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Emancipation unfinished

We are still grappling with the problem of defining the freedom guaranteed by the 13th Amendment, and deciding how the rights of the descendants of American slaves should be secured.

Most Americans identify Abraham Lincoln's Emancipation Proclamation, issued on Jan. 1, 1863, as marking the end of American slavery. In fact, abolition throughout the nation did not come until December 1865, 150 years ago this month, with the ratification of the 13th Amendment to the Constitution.

The proclamation was certainly the turning point of the Civil War. But Lincoln did not free the fourmillion slaves with a stroke of his pen. The proclamation had no bearing on the four border slave states that remained in the Union and exempted certain areas of the Confederacy that had fallen under Union military control. All told, perhaps 800,000 slaves were not covered. Moreover, the proclamation emancipated people; it did not eradicate the state laws that established and protected slavery.

A recent movie leaves one with the impression that Lincoln originated the idea for the 13th Amendment and was single-handedly responsible for its passage through Congress. This is a giant oversimplification.

Lincoln long believed that the best route to emancipation was not the cumbersome amendment process but rather actions by the individual states abolishing slavery. It was the abolitionist movement that in 1863 launched a campaign for an amendment abolishing slavery.

Lincoln did not embrace the idea until May 1864, when a convention of Radical Republicans nominated John C. Frémont for president, a threat to his own reelection. Their platform called for an amendment abolishing slavery. In response, Lincoln endorsed the amendment, and the Republican National Convention followed suit. The Senate had approved the amendment in April 1864, but in June, in the House, it fell 13 votes short of the necessary two-thirds majority.

In the aftermath of his reelection that November, Lincoln threw his support to the successful effort to get the House to change its mind, intervening more directly in the legislative process than at any other point in his presidency. After House passage, the amendment was sent to the states for ratification. When Lincoln died, 21 of the required 27 states had ratified the amendment. Ironically, it was his deeply racist successor, Andrew Johnson, who secured final approval.

In the spring of 1865, Johnson announced a plan of Reconstruction that offered no federal protection for the former slaves' newly won freedom. But it did require new Southern governments to ratify the amendment. Several proved reluctant; Mississippi's legislature did not get around to ratification until 1995. Nonetheless, by December 1865 the amendment became part of the Constitution.

"The one question of the age is settled," declared U.S. Rep. Cornelius Cole of California. But the 13th Amendment raised a host of new issues. What, exactly, was being abolished? Property in man? The racial inequality inseparable from slavery? The structure of political power based on slavery? What did it mean to be a free person in post-Civil War America?

Unlike the subsequent 14th Amendment, which prohibits the states from abridging citizens' rights, the 13th has no "state action" clause. No individual, no business, no church, no one in the United States could henceforth own a slave or, Republicans insisted, prevent blacks from enjoying the basic entitlements of freedom. "A new nation" had emerged from the war, declared one congressman, in which "liberty, equality before the law is to be the great cornerstone."

Congress soon enacted, over Johnson's veto, the Civil Rights Act of 1866, the first attempt to delineate in legal terms the definition of the freedom guaranteed by the amendment. It declared all persons born in the United States (except Indians) national citizens and spelled out basic economic and legal rights they were to enjoy equally, without regard to race.

The 13th Amendment and Civil Rights Act, of course, were not a final solution to the problem of freedom. They were resting places in a dynamic process that continued for years and gave birth to the 14th and 15th Amendments, further civil rights legislation, and an unprecedented experiment in the South in interracial democracy.

But Reconstruction was soon abandoned and the 13th Amendment fell into disuse. This enabled the Supreme Court to make a shibboleth of the state action requirement. In 1883, the court overturned the Civil Rights Act of 1875 because its prohibition of racial discrimination by transportation companies and by many businesses barred actions by corporations and individuals, not the states.

In a powerful dissent, Justice John Marshall Harlan insisted that the 13th Amendment "did something more than to prohibit slavery as an institution. … It established and decreed universal civil freedom in the United States." Thus, he continued, it empowered Congress to act not simply against legislation establishing slavery but against all actions "inconsistent with the fundamental rights of American citizenship." Unfortunately, the 1883 decision has never been overturned; it remains a significant part of our civil rights jurisprudence.

In many ways, as our daily newspapers reveal, we as a society are still grappling with the problem of defining the freedom guaranteed by the 13th Amendment, and deciding how the rights of the descendants of American slaves should be secured.

Eric Foner is DeWitt Clinton professor of history at Columbia University and the author of many books, most recently "Gateway to Freedom: The Hidden History of the Underground Railroad" (W.W. Norton & Co.). He will discuss the 13th Amendment and Reconstruction at 6:30 p.m. Wednesday at the National Constitution Center. To register, visit or call 215-409-6767.