The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment (review)

Abraham Lincoln said of the Thirteenth Amendment, “This amendment is a king’s cure for all the evils.” Unfortunately, he was wrong. It was both an end—to slavery—and a beginning. It introduced a new constitutional issue to an already lengthy debate over American laws and rights and set the stage for a long historiographical debate about how it became law and its impact then and since. Alexander Tsesis, a law professor at Loyola University Chicago, has edited a volume addressing the amendment’s passage and meaning through a riveting, provocative collection of essays by what can only be described as an all-star team of historians and legal analysts.

David Brion Davis’s foreword and Tsesis’s introduction put the amendment into perspective. Drawing on his lifetime of magnificent scholarship, Davis reminds readers, “Given the enormous obstacles to slave emancipation, no law succeeded in the New World in moving easily or rapidly from chattel bondage to anything like true freedom—despite the growing public condemnation of chattel slavery as an institution” (xxiii). Tsesis traces the trajectory from the American Revolution to the second revolution, the Civil War and Reconstruction, noting, “Congress has rarely tapped into its Thirteenth Amendment power to protect fundamental rights” (14).

In thoughtful and diverse ways, the historical essays illuminate the amendment’s foundations and meaning. James McPherson explains the role the abolitionist movement played before the amendment’s passage and, lest we forget, afterward. Asking who freed the slaves, Paul Finkelman describes the question as “wrongly phrased. The question should be: how did the slaves become free. The answer is by different methods and different agencies,” which he analyzes nicely (53). Michael Vorenberg’s thoughtful contribution assesses the issue of citizenship in the Thirteenth and Fourteenth Amendments, noting that “the relationship between the two amendments is more in the nature of cousins rather than siblings” (61). William Wiecek examines the Thirteenth Amendment’s impact in the half century after its passage, lamenting that “the reality on the ground for all black people was a netherworld of rightslessness” (95). David Oshinsky’s study of convict labor in the post–Civil War South demonstrates the amendment’s limits. Risa Goluboff delineates how the New Deal reshaped the amendment, while James Gray Pope assesses how the amendment affected labor rights.

The second section, “Current Legal Landscapes,” is both stronger and weaker than the first—stronger because some of it is more provocative, at least to the nineteenth-century historian accustomed to chronological constraints, and weaker because the essays repeat some of the earlier material. George Rutherglen assesses the “badges and incidents of slavery” as described in the Civil Rights Cases of 1883 and how the phrase encapsulates the amendment’s “contradictory aspirations and limitations” (177). Rebecca Zietlow studies “the promise of section 2,” which empowers Congress to enforce the amendment (191). Aviam Soifer scores legal thinkers and jurists for ignoring how the Civil Rights Act of 1866 was linked to the Thirteenth Amendment. Andrew Koppelman expands on his earlier law review article positing that the amendment protects abortion rights and indicts those who refuse to engage him in debate (I confess, my favorite line in this book): “If there is a defect in the argument, no one has ever stated it in print. Hit me. I want you to” (235). Andrew Taslitz argues for a more expansive interpretation of the amendment that would prohibit intimidation to force labor. William M. Carter Jr. suggests that because the amendment makes racial profiling illegal, cases and evidence obtained through such means should be inadmissible. Maria L. Ontiveros sees the amendment as legal protection for immigrant workers. Darrell A. H. Miller outlines how the amendment can apply to various modern forms of discrimination. Robert Kaczorowski’s epilogue summarizes the chapters and explains his view that “the framers of the Civil Rights Act of 1866 and the Fourteenth Amendment...