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.