8 April 1864, Senate Proposes the Thirteenth Amendment

This is the first of a series of occasional notes introducing readers to the legislative history of the Reconstruction Amendments—the Thirteen, Fourteenth, and Fifteenth Amendments, ratified respectively in 1865, 1868, and 1871. Referred to as the Second Bill of Rights, these Amendments abolished slavery, importantly the chattel slavery in which Africans had long been held; guaranteed rights, the rights held by whites and which the newly freed African Americans were being denied; and prohibited racial discrimination in access to the ballot, notably the subterfuges impeding African American their due electoral power.

The 38-6 vote in the United States Senate on 8 April 1864, approving a resolution to propose the Thirteenth Amendment, was months and indeed years in the making. That day, all 28 Republicans voted for approval. But more votes in favor were needed to achieve a two-thirds majority. Those votes came from six Unionists and four Democrats.

The text of resolution, approved 150 years ago today, was the work of Republicans, Democrats, and Unionists. On 11 January 1864, Senator John B. Henderson, a Unionist representing Missouri, submitted the resolution, S.R. 16, which the Senate sent to the Committee on the Judiciary. On 10 February, Senator Lyman Trumbull, the Chairman of the Committee and a Democrat turned Republican, reported the resolution to the Senate with amendments.

The text mirrored the first clause of the Northwest Ordinance of 1787, stating in its first section, “Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

But, importantly, the amended resolution added to Henderson’s proposal a second section, that “Congress shall have power to enforce this article by appropriate legislation.” This provision granting enforcement power to the Congress adopted Chief Justice Marshall’s term “appropriate” as the measure for what legislative means can be used to rid the nation of slavery and involuntary servitude. It did not employ the arguably more restrictive term “necessary” from the Constitution’s Necessary and Proper Clause. In the author’s opinion, use of “appropriate” instead of “necessary” was an act showing that the Congress was to act affirmatively on behalf of the newly freed African Americans.

The prior year, on January 1, 1863, President Abraham Lincoln by virtue of his power as Commandeer-in-Chief had proclaimed that within the states in rebellion “all persons held as slaves . . . henceforward shall be free . . .” In the year following the Emancipation Proclamation, Republican Representatives James M. Ashley (Ohio) and James Wilson (Iowa) submitted proposals in the House of Representatives for an amendment abolishing slavery. These will be subjects of a subsequent comment in these pages.

But noteworthy for today are the proposals by Senator Charles Sumner, a Radical Republican representing Massachusetts. Sumner was a longtime and vigorous abolitionist. Eight years earlier, in 1856, South Carolina Representative had caned and nearly killed Sumner on the Senate floor for Sumner’s “The Crime Against Kansas” speech. On 8 February 1864, Sumner submitted a proposal that “all persons are born equal under the law.” And on the day of the Senate vote, he submitted and then withdrew a substitute proposal: “All persons are free before the law, so that no person can hold another as a slave . . .” In the author’s opinion, Sumner’s withdrawal of his proposals was a message that equality would need be guaranteed by another text.

A future note will take up the proposals and debate in the House of Representatives.

Oxford University Press in The Complete Reconstruction Amendments, edited by the author, will publish the materials for this note.

Neil H. Cogan is Professor of Law at Whittier Law School. He was Dean of Whittier Law School and Vice President for Legal Education for the College from 2001 to 2009. During his deanship, the Law School established the Center for International and Comparative Law, the Institute for Legal Writing and Professional Skills, the Institute for Student and Graduate Academic Support, the Institute for Trial Advocacy, and six Summer Study Abroad Programs. He is a litigator, having tried both bench and jury trials and argued appeals in the federal and state courts. His The Complete Bill of Rights (Oxford University Press, 1997) has been frequently cited by the United States Supreme Court and in the scholarly literature.

A second edition of The Complete Bill of Rights published in 2015.