Slavery and the Civil War

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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. Congress shall have power to enforce this article by appropriate legislation.

Congress shall have power to enforce this article by appropriate legislation.

During the Federal Convention of 1787, the Constitution’s Framers vigorously debated the role that slavery would play in the newly created United States.1 Conflicts over slavery, which had been practiced in the British colonies of North America for over a century often pitted delegates from southern states that relied heavily on slave labor against northern states whose inhabitants increasingly opposed the practice on moral grounds.2 Despite fervent disagreement over the issue of slavery at the Convention, the Constitution’s original text did not specifically refer to slavery. For example, the so-called “Fugitive Slave Clause” did not employ the term “slave” but instead granted the owner of a “person held to service or labor” the right to seize and repossess him in another state, regardless of that state’s laws.3 Moreover, the Three-Fifths Clause, a cornerstone of the Great Compromise4 among the Founders, counted three-fifths of “all other Persons” —a term that included slaves—for the purposes of apportioning seats in the House of Representatives and levying certain types of taxes.5

In 1808, two decades after the Constitution’s ratification, Congress prohibited importing slaves from other countries.6 Although northern states had already abolished (or begun to abolish) slavery within their jurisidictions,7 the domestic slave trade continued to flourish in the South.

In the decades leading up to the Civil War, political tensions simmered as abolitionists and proponents of slavery argued over whether new U.S. territories would be admitted to the union as “slave” or “free” states.8 Initially, Congress resolved some of these disagreements. For example, in the Missouri Compromise of 1820, Congress admitted Maine as a free state and Missouri as a slave state.9 In addition, Congress sought to achieve additional understandings on the issue of slavery in the five Acts that made up the Compromise of 1850.10 Despite these early efforts, compromises on the issue of slavery began to unravel during the 1850s. The Kansas-Nebraska Act of 1854 repealed the Missouri Compromise, allowing each territory’s population to decide whether to permit slavery.11 This led to an outbreak of violence between abolitionists and proponents of slavery in Kansas.12 The Supreme Court’s 1857 decision in Dred Scott v. Sandford exacerbated tensions by declaring the Missouri Compromise to have been an unconstitutional deprivation of slaveholders’ property.13 Disagreements over slavery and President Abraham Lincoln’s election to the presidency were the primary causes of the Civil War, which erupted when the Confederate army fired on Fort Sumter on April 12, 1861.14

After almost two years of war, President Lincoln issued the “Emancipation Proclamation” by exercising his executive war powers.15 The Proclamation declared that, as of January 1, 1863, “all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free.” 16 The Proclamation did not apply to slaves that resided in “loyal” states that had not seceded from the Union.17 Nor did it apply to slaves in portions of southern states under Union control.18 However, it applied to slaves in most of the rest of the core Confederate states’ territory.19

As the nation approached the end of the Civil War, questions arose about the legal authority for the Emancipation Proclamation; Congress’s power to ban slavery by enacting legislation; and the future status of slaves and freedmen throughout the United States.20 These questions played a prominent role in debates over Congress’s consideration of the joint resolution that would become the Thirteenth Amendment.21

1: See, e.g., 2 The Records of the Federal Convention of 1787, at 364 – 65 (Max Farrand ed., 1911) (Madison’s notes, Aug. 21, 1787) (recording a debate over banning the importation of slaves); id. at 369–74 (Madison’s notes, Aug. 22, 1787).
2: See id.
3: U.S. Const. art. IV, § 2, cl. 3. See also supra Fugitive Slave Clause: Doctrine and Practice, .
4: The delegates to the Federal Convention devised the Great Compromise to address the states’ fear of an imbalance of power in Congress by providing for a bicameral legislature with proportional representation based on a state’s population for one chamber and equal state representation in the other. 1 The Records of The Federal Convention of 1787 at 524 (Max Farrand ed., 1911). See also Max Farrand, The Framing of the Constitution of the United States 104–07 (1913).
5: U.S. Const. art. I, § 2, cl. 3. In addition, Article V, while not mentioning slavery specifically, prohibited amendments prior to 1808 that would have affected the Constitution’s limitations on Congress’s power to (1) restrict the slave trade, or (2) levy certain taxes on land or slaves. Id. art. V. See also id. art. I, § 9, cls. 1, 4.
6: Act of March 2, 1807, ch. 22, 2 Stat. 426.
7: See George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1373 & n.23 (2008).
8: The 1787 ordinance that the Confederation Congress enacted to govern the newly acquired Northwest Territory prohibited slavery and involuntary servitude, except as punishment for a crime. An ordinance for the government of the territory of the United States, North-west of the river Ohio, Libr. of Cong., https://www.loc.gov/resource/bdsdcc.22501/?st=gallery. The Northwest Ordinance, however, allowed for the “reclaiming” of slaves that escaped into the territory. See id. The Ordinance established the Ohio River as the boundary between newly admitted, northern territories that forbade slavery and southern territories that permitted slavery. Id.
9: Missouri Compromise: Primary Documents in American History, Libr. of Cong., https://guides.loc.gov/missouri-compromise. The compromise also limited the geographic expansion of slavery westward into newly acquired territories. Id.
10: Compromise of 1850: Primary Documents in American History, Libr. of Cong., https://guides.loc.gov/compromise-1850. The compromise strengthened federal judicial officials’ obligations to capture and return fugitive slaves; abolished the slave trade in Washington, D.C.; admitted California as a free state; and allowed New Mexico and Utah to decide whether to join the United States as free states or slaves states. Id.
11: Kansas-Nebraska Act: Primary Documents in American History, Libr. of Cong., https://guides.loc.gov/kansas-nebraska-act.
12: Id.
13: 60 U.S. (19 How.) 393, 451–52 (1857), superseded by constitutional amendment, U.S. Const. amend. XIV.
14: Battle of Fort Sumter, April 1861, Nat’l Park Serv., https://www.nps.gov/articles/battle-of-fort-sumter-april-1861.htm.
15: The Emancipation Proclamation, Nat’l Archives, https://www.archives.gov/exhibits/featured-documents/emancipation-proclamation. On September 22, 1862, President Lincoln issued the preliminary Emancipation Proclamation, which announced his intention to issue the Emancipation Proclamation on January 1, 1863. See Preliminary Emancipation Proclamation, Nat’l Archives, https://www.archives.gov/exhibits/american_originals_iv/sections/preliminary_emancipation_proclamation.html. Although President Lincoln issued the Proclamation in 1863, some slaves in the South did not attain freedom until much later. For example, slaves in Texas attained freedom when Major General Gordon Granger and Union troops arrived in Galveston, Texas on June 19, 1865. Juneteenth, Lib. of Cong., https://www.loc.gov/loc/lcib/9908/juneteenth.html.
16: See sources cited supra note 15. In 1861 and 1862, Congress enacted legislation known as the “Confiscation Acts” that freed slaves that came within Union lines and had been under Confederate masters, but this legislation was ineffective. President Lincoln was initially reluctant to enforce these laws strictly because of concerns that it would cause border states to secede from the Union. See Cong. Globe, 38th Cong., 1st Sess. 1313 (1864); Paul Finkelman, Lincoln, Emancipation, and the Limits of Constitutional Change, 2008 Sup. Ct. Rev. 349, 367–70 (2008). Congress abolished slavery in the District of Columbia in 1862 via the District of Columbia Compensated Emancipation Act. Act of Apr. 16, 1862, 37 Cong. ch. 54, 12 Stat. 376 . Congress abolished slavery in the territories in the Abolition of Slavery Act (Territories), 37 Cong. ch. 111, 12 Stat. 432 (1862).
17: Sources cited supra notes 15–16.
18: Id.
19: Id.
20: See Cong. Globe, 38th Cong., 1st Sess. 1313–14 (1864).
21: See, e.g., id.