On Dec. 10, 1865, the 13th Amendment to the U.S. Constitution was ratified. On Dec. 18 it became an official part of the Constitution, abolishing not only slavery but also "involuntary servitude" except as a punishment for crime. The amendment remains controversial to this day.
States' rights, not slavery, were the ostensible cause of the war. But as Union armies marched south, slavery collapsed. First came limited confiscation acts. Then President Lincoln issued the Emancipation Proclamation effective Jan. 1, 1863, but freed slaves in areas not under Union control.
Thus an American president by proclamation destroyed private property valued at millions of dollars, in clear violation of the Fifth Amendment's clause that persons cannot "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Lincoln at first wanted compensated emancipation, but events in Arkansas changed his mind.
The 2012 motion picture Lincoln begins with the gory slaughter of African American soldiers after the Battle of Poison Springs outside Camden. Since the South refused to recognize African American soldiers as prisoners of war, all prisoner exchanges stopped.
As Union control spread, Lincoln restored the conquered states to the Union. In 1864, Arkansas got a new constitution that abolished slavery but did not bestow voting rights on the formerly enslaved men. Isaac Murphy, famous in Arkansas history his for his "no" vote on secession in 1861, became governor.
Lincoln follows what it took to get the 13th Amendment launched. Finally, on Jan. 31, 1865, the House of Representatives completed its work and the amendment was then sent to the states, three-fourths of whom had to ratify it.
Governor Murphy issued a call for a special session to decide the amendment's fate. He put it this way: "The ratification of this amendment will result in the restoration of peace and harmony among the states. Those whose names are connected with its adoption will obtain a high place in the history of political and moral progression. This is the great act that will consolidate the union of the States on the basis of equality, politically and socially, remove the cause of our troubles and bind together all the States in a Union of interest and affection not hereafter to be broken."
By unanimous vote the amendment was approved April 24, 1865. Arkansas was the 21st state to accept it and the second in the South. That evening, President Lincoln was assassinated and vice president Andrew Johnson succeeded him in office.
The film Lincoln makes it clear that passage of the 13th Amendment was due in part to Arkansas' ratification. Had the defeated states been re-allowed into Congress, ratification would have failed. After Reconstruction, Southern states used legal tricks to deny blacks civil rights. Only in 2018 was a federal anti-lynching law passed.
Arkansas played one more role. In 1871 the United States Supreme Court in Osborn v. Nicholson ruled that a pre-war slave purchase contract was valid and had to be paid even though the slaves were now free. Since the contract was valid at the time, the Constitution was impairing the "obligations of contract."
Murphy's high hopes failed to become a reality. Radical Republicans in Arkansas stood up for black rights, but that group included one who said slaves should be grateful for having been brought over to a free country, and another who celebrated Lincoln's assassin.
As for Murphy's hope for "equality, politically and socially," to this day structural racism is the rule. When charter schools reflect white flight, when mass incarceration is a tool of disfranchisement, when Arkansas Sen. Tom Cotton stands tall and firm defending obvious racism in U.S. courts, and when a white mother directs her daughter never to speak to black girls because "they are not like us," racism shows its enduring power.
However, there is more to the story. For today's conservatives, a proper Supreme Court justice must emulate Clarence Thomas, whom columnist Cal Thomas called "a solid constitutional originalist." Originalists have a history of either minimizing or rejecting the amendments, from the Bill of Rights to number 27. The late Justice Scalia, speaking at Fort Smith, vividly denounced the 17th, because giving the voters the right to choose U.S. senators destroyed state legislatures' control over their ambassadors. So why not overturn the 13th?
Slavery was part of our history almost from the beginning and as such, enslaved persons were property. If one were to move back Justices Scalia, Thomas, et al., before 1860, they would have been slavery's strongest upholders. At present, all the court has been able to do is to say that black rights don't matter.
Abraham Lincoln likened the Declaration of Independence to "an Apple of Gold" while the Constitution was its "Frame of Silver." The frame was tarnished as long as slavery existed, and remains so today when involuntary servitude is used as a weapon of oppression. What about the federal employees being required to work without pay? That this has not been declared unconstitutional shows how tarnished our legal system is.
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Michael B. Dougan is a retired historian whose grandmother at harvest time fed whites and blacks alike at the same table.
Editorial on 01/03/2019