New Lincoln volume offers backstory on 13th Amendment

December will mark the 150th anniversary of the ratification of the 13th Amendment, which forever ended slavery in the United States. In honor of this momentous "new birth of freedom," Boston attorney and legal historian Christian G. Samito has penned "Lincoln and the Thirteenth Amendment." Samito's scholarly but accessible volume explores the personal and political forces that led President Abraham Lincoln ultimately to embrace the proposed 13th Amendment and work to ensure its adoption by Congress and ratification by the states. Like other Lincoln scholars, Samito focuses on Lincoln's evolution during the antebellum and war years. Lincoln was elected president in 1860 as a "free soiler" who opposed the expansion of slavery into new territories and the admission of new slave states into the Union. He pledged not to interfere with slavery in those states where it existed. But by the time he ran for reelection in 1864, Lincoln supported the 13th Amendment, regarding it as a "King's cure" for the evil of slavery. Samito's new contribution to this oft-told story is his focus on Lincoln's view of the Constitution. Samito argues that, for most of his life, Lincoln viewed the Constitution as a static document that should not be amended. It was only during the last year of war - and the last of his life - that, according to Samito, Lincoln changed his mind and supported using the amendment procedures provided for in Article V. Samito observes that after the first 10 amendments were adopted, the Constitution had only twice been amended in the years before the Civil War. Moreover, the early amendments (1795 and 1804) were both widely supported and intended to correct structural deficiencies in the original document. The author emphasizes that Lincoln had long believed that the Constitution was unalterable and that his position was consistent with the prevailing philosophy. He argues that Lincoln's philosophical resistance to the idea that the Constitution could be amended was a key factor that needed to be overcome before he could urge adoption of the 13th Amendment. The correctness of Samito's view may never be fully known. He makes a persuasive argument based on Lincoln's public statements. But as Samito also stresses, Lincoln was a consummate lawyer and political strategist. His success and greatness stem in significant part from his ability both to follow and form public opinion - and to do so with subtle finesse. It could be that, until 1863 to 1864, Lincoln did not publicly wish to explore the weaknesses in his argument that the Constitution was a fixed and static document, as that position buttressed his moderate views about slavery. So long as Lincoln publicly claimed that the federal government was powerless to abolish slavery in the states where it existed, he had a constitutional argument to shore up his resistance to the demands of the radical abolitionists. Lincoln's free soil credentials were critical to his retaining the loyalty of moderate Republicans, Unionists and the critically important border states. But when changing circumstances during the war convinced Lincoln that slavery must be forever abolished, he agreed that Article V provided a roadmap and applied his political clout to obtaining passage of the 13th Amendment. Samito carefully traces Lincoln's evolution on the slavery question during the first several years of the war. He reviews Lincoln's commitment to ending slavery only in the territories and his reaction to the Supreme Court's 1857 Dred Scott opinion. When that decision concluded that Congress lacked authority to prohibit slavery in territories acquired after enactment of the Constitution, Lincoln argued that the opinion was erroneous and did not create "settled doctrine." Lincoln did not raise the possibility of amending the Constitution to undo Dred Scott. Samito notes that even if an amendment had a chance of adoption and ratification (and it did not), Lincoln would not have wanted to open the door to a discussion of a constitutional amendment. He and the nation were not yet ready. Lincoln took his most famous step toward abolition on Jan. 1, 1863, when he issued the Emancipation Proclamation in his capacity as "Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion." The Emancipation Proclamation freed slaves within areas under rebellion in order to deprive the Confederacy of its labor, and offered additional manpower to the Union Army by providing that the formerly enslaved could join it. The Emancipation Proclamation left slavery intact in the border states and areas of the Confederacy then under Union control. Samito lucidly describes the significance of Lincoln's issuing the Emancipation Proclamation as a war measure. Doing so grounded Lincoln's action on "solid constitutional bedrock." Samito explains that choosing to issue an executive order indicated Lincoln's desire to work within the unamended Constitution. But Lincoln's act nonetheless opened the door to the 13th Amendment by broadly projecting federal power into a subject matter formerly left to the states' control. The movement for the 13th Amendment began in earnest in late 1863 when radical Republicans in the House and Senate, empowered by the Emancipation Proclamation and the shifting tide of the war, introduced versions of an amendment that would forever abolish slavery. Lincoln, however, continued to advocate emancipation through state constitutions, an approach that Samito claims was consistent with his belief that the Constitution should not be changed. This approach was also, as Samito notes, helpful in setting the climate for the 13th Amendment and ensuring that, if adopted by two-thirds of the House and Senate, ratification by three-fourths of the states would follow. By the time the Republican Party platform of 1864 explicitly called for a constitutional amendment to end slavery, Lincoln was publicly on board. He even claimed that it was his idea to include support for the 13th Amendment in the platform. According to Samito, Lincoln now found amending the Constitution palatable as it would, for example, "help to preserve federalism by precluding more radical proposals" that might have, for example, claimed that seceded states had only the legal status of territories. After winning reelection, Lincoln turned his political clout and skills to obtaining passage of the 13th Amendment in the House of Representatives. (The Senate had previously adopted the amendment by the requisite two-thirds vote.) Samito carefully describes the political battle waged by Lincoln, his aides and his congressional allies to obtain House approval of the amendment, which came on Jan. 31, 1865. Samito, who tells the reader that he made an explicit choice not to reference the movie "Lincoln," persuasively demonstrates that "[a]llegations that Lincoln involved himself directly in inappropriate measures collapse under close scrutiny" and that Lincoln relied almost exclusively on "moral and political suasion." The story of Lincoln's hard work takes on a special poignancy as we know that Lincoln would be assassinated only a few months later. In the final section of the book, Samito investigates the role of the 13th Amendment in reshaping the landscape of constitutional law. Here, Samito goes beyond the obvious end of slavery to consider that this amendment, for the first time, granted the federal government authority to use positive law to protect freedom. The oft-overlooked Section 2 provides that "Congress shall have the power to enforce this article by appropriate legislation." Congress in 1866 passed a civil rights act that recognized this greater role for the federal government in defining and protecting citizenship, thereby laying the foundation for the 14th and 15th amendments. Those amendments are, of course, the subject of extensive and active litigation today. Samito's careful attention to the 13th Amendment is a fitting celebration of the first in the great trilogy of constitutional amendments that have and continue to redefine the nature of our democracy. ----- Attorney Barbara F. Berenson is the author of "Boston and the Civil War: Hub of the Second Revolution and Walking Tours of Civil War Boston." Her next book will explore the woman suffrage movement in Massachusetts. Published: Mon, Oct 19, 2015