Vail Daily column: What the Constitution says
Editor’s note: This is the 12th part of a series.
The 13th Amendment put an end to slavery. If you know your history, well, only sorta. Even though the 13th Amendment provides in Section 1 that “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.”
And Section 2 provides that “Congress shall have power to enforce this article by appropriate legislation.”
So what it says is that, unless you’re being punished for a crime for which you have been duly convicted, you may not be enslaved. This is interesting in itself in that it at least suggests that one may be enslaved — rather than simply incarcerated — as punishment for a crime.
What else I alluded to above is that although this amendment — at least in theory — at long last freed the slaves it was a protracted and arduous slug towards anything approaching true equality. Sure the slaves were freed but Jim Crow laws, ugly and persistent discrimination, violence and a lack of opportunity kept slaves “in their place” and many traded slavery for a life that wasn’t much better.
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The 13th is the first of three Civil War or “Reconstruction” amendments that were passed quickly on the heels of the blood-letting that ended at the Appomattox Court House — the 13th in 1865, the 14th in 1866 and the 15th in 1870. Taken together, these amendments were intended to restructure the United States from a country that was, in Abraham Lincoln’s words, “half slave and half free” to one in which the constitutionally guaranteed “blessings of liberty” would be bestowed upon the entire populace, including former slaves and their descendants. The “peculiar institution” that had vexed and divided the founders and that ultimately drove brother to take arms against brother was, in enactment of the 13th Amendment, finally dealt its death blow. What is sad beyond words in the 1865 sea of sorrows is that Lincoln did not survive to see it.
The 14th Amendment gave the 13th its bite. Comprised of five sections and running 437 words, including section headings, its humble intent was to protect all rights. The most commonly used — and frequently litigated — phrase in the amendment is “equal protection of the laws,” which figures prominently in a wide variety of landmark cases, including Brown v. Board of Education (racial discrimination), Roe v. Wade (reproductive rights), Bush v. Gore (election recounts), Reed v. Reed (gender discrimination) and University of California v. Bakke (racial quotas in education). Many scholars consider the amendment the most seminal of all amendments since the adoption of the Bill of Rights.
Before delving into the sections themselves, the historical context is important. A Congress dominated by radical Republicans passed the amendment specifically to protect against white Southerners, who were defeated in the Civil War, contriving to use the powers of their state governments to effectively re-enslave recently-liberated blacks by passing racially discriminatory laws. Ironically, the failure of Reconstruction after 1876 led more or less to that very result, as the 14th Amendment largely failed to protect black rights during the interminable darkness of the Jim Crow era. While the amendment was passed with the rights of recently freed slaves specifically in mind, it was crafted in more universal terms and the right to “equal protection” under the laws has since been invoked in all types and manner of claims.
Section 1 includes four crucial elements. First, anyone born on American soil is guaranteed full American citizenship. Second, no state may revoke any of its residents the full privileges of American citizenship. Third, all citizens are guaranteed “due process of law.” This is huge. What it means in simple terms is that states cannot pass arbitrary or unfair laws. Fourth, all citizens are guaranteed “equal protection of the laws.” “All” meant all — black, white or somewhere in between, which meant that states may not discriminate against any particular group of citizens. Together with the guarantees extended under the Bill of Rights, these assurances under Section 1 of the 14th Amendment comprise the heart of what is meant by “civil liberties” and “civil rights.”
Section 2 repealed the three-fifths clause (Article I, Section 2, Clause 3 of the original Constitution), which counted slaves as three-fifths of a person for the purpose of apportioning congressional representation. What this meant was that every person was “whole,” that every person counted and that all persons counted equally. The section also guaranteed that all male citizens age 21 and older, no matter their race, had a right to vote. Oops; everyone was equal … except women. This would have to wait until the 19th Amendment to rectify.
President Andrew Johnson, who history has not remembered kindly and of whom Abraham Lincoln did not think of fondly, but who succeeded Lincoln following the tragedy at Ford Theater, feuded with Congressional leaders over how to treat the Southern states in the aftermath of the Civil War. Johnson bent towards leniency while many in the Congress thirsted for harsher retribution. Section 3 of the 14th Amendment allowed a path towards at least partial reconciliation whereby, upon a two-thirds vote of Congress, the former Confederate leaders could regain the rights of citizenship. If they failed to garner the requisite vote, they were barred from voting in federal elections or holding federal office.
Section 4 prohibited payment of any debt owed to the Confederate States and banned payment to former slaveholders as compensation for the loss of their slaves.
And, finally, Section 5 bestowed upon the Congress “the power to enforce, by appropriate legislation, the provisions of this article.”
In the next part of the series, we will take up the last of the Reconstruction amendments, then skip forward a quarter of a century to the 16th which — yikes! — established Congress’ right to impose a federal income tax.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.
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