A Meditation on the Thirteenth Amendment and Constitutional Redemption
Darrell A.H. Miller
[W]hen can they—when do they have to stop? . . . . I mean, at some point it begins to look like . . . that this is going to go on forever.
There is never time in the future in which we will work out our salvation. The challenge is in the moment, the time is always now.
The word “slavery” appears just once in the Constitution. Amendment Thirteen:
Section 1. 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.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
So, there we have it. After generations of dissimulation and self-deceit, of euphemism and pregnant silence. And bloodshed. After all that, we have it there, finally, in the Constitution. Like Jesus and the demon of Gerasene, the evil is named only to be banished.
Section One of the Thirteenth Amendment states in terse, near-absolute terms, a promise. Slavery shall not exist in the United States. Section Two empowers Congress to keep this promise. Its tightly wound text is at once a form of national confession, a method of national penance, and an example of redemptive constitutionalism.
This Essay is a meditation on the Thirteenth Amendment as constitutional redemption. In the last decade, an interpretive movement, variously described as “democratic constitutionalism” or “redemptive constitutionalism” has developed as both complement and counterweight to certain forms of originalism.
Redemptive constitutionalism originates in Robert Cover’s groundbreaking article, Nomos and Narrative. In that seminal piece, Cover explained how law and institutions are generated by, and in turn generate, narratives. As Cover observes, “[a]ll Americans share a national text in the first or thirteenth or fourteenth amendment, but we do not share an authoritative narrative regarding its significance.” The process of giving the Thirteenth Amendment meaning is not just a matter of decoding its grammatical limits but requires a commitment to constructing an overall narrative of what those words mean. It is the narrative that gives its declaration portent and vitality; it is the narrative that breathes normative power into its words.
Key to the narrative of the Thirteenth Amendment, in particular, is a recognition that persons, institutions, and law exist in a fallen state. As Jack Balkin has observed, we must “recognize[] that a constitution always exists in a fallen condition, that it inevitably contains compromises with evil and injustice.” In the case of the 1789 Constitution, that defect was exemplified by the silent protection of slavery. But, though the Constitution is fallen, it is not irredeemably so. “[T]he constitution and constitutional tradition contain elements and resources that can assist in their eventual redemption.”
Until recently, most discussions of redemptive constitutionalism have focused on the redemptive aspects of the Fourteenth Amendment and its broadly written Equal Protection and Due Process Clauses. This Essay is an attempt to fit within that discussion the Thirteenth Amendment, first among all the Reconstruction Amendments, both for its recognition of constitutional sin, and its power to wrestle with that sin.
The mode of this Essay is that of a meditation. The structure loosely tracks the Sacrament of Penance, also known as The Sacrament of Reconciliation. And so, Parts I, II, III, correspond to the sacramental elements of Confession, Contrition, and Penance. The piece concludes with a note on Reconciliation. Each part will sketch how the Thirteenth Amendment in form, text, ambition, interpretation, history or understanding conforms to these elements of the sacrament. But, while this meditation is built roughly upon Catholic doctrine, its source material is eclectic and ecumenical, with citations from Protestantism, history, political philosophy, theology, and law.
This Essay is not a legal argument in the conventional sense. Its structure is not intended to follow the formal trappings of a legal brief. It is not written with an aim to generate doctrine, or to contrive tests, or to be cited by law clerks or judges. This Essay is, instead, a scholarly rumination on a politically powerful, but under-theorized constitutional moment, written in a vernacular that abolitionists in the nineteenth century would have understood, and which modern Christians and constitutional fundamentalists will recognize, if not endorse.
The object is twofold: First, by approaching this Amendment in the rhetorical style of a meditation, this Essay may help to slowly resurrect an under-theorized Amendment from the habituated, technical, legalistic manner in which it has been shrouded and interred, so that we may better understand what it meant—and what it could mean. Second, by situating the Thirteenth Amendment within a framework of redemption, we can better appreciate the correspondences between this interpretive movement—redemptive constitutionalism—and its first constitutional exemplar.