The Second Founding: How the Civil War and Reconstruction Remade the Constitution

Abolition unfolded as a gradual process, rather than a singular moment. One of the most important steps in the process was Lincoln’s Emancipation Proclamation in 1863. This declaration marked a pivotal point by targeting slavery’s end as a Union war goal, though it did not immediately free all enslaved people.

Lincoln did not align himself with the abolitionist movement at first. His public position during the election of 1860 was to stop the expansion of slavery, not to immediately end the institution. Even so, the South, fearing the extinction of slavery, saw Lincoln as a threat. To appease the Southern states, Lincoln initially advocated for gradual, compensated emancipation along with creating colonies outside the US for formerly enslaved people, presenting this plan to border states in early 1862. This approach failed to gain traction with the border states and was also unpopular among African Americans, who largely did not want to leave their homeland.

The Emancipation Proclamation marked a significant shift in national policy toward slavery. The proclamation signaled the potential end of slavery, but presidential decrees could be overturned by subsequent administrations. It also did not legally end the institution of slavery, but only freed some formerly enslaved people. Still, this was a drastic change from Lincoln’s original plan. It enacted immediate emancipation without requiring slaveholder consent, removing any need for compensating enslavers or discussing colonization. The proclamation also authorized the recruitment of Black soldiers into the Union forces, significantly contributing to the Union’s military strength and influencing the course of the war.

In 1863, members of Congress began putting forth proposals for a Constitutional amendment. Sumner, a Radical Republican, proposed an amendment inspired by the French Declaration of the Rights of Man and of the Citizen, aiming to ensure equality before the law and explicitly prohibit slavery throughout the US. The final language of the 13th Amendment was inspired by the Northwest Ordinance of 1787, which banned slavery in the territories north of the Ohio River. Republicans had often referenced its slavery prohibition to illustrate the founders’ opposition to slavery, and believed that a document from America’s founders would resonate more with Americans than words from a foreign country. Though most Republicans did not start the war as abolitionists, the party came to embrace the 13th Amendment. They argued that slavery violated not only the rights of the enslaved but also threatened the liberties of white Americans. Ending slavery was seen as essential to preventing the resurgence of sectional conflicts that had plagued the nation since its inception. Historically, the federal government was often viewed as a potential threat to individual liberties, but perceptions shifted during the war. State actions, rather than federal policies, had emerged as the real threats to freedom.

Democrats in Congress opposed the amendment. They used racist rhetoric to try to scare white Americans, suggesting that abolition would be a slippery slope leading to expanded rights for Black people. Some opponents viewed the amendment as unconstitutional despite the Constitution’s provision for amendments, focusing on states’ rights to manage their internal affairs. The incoming Congress had a stronger Republican majority, improving the chances of the amendment’s passage. On January 31, 1865, the House passed the 13th Amendment, with the support of several Congressmen from the border states who recognized the importance of African Americans’ military contributions.

The 13th Amendment needed to be ratified by three-quarters of the states to be integrated into the Constitution. If all of the Northern states ratified the amendment, support from the border states and recently reconquered Southern states would exactly meet the necessary 27 out of 36 approvals. By the time of Lincoln’s assassination in April 1865, 21 states had ratified the amendment. Andrew Johnson, Lincoln’s successor, secured the rest of the votes. However, Johnson’s Reconstruction plan failed to protect the freedoms of formerly enslaved people or involve them in forming new Southern governments. The plan allowed white Southerners to elect conventions and draft new state constitutions, but they were required to abolish slavery in their constitutions. These requirements caused significant controversy, particularly the second section that granted enforcement powers to Congress. White Southerners advocated for state restoration under the pre-war constitutional norms, centering on fears that Congress would gain excessive control over racial issues. Still, the amendment passed.

While the 13th Amendment resolved the issue of slavery, it raised many new questions about the true meaning of freedom in a post-slavery America. There was a consensus among Republicans that the coercive methods of slavery, like physical punishment and control over personal and family life, needed to be replaced with contractual labor relations. The general Republican view was that the amendment’s enforcement clause would authorize Congress to safeguard these newly affirmed rights for formerly enslaved people. The speeches during the amendment debates drew from pre-war antislavery ideals envisioning a nation-state where all citizens, regardless of race, enjoyed equal legal rights.

The 13th Amendment was initially supported by feminist abolitionists who saw it as a step toward broader rights for American women although the amendment itself did not specify gender. Though Black women gained legal freedom, societal norms still placed them in subordinate roles to men. Republicans believed that in freed families, men should lead as heads of households and women should return to their roles in the domestic sphere, roles from which slavery had displaced them.

The amendment did allow for one type of involuntary servitude: enslavement for criminals. This exemption came from the Northwest Ordinance and was used in most anti-slavery documents before the war. Very few people objected to this exemption at first, with the exception of Charles Sumner and a few abolitionist journals. The criminal labor exemption was quickly noted by Southern whites, who enacted Black Codes to restrict the freedoms of African Americans. The Black Codes exposed the risks linked to the 13th Amendment’s prisoner exemption, as instances of convicted Black people being “sold” raised concerns in the North. Abolitionists argued that the amendment did not intend to allow slavery to continue under different guises through judicial actions. It unintentionally created a loophole that allowed for the extensive use of convict labor. Although the laws appeared race-neutral, they disproportionately affected Black individuals.

No African Americans were present in the Congress that passed the 13th Amendment, but Black communities participated in the public debate about what abolition should mean and what society should look like post-slavery. Black conventions across the North and South unanimously called for voting rights as a fundamental aspect of self-governance. These groups commonly referenced the Declaration of Independence, but the 13th Amendment shifted their perspective toward a more favorable view of the Constitution. The amendment demonstrated the Constitution’s flexibility, prompting calls for further revisions. Many believed the 13th Amendment’s second section empowered Congress to ensure all rights of freed individuals, though this provision was unpopular among former Confederate states.

The abolitionist movement was divided on whether the 13th Amendment represented the culmination of their efforts or the start of a new phase. While most Republicans at the time were not ready to support Black suffrage, there was a consensus among them that the 13th Amendment had created a form of national citizenship for Black people. The extent of Congress’s willingness to overhaul the legal system to enforce civil rights remained uncertain, but Democrats and Republicans alike predicted that preventing discrimination would require numerous additional amendments, potentially stripping states of many of their powers.