One hundred fifty-six years ago today, following the end of the Civil War, Congress proposed the 13th Amendment to the Constitution, which was ratified by the states on December 5, 1865. Its text is brief and appears quite clear:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Discussions of its meaning are very often characterized as holding that the amendment “abolished” or “prohibited” slavery. “Neither . . . shall exist,” however, is not the equivalent of abolition or even prohibition, which denote an affirmative term of intent or action. A declaration that a particular thing “shall [not] exist” sounds more aspirational, perhaps reflecting the moral substance of the intent of the amendment. The subsequent behavior of states in this regard appears to interpret the non-existence as aspirational.
Although Black Codes (a/k/a Jim Crow) existed prior to the Civil War, the 13th Amendment exacerbated fears deep in the plantation psyche that Blacks would dominate or replace white culture and political supremacy. The declared nonexistence of slavery simply was inadequate to prevent states from enacting laws prohibiting intermarriage, voting, among others, while engaging in enhanced pursuit of criminal legislation that was consistent with the amendment’s exception. The disproportionate effect upon individuals of color has been the subject of decades of documentation.
Replacement fear in current politispheric dialogue has encompassed DACA and conspiracy theories, voiced by Tucker Carlson, that Democrats are manipulating COVID vaccine availability to ensure white folks are at the end of the line. Others have connected dots between the administration’s Mexican border policies with fentanyl importation as part of a Chi-com plot to diminish whites. “Jews will not replace us” is a variant of the psychotic virus.
Civil aspirations are welcome expressions of societal or governance goals but tend to fall short of being achievable objectives and ought not to be seen to substitute for well-defined legal constructions. Women’s suffrage (19th), elimination of poll taxes (24th), and 18-year-old suffrage (26th) amendments demonstrate the efficacy of such clarity.
Had, instead, the 13th Amendment abolished or prohibited slavery and involuntary servitude, such language may have made passage of civil rights and voting laws less contentious in subsequent Congresses and state legislatures. Unambiguous abolition or prohibition may have made critical race theory moot.