Origins of the Exception. FROM THEN TIL NOW.

After the Emancipation Proclamation in 1863, President Lincoln didn’t necessarily plan to pass a constitutional amendment to prohibit slavery. Several had the idea, but the first drafts were brought by radical Republican Senator Charles Sumner (MA) and Representative James Ashley (OH) who sought a “constitutional guarantee” of “perpetual freedom.” Their bill versions made it to the desk of Senate Judiciary Committee Chair Lyman Trumbull (IL), the first Republican to declare that the Civil War was as much about ending slavery as it was about the Union, but that is as far as they got. 

Trumbull was interested in more moderate language that could pass both the Republican-controlled Senate and Democrat-controlled House of Representatives. He got to drafting and enlisted the help of enslaving Senator John Brooks Henderson (MO), who inserted the exception, drawing the language of prior federal laws that curbed the use of slavery. Though the language had become normalized, its use in the 13th Amendment reflected a clear effort to reach a compromise with slave states that would allow for the continuation of slavery, albeit in a modified form.

Sumner argued against the inclusion of the exception, explaining that it still explicitly allowed slavery or, at the very least, opened the door for it. He proposed alternatives that were all shut down, and he did not push further. In the end, Lincoln portrayed the 13th Amendment as “a King’s cure for all the evils [of slavery]. It winds the whole thing up.” But as we know today, it did no such thing.

After the passage of the 13th Amendment, states used the exception, as designed, to pass Black Codes and criminalize, roundup, incarcerate, and re-enslave newly freed Black people. Prison populations went from predominantly white to predominantly Black, and former slave states began to lease incarcerated people to corporations and individuals to generate revenue, using a practice called “convict leasing.” Eventually “convict leasing” fell out of favor, and states transitioned to using incarcerated people on chain gangs for public works projects. These are the direct precursors to mass incarceration as we know it today. 

What Would Lincoln Say Today?

It is hard to envision what the nation’s leaders during the Civil War would say about the state of slavery in the U.S. today. However, we asked AI to help us answer that question for at least the most revered among them. Watch “The Most Famous Speech Never Given” by the late President Abraham Lincoln, authenticated by Lincoln-scholar Howard Holzer, and performed by Graham Sibley.