December 18, 2012
On December 18, 1865, the Secretary of State proclaimed that the 13th Amendment was ratified by twenty-seven of the thirty-six states. See the Historical and Statutory Notes at U.S.C.A. Const. Amend. XIII.
In November, Walt Disney released the biopic “Lincoln.” With venerated actor Daniel Day-Lewis playing the role of Abraham Lincoln, the movie focuses on the final months of the 16th President’s life. As one with a sense of history might recall, these were extremely tumultuous times for the United States of America. Still enduring the brutality of civil war, Lincoln made a decision that would forever change our country and its citizenry: He mustered up every ounce of strength, will, and political savvy he could in order to pass the 13th amendment, abolishing slavery prior to ending the war.
After issuing the Emancipation Proclamation and declaring in the Gettysburg Address, “Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal,” Lincoln endeavored to cure the nation of the immoral affliction represented by slavery. Since the Senate passed the amendment in April 1864, he took his fight to the House of Representatives in our nation’s capital.
Because the Emancipation Proclamation was widely viewed as merely a military exigent, passing the 13th Amendment in both congressional chambers was pivotal. After substantial cajoling, pressuring and dealing, Lincoln gained a sufficient number of votes in the House to pass the amendment in January 1865. Unfortunately, he did not live to see it ratified.
It is said that morality cannot be legislated. Abraham Lincoln turned that idea on its head. Through his efforts the moral conscience of the United States was recognized, preserved and established as an example that other nations can only hope to follow. As Lincoln so eloquently proclaimed:
“Our defense is in the preservation of the spirit which prizes liberty as a heritage of all men, in all lands, everywhere. Destroy this spirit and you have planted the seeds of despotism around your own doors.”
Text of the Emancipation Proclamation found on Westlaw in a Loyola University Law Review article: 23 Loy. U. Chi. L.J. 631.
Text of the Gettysburg Address is also found in a law review article here: 67 N.Y.U. L. Rev. 961, footnote 21.
DOMA and Morality
The issue of whether a body might properly legislate morality has most recently been a subject of the debate surrounding the Defense of Marriage Act (DOMA). See especially the discussion at Massachusetts v. U.S. Dept. of Health & Human Services, 682 F.3d 1 (1st Cir. 2012)
For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis.Massachusetts v. U.S. Dept. of Health & Human Services, 682 F.3d 1, 15 (1st Cir. 2012)
And, try this search in the Blogs on Demand database:
congress legislat! /s moral morality
For more on the argument that ratification of the 13th amendment was based on moral considerations, see Alexander Tsesis, Furthering American Freedom: Civil Rights and the Thirteenth Amendment, 45 B.C. L. Rev. 307, 370 (2004).
For additional materials on this issue, try the following searches on WestlawNext:
“civil rights” /200 “13th amendment” /s enforc! /s congress!
Content: U.S. Supreme Court Cases
Jurisdiction: U.S. Supreme Court
ti(enforc! /s congress! /s “13th amendment”)
Content: Secondary Sources
Jurisdiction: All State & Federal