The Civil War Amendments

I’m not a worshipper at the altar of the U.S. Constitution. It is a deeply flawed and outdated document, and both the United States and the world would be better off if the Constitution were replaced by a more truly democratic governmental structure.

Still, I will admit that I have been known to cry when I read a certain part of the Constitution: the 13th, 14th, and 15th Amendments, known as the Civil War Amendments. They didn’t used to bring me to tears, but as I’ve studied the Civil War and slavery, and learned something about the deep scars of racism that still run through our society, I have become astonished: at the amount of blood that was spilled to get these few lines of text added to the Constitution, at the moral clarity they contain (and the rarity of such moral clarity in political documents), and at the blood that was later spilled to give some sort of real effect to the moral vision that the amendments contain.

Here they are:

Amendment 13

Section 1. 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.
Section 2. Congress shall have power to enforce this article by appropriate legislation.

Amendment 14

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Amendment 15

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Lawyers are prone to dry understatement. Here’s law professor Mark Graber, about the Voting Rights Act decision today:

One of the most remarkable features of Chief Justice Roberts’ opinion for the Court in Shelby County v. Holder is the almost complete absence of any reference to the Thirteenth, Fourteenth, and Fifteenth Amendments, the Civil War, or anything that happened during Reconstruction. The only provisions the Chief Justice deemed relevant were the Necessary and Proper Clause of Article I and the Tenth Amendment. In this new world, the Civil War and Reconstruction never occurred or, as the Dunning School maintained, they were blots on American constitutionalism that ought to be erased. The Roberts opinion reads as if a new legal principle is emerging, later constitutional provisions are interpreted and modified in light of earlier provisions, rather than earlier provisions being interpreted in light of later provisions. For a court that can spout originalism when the Second Amendment is on the table, the silence about the original meaning and practice of the Reconstruction Amendments is deafening (note how Jack Balkin caught the complete lack of references in Fisher to the race conscious measures the Reconstruction Congress passed at the same time the Fourteenth Amendment was framed).

Justice Ginsburg’s dissent in Shelby County says what needs to be said about the Voting Rights Act and its authorization by Amendment 15, Section 2.

5 responses to “The Civil War Amendments”

  1. Dave says:

    Here’s an excellent post at Slate, of all places, with some discussion of what it took for Congress to get around to acting under Amendment 15, Section 2. The Voting Rights Act, in a very direct sense, made good on the Fifteenth Amendment’s promise, a century later and at great cost. As the post’s author writes, ” People fought and died for this one. It made a difference—a huge difference—in the lives of a lot of people. That’s reason enough to mourn its passing.”

  2. Farrell Fawcett says:

    Wow, thanks Dave for providing context for today’s giant decision. And thanks for offering your personal response (crying) when taking in the enormousness of those Ammendments. That’s so lovely. It moved me. Please don’t stop bringing these perspectives…

  3. Bryan says:

    Another reason to fear for the future of this country. I feel like we’re right on path for some Ridley Scott dystopian shit coming our way.

  4. Smrcs says:

    As someone who never thinks about the constitution much (and it is bracing to hear someone call it flawed!) I read lines like “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” and begin to understand how lots of people could spend lots of time disputing what it means in real time, on the ground. Majestic, but so very interpretable, which is maybe to say vague. *

    As someone who was just bad at learning history, I think I defensively decided it was dull. Now, with a little more humility, I’m sad that I can’t imagine crying at this document.

    *if only it had been written in Ithkuil!

  5. swells says:

    Ginsburg’s language is also more vivid than I might have expected, despite the oft-quoted “umbrella in a rainstorm” simile; she compares the constant springing up of new efforts to suppress voting to a Hydra and accuses the Court of “hubris” in its shameful decision. And of course, she’s right; the Hydra’s already rearing its many heads: