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160  The Constitution, the Amendment Process, and the Abolition of Slavery Herman Belz "peculiar ambiguity appears in scholarship concerning the abolition of slavery in the United States. The principal agency of slave emancipation and the means by which it was accomplished are unclear. The Emancipation Proclamation, once the most famous freedom document in American history, is routinely questioned with respect to its liberating force and effect.1 Responsibility for slave emancipation is further problematized in the proposition that the slaves themselves, not President Abraham Lincoln and the Union high command, were the “prime movers” in the abolition of slavery.2 Whether the Emancipation Proclamation be viewed as futile or effective, the Thirteenth Amendment is perceived as neither decisive in securing slaves’ freedom nor conclusive in extinguishing slavery from American public law.3 The meaning and significance of the Thirteenth Amendment are called into question in still another sense that is constitutional in nature. The abolition amendment was ratified by former Confederate states that were excluded from the deliberative process that framed it. From this fact, a question arose at the time concerning its constitutionality. Like other constitutional questions of the Civil War era, the propriety of the abolition amendment was settled in practice without a definitive theoretical resolution of its legitimacy as a construction of the Article V amending power. The power conferred in that article is a formal embodiment of the constituent authority on which the Constitution was founded. Exercise of the amending power in the framing and ratification of the Thirteenth Amendment implicated the exercise of constituent national sovereignty not only in the reconstruction of the Union but also in the construction of Article V as a foundation principle of American constitutionalism. the constitution, the amendment process, and the abolition of slavery 161 With respect to the Constitution and the amendment process, three questions epitomize interpretive controversy over the Thirteenth Amendment: Why was Article V chosen as the means of abolishing slavery? What was the substantive policy of the amendment? And was the exercise of the Article V amending power, in the form of the Thirteenth Amendment, constitutionally legitimate? This essay attempts to answer these three questions. At the time of the Missouri Compromise of 1820, John Quincy Adams reflected on the disposition of the slavery question in the United States. Adams wrote in his diary: “Slavery is the great and foul stain upon the North American Union, and it is a contemplation worthy of the most exalted soul whether its total abolition is or is not practicable: if practicable, by what it may be effected, and if a choice of means be within the scope of the object, what means would accomplish it at the smallest cost of human suffering.” Adams speculated that “A dissolution, at least temporary, of the Union, as now constituted, would be certainly necessary. . . . The Union might then be reorganized on the fundamental principle of emancipation.”4 The framing and ratification of the Thirteenth Amendment addressed the series of questions that provoked Adams’s concern. At one level, the issue in dispute was the existence of slavery as a system of labor and domestic personal relations in the United States. At another level—as it presented itself to statesmen such as Adams—slavery raised questions that, in the deepest sense, were constitutional in nature. The status of slavery as a domestic institution under the Constitution and in relation to the federal union was indeterminate. Properly understood, the United States Constitution, in many explicit and implicit references, recognizes and hence includes the state constitutions. In eleven of the twenty-two states in the Union, slavery was legally recognized and established; in the other states, public law and policy prohibited slavery. Division of opinion over slavery at the state level was mirrored at the national level. The Constitution stipulated rules, forms, and procedures concerning the powers of the federal and state governments in relation to slavery. Administration of the federal government presented practical questions concerning slavery for which the text of the Constitution provided no clear answer. The Constitution, in vague, nominally inexplicit language, recognized the existence of slavery.5 Without specifically defining their respective powers, the document authorized both the national and state governments to act upon the subject of slavery. As a gloss on the constitutional text, a convention of understanding arose in the early national period according to which, on the one hand, states had exclusive power to recognize, abolish, prohibit, or otherwise regulate...

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