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February 10, 2004

That Controversial 13th Amendment

In what is becoming a regular feature of his blog, Andrew Sullivan again reminds everyone of just how bad an idea the Federal Marriage Amendment supposedly is. This time, he crows the results of a poll of midwestern voters showing a plurality against the amendment, and then asks rhetorically: "Has any amendment ever passed without even a narrow majority in its favor?"

I would answer yes: That "divisive" and "controversial" 13th Amendment outlawing slavery. While there was no reliable gauge of public opinion in 1865, the Amendment could not be considered a "slam dunk" back then, even though it seems in retrospect that support for the amendment would be universal.

The book that I am currently reading whilst I ride the bus to work ("clean, efficient public transit -- the chariot of the masses") is The Life of Abraham Lincoln by Isaac N. Arnold, a Congressman from Illinois and a personal acquaintance of the President. In it, Congressman Arnold relates the often controversial, almost two-year process of getting the Amendment passed and ratified. And the process was far more difficult than conventional wisdom would suggest.

After the amendment was passed in the Senate on April 8, 1864, by a vote of 38 to 6, Arnold noted that the hard work had just begun:

"The resolution having passed the Senate, the main difficulty was to come in the House of Representatives. There, it was well known, the vote would be close, and the result uncertain." (Chptr. XX, p. 351, emphasis added)

How can this be? The amendment to outlaw slavery, not passing a Northern-state-only Congress by massive landslides? How could it ever be valid, if it did not have overwhelming support at first?

In order to get an idea of support for the amendment, Arnold writes that he offered a "sense of the House" resolution that the Constitution be amended to outlaw slavery. This, he records

"...was adopted by a decided majority, but not by a majority of two-thirds,....But although it did not pass by two-thirds, it enabled us to know our strength, and just how many votes were needed to carry us through." (Chptr. XX, pp. 352-353, emphasis added)

Some of the opponents of the amendment offered arguments that are strikingly similar to those of opponents of the FMA. Consider this example from a Congressman Randall of Pennsylvania:

"Let the Constitution alone. It is good enough." (Chptr. XX, p. 355, emphasis added)

On the June 15, 1864, the first vote was taken, and the amendmendment was voted down in the House by a tally of 93 yeas to 65 nays, forcing one of the sponsors to change his vote, in order to be able to submit the measure for reconsideration.

Think about that for a moment. The Thirteenth Amendment, the constitutional amendment outlawing slavery, was defeated upon first consideration in the House of Representatives. And this was done by representatives of supposedly free and loyal states, most of whom opposed slavery.

Finally, some 6 months later, on January 13, 1865, the amendment was reconsidered by the lame-duck House. Congressman Arnold provides this dramatic account of the final vote:

"The vote on the passage of the resolution was taken amidst the most intense anxiety and solicitude. Up to the last roll call no one knew what the result would be. Democratic votes were needed to carry the measure. We knew we should get some, but whether enough none could tell. The most intense anxiety was felt, and as the clerk called the names of the members, so perfect was the silence that the sound of a hundred pencils, keeping tally as the names were called and recorded, could be heard....The clerk handed the vote to the speaker, Colfax, who announced in breathless silence the result: ayes, one hundred and nineteen; noes, fifty-six." (Chptr. XXI, p. 365, emphasis added).

This provides an excellent example to supporters of the FMA. In controversial issues, the issue is carried not by strength of polling data, but by the character of the persons who support it. The upcoming debate over gay marriage will test the character of those who call themselves "leaders". It will be messy; it will be divisive; it will cause great controversy. Only those who truly believe in the rightness of their cause will win. It will be interesting to see if the Republicans are up to the challenge.

I originally was skeptical of the need for the FMA. The recent "my-way-or-the-highway" ruling by the Massachusetts Supreme Court has caused me to reconsider. This issue is only going to be settled by a constitutional amendment. And as Stanley Kurtz pointed out today, it will be settled, and soon.

UPDATE: Clayton Cramer noted a detail that I didn't make clear in the post. At least four of the states represented in the 37th Congress (Missouri, Kentucky, Maryland, Delaware) were Union-loyal "slave" states. Still, it is safe to say that far more than two-thirds of the members of the House were from "free" states, and proponents still could barely muster the votes to pass the 13th Amendment.

Posted by Captain Holly at February 10, 2004 02:38 PM | TrackBack
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