The 13th amendment Catch-22

The so-called “Tea Party” has as one of its primary principles that the U.S. Constitution and the Founding Fathers should be followed to the letter. Unfortunately, the real world isn’t always John Wayne with Good People in White Hats and Bad People in Black Hats.

The Constitution is very clear about how the amendment process works. No matter whether the change is proposed by Congress or a Constitutional Convention, 3/4ths of the States must agree to the same language for the change to be applied to the Constitution.  So far, so good.

So think back to the 1850s, and imagine that you thought the U.S. Constitution needed to be amended to outlaw slavery and involuntary servitude.  Per the 20 year provision in the Constitution, importation of new slaves ended in 1808 (at least in the law). 

Texas was admitted in 1845 as the 28th state as a slave state. The Compromise of 1850 attempted to settle some of the issues about how Western states would handle slavery, and the Kansas Nebraska act of 1854 tried to maintain a balance that would prevent the Free States from imposing their will on Slave States of the south. There is no way that any Constitutional Amendment to end slavery would ever pass, since it required 3/4 of states to approve.

So by 1860, the Republican party had taken control of the country Lincoln won with only 38.95% of the popular vote – three other candidates split the electoral college vote. Before Lincoln took office in March (it was changed to January later), 7 states had voted to leave the United States. After Lincoln ordered troops to recapture Fort Sumter, 4 more states voted to leave.

It’s important to understand these were the duly elected state governments of those states, not an unelected shadow government of Revolutionary Patriots.

So that left Lincoln and the Republicans with two alternative legal theories – if they stipulate that States can leave the United States, then the North could pass a Constitutional Amendment with the remaining States – but you couldn’t apply that change to States that were no longer part of the remaining United States.

Alternatively, you could argue the concept of succession is not permitted and say the South was still part of the United States regardless of their votes – but since the amendment process requires a 3/4 “We Agree”, the United States as a whole couldn’t outlaw slavery – if the South didn’t vote affirmatively to approve an amendment , the amendment is rejected.   Not voting is the same as voting “No”.

The election of 1864 had the same problem – if the South was still legally part of the United States, but refused to send electors to the Electoral college, how many votes does the electoral college need to declare a winner? 

The 12th amendment didn’t anticipate that some States might not vote – but the wording is clear enough that it is a majority of those Electors voting, not the number who might be eligible to vote.    If  the South had sent electors, they would be stipulating that they were still part of the Union and their succession was invalidated.

So we had the Civil War / War between/among the States. Lincoln proved that the U.S. Military CAN prove that a State can never leave the United States.    General Lee surrender on April 9th, 1865.  

The 13th amendment to abolish slavery had been passed through Congress in January 21st, 1865 while the war was still underway and most of the Northern States quickly ratified it (before the war was over).

But back to the original problem – IF the Southern States never left the United States,  there are 36 states in 1865 –  3/4ths means that 27 must agree and that no more than 9 states can say “no”.    So how did the North compel the South to adopt the 13th amendment?

(Lincoln’s Emancipation Proclamation was just that – it was a statement of principle, not a law, and and had no legal effect to end slavery and did not apply to states not part of the Confederacy). 

Well, one way could be to create a bunch of new “free” States (Kansas in 1861, West Virginia was carved out of Virginia in 1863, Nevada was added in 1864).  That helped a bit toward the goal.   

That created another problem – when the 14th amendment was proposed in 1866, the State Legislatures that were authorized to have approved the 13th amendment voted to reject the 14th amendment.   Congress then passed the Reconstruction Act which declared that those State Legislatures were not the lawful governments of the Southern States.    The 14th amendment includes the self-referential language excluding those state legislatures from participating in the ratification process (15 states rejected the 14th amendment).

This site documents in detail the problem with the passage of the 14th amendment.

Civil wars are ugly things when you’re trying to keep everything “legal”.    When your motivations are correct, sometimes people have to find ways to bend the law.