Slavery & the Constitution: the 13th Amendment
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Slavery & the Constitution: the 13th Amendment

October 15, 2019

(Music) Today I want to talk about the 13th Amendment,
slavery and the Constitution before the Civil War. And one of the most interesting
things about the 13th Amendment, which I’m sure we all know has,
says that slavery is now unconstitutional. That was not the original 13th
Amendment. The original 13th Amendment said
something very different. This original 13th Amendment
known as the Corwin Amendment named after it’s floor sponsor
Thomas Corwin from Ohio, was an attempt in 1861 to stop southern
succession. The original 13th Amendment in
fact proposed that no Amendment and no legislation could be
passed regulating slavery in the States in which it existed. So every time you see the 13th
Amendment you should think about the original 13th Amendment. Even though we have the 13th
Amendment, which abolished slavery, another interesting
thing about slavery in the Constitution is that the term
slavery is never mentioned until the 13th Amendment. It’s never mentioned anywhere in
the Constitution so we have to infer from other clauses, the
existence of slavery and it’s protection in the Constitution. The first place that we see it
is in Article 1 Section 2 what we call the Enumeration Clause. We know that our House
membership , membership in the House is determined by
population. The more population you have,
the more representation you have in the House. During the Constitutional
Convention though there was a lot of concern about simply
equating population with representation in the House,
especially because of slavery. Southern states and even
Northern states that had slavery, and by the time of the
convention most states in the North got rid of the
Institution, part of the revolutionary fervor, but in the
South where there was a lot of manumission, slavery started up
again, we had a huge amount of over-representation in a sense
in the South and the Northerners were concerned that the South
would have, would be over-represented in the House. The compromise that they
developed as we all know is called the three-fifths
compromise and that is simply that every, every slave in the
South would count as three-fifths of a person for the
purpose of determining representation in the House. Again the word slavery is not
mentioned but there’s no question that the three-fifths
clause was designed to apply to slaves. And the there’s the slave trade
which is mentioned in two parts of the Constitution. In our lecture on the Amendment
process I said the only, there were two Amendments that could
never be passed, two unconstitutional Amendments. One would have been to decrease
equal representation in the Senate for states, the other one
had to do with slavery and that was that no Amendment could be
passed before 1808 abolishing the slave trade. That is also prohibited,
Congress was also prohibited from making any legislation that
would prohibit or hinder the slave trade until 1808. So there’s two more places in
the Constitution that deal with slavery without mentioning the
word slavery at all. And finally, and the most
controversial one in terms of real on the ground politics that
played out before the Civil War, is what we refer to as the
fugitive slave clause in Article 4 and that prohibited states
from refusing to serve up or return to other states fugitives
from law and a slave by definition would be a fugitive
from the law if he or she escaped the Plantation and
headed to a free state. Article 4 required Governors of
states to return to the state in which they absconded, fugitives,
most particularly, slaves. And I want to talk a little bit
about that fugitive slave clause. The fugitive slave clause again
requires that any state Governor that finds in its’ territory
someone who’s a fugitive from justice, return them to the
state in which they absconded, really motivated a lot of
politics, a lot of political development in the Antebellum
period of the United States. Many of what we call the great
compromises in American politics before the Civil War were great
compromises because they really did prevent the Civil War from
happening much earlier in American political development. And in the great compromises in
the first half of the 19th century in the United States
there was always some kind of language about this article, the
fugitive slave clause. Again, not mentioning slaves in
this clause, but every body knew exactly what it was about. For example, Northern states
routinely ignored this clause, routinely ignored it. A slave would abscond from the
Plantation in Georgia, find his or her way to the North, say a
state like Wisconsin, which had a huge anti-slavery component
present it that state and they would hide them. Fugitive slave catchers, these
were people who made their business hunting men and women
and children who snuck off the Plantation in the South, would
come into these Northern free states and they were privateers,
they were private people and kidnap in a sense families or
the individuals who absconded. This angered Northern states
tremendously. Many of them passed
anti-kidnapping laws to try to prevent this but the South
because of its’ over-representation in the House
because of the three-fifths clause and because of that the
over-representation in the Electoral College was able to
pass Federal legislation that few times the early 19th century
sought to (Inaudible) and make stronger the fugitive slave
clause of Article 4. In fact, we have to understand
the fugitive slave clause requires Governors. It requires the states
themselves to return fugitive slaves. Well what happens when they
don’t, the South said. Look at what’s happening in
Wisconsin and Pennsylvania, Massachusetts; these states are
refusing to give us our property back, our slaves back. Well, after 1850 Congress
allowed and provided for Federal Marshalls to aid in the recovery
of fugitive slaves. Federal Marshalls aid in the
enforcement of Article 4 and in many ways this led to the
beginning of the Civil War. This really engrained into
Northern minds, how much power the South had in the National
government because of the enumeration clause. Again, that would magnify
Southern power in the House, it also magnified Southern power in
the Electoral College. We have to understand that but
for two individuals before 1860, the South, every President was
from the South, it’s because of this over-representation that we
got Southern Presidents and therefore Presidents who would
sign into law legislation from a Southern dominated Congress that
sought to(Inaudible) and enforce the fugitive slave clause in
particular. And leading up to the war there
were many, many court cases involved, involving Federal
Marshalls who were arrested by state governments for kidnapping
fugitive slaves that were in their state territories. And in an interesting kind of
about face, we had Northern states in the late 1850’s
espousing the doctrine of states rights which just a few years
later would be espoused by the South because of succession. And you can understand why
Northern states would be talking about states rights as opposed
to national rights because the national government was
dominated by Southern slave interests because of this
over-representation. So while slavery is not
mentioned in the Constitution until our second 13th Amendment,
it’s certainly present there and it certainly spurred American
political develop[ment in the 19th century in ways that still
reverberate into today. Thank you. (Applause) (Music) Freedom 101
is made possible by generous support from Woody Young and the
University of Oklahoma Alumni Association Freedom 101 is a
program of the Institute for the American Constitutional Heritage
at the University of Oklahoma. For more videos and podcasts
visit (Music)

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