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The past is never dead. It's not even past

Not Even Past

Crafting a Republic for the World in 19c Colombia

by Lina del Castillo

The powerful myth of ‘American exceptionalism’ would have us think that the United States alone offered the world universal ideals of democracy, self-determination, and shared prosperity. However, if we open our eyes beyond canonical nineteenth-century writers such as Alexis de Tocqueville, an alternate story emerges. The long-ignored yet staggering number of works by publicists, historians, geographers, novelists, economists, and jurists from Caracas, Bogotá, Santiago de Chile, Buenos Aires, Mexico, Quito, and Lima begin to reveal the remarkable dimensions of modern republican experiments in Spanish America.Early republican experiments in Spanish America occurred at a time when there were no models to follow. While republicans in Europe battled monarchists and the clerical old regime, while they increasingly imagined their republics as colonial empires of racial inferiors, and while republicans like Thomas Jefferson and James Madison in the United States built their republic on white supremacy and industrialized slavery in cotton plantations, a generation of Spanish American sociologists, economists, anthropologists, and political philosophers became the world’s republican vanguard.

One of their most resilient inventions was rhetorical. Spanish Americans consistently portrayed the period of Spanish rule as obscurantist, tyrannical, and corrupt. This discourse of Latin America’s “colonial legacies” is pervasive today. During the early nineteenth century, Spanish Americans invented distinct “colonial legacies” to legitimize their intellectual and political work in rejecting Spanish rule. They believed science could diagnose, treat, and excise those pernicious colonial legacies. Their radical new form of political modernity required they take a systematic approach to understanding and changing their society, their economic structures, and their political processes. As perceived obstructions changed over time, so did proposed solutions, which in turn contributed to the invention of new philosophies, anthropologies, sociologies, geographies, and sciences.

José María Samper (Cultura Banco de la República).

The case of a little-known Colombian jurist and writer, José María Samper, illustrates this creative process. Samper posed hard questions to both Europeans and U.S. Americans as he wrote about the history of Colombia while traveling through Europe from 1858 to 1862 with his newly wedded wife, Soledad Acosta de Samper. With so many innovative studies by Spanish Americans available, Samper wondered why Europe remained deaf to the socio-political complexity and innovation of Spanish America. He knew the unfortunate answer: the confounding noise produced by the political storms that crashed through Spanish America during the first half of the nineteenth century. Narratives about chaos, violence, and caudillos drowned out any discussion about how these republics were experimenting with democracy, sovereignty, universal male suffrage, republican equity, and self-determination.

Map of Nueva Granada, 1832-1855 (Carta XII del Atlas geográfico e histórico de la República de Colombia, 1890. Wikipedia)

Samper represented a generation who creatively re-imagined republicanism for New Granada (a polity that encompassed roughly today’s Colombia and Panama). He, along with hundreds of other men in the emerging republic, formed the Caldas Institute (Instituto Caldas) in the late 1840s. This scientific society crossed the political spectrum and championed a circulatory ideal for New Granada. The circulation of people, goods, and ideas would undo the supposed Spanish colonial legacy of fragmentation and exploitation of territories that led to stagnation and poverty locally. Rather than foment export-led growth on the backs of enslaved people, a range of government officials from an array of provinces instead focused on identifying and strengthening the internal circulation of goods and services. Provincial chapters quickly formed and worked to identify what industries needed improving, how to ensure proper morality, and where infrastructure needed to be built. Circulation of people, goods, ideas, and credit was further supported by steamship navigation along the Magdalena River flowing through the newly created Puerto Colombia in Barranquilla, a port intended not just for export but also internal circulation among New Granada provinces.

Manuel Peña’s maps.

Caldas Institute members also helped identify the brightest minds from the provinces. Those young men won scholarships to attend New Granada’s military school in Bogotá. Cadets learned new mapping techniques from foreign experts through apprenticeship. As revealed by the fanciful imaginary landscape drawn by sixteen-year-old Manuel Peña, cadets learned to express the implications of local and global circulation for the Republic. Consider how Peña’s map drew together California, London, Lima, and Carabobo, along with existing New Granada cities and towns such as Medellin, Socorro, Vélez, Oiba, and Cajicá. All these places, according to Peña’s cartographic imaginary, also participated in a war for liberation as signaled by crossed swords strewn throughout the territory.

The ideal of free circulation to combat a colonial legacy of fragmentation, exploitation, and economic stagnation helps us better understand why early republicans in New Granada not only moved towards the abolition of slavery by 1851, but also worked tirelessly towards identifying the best routes for canals and roads. The circulation of free people, ideas, and trade required infrastructure that could traverse the Andean mountainous terrain, after all. The Chorographic Commission, first conceptualized by members of the Caldas Institute, was to bring to fruition New Granada’s long-term development projects. The work this scientific expedition carried out from the 1850s through the 1860s was deeply entwined with the development of a republican political ideology based on the abolition of slavery and experimentation with universal male suffrage.

Agustín Codazzi of the Chorographic Commission camping with his collaborators in Yarumito, Soto Province (1850, Biblioteca Nacional de Colombia, Colección Comisión Corográfica. Wikipedia).

While some Caldas Institute members engaged in such remarkable experiments with republican circulation, others experimented with what José María Samper termed the science of constitutionalism. Their work culminated in the constitution of 1853, which was radically democratic even by today’s standards. No electoral college would get in the way of the will of the people. In the wake of slavery’s abolition, presidents were directly elected through universal male suffrage, as were all representatives of Congress, members of the Supreme Court, and provincial governors. The 1853 constitution also permitted the provinces of New Granada to develop their own charters, and a flurry of constitution writing ensued. The most remarkable of these was that of Vélez, which granted universal suffrage to women as well as men. The 1853 constitution proved such a radical re-working of the democratic system that Civil War broke out. The devastation was overwhelming. An alternate constitutional plan emerged, also led by José María Samper, that vested sovereignty in the states rather than individuals. These were the kinds of constitutional experiments Samper and his cohort shared with the world.

Cover page of the Constitution of 1853.

Spanish Americans have too often been simplified as either detached racist elites with little knowledge of local realities looking only to profit from export led growth at any cost, or violent anti-democratic caudillos. De-exoticizing Spanish American thinkers allows us to take their early republican projects – and their discontents– seriously.

Highlighting the nineteenth-century invention of colonial legacies also allows us to begin to question why thinkers, writers, scholars, and educators in the United States, in the wake of independence, did not create the category of colonial legacies for themselves. Why did they not identify legacies of British rule that needed to be rooted out in order to produce a republic of equal citizens, no matter their race? Why, indeed, can we see colonial legacies so easily for Spanish America, but we have such a hard time identifying the persistent colonial legacies that continue to make universal democracy and shared prosperity in the United States so difficult to achieve?

Lina del Castillo, Crafting a Republic for the World: Scientific, Geographic, and Historiographic Inventions of Colombia (2018)

Further Reading:

James Sanders, The Vanguard of the Atlantic World: Creating Modernity, Nation, and Democracy in Nineteenth-Century Latin America (2014).
Sanders underscores how republicans in Colombia and Mexico, but also other republics such as Chile, Uruguay, and Venezuela, saw themselves as shaping political modernity in the world.

Nancy Appelbaum, Mapping the Country of Regions: The Chorographic Commission of Nineteenth-Century Colombia (2016). This focused study on the Chorographic Commission in Colombia reveals the richness and complexity of that state-sponsored scientific expedition.

Mauricio Tenorio-Trillo, Latin America: The Allure and Power of an Idea (2017).
Tenorio-Trillo offers a short essay on why the idea of Latin America has proved remarkably resilient since the mid-nineteenth century.

Hilda Sabato, Republics of the New World: The Revolutionary Political Experiment in Nineteenth-Century Latin America ( 2018).
Sabato’s book effectively describes the fundamental innovation of Latin American politics in the nineteenth century as the revolutionary decision to adopt popular sovereignty as the founding principle of the polity and as the only source of legitimate power.

José M. Samper, Ensayo sobre las revoluciones políticas y la condición social de las repúblicas Colombianas (Hispano-Americanas); con un apéndice sobre la orografía y la población de la Confederación Granadina  (1861/2018).

Top image: Watercolors by Manuel María Paz, a member of the Chorographic Commission: A Bridge on the Ingara River (L), The Village of Tebada (M), The Square of Quibdo (R), Chocó Province (World Digital Library).

Hatton Sumners and the Retirement of Supreme Court Justices

We are especially pleased to post this essay by a long-time supporter of the UT Austin Department of History. Josiah M. Daniel III, of counsel at the international law firm Vinson & Elkins, LLP, received his J.D. from The University of Texas School of Law in 1978 and his master’s degree in History from UT in 1986.  In 2011, Mr. Daniel was elected to membership in the prestigious American Law Institute. He is an inaugural member and former Chair of the UT History Department Visiting Committee.

By Josiah M. Daniel, III

Working this month in historical archives and observing the news of the April 10, 2017 appointment of Neil Gorsuch to replace Justice Antonin Scalia, who died in 2016, have reconfirmed for me that history (if known) can illuminate current events.

Appointments of Justices of the Supreme Court are matters of high public interest. Presidents appoint individuals for that office, with “advice and consent” of the Senate, because their nominees share the president’s views on key public issues. After all, the final word on constitutionality and interpretation of legislation and executive actions resides with the Court as part of the Constitution’s checks and balances. And, as mandated by Article III, Supreme Court justices, and all federal judges, serve lifetime appointments “during good Behaviour” with “compensation . . . not [to] be diminished during their continuance in office.”

The Supreme Court Building (via Wikimedia Commons).

Presidents are attuned to the age and health of each serving justice in anticipation of vacancy, whether by death, resignation, or retirement. On the other side, the decision of any justice of advancing years to leave office, rather than to serve until death, has often been a difficult personal choice. For the past 80 years, that decision of aging justices has been eased by an  enactment sponsored by a Dallas congressman, Hatton W. Sumners (1875-1962).

Sumners’ statute, the 1937 Retirement Act, guarantees undiminished lifetime salaries to retiring justices and it authorizes them to continue in the adjudication of federal cases in the lower courts, if desired. Sumners had been appalled when, early in the Great Depression, Justice Oliver Wendell Holmes, aged 90, resigned after thirty years’ service and had his pension immediately halved in a penny-pinching measure. The Retirement Act prevented that situation but is also noteworthy because of its role in the “court-packing crisis” of 1937.

Sumners’ definitive biography remains unwritten, but he was a significant Congressman over four decades of the 20th century. In 1894 Sumners moved from Tennessee to Texas and quickly became a lawyer. In 1912 he won the at-large seat for the U.S. House of Representatives and two years later he won a seat in Dallas’ Fifth Congressional District, which he held until 1946. His papers reside in the archive of the Dallas Historical Society, where I have been reviewing them.

Congressman Hatton W. Sumners in 1938 (via Wikimedia Commons).

Sumners was devoted to his work and old fashioned in dress and speech. One woman who lobbied him in the late 1930s described him as “the epitome of the Southern conservative [who] even wore a frock coat. . . . a relic of the past.”  From 1932 until he left office, Sumners chaired the House’s Judiciary Committee, a position he used, among other things, to block anti-lynching legislation based on his spurious and degrading view of African Americans. This did not prevent President William Howard Taft from calling him “the best lawyer in Congress,” or a 1939 LIFE magazine poll rating him most highly for integrity among all Congressmen (a video clip of Sumners speaking in 1937 can be found here).

Roosevelt’s first term, from 1933 to 1937, generated a surge of innovative legislation, commonly known as the “New Deal,” that tackled the deep economic and social problems of the Great Depression with innovations such as Social Security, relief for the poor and unemployed, reform of the financial system, and economic recovery.

A scene of destitution during the Great Depression (via Wikimedia Commons).

But virtually all of those new federal laws were challenged in the federal courts on constitutional grounds including the argument that the legislation violated “substantive due process,” the predominant constitutional theory typified by the famous Lochner v. New York decision of 1905 that generally vindicated private-property rights over other interests and policies.

On the Supreme Court, the “Four Horsemen,” Justices Willis Van Devanter, Pierce Butler, James Clark McReynolds, and George Sutherland, were committed to that doctrine; and, at the start of the series of overturnings of New Deal enactments in 1935 and 1936, their ages ranged from 69 to 76 (at the time, male life expectancy was 60). The newest justice, Owen Roberts, appointed by President Herbert Hoover in his final year in office, joined them frequently for the 5-4 majority in those cases. FDR was outraged and after winning reelection by a landslide in November 1936, the President announced his so-called “court-packing plan” to overcome this roadblock to his legislative agenda by increasing the Supreme Court’s membership from nine to a maximum of fifteen if justices reaching the age of 70 declined to retire.

Sumners had joined the New Deal legislative team when Roosevelt took office in 1933, but he was more conservative than the President, often seeking to steer a middle-of-the-road course on the various issues of FDR’s legislative program.

‎President Roosevelt signing New Deal legislation, 1933 (via Wikimedia Commons).

After a preview of the court-packing plan at the White House on February 5, 1937, Sumners made a pithy comment that was misquoted, then and subsequently, as “Boys, here’s where I cash in my chips,” interpreted to mean he was departing the FDR team because he disagreed with its tactics.

But as a letter in the Dallas Historical Society’s archive shows, Sumners had not spoken the last two words, “my chips,” and what he meant was “to go in and to do what I could to help straighten things out.”  Sumners helped defeat FDR’s plan to pack the Court with more progressive justices; but in the same letter, written after the defeat of the plan, he added that in the future “it will be generally agreed that I have been able in this matter to render a service of value to the President, the party, and the country, especially when considered in connection with the other legislation which I sponsored.”

That last reference was to Sumners’ efforts, prior to Roosevelt’s unveiling of the court packing plan, to accomplish the President’s desired result—the addition of new, more progressive members to the Supreme Court—by other paths. On one hand, he was close to and in communication with Van Devanter and the Chief Justice, Charles Evan Hughes, urging calm and patience about the court-packing plan.

Sumners to Charles Evans Hughes, March 22, 1937 (Sumners Papers, Dallas Historical Society, via author).

On the other hand, the congressman sponsored a bill to incentivize the older justices to retire by assuring the continuity of their salary if they were to do so. On January 11, 1937, he had introduced H.R. 2518:

Justices of the Supreme Court are hereby granted the same rights and privileges with regard to retiring, instead of resigning, granted to [all other federal] judges . . ., and the President shall be authorized to appoint a successor to any such Justice of the Supreme Court so retiring from regular active service on the bench, but such Justice . . . so retired may nevertheless be . . . authorized to perform such judicial duties, in any judicial circuit . . . as such retired Justice may be willing to undertake.

Sumners’ bill sailed through Congress, and on March 1, 1937, the President signed it into law.

H.R. 2518, enacted as Public Law No. 10, codified at 28 U.S.C. § 375 (via Legisworks).

The court-packing plan was defeated in the Senate, 70-20, on July 22. Most historians credit the defeat, not to Sumners’ Retirement Act, but to the “Switch in Time that Saved Nine.” That is, the youngest justice on the court, Owen Roberts, who had been voting with the Four Horsemen in those 5-4 reversals of first-term New Deal programs, suddenly voted to sustain the constitutionality of the minimum wage law in a decision issued by the Court on March 29, 1937. Commentators have noted, for instance, that Roberts cast his vote in that case before the advent of the court-packing plan, and some have perceived a jurisprudential shift already underway.

But the most recent scholarship substantially credits Sumners, who obtained an initial draft of the Retirement Act from FDR’s team, for pushing it through quickly, which did in fact induce several rather quick retirements. These retirements gave Roosevelt vacancies to fill, assuring the survival of New Deal legislation and enabling FDR to shape the Court for a long time.

Justice Van Devanter on his last day before retirement, with Chief Justice Charles Evans Hughes (via Wikimedia Commons).

First, Justice Van Devanter took advantage of Sumners’ enactment and retired on June 2, 1937 at age 78, which vacancy FDR filled with one of most consequential justices of the twentieth century, Justice Hugo Black. Then Justice Sutherland retired on January 17 the next year, replaced by Justice Stanley Reed.

In the decades since, only five justices have resigned, most recently Abe Fortas in 1969, but 24 have retired with the benefits of the Retirement Act. Some retired justices have elected to continue to adjudicate cases. Justice Tom Clark sat, after his 1967 retirement, in the lower courts for ten years, and more recently Justice Sandra Day O’Connor, who retired in 2006, has joined judicial panels deciding scores of cases in the Courts of Appeal in almost all federal circuits.

Today, two sitting justices are in their 80s, and one is 78. Will the Retirement Act encourage any of them to retire and provide an additional appointment opportunity for the current administration?

Sources:Hatton W. Sumners Papers, Dallas Historical Society.Elmore Whitehurst, “Hatton W. Sumners: His Life and Public Service: An Extended Biographical Sketch,” n.d., Web

William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995)

Marian McKenna, Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937 (2002)

Burt Solomon, FDR v. the Constitution: The Court-Packing Fight and the Triumph of Democracy (2009)

Judge Earl Glock, “Unpacking the Supreme Court: Judicial Retirement and the Road to the 1937 Court Battle,” Mar. 2017, Web


You may also like:

History Calling: LBJ and Thurgood Marshall on the Telephone, by Augusta Dell’Omo.
Could a Supreme Court Justice be President?, by Lewis Gould.
George on the Lege, a nine-part series on the Texas legislature, by George S. Christian.

A Texas Historian’s Perspective on Mexican State Anticlericalism

By Madeleine Olson

Housed in a miscellaneous folder in the Nettie Lee Benson Latin American Collection is an assortment of thirteen broadsides, letters, newspapers, and drafts of two articles by prominent Texas historian Herbert Gambrell (1898-1982). Gambrell had a long and prestigious academic career studying Texas history as a fixture at Southern Methodist University. These documents all originate from a summer research trip to Mexico City, where, in 1925, Gambrell studied the creation of a new, factional, schismatic Mexican Church, the Apostolic Mexican Catholic  Church (known by its Spanish acronym, ICAM), in order to better understand the causes and impacts of the budding movement. These papers give us a particularly interesting view into Mexican cultural life in the 1920s through the lens of Church relations and offer understanding of state-sponsored anticlericalism during this period.

Black and white photograph of leaders of the 1910 Mexican Revolution after the First Battle of Ciudad Juarez (SMU Central University Library via Flickr).
Leaders of the 1910 Mexican Revolution after the First Battle of Ciudad Juarez (SMU Central University Library via Flickr).

In February 1925, one hundred men took over the Catholic Church of La Soledad in Mexico City, removed the head priest of the church, and announced that they were converting it into the Apostolic Mexican Catholic Church (ICAM).  An ex-clergyman by the name of Joaquín Pérez then entered and announced he was the “Patriarch” of this new Church. Breaking off from the Roman Catholic Church, the ICAM pledged allegiance to the Mexican state instead of recognizing the Papacy in Rome as the spiritual head of the church. Picking and choosing which Catholic dogmas, or fundamental tenants of the faith, to keep, this new church allowed priests to marry, offered mass in Spanish, instead of Latin, left biblical interpretation to the individual, and did not require members to pay tithes, or financial contributions to the church. ICAM took root in several hundred communities in the southern and central states of Mexico and, in some places, lasted until the 1940.

This incident occurred in the context of renewed anticlericalism and persecution in Mexico and it contributed to the start of the Cristero Rebellion, when from 1926 to 1929, Catholic peasants took up arms against the state in order to restore the place of the Roman Catholic Church in Mexico. The Mexican president, Plutarco Elias Calles (1924-1928), a Protestant and fervent anti-clerical, blessed this schismatic Mexican Church and allowed it to function freely during his presidency. Its creation represented one challenge of many during this time to the position of the Roman Catholic in Mexico.

Photograph of the front facade of the Church of La Soledad in Mexico City, Mexico
Church of La Soledad, Mexico City (via Wikimedia Commons).

Herbert Gambrell arrived in Mexico City only six months after the birth of this schismatic church. The drafts of his articles come from interviews with the head of the ICAM, Joaquín Pérez, and Mexican Secretary of the Chamber and Government, López Sierra. Also included in this folder are newspaper clippings relating to the ICAM, a reprint of the ICAM’s main ideology, called Bases fundamentals, a personal letter, and a short letter from López Sierra asking him to share the findings from his articles.

Trying to contextualize the creation of the new church, Gambrell starts out by commenting that this is not the first effort to lead Mexicans away from the Catholic Church in Rome, but this is one of the most successful examples. The ICAM arose from a long nationalistic tradition in Mexico, as the church’s slogan, “Mexico for Mexicans,” suggests. Nevertheless, the church remained controversial in Mexico. Gambrell notes that there were pamphlets plastered all around the city reading “Viva el papa!” (Long live the Pope) alongside those proclaiming “Muera el papa! Viva Mexico,” (Death to the Pope, Long Live Mexico) suggesting the controversy remained unresolved.

Gambrell’s observations about the creation of the ICAM emphasize the disjointed implementation of certain segments of the Mexican Constitution. After the Mexican Revolution of 1910, the  Constitution of 1917 was written with a liberal, secularist, political view: various articles limited the power of the Catholic Church within Mexico in an effort to strengthen the government. Because Article 130 of the Constitution required the nationalization of all church property, Gambrell remarked that the ICAM ran into obstacles because their private Churches were not publicly owned “templos.” Another 1917 article required foreign-born priests to be removed from their positions in the Catholic Church, many of whom were replaced by Mexicans. The ICAM’s nationalist message was less powerful now that the Catholic Church was less “foreign.”

Black and white photograph of Mexican president, Plutarco Elias Calles standing with members of the Apostolic Mexican Catholic Church
President Calles stands center, with a mustache (via Wikimedia Commons).

The budding evangelical church was not without faults, according to Gambrell. He comments on one of the major faults of the movement, namely the absence of proper leadership. The ICAM was also more political than spiritual: “It is semi-political in its makeup… a religious movement which does not come from a deep spiritual ideal can succeed more or less apparently, but does not triumph in a definite way.” Gambrell concluded that the success of the new church would only show itself with time.

Gambrell’s insights provide a particularly fascinating perspective as he, himself, came from an evangelical family, growing up with a Baptist pastor. His opinions were formed through the lens of his own experiences as the son of a Baptist pastor.  Gambrell believes that ICAM marked an important step towards what he considered real progress and celebrates that “Rome’s grip has been weakened, seriously weakened, by the movement, nor will she ever be able to regain what she has lost.”  With documents written in both English and Spanish, this collection is an accessible resource for interrogating state anticlericalism and the 1917 Mexican constitution.


Sources:

Herbert Gambrell Papers, “The New Catholic Church of Mexico,” Benson Latin American Collection, (all quotes come from this collection of documents).
David C. Bailey, Viva Cristo Rey, The Cristero Rebellion and the Church-State Conflict in
Mexico, (Austin: University of Texas Press, 1974)

You may also like:

For Greater Glory (2012), reviewed by Cristina Metz.
War Along the Border: The Mexican Revolution and the Tejano Communities edited by Arnoldo De León (2012), reviewed by Lizbeth Elizondo.
The Power and the Glory by Graham Greene (2003), reviewed by Matthew Butler.


The views and opinions expressed in this article or video are those of the individual author(s) or presenter(s) and do not necessarily reflect the policy or views of the editors at Not Even Past, the UT Department of History, the University of Texas at Austin, or the UT System Board of Regents. Not Even Past is an online public history magazine rather than a peer-reviewed academic journal. While we make efforts to ensure that factual information in articles was obtained from reliable sources, Not Even Past is not responsible for any errors or omissions.

Work Left Undone: Emancipation was not Abolition

by George Forgie

There are two great legal milestones in the destruction of slavery in the United States—the Emancipation Proclamation, issued by President Lincoln on January 1, 1863, and the Thirteenth Amendment to the Constitution, passed by Congress and ratified by the states in 1865.

image

F. B. Carpenter, First Reading of the Emancipation Proclamation by Abraham Lincoln

The difference between the two documents is not always well understood. Here, for instance, is how an encyclopedic website, the Internet Movie Database, summarizes the plotline of Steven Spielberg’s film, Lincoln: “As the Civil War continues to rage, America’s president . . . fights with many inside his own cabinet on the decision to emancipate the slaves.” In fact, President Lincoln had made and proclaimed his decision to free the slaves two full years before the beginning of the “fight” over the Thirteenth Amendment that is depicted in the movie. But the confusion is understandable. If Lincoln freed the slaves in 1863, why were he and his cabinet—and others—fighting about the future of slavery in 1865? The short answer is that, momentous as the Emancipation Proclamation was, its reach was limited. It promised to liberate the approximately three million slaves held in those parts of the country controlled by the Confederate rebels, but it left in bondage nearly one million slaves held in those parts of the country loyal to the Union. More crucially, the Emancipation Proclamation did not abolish the institution of slavery. Indeed, on that subject, it had not a word to say.

When it was framed in 1787, the Constitution contained provisions designed and understood to protect slavery in the United States. This was why the abolitionist William Lloyd Garrison condemned and burned the document in 1854 as a “covenant with death” and “an agreement with hell.” This was why President Lincoln in his inaugural address in 1861 had no problem endorsing a proposed amendment to the Constitution explicitly barring the federal government from ever interfering with slavery in the states where the institution was legal.

Less than two years later, Lincoln interfered with slavery more than any American ever had before, by issuing the Emancipation Proclamation. His rationale was straightforward: our objective is to suppress the rebellion. We all agree that we must do everything we reasonably can to destroy the rebels’ capacity to make war. Thus we blockade their ports, we seize their military resources, and we kill their soldiers. How is taking away their labor force any different? And how better to accomplish that than to welcome the slaves to freedom?

This rationale appealed to Northerners who might have been indifferent or even hostile to freeing the slaves, but who at the same time were willing to support whatever measures were necessary to win the war. Placed on this basis, however, the Emancipation Proclamation carried with it an obvious and ominous implication: what would happen if the war reached a point where such measures were deemed no longer necessary to win it?

The imaginations of antislavery activists quickly conjured up a variety of bleak scenarios, which laid bare the greatest vulnerability of an executive proclamation: it could be easily undone. What might Lincoln do if the Confederates offered reunion in return for new guarantees for slavery? Had he not famously told Horace Greeley in 1862 that saving the Union was more important than freeing the slaves? If Lincoln should be defeated by a Democrat in the 1864 presidential election (which for a time during the campaign seemed more likely than not), might his successor revoke the Emancipation Proclamation? What complications might arise if the Supreme Court ruled the Emancipation Proclamation unconstitutional? What would ensue if the war should end with a Union victory and with hundreds of thousands of slaves not yet actually liberated? At that point, obviously, securing their freedom would no longer be necessary for Union victory.

As the war slogged on, month after dreary month, the enemies of slavery pounded home a simple message: slavery caused the war; if emancipating slaves was necessary to win it, destroying slavery was necessary to prevent its recurrence. And the only way to put the institution beyond the chance of resuscitation was to amend the Constitution, “the supreme law of the land,” to prohibit forever the ownership of one human being by another in the United States. Millions of Americans had reached this conclusion by the beginning of 1865. Whether that number would be enough is the question that sets the stage for the constitutional drama depicted in Spielberg’s film. Spoiler alert: on January 31, 1865 the Congress passed and sent to the states for ratification an amendment to the Constitution stating that “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.” The next evening, speaking to a jubilant crowd gathered outside the White House, President Lincoln congratulated “the country and the whole world upon this great moral victory.” He implicitly acknowledged that no presidential proclamation could ever be what he said the amendment now was: “a King’s cure for all the evils. It winds the whole thing up.”

More on the Emancipation Proclamation on Not Even Past:
Jacqueline Jones, “The Emancipation Proclamation reaches Savannah”
Laurie Green, “1863 in 1963”
Daina Ramey Berry, “Unmixed Blessin'”? A Historian’s Thoughts on Django Unchained“
Nicholas Roland on Spielberg’s Lincoln

 

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