Lincoln and the Ugly Origins of the 13th Amendment

It’s the most shocking scene in Spielberg’s Lincoln. After a dramatic climax in the House chamber, Thaddeus Stevens returns to his home, bearing the official copy of the 13^th Amendment. Stevens eventually makes it to bed, with his mulatto housekeeper, friend, and romantic partner, Lydia Smith. And here’s where it gets shocking: In their shared bed, Stevens gives Smith the text of the amendment, and Smith reads it. Aloud. For Stevens and for us, the audience.

Why is this shocking? I want to suggest that the condition of possibility for the dramatics of the narrative to be dramatic, the condition of possibility for the story to lovingly depict the parliamentary machinations required to emancipate slaves, is that this amendment, its very text, not be read. The amendment cannot be read if we are to affectively invest in the story, if we are to read this as a story of the generalization of juridical freedom. And that’s because, well, if you were to rip the amendment out of context, if you were to read or hear the text from the very beginning of the play, you might become confused, you might decide that the juice wasn’t worth the squeeze, you might think, “Wait, I thought we were trying to abolish slavery, not provide positive constitutional mechanisms for establishing it.” So, let’s read it:

“Section 1. 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.

Section 2. Congress shall have power to enforce this article by appropriate legislation.”

“…except as a punishment for crime whereof the party shall have been duly convicted.” Let’s leave this clause hanging, and think about the varied ways in which Lincoln has been criticized from the left. (I want to note, at the outset, that I’m in full sympathy with these critiques.) Kate Masur has critiqued this scene for staging in micro the film’s general assumption that freedom was a gift handed over to passive blacks by do-gooder whites; Steven literally hands freedom to Stevens. Masur directs our attention to the public and activist lives of the black characters whom Lincoln treats as bit players (Keckley, Smith) in order to recover black agency in the work of antislavery. Others have extended and intensified Masur’s critique, with Aaron Bady in particular showing how the film’s investment in not foregrounding black emancipationist agency derives from its “realist” optimism in liberal reformism. Bady directs us toward more radical interpretations of the 13^th Amendment and Reconstruction—Du Bois and Foner, mostly. Foner himself makes the point that slavery was already dying if not dead; the 13^th Amendment is a juridical-textual inscription of an accomplished social movement, the Du Boisian “general strike” of slaves fleeing toward Union lines. All of these critiques want to locate the social and political origins in the amendment in black (and feminist) social movements, and surely they’re correct: emancipation became a juridical necessity as a consequence of such movements. But if the impulse to generalized emancipation derived from black self-activity, where might we locate the origins of the emancipatory text itself? And why—given that the text actually enables positive legal arguments for slavery—do we think of this amendment as actually emancipatory? Between on-the-ground emancipatory self-activity and its legal inscription, something got in the way, some kind of legal reasoning that translated an absolute refusal of servitude into a conditional refusal: “…except as a punishment for crime whereof the party shall have been duly convicted.” Where did this legal reasoning originate?

We need to keep in mind that positive-legal authorizations of slavery from the federal legislature were rather scant. Federal statute laws that took “slave” as a juridical category typically operated according to a principle of comity: If the legal regime of x state treated a black person as property, the legal apparatus of y state would need to so treat that property in the event of, say, the capture of a fugitive. Massachusetts would have to respect Carolinian law. That’s not the same thing as the production of a positive federal law authorizing slavery—it rather places the burden of legitimation on a given state. Broadly speaking, federal law treated slavery in a de facto fashion; its juridical positivity was a state-based affair. And thus the strangeness of the 13^th Amendment: in consolidating a national legal regime, it actually produces a positive legal rule for enslavement: “…except as a punishment for crime whereof the party shall have been duly convicted.”

Why this clause? Where did it come from? As it appears in the film, particularly at the moment of its reading, the amendment is a highly localized, domestic affair. In Smith’s mouth, the amendment does double work: it functions simultaneously as public/legal and private/intimate speech, even as the physical circulation of the document articulates the congressional chamber with the congressman’s bedchamber. And, indeed, it’s only within this domestic context that the text is legible as an antislavery instrument—we need to know that the do-gooders in the film will not use this amendment as a legal argument for enslaving blacks. We need to know, through constant assertions, that this is an instrument of freedom—as, indeed, it was. But what if we pry this amendment from its domestic moorings, if we set it adrift in a field of international legal reasoning?

We would actually see that the legal instrument of the 13^th Amendment, the Amendment of Emancipation, draws upon the legal reasoning of slavery. Writ positively, the amendment might read: “Slavery shall exist only on condition that the party shall have been duly convicted of a crime.” But that is precisely the mode of legal argumentation used to justify slavery and, moreover, the slave trade. Enslaved Africans were already convicted, as a proslavery jurisprudence had it. This conviction might have been theological and racial in origin—the curse of Ham. But there were non-theological legal arguments made as well. Slavery, apologists argued, was a recognized feature of African legal regimes. Persons could be enslaved under African commercial law (debt law, for instance), under African criminal law (as a punishment), or under African jus gentium (as a mode of humanely dealing with prisoners of war). Curiously, these apologists—elsewhere and always ready to cast Africans as decultured, uncivilized, as lacking anything like a state—understood Atlantic slavery as the effect of a kind of comity, of Atlantic legal regimes accepting juridical distinctions made in Africa by Africans. (These arguments, of course, tended to break down once the inheritability of the status of slave required defending.) I’m suggesting, though, that the amendment itself draws upon a mode of international legal reasoning that was always functional for the maintenance of slavery.

So, one effect of the Amendment’s passage was, strangely, to deactivate a mode of legal reasoning that ascribed legal reasoning to African polities—that saw Africans, and not just those in Sierra Leone or Liberia, as inhabiting thick legal regimes that operated at multiple scales. Another effect is that, well, the Amendment only makes sense as an instrument of freedom provided that it is insistently embedded within a nation-centered mode of legal reasoning and legal practice. And, indeed, the film works to insistently elide any mention of the world beyond, which is nonsense. As a point of fact, emancipation in the U.S. was thought about in expansive, transnational terms. Latecomers to emancipation, U.S. politicians, administrators, and the general public had at their disposal a whole repertoire of examples of programs for the abolition of slavery—Haiti in the revolutionary era, the British West Indies in 1834/8, the French Antilles in 1848, and much of postimperial Spanish America through the early to mid nineteenth century. We know that these examples did a great deal of work for both pro- and anti-slavery thinkers. We know that public chaps in the U.S. borrowed freely from the legal, administrative, and economic discursive resources of the British, in particular. We know that a whole series of practical, on-the-ground exchanges between do-gooders and freedpeople in the West Indies and their counterparts in the U.S. lent a concreteness to the abstract comparisons that circulated through Northern and Southern print worlds.

But we also know, I think why these transnational and international exchanges need to be ignored. On one hand, Lincoln can’t really appear too unique when you realize that lots of places had already outlawed slavery. On the other hand, we can’t look too deeply into the ugly origins of the 13^th Amendment’s mode of legal reasoning. It would be disconcerting, after all, for good pious citizens to realize that something like the 13^th Amendment could have been written and read on the shores of Africa by a slave-trader who, upon concluding negotiations with a local ruler, prepared to load his cargo of criminals aboard his slave ship.  

Electoral Maps, Antebellum Maps: Or, How Liberal Self-Satisfaction Dissolves History into a Racist Mess

You’ve probably seen this image. Juxtaposing “Free States and Slave States, before the Civil War” alongside a red/blue breakdown of voting in the 2012 election, the image asserts a kind of continuity—if not a direct causality—between contemporary geographies of party affiliation and antebellum geographies of slavery. You might have smirked. You might have found it revealing. Maybe—as it did me—the image left you with an uneasy feeling, the felt beginnings of a refusal of the claim that the image would like to make.

A full disclaimer: I’m an anarcho-Marxist; I don’t vote; I’m not invested in blue-state- versus-red-state nonsense; my political position does not register on this map. I do, however, study nineteenth-century cultures of slavery and freedom in the Americas. I write about the strange cartographies generated by ordinary black subjects who sought to live free lives—however they defined that freedom—in a hemisphere structured to deny them personal and collective autonomy. I find myself responding to this image not just as a scholar, but as someone with some kind of a felt relationship to the stories I read and recover, someone constantly awed by the resilience and creativity of these people, someone who thinks there’s a future to-come for these myriad freedoms that survive, obscured and only partially legible to us today, in the archive.

This image pulverizes history, transforming histories of slavery into the stuff of cheap political potshots. It shouldn’t need saying, but alas: Voting for Mitt Romney is NOT akin to maintaining juridical support for slavery—an analogy or commensurability that the synchronic axis of the image suggests. This mobilization of an affectively saturated history is repulsive not only for its cheapening of the deep violence of slavery, but also for the way in which it dissolves the instabilities of historical time into a simple one-two diachrony. If we actually look into these instabilities—that is, if we fucking take the politics of slavery seriously—these maps, and the historical narrative that their juxtaposition implies, comes apart.

This image attempts to draw on a historical juridical distinction between slave and free state in order to offer a snarky commentary on the contemporary distinction between red and blue state. This distinction no doubt flatters liberals, ever on the side of progress. But what if we chose another cartographic heuristic? What if we compared the electoral breakdown of 2012 with a map colored according to polities wherein free blacks could vote in the antebellum U.S.? Antebellum “blue states” would shrink to a handful. What if we compared the electoral breakdown of 2012 with a map colored according to polities wherein African Americans faced some form of legal disability? And what if we compared the electoral breakdown of 2012 with a map colored according to, not slave states, but states wherein blacks were enslaveable—that is, states wherein New World blacks, provided a however tenuous legal title could be shown, were susceptible to being seized and carried to a slave state? The map would bleed a bright red, the whole of it.

In 1850, there were no “free states” in the U.S., if by “free” we mean a state wherein an ordinary black subject could live free from the threat of unfreedom, from civil and legal disability. And more: this realm of unfreedom, even when dragging as freedom, was only expanding in the nineteenth century. Indeed, our good liberal mapmaker’s decision to show us a map from a decade or so prior to the outbreak of the Civil War allows him or her to get around the disconcerting fact that the map of the United States would have had far fewer states only a handful of years prior to 1850. (It's unclear to me why the map is dated to 1846.) The map thus elides histories of imperial expansion—into Indian territory, into Mexico, and earlier into Florida and into the Louisiana territory—and thus elides “blue state” connivance in the extension and maintenance of slavery, the North’s compromises and its cowardice. It elides how our proto-Obama-voting “blue states” actively profited from slavery both within the U.S. and throughout the hemisphere, by financing plantations and engaging in the (illegal) slave trade. It ignores how the dynamics of capitalist accumulation—which, in the nineteenth century, ALWAYS implied some form of bonded labor, some form of slavery—cut across sectional lines.  

This image posits that the juridical distinction between slave and free is isomorphic with today’s cartographies of parliamentary politics; it implies that today’s Northern liberals have inherited, and protect, the precious freedom(s) denied to so many in the antebellum world. It implies that the rupture of the Civil War was not much of a rupture—continuity is the name of the game here. It thus elides the discontinuous rupture of black political subjectivity: the image would have us believe that today’s political cartography retains the form adjudicated 162 years ago by the desires and compromises of (mostly) white men, all of whom in some fashion profited from the political and juridical de-subjectification of blacks throughout the Americas.

Perhaps most insidiously, by posing electoral politics as the inheritor of antebellum politics of freedom and slavery, this map implies that the political unconscious of freedom and antislavery was always already preformed by the parliamentary cartography of the nation-state.  In other words, the image not only disavows imperial histories of expansion, the ways in which the U.S. electoral map was always on the move; it also elides alternative cartographies and trajectories of freedom, however fragile and ephemeral, established by blacks who recognized the difficulties of achieving autonomy in any state, North or South. The nation comes to appear as the natural container of relations of freedom and servitude, of progress and regress. The image doesn’t care about the alternative modalities of being-free that were sought outside of the institutional parameters and geographic boundaries of the parliamentary state; it doesn’t care about modalities of human freedom that cannot be contained or enumerated by ballots. It simply doesn’t matter to this image that blacks in those anachronistically blue states formed political subjectivities around August First or celebrations of the Haitian Revolution, not some act on a Tuesday in November most couldn’t participate in, anyhow.

The radical promise of antislavery—substantive antislavery, the material practices of freedom undertaken by New World blacks—has as little in common with the reduced notions of formal freedom available in the antebellum North as it does with the reduced notion of political freedom enshrined in parliamentary politics. Celebrating liberalism’s present, lambasting remnants of the South’s (but only the South's?) past, this racist image transforms the awesome, terrible, unfinished history of freedom into a persistent structure—one assembled by white men, for white men. But this is what the image, fixated on juridical and electoral geographies, cannot reveal. Even as it tries mobilizing the affectivity of the term, the discontinuous, unemplottable subjectivity of freedom remains elsewhere.