How The 13th And 15th Amendments End Slavery And Redefine Voting

The Constitution can promise freedom and still fail to deliver it. We dig into the 13th and 15th Amendments and ask what they were really designed to fix after the Civil War and why their impact has swung so wildly across American history. 

We start with the 13th Amendment and why it matters beyond the Emancipation Proclamation. Emancipation is a wartime measure and geographically limited, so we explain how the 13th Amendment removes those constraints and makes abolition a permanent federal policy. We also talk about the deeper question Reconstruction immediately triggers: once slavery is banned, what counts as slavery in practice, and what “badges and incidents” can survive through law, violence, and coercion? 

From there we move to the 15th Amendment and the fight over voting rights. Its wording is famous, but its structure is easy to miss: it’s framed as a ban on race-based denial rather than an affirmative right to vote. We unpack why that matters for federal enforcement, highlight Frederick Douglass’s argument that racially neutral suffrage lets Black citizens defend their civil liberties at the ballot box, and look at how the Enforcement Acts and the Grant administration take direct aim at Klan intimidation. Then we track the hard turn: not just court battles, but Congress pulling back, allowing literacy tests and grandfather clauses to gut the promise of Reconstruction until key moments like Guinn v. United States and, most importantly, the Voting Rights Act of 1965. 

We close with a question that still lands today: what do we do with the 13th Amendment’s “except as punishment for a crime” clause, and how has that language been used over time? If you care about Reconstruction history, voting rights, federalism, and civil rights enforcement, subscribe, share this episode, and leave a review so more listeners can find the series.

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Transcript

SPEAKER_00 0:46

Welcome back to Civics in the year. If you have not listened to the previous episode on Reconstruction of the Constitution, I really please do because it kind of sets us up for our conversation today and our next two conversations. So Dr. Beyenberg is back with us. And today we're talking about the 13th and 15th amendments. And we will do the 14th amendments, but 13 and 15 today. So Dr. Beyenberg, you know, we've talked about Reconstruction in the Constitution. Why are the 13th and 15th Amendments so important? Because again, I know Reconstruction amendments are 13, 14, 15. What is it about the 13th and 15th amendments in Reconstruction?

The 15th Amendment And Its Limits

Enforcement Acts And Grant Versus The Klan

How Voting Rights Went Defunct

Grandfather Clauses And Literacy Tests

Voting Rights Act And Modern Echoes

SPEAKER_01 1:26

Yeah, so the 13th Amendment is passed in 1850, it was ratified in 1865. And as we've talked about before with the Emancipation Proclamation, right? That is a wartime measure, not a general power of the federal government. And so there is a concern that the 13th Amendment is necessary, A, in case the argument is that, well, you know, you have to give confiscated property back at the end of a war often. So is that going to be applied to the slaves that were freed under the 13th Amendment? And B, again, as we talked about with the Emancipation Proclamation one, the Emancipation Proclamation is geographically limited. It only applies basically to places where there is still basically Southern control at the end of the war. There is no more Southern control. Well, there's little tiny pockets, but basically war is over, right? And so the 13th Amendment is designed to eliminate both the geographic and the temporal constraints of America's effort to end slavery. And so it makes it federal policy. Note strikingly, this is not a simply a new federal power. Congress shall have the authority to end slavery, right? It says slavery is banned. Uh, it doesn't have a state action list list limit. So it's not slavery shall not be operated by the state government or a federal government or anything like that. Like the 14th Amendment has some state action restrictions. It just says it's banned. This is the policy. This applies to private, this applies to government. Now, strikingly, it uses the final version they go with uses almost verbatim the language of the Northwest Ordinance, which in itself, as we talked about before, been drafted earlier by Thomas Jefferson in a failed bill in the 1780s. And this is kind of striking because Lincoln's speeches often call back to the Northwest Ordinance as a really important moment of American policy. And his effort, again, I think correctly, to say folks that want to limit slavery's expansion in the territories are not the new fanatics. Like that had been the old, I mean, he even says in the Cooper Union speech, like, this is the conservative policy. This is what we've done for decades. You guys are the ones that are making calling for a change. And so it's not, it's it's, I think, notable that the Northwest ordinance ends up being the text here. You know, re-invent you know, reinforcing Lincoln's argument, this had been a really foundational thing. And so this sort of bleeds into the 14th Amendment a little bit. So I'll do this part short, but you know, they're trying to figure out sort of, okay, so slavery is banned. What does that mean is banned? Is literally like whipping somebody unless they work in your field, does that include sort of all of the additional kind of racial politics that goes attached to it? They call badges of, you know, badges and incidents or badges and emblems is language that gets used later. And so pretty quickly, most folks tend to recognize the 13th Amendment is pretty narrow. And so that's part of what the 14th Amendment is needed for. So again, we'll talk more about the 14th Amendment in a subsequent podcast, but that's basically what the 13th Amendment is supposed to do. Jumping ahead a little bit then to the 15th Amendment. So the 14th Amendment has a first crack basically in efforts to make sure that states don't have racially inegalitarian voting. This there's a section in there that basically says if you reduce, basically if you make it so like black men can't vote, then your percentage of voting goes down by however your percentage of like black men is. It's a clever inversion of like the three-fifths clause kind of a thing, which is like if you'd like to be racist, you can. You're just have basically no control over Congress anymore. And then they decide very quickly, like, nope, that was a mistake. Let's put some real teeth into this. And so they pass the 15th Amendment, which go you know uh in in 1870. And this, it's always worth you know looking at the text here. And so the language of the 15th Amendment says the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Now, one thing that's striking is it is written in the negative formulation, right? It doesn't say there is an affirmative right to vote. It says whatever right to vote exists can't be denied on these grounds, which is the formulation that gets used in the late, like the 19th Amendment uses the same formulation, the the 26th Amendment and college-age suffrage, right? So, and that's important because there's a debate very quickly in constitutional stuff of do these kinds of laws let the federal government take a direct and primary action in regulating this, or do you have to have evidence that the state has failed to provide whatever this thing is first, or the state has actively denied it? The text of the 15th Amendment seemingly looks like it's also written in that negative uh formulation, uh, like the 14th. But if you look at the speeches and the legislative history and the Frederick Douglass thing we'll talk about uh in a second, it looks pretty clear that Congress expected this to be much more robust, where Congress could take more of a more of, I say more of, a primary actor element than demonstrating evidence of state failure. So, and the the theory behind the 15th Amendment by many of the folks in Congress, and Frederick Douglass articulates this in this Atlantic speech, or excuse me, a letter, like an op-ed, I guess, that he submits to the Atlantic discussing Reconstruction. And he says, look, Americans everywhere, regardless of ideology or region, they still care about federalism. Again, part of why I was ranting about the lost cause last time, right? It's not about getting rid of federalism. He says, we still care about federalism, but what can we do to make sure that the South doesn't like restart the Civil War and that black rights are protected? And so Douglass says the best way to do that would be to make sure that suffrage is racially neutral. And so, therefore, black Americans, at this point, black men, because there's no 19th, you know, Nanks of the Mental, and the states certainly haven't done this yet, let's let black men basically protect their rights and their civil liberties through the ballot box in the South. So the R and Congress basically sort of this is the same model. And so the idea is that if Congress intervenes again fairly aggressively in this one domain, let's make sure that suffrage is racially neutral among citizens. We don't have to micromanage reconstruction, right? So the thought is in some sense, we don't have to put soldiers everywhere if basically black Southerners can vote to have law enforcement in the South protect their rights. And so, like fixing, you know, in enforcing voting, they say, like, this is one and easy, it doesn't create any sweeping massive federal power. Certainly, if we draw it the way that they do that. So let's intervene here. Uh, so that's kind of the political theory behind uh the 15th Amendment. But they also put some teeth in there, and so they pass what's called the Enforcement Acts, or but they usually get called the Klan Act. And this is part of why I think your colleague Jeff Davis and I have talked about this, that like Ulysses S. Grant is wildly underrated as a president, partly because those lost causers basically libel him as an idiot and a corrupt and a drunk because they don't like the fact that he completely thrashes the Ku Klux Klan into non-existence uh in the early 1870s, just utterly breaks them, utterly breaks the first Ku Klux Klan as an enforcement of the 15th Amendment, because the main thing that it's trying to do is basically terrorize black Southerners and white Southern allies out of voting. So the 15th Amendment says states can't do that kind of stuff, and we will make sure that they they that gets suppressed. So, and the Supreme Court, again, is is pretty okay with this case in 1884 called Ex parte Yarborough. They uphold pretty robust enforcement uh of the 15th amendment. So then the question is sort of what happens? Like, why does the 15th Amendment die, become inert for decades? Um I think we're gonna do a separate podcast uh on the event called the Lodge Bill in 1890, which is sort of the last hurrah of Reconstruction. But it's not the Supreme Court that kills this off. It's Congress. Again, we talked before that sort of Northern Republican voters are tired, Northern voters are tiring of Reconstruction. Southern Democratic, Democratic politicians, even those from the North that may themselves be sort of skeptical of racial hierarchy stuff in their own state politics, even they might even be pushing it literally as policy in the North. They have an incentive because of party coalitions to see basically white supremacy in the South in terms of its voting. Right. So they either don't want to do it or they turn a blind eye to it. So Grover Cleveland, for example, in 1880, in 1884, when they when he gets elected, he and his allies in Congress basically start pairing out chunks of civil rights enforcement. We'll talk more about this with the 14th Amendment. But they don't modify the Civil Rights Act. They could have fixed the Civil Rights Act of 1875 very easily, but they don't want to. And in 1894, right as they're getting ready to get thrashed, largely for economic issues, they pretty much remove almost all of the federal enforcement. It hadn't been really aggressively enforced while Cleveland is president, but it gets yanked out of the statutes. And so the 15th Amendment gets defunct and openly defunct. I mean, it's one of the things that was most striking to me when I was doing a bunch of research in this era is there are members of Congress and state legislators that say it's a good thing the 14th and 15th Amendments are dead. Like they were illegitimately imposed on us by war, and like we're glad they're not. Like there, there's not even a like, well, we're squinting it hard and we're following the letter. Like they are openly admitting our goal is to have it dead, and our goal in some cases is to straight up repeal it so that theory can match reality. So you do have a couple of moments when the 15th Amendment seems like it might be poking back up. In 1915, a Supreme Court unanimously in a case called Gwynn versus US strikes down the so-called grandfather clauses, which basically we're going to say, well, anyone who's, you know, grandfathers could vote, could vote, which was a way to basically create, you know, they could send some some really obscene, difficult, impossible literary tests that no one could pass, and then basically say, but if your grandpa could vote, could vote they could. And it's worth noting that the text of the 15th Amendment, for example, they didn't put literacy test bans in there precisely because northerners wanted to continue maintaining literally literacy tests. They just wanted to say, but they have to be racially neutral, right? If you want to make it so only like, I guess, Harvard PhDs can vote, that's not inconsistent with the 15th Amendment. So again, there was not a ban per se on those, precisely because northerners were happy having those kinds, uh kind, you know, having those kinds of policies. So Gwyn basically says, like, whatever you're gonna do on that, you actually have to have racial neutrality if you're gonna do that. But they strike the grandfather clauses down. And then a character who doesn't often get much of a nod, Warren Harding, gives a speech shortly before he dies. He goes to the South in Birmingham and he gives a long talk on basically race relations in America. And he doesn't spend that much time, it's only like three or four sentences on voting. But he basically says, yeah, you guys need to have uh black men voting. And he says, not every, you know, not every black American needs to vote, and not every white American needs to vote. But whatever your rule is, you need to have it equally enforced. And then he moves on. I've seen some historians argue that like Harding actually was that it's like whole counterfactual. Had Harding lived, like, would we have seen the 1960s and the 1920s? Not so convinced, but it is a you know, that's a striking moment compared to what say Theodore Roosevelt or others had been doing, which was sort of basically abetting the lost causers almost. Um, Harding wants to say, like, no, this was actually about race. But Harding obviously dies. You know, Coolidge will continue to protest lynching and want Congress to pass a 14th Amendment enforcement, but basically the 15th Amendment goes defunct again until a couple of court cases, and then obviously most famously the Voting Rights Act in 1965, which we could, I think we're going, in fact, probably do a whole section on that or split with the Civil Rights Act or something. So I'm not going to go into the arcana of that. But the Voting Rights Act at its core, at least in 1965, is an enforcement of the 15th Amendment and sort of racially staggered or an attack on basically racially, you know, arbitrary suffrage rules. Later revisions and some of the extra pieces we'll add on like the language stuff. But at the core of it, the Voting Rights Act in 65 is an enforcement, including with some pretty, pretty tough sort of temporary emergency provisions to finally enforce the 15th Amendment.

SPEAKER_00 14:40

It's so interesting because we, you know, we talk about the 15th Amendment. It's, you know, generally well known as like, oh, that gave black men the right to vote. And black women didn't have the right to vote until the Voting Act's Voting Rights Act of 1965 with indigenous women. But it's an interesting thing to hear you talk about, like how it was essentially defunct. Like it's still in the Constitution. Yeah, it doesn't go away. But when we're talking about like the grandfather clause and literacy tests, if you have not looked up a literacy test, please do so because I used to give them to my students and they were absolutely baffled that these were actual things that were utilized. There's so many things that try to continually disenfranchise, you know, groups of people, even though, again, 15th Amendment has been there, you know, since Reconstruction, but the level of enforcement has changed throughout history.

SPEAKER_01 15:43

Yeah, I mean, that that's there one could one could uh impishly suggest that it's not the only part of the Constitution that has been defunct over American history, but that's a that's a side that's a side conversation, perhaps. But but yeah, it's it is it is quite striking and how how openly, how openly it was dismissed. Yeah. So that it is it is it yeah. Anyway, we'll talk more about the voting rights act in another one.

SPEAKER_00 16:08

And then for the 13th Amendment, I did want to ask a question because the part of it in section one that says, you know, neither slavery nor involuntary servitude, except as punishment for a crime whereof the party shall be duly convicted, that kind of leads to mass incarceration because there were, you know, a lot of former enslaved persons who then were charged for crimes and made to, you know, were sent to prison, made to work um land to kind of work off, you know, these supposed crimes. I mean, again, that's probably an entirely separate podcast, but it's the wording of these amendments to me is always very interesting and how they're kind of picked apart and used in certain parts of American history.

SPEAKER_01 17:05

Yeah. I mean, the the the mass incarceration piece is one that's got a lot of sort of scholarship picking at it in both ways. But that's but that is partly why to make sure that there's no ambiguity on that is why many of the states, several of the states that have 13th Amendment language in there have gone through in the last few years and pulled that piece actually out because of the concern that you just raised, which was well, was this and or could this be a tool for uh for that? So that's something that the states' governments have certainly been concerned about of late.

SPEAKER_00 17:39

Very interesting. All right, Dr. Weinberg. I am looking forward to talking about the 14th Amendment. Sorry, always being so what are you doing? What are you doing? Just trying to dig a hole to China in our carpet. Sorry. Thank you, Dr. Beinberg. I am looking forward to our conversation on the 14th Amendment in two parts coming up in our next couple episodes.