The Emancipation Proclamation was part of a two step process. In September, 1862 Lincoln issued an Executive Order freeing slaves in the rebellious Confederate States in any State that did not return to the Union by January 1, 1863. The proclamation only freed slaves in 10 specific states and did not free slaves in Border States that had not seceded from the Union.
Lincoln’s Re-election Considerations
Lincoln was up for re-election in the fall of 1864. It appears that there were political considerations in the two step process. The abolition of slavery was not a universal goal, and so Lincoln set a date for freedom for after the election, and made it apply only to areas continuing in rebellion. Had any Confederate state returned to the Union prior to January 1, under the terms of the Proclamation those slaves would not be freed. From a political standpoint Lincoln protected himself.
Lincoln’s Authority and Constitutional Recognition of Slavery
From a legal standpoint Lincoln relied on constitutional was powers in under Article II, section 2, in freeing the slaves. His legal authority to do this was questioned. Whether the proclamation could be legally effective if the was ended was questionable. At the conclusion of the Civil War there was a need to clarify the legal status of slavery in the United States.
The legality of slavery as an institution had been implicitly recognized in the Constitution. Slaves were counted for purposes of congressional representation, although each slave was considered as only 2/3 of a person. There was a constitutional protection of the slave trade for the first fifteen years of the new government. The Constitution mandated the return of escaped slaves from Free States to Slave States. If there was to be a total prohibition of slavery in peacetime, it would have to be by constitutional amendment.
Thirteenth Amendment Proposal in Congress Not Automatic
The total abolition of slavery was not as simple a process as one would expect. The Thirteenth Amendment originally gained a two-thirds majority in the United States Senate in April, 1864. However, the amendment failed originally to garner the required two-thirds of the US House of Representatives when put to a vote on June 15, 1864.
The Thirteenth Amendment’s Ratification
Eventually, it passed the constitutional requirements on January 31, 1865 and was sent to the States for ratification. Georgia became the twenty-seventh state of the then thirty-six to ratify on December 6, 1865 and it became part of the Constitution. The Thirteenth Amendment reads as follows:
“Section 1. 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.
Section 2. Congress shall have the power to enforce this article by appropriate legislation.”
Involuntary Servitude Defined
Congress ultimately did enact laws to define involuntary servitude. These definitions go beyond the traditional understanding of slavery and include the concepts of obtaining labor by:
- Threatening or using actual physical force
- Threatening or using actual state-imposed legal coercion
- Physically restraining or threatening to physically restrain another person
- Destroying, concealing, removing, confiscating or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person
- Blackmail
- Causing or threatening to cause financial harm to any person
The Thirteenth Amendment began the process of legally erasing the largest inconsistency between the promise of America’s founding and the reality of slavery.
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