Title: The Thirteenth Amendment and the North's Overlooked Egalitarian Heritage
Abstract: THE THIRTEENTH AMENDMENT AND THE NORTH'S OVERLOOKED EGALITARIAN HERITAGE* Robert J. Cottrol** It is ironic during this period of celebration of the Constitution that we retain severe, dark and only partially justified misgivings concerning many of the authors of that document. Our misgivings are with respect to race, for we know that the drafters of the original document, however apologetically, how- ever much they resorted to euphamistic language, sanctioned slavery. 1 If that were the sum total of our misgivings in this area that would be understanda- ble, perhaps even valuable as a necessary corrective balance to our national tendency towards over-celebration. But the misgivings go deeper. The belief persists, much recent scholarship to the contrary notwithstanding, that even the Civil War amendments, designed to correct the fundamental flaw in the original Constitution, had limited purposes and nonegalitarian premises that did not completely overturn the fundamental racism found in the original document. 2 This view represents an inaccurate but widespread consensus. It helped inhibit the development of civil rights law for much of this century. In the years after World War II the prevalence of this view cast doubt on the consti- tutional legitimacy of many of the legal triumphs of the civil rights move- ment. 3 Even today this view still enjoys amazing power and ability to distort among other things our debates on constitutional methodology. The belief that such measures as the Supreme Court's decision in Brown v. Board of Edu- cation, 4 or Congress' enactment of the Civil Rights Act of 1964 could only be justified by radical departures from the original purposes of the fourteenth amendment is the focus of most civil rights debate. Such measures have long been a staple in arguments of conservative commentators who have deplored such departures as distortions of the nation's fundamental charter. Ironically, many liberals have also assumed that fidelity to the intentions of the framers of the fourteenth amendment would have essentially precluded many of the judi- * An earlier version of this paper was presented at the seventeenth annual conference of the American Society for Legal History, October 1987. The author would like to express his appreciation to Boston College School of Law for its research grant which in large part made this Article possible. ** A.B., Ph. D., Yale University; J.D., Georgetown University Law Center. Associate Profes- sor, Boston College Law School; Visiting Associate Professor, University Viriginia School of Law. 1. It is significant that the term slave does not appear in the original Constitution. The three sections directly bearing on slavery, the representation and slave importation clauses of Article I and the fugitive slave clause of Article IV both avoid explicit use of the term. See U.S. CONST. art. I §§ 2, 9 and art. IV § 2. 2. That is the view put forward by Raoul Berger, among others. He argues that the key to an understanding of the Fourteenth Amendment is that the North was shot through with Negrophobia. R. BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMEND- MENT 10 (1977). 3. Id. 4. 347 U.S. 483 (1954).
Publication Year: 1989
Publication Date: 1989-01-01
Language: en
Type: article
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