The 13th Amendment to the United States Constitution reads:

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.

Without this or subsequent amendments, and with a 19th century understanding/interpretation of the Constitution and first 12 amendments, did the federal government have the power to end slavery?

Related question on the History StackExchange: https://history.stackexchange.com/questions/51511/what-was-the-south-actually-afraid-lincoln-or-congress-would-do-that-precipitate

  • My question is mainly motivated by the fact that while most historical evidence points to the primary reason behind the Civil War being slavery, I cannot figure out how the federal government could have outlawed slavery without at least some slave states ratifying a constitutional amendment. Mar 9 '19 at 21:19
  • 1
    Or perhaps through the takings clause, with the federal government literally purchasing and freeing every slave in the country. But that would not have been economically feasible. Mar 9 '19 at 21:20
  • 1
    While the Federal government probably could not have simply ended slavery with a new law, they could have imposed various burdens on it, and in particular, new states could all have been admitted as free states, which might have made amendments possible in time. Mar 10 '19 at 1:12

Since the US Federal government didn't try to pass any such law (nor would it have been politically possible in the period shortly before the US Civil War), there is no way to know with assurance how such a hypothetical law would have been addressed by the Supreme Court of the day, nor by the various states.

Congress legally could have prohibited the importation of slaves after 1808, the constitution specifically grants this power.

Congress legally could have prohibited interstate commerce in slaves.

Congress could have repealed the Fugitive Slave Act.

Congress legally could have imposed heavy taxes on the ownership of slaves. If heavy enough these could have been a de facto abolition.

A series of Presidents could have appointed Justices inclined to overturn the Dred Scott decision (denying the possibility of citizen ship for most Negros, and denying that a "free" state could free slaves temporarily resident there).

Congress could have passed laws requiring negro votes to be counted in federal elections.

Various of the above hypothetical measures might have made slavery less economic, and thus less common, in time. Note that it is not likely that any actual Congress would have passed most of them.

But I do not see how, absent a constitutional amendment, and absent a war, a simple Federal statute could have constitutionally abolished slavery de jure throughout the US. Lincoln's Emancipation Proclamation was legally justified as a war measure, a confiscation from those in rebellion. It did not affect loyal slave states, such as Maryland. And it was never seriously tested in court anyway.

  • Thanks, this is really well thought out. I agree its difficult to guess what people would have considered constitutional in that day. Just after the war, radical Republicans thought they could do civil rights without the 14th Amendment, something that today we would probably reject and require the amendment. (And of course luckily moderate Republicans managed to get the 14th ratified.) Mar 10 '19 at 21:15
  • I suppose even absent a series of Presidents, a likeminded Congress and POTUS could have increased the number of justices, packed the court, and overturned Dred Scott that way. Mar 10 '19 at 21:16
  • 1
    @David Pfeffer : In theory at least, yes. If your real question is "what was the South afraid that Lincoln would do?" It is hard to say. A fair number of people were not being very rational about things. Tariff changes could have favored the North over the South, and Congress can change that any time with a simple majority vote. Mar 10 '19 at 21:42
  • 2
    Also, Congress did prohibit the importation of slaves after 1808, in the Act Prohibiting Importation of Slaves, and made slave importation a capital offense in 1820 (as an amendment to the Act to Protect the Commerce of the United States and Punish the Crime of Piracy.) But there were already over a million slaves in the US by that time, so it didn't have much effect on the domestic trade. Mar 11 '19 at 15:18
  • 1
    @Michael Seifert : Elections for members of Congress are Federal. Art I Sec 4 "...Congress may at any time by law make or alter such regulations..." Congress has rarely used this power, but it exists. Whether it could have been used to force free states to count votes of free Negros cannot be said for sure. Mar 11 '19 at 16:12

The answer of @DavidSiegel is generally correct, in my opinion, as far as it goes. I would add a few observations:

  • Many state governments in the North abolished slavery by statute prior to the passage of the 13th Amendment (before and after the U.S. Civil War), as did many common law countries other than the U.S. But, U.S. states and most national parliaments have plenary legislative power, unlike Congress which has only limited legislative power as defined mostly in Article I of the U.S. Constitution.

  • In places that abolished slavery by statute, they usually compensated former slave holders in eminent domain-like allowances. The argument that emancipation funded by tax dollars eminent domain style was constitutional spending for the general welfare would be stronger than the interstate commerce clause argument in the pre-1865 U.S. (the 13th Amendment was adopted in 1865).

  • Congress also barred slavery prospectively in a number of territories and new states admitted to the Union prior to the passage of the 13th Amendment.

  • Congress arguably could have banned interstate trade in goods produced with slave labor. This would have basically put most tobacco and cotton plantations, and the Southern textile industry to the extent that the South did not just export raw cotton, out of business. But, it also might have caused slave owners to kill many or most of their slaves to cut their expenses since the owners could no longer generate meaningful export income with their labor, something that probably would have been permitted by the Southern states at that time. (The heavy taxation of slave ownership could have posed similar dilemmas.)

  • Because the Emancipation Proclamation was justified under the war powers of the federal government, emancipation in the U.S. was much less expensive in terms of public expenditures than it had been in countries and states that abolished slavery entirely by statute.

Congress legally could have imposed heavy taxes on the ownership of slaves.

This would have been a close call under the constitutional law of the power of Congress to tax at the time (pre-income taxation). It would have to be found to be an excise tax rather than an income tax and that wouldn't be an obvious conclusion and could come down to details of the statute imposing the tax.

  • "It would have to be found to be an excise tax rather than an income tax ..." Prior to Pollock, even an income tax was considered an indirect tax. Certainly if that was the case, a tax on the number of slaves owned should also be indirect. Mar 11 '19 at 21:43
  • If I am not mistaken, there were Federal taxes on the ownership of specific goods, in particular whiskey and other distilled alcoholic beverages. I should have thought the same powers would have applied. Mar 11 '19 at 22:25
  • @DavidSiegel The law was less clear than it might have been at the time and frequently fairly unprincipled.
    – ohwilleke
    Mar 12 '19 at 3:52
  • " But, U.S. states and most national parliaments have plenary legislative power, unlike Congress..." Most US states have powers limited by their own state constitutions, to some degree. All are limited by various provisions in the US Federal constitution ("No state shall ..."), for example a prohibition on state paper money. Not quite plenary in the way that national legislatures without a written constitution are. Sep 12 '19 at 15:51
  • @DavidSiegel But, a state may amend its constitution to give it authority to do anything that isn't prohibited by the federal constitution and state constitutions in most states, unlike the federal constitution, are routinely amended. Keep in mind also, that at the time the 13th Amendment was adopted, the consensus legal view was that the federal Bill of Rights was applicable only to the federal government.
    – ohwilleke
    Sep 16 '19 at 15:00

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.