinking about that a lot when I was writing this book because so much constitutional history is, you know, kinda great man, you know, history. 39:36 And obviously there, you know, I, I mean, I wrote a book about Frederick Douglass. I'm interested in those kind of very prominent figures and, and this book, Lincoln's a big character in this book. But 39:46 it's never just about those people. 39:47 It's, there's, there's, there's all of these forces, all of these other people, not, not all of whom we know by name at this point, but who, who shape their thinking, who, who play a part in this. 39:55 And so I wanted to make sure that, that, that I, I tried to draw attention, attention to those voices also. 40:02 Listeners can learn more about those people and find more of the, the lessons for today in Damon Root's book, Emancipation War: The Fall of Slavery and the Coming of the Thirteenth Amendment, which is a terrific story and beautifully told. 40:17 Thank you so much for coming on the show, Damon. Thank you. It's a real pleasure. [outro music]
