The Thirteenth Amendment and American Freedom: A Legal History (review)

Law professor Alexander Tsesis's invigorating reevaluation of the Thirteenth Amendment agrees with many Lincoln Republicans that it embraced the Declaration of Independence. The Amendment "created a substantive right to what had before only been a national aspiration," and its enforcement clause provided Congress with "virtually plenary" power to act against "a slew of discriminations." But, Tsesis reminds us, "slew" too soon narrowed to lamentably few (161).

Part I of The Thirteenth Amendment (ca. 100 of 160 pages of text) measures the diminution by surveying its supporters' lofty assumption that it was "the legal triumph . . . of abolitionist aspirations" (7). To them, the Thirteenth was a self-defining, self-executing, tsunami-like finality. They foresaw no supplemental amendments or enforcement laws because, except for felons and incompetents, they acknowledged no halfway legal status between freedom and slavery. With the latter, a state-defined legal status, prohibited, all individuals' civil relationships, rights, and obligations, primarily those involving property and person, were equalized, especially where equality counted, that is, in states and localities (chaps. 1–2). And constricting redefinitions, especially judicially imposed ones, were unanticipated.

Yet within a decade after Appomattox, the Thirteenth would begin fading from significance, almost to the Ninth Amendment's "forgotten" category. Aiming to reverse the fading, Tsesis further exhumes the Thirteenth from under the massive accumulation of Fourteenth Amendment–focused interpretations. He reinforces earlier exhumations by, among others, Akhil Amar, Jacobus ten Broek, G. Sidney Buchanan, George Hoemann, and Michael Vorenberg. Tsesis concludes that beyond abolishing slavery, the Thirteenth mandated continuing forthright adventuring on the then-unmapped civil rights frontier. And he rues the fact that the great leap forward of 1865 slowed, then stalled, and began even to reverse. Why?

Answering, Tsesis regrettably allots too few pages (59–61) to the changing "political atmosphere" that led to the decline of "radical ideals." More insight into the causes and effects of this decline would have been welcome. What, for example, led major white-run private freedmen's aid associations to close 1868–70, alleging that their missions were accomplished? Did the Freedmen's Bureau's goals, legal strategies, and budgets for its lawyers retard or hasten the decline? Was the postwar Army adequate for its constabulary efforts to quell terrorist insurgents? Tsesis casts little light on the ways that resurgent Democrats and racists everywhere fueled fears that equalized civil rights would destabilize the economy and society. In sum, during Reconstruction, bigotry re-rooted and servitude's persisting incidents, especially peonage and race-based exclusions, were accommodated despite the Amendment. For these descents from the high hopes of the Appomattox year, law professor Tsesis blames especially the federal judges.

He reminds us usefully of early Thirteenth Amendment decisions from 1866 to 1873, especially U.S. v. Rhodes, In re Turner, and U.S. v. Given, in which federal jurists sustained the Amendment's broad authority. But, waffling, Justice Strong, whose opinion in Given, on circuit, encouraged believers in constitutionally mandated race equality, backtracked in Blyew v U.S. (1872) in the Supreme Court. Blyew, Tsesis concludes, was "the first blow to the use of the Thirteenth Amendment for ending centuries of racial intolerance" (64). Then, from 1873 to 1896, the Supreme Court's Slaughterhouse, Cruikshank, and Plessy decisions undermined the Thirteenth's usefulness as a meaningful defense against race bigotries.

A mark of significant scholarship, this provocative book inspires still more questions. Were judges primarily responsible for the Amendment's decline, as Tsesis suggests? Did the law world's fluidity, from 1870 to 1900, affect jurists' views? How was the decline received in the law schools then sprouting in the new state universities funded by the same Civil War congressmen who framed the Amendment? Did the increasingly popular Langdellian case-centered curricula and casebooks (West Publishing was founded 1873), and the several statewide bar associations then forming, condone or bemoan the Amendment's shrinking importance? Newly revised in 1873, the federal statutes widely separated parts of the...