Many people are looking back at the Civil War era, and not just because of the sesquicentennial – but because of one Steven Spielberg. The Hollywood icon’s latest film is “Lincoln,” which was just nominated for seven Golden Globe Awards. The film depicts the President’s efforts to get the 13th Amendment – ending slavery – through a contentious Congress. But, like all movies, it takes some artistic license at the expense of historical accuracy.
Lake Effect essayist and constitutional law expert Ellen Kozak tries to set the record straight with this guide to viewing “Lincoln":
Ask most people what Abraham Lincoln is famous for, and you’ll be told, “He freed the slaves.” The new Steven Spielberg movie, “Lincoln,” explains exactly how he did that-- and it wasn’t just his leadership of the country through our bloody Civil War. Slavery in America was actually abolished by the Thirteenth Amendment to the Constitution, and most of the movie centers on the passage of that Amendment by the House of Representatives on January 31st, 1865.
If you’re wondering why the Emancipation Proclamation that Lincoln had signed two years earlier wasn’t enough, Lincoln himself, in the movie, provides a lawyerly explanation. The Emancipation Proclamation was an Executive Order, made under the Constitution’s grant of executive power to the president as well as the fact that the president is Commander in Chief of the armed forces, and the nation was at war. Based on those powers, Lincoln’s Emancipation Proclamation could free the slaves in areas in rebellion, the purpose being to keep them from being used by their masters against the United States.
But the Emancipation Proclamation did not apply to the four slave states-- Delaware, Maryland, Kentucky and Missouri-- that had not seceded and were not at war with the Union. And there was serious question as to whether it would apply after the war was over, or whether the freed slaves would have to be returned to their owners once the Confederate states had returned to the fold. An Amendment abolishing slavery would settle the matter for all states and for all time.
Although the movie depicts Lincoln’s operatives lobbying for the passage of this Amendment, and although at one point in the film he says that he wants to be able to sign the Amendment by the end of January, in reality, the President has no Constitutional connection to the adoption of Amendments. He doesn’t sign them and cannot veto them. New Amendments require passage by a two-thirds majority in each house of Congress; once that is achieved, they must be approved by three quarters of the state legislatures in order to become part of the Constitution.
Ironically, a different Thirteenth Amendment -- one preserving slavery, and barring any law or Amendment that might eliminate it or interfere with state laws preserving it -- had been passed by both houses of Congress two days before Lincoln took office. Because it did not contain a time limitation for its passage, technically that Amendment could still be ratified by the requisite number of states. (That, of course, is unlikely to happen, but long-delayed ratification of an Amendment is not impossible; the Twenty Seventh Amendment, which keeps Congressional pay raises from going into effect until after the following election, was passed by Congress in 1789, but ratified more than 200 years later).
But getting back to that movie -- it makes mention, several times, of lame duck congressmen who were offered future government jobs in exchange for voting to free the slaves. Why were these lame ducks still able to vote in January of 1865?
This was because in those days -- indeed, until after the ratification of the Twentieth Amendment in 1933 -- presidents and Congress took office March 4th of the year following their November election. The Twentieth Amendment pushed up the date of Presidential inaugurations to January 20th and pushed up the date that the new Congress was sworn in to January 3rd. So at the end of January of 1865, Lincoln was still in his first term, and Congress was still configured as it had been before the previous November’s election.
The Thirteenth Amendment was indeed passed by both houses of Congress as of January 31, 1865. It was ratified -- after Lincoln’s death -- at the end of that year. And it did, indeed free the slaves. But it did not grant them citizenship, nor the right to vote. That was left for two other Amendments that would follow.
The Fourteenth Amendment, passed in 1866 and ratified in 1868, granted citizenship to all persons born or naturalized in the United States, and granted all citizens the equal protection of the law. The Fifteenth Amendment, two years later, proclaimed broadly that the right of citizens to vote (something that had never been specifically mentioned in the Constitution before that) could not be denied or abridged “by the United States or by any state on account of race, color, or previous condition of servitude.” (The wording of the Constitution is gender neutral, but the right to vote wasn’t formally extended to women until 1920, with the Nineteenth Amendment.)
If Lincoln had served his full second term as president, all three amendments would have become part of the Constitution during his time in office. But because he was killed shortly after his second inauguration, we can credit his leadership only with the passage of the Thirteenth. So he did, indeed, free the slaves -- first, by the Emancipation Proclamation, on a temporary basis and in limited territories -- and second, by shepherding the passage of the Thirteenth Amendment through the House of Representatives.
The rest of our promise of liberty and justice for all was up to America, which remains a work in progress. (© 2012 Ellen Kozak)
Lake Effect essayist Ellen Kozak is a copyright, publishing and media lawyer in Milwaukee. She’s the author of The Everything U.S. Constitution Book, and From Pen to Print: The Secrets of Getting Published Successfully.
The views expressed in this article are those of the author and do not necessarily represent the views of Lake Effect.