The Slavery of Emancipation

Abstract

The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still often assumed that ex-slaves would need to be governed by whites. A discussion of manumission, self-purchase and labor contracting in the antebellum U.S. argues that although these mechanisms were less common than in other slave societies, they were nevertheless important until the decades immediately preceding the Civil War. The article concludes that the narrow interpretation of the Thirteenth Amendment that prevailed merely conferred on African Americans the liminal status typically occupied by manumittees in a slave society. The institution of slavery arguably survived in the form of a racially defined subordinate status, reducing the autonomy and income potential of all African-Americans.

Keywords: Constitutional Law, Legal History, Slavery, Thirteenth Amendment, Political Theory