Paradoxes of Constitutional Faith: Federalism, Emancipation, and the Original Thirteenth Amendment

This essay explores the paradoxical circumstances of emancipation and constitutional reform during the Civil War and Reconstruction in light of Lincoln’s role in sponsoring and endorsing an unamendable constitutional amendment in 1861 to avert the war. That amendment, the original thirteenth amendment, would have protected slavery where it then existed. Historians, the Supreme Court, and constitutional theorists have generally resisted interpreting the original thirteenth amendment in order to avoid the constitutional paradoxes it raises, paradoxes both for those who consider the period a “refounding” and for those who seek to render the dramatic legal, social and political upheavals of the period continuous with the Constitution of 1787. This essay places the proposed amendment at the center of structural constitutional analysis and asks what kind of constitutional republic Lincoln can be said to have “saved” through the war and emancipation, and if the Constitution was not in fact saved with the Union, how one might theorize a refounding grounded in democratic paradox rather than heroism and hagiography