Did the Slaves Author the Thirteenth Amendment? An Essay in Redemptive History

Yale Journal of Law & the Humanities Volume 5 Issue 2 Yale Journal of Law & the Humanities Article 8 January 1993 Did the Slaves Author the Thirteenth Amendment? An Essay in Redemptive History Guyora Binder Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Guyora Binder, Did the Slaves Author the Thirteenth Amendment? An Essay in Redemptive History, 5 Yale J.L. & Human. (1993). Available at: https://digitalcommons.law.yale.edu/yjlh/vol5/iss2/8 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Binder: Did the Slaves Author the Thirteenth Amendment? Essays Did the Slaves Author the Thirteenth Amendment? An Essay in Redemptive History Guyora Binder* If we shall suppose that American slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through its appointed time, he now wills to remove, and that he gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to him? Fondly do we hope-fervently do we pray-that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be * This essay benefitted from comments by participants at the Yale Legal Theory Workshop, the Columbia Race and the Law Workshop, the U.C.L.A. Law Faculty Workshop, and the Stanford Law Faculty Workshop. Particular thanks are owed workshop participants Akhil Amar, Ian Ayres, Barbara Babcock, Jonathan Bush, David Brion Davis, Eric Foner, Willie Forbath, Barbara Fried, Tom Grey, Kendall Thomas, Robert Weisberg, and Lucie White. I am also indebted to Robert Gordon for conveying the comments of students in his "Uses of History" course at Yale, and to George Kannar, Bill Miller, and Robert Post for their comments. Published by Yale Law School Legal Scholarship Repository, 1993 1 Yale Journal of Law & the Humanities, Vol. 5, Iss. 2 [1993], Art. 8 Yale Journal of Law & the Humanities [Vol. 5: 471 paid by another drawn with the sword, as was said three thousand years ago, so still it must be said the judgments of the Lord, are true and righteous altogether. Abraham Lincoln1 Lincoln got the praise for freeing us, but did he do it? He give us freedom without giving us any chance to live to ourselves, and we still had to depend on the Southern white man for work, food, and clothing, and he held us, through our necessity and want, in a state of servitude but little better than slavery. Thomas Hall' I. THE PROBLEM: WHO AUTHORED THE THIRTEENTH AMENDMENT? No mere appendix to the Constitution, the Thirteenth Amendment reframed the nation.3 But if the nation emerged from its crucible founded anew, who were its new founders? I will argue that it makes a moral difference to whom we credit our "new birth of freedom ' 4 and that credit is due the slaves. Recognizing the slaves as framers might change the implications we find in the Thirteenth Amendment, making it a more potent weapon in the arsenal of civil rights advocates. But my present purpose is neither to explicate the values of the slaves, nor to apply those values to Thirteenth Amendment issues, nor to calculate the benefits to anyone of so applying them.5 The instrumental value to us of any interpretation of the Thirteenth Amendment depends on the prior question of how we define ourselves and our interests. My present argument goes to this prior question by urging contemporary Americans to define themselves as political descendants of the slaves. As popular memory6 has it, Northern whites gave-and Southern blacks received-freedom. Treating the Reconstruction Congressmen as 1. ABRAHAM LINCOLN, Second Inaugural Address, March 4, 1865, in SPEECHES AND WRITINGS 1859-1865, at 686-87 (1989). 2. Thomas Hall, Federal Writers' Project Interview, in BEFORE FREEDOM: 48 ORAL HISTORIES OF NORTH AND SOUTH CAROLINA SLAVES 44 (Belinda Hurmence ed., 1990). 3. 4. See infra text accompanying note 64. ABRAHAM LINCOLN, Gettysburg Address, in SPEECHES AND WRITINGS 1859-1865, supra note 1, at 536; GARY WILLS, LINCOLN AT GETTYSBURG: THE WORDS THAT REMADE AMERICA (1992). 5. For efforts to explicate the meaning of "freedom" to the slaves, making extensive use of slave narratives, letters, interviews, and spirituals, see Guyora Binder, Mastery, Slavery and Emancipation, 10 CARDOZO L. REV. 1435 (1989); Guyora Binder, On Hegel, On Slavery, But Not On My Head, 11 CARDOZO L. REV. 563 (1990); Guyora Binder, Negating Slavery (1992) (unpublished manuscript, on file with the author). 6. There is an extensive literature on popular historical memory. See, e.g., MAURICE THE COLLECTIVE MEMORY (1980); BERNARD LEWIS, HISTORY: REMEMBERED, RECOVERED, INVENTED (1975); Barry Schwartz, The Social Context of Commemoration: A Study in Collective Memory, 61 SOCIAL FORCES 374 (1982); DAVID LOWENTHAL, THE PAST IS A FOREIGN COUNTRY (1985); PAUL CONNERTON, How SOCIETIES REMEMBER (1989); MICHAEL HALBWACHS, https://digitalcommons.law.yale.edu/yjlh/vol5/iss2/8 2 Binder: Did the Slaves Author the Thirteenth Amendment? 1993] Binder 473 founders, constitutional interpreters wonder whether they were more motivated by the "Negrophobia" of their constituents or "by abolitionist ideology,", 7 or by the desire to leave abolition's "future effect.. . to future determination."' All three of these accounts recognize only Northern whites as members of the constituent power whose will was reflected in the new constitution. In a kind of gift-exchange, Northern whites receive status as constitutional authors in return for the freedom they supposedly conferred on Southern blacks. Yet if black freedom is thus conditioned on recognizing white authority to define that freedom, the gift-exchange is a swindle. As Thomas Hall complained, whites won "praise" for conferring freedom, even as they perpetuated "a state of servitude but little better than slavery," slavery under another name. Along with interpretive authority, then, comes the power to recover the gift and retain moral credit for giving. How much is such moral credit worth? According to Lincoln, the man who received most of the credit for emancipation, its worth could be measured in mountains and oceans. Slavery had left all whites liable for a mountain of debt "piled by the bond-man's two hundred and fifty years of unrequited toil," and, "drawn with the lash," an ocean of debt redder than any ink. For the nation concei (...truncated)