Monday, May 20, 2019


 excerpted from: Sandra L. Rierson, The Thirteenth Amendment as a Model for Revolution , 35 Vermont Law Review (Summer, 2011) (501 Footnotes) (Full Document)


sandrariersonHow do free societies accomplish revolutionary change? Although some alterations in social norms occur slowly and gradually over time, history teaches that incrementalism is not the only-or even a typical-model for fundamental change. Particularly when change is rooted in dislodging vested interests of an entrenched, empowered group, gradual change may be impossible. The privileged group may perceive even moderate change as a threat and a potential prologue to further unacceptable alterations in the balance of power. Eventually, however, such resistance causes the law to deviate from prevailing social norms so sharply that a backlash is inevitable. As when tectonic plates collide, eventually the tension reaches a tipping point and causes an earthquake: a radical shift rather than an easy and gentle adjustment.

To date, the United States has experienced only a handful of successful revolutionary movements. The first was the American Revolution itself. Although the original colonies' war of independence and the resulting creation of a democratic republic was assuredly a revolution, it was incomplete in at least one major respect: it failed to resolve the fundamental conflict between the aspiration of freedom and the reality of slavery. Moreover, the bargains made and compromises struck at the time of the Revolution and embodied within the Constitution neither encouraged nor enabled a course of gradual abolitionism, as the Founders purportedly hoped. Instead, those compromises ensconced slavery at the expense of democracy. This inherent friction eventually reached a tipping point, which fomented the second great American revolution: the abolition of slavery.

This Article examines the path to abolitionism in the United States as a model for circumstances that foster and enable revolutionary change in democratic societies. It concludes that when distortions in the democratic process, either explicit or implicit, systemically favor one group over another, the ability of the favored group to force (or prevent) legal change results in a divergence between the law and prevailing social norms, often at the expense of disfavored groups. That disparity cannot persist indefinitely, particularly when cultural norms continue to evolve but the law remains ossified. In such settings, the dominant legal regime must either change to more accurately reflect broader communal values or risk a more radical-and often increasingly violent-outcome. Just as the structural and social tensions inherent in the American preservation of slavery resulted in progressively heightened civil disruptions and ultimately the Civil War, so too do other systemic disparities between democratic norms and the dominant legal system sow the seeds of potentially radical social shifts.

The lessons of the Thirteenth Amendment are particularly important today. Many facets of American society reflect a sharp divergence between the existing legal structure, on the one hand, and egalitarian principles and supporting cultural norms on the other. The rights of gays and lesbians to marry, for example-and more broadly, their right to full and equal participation in society-is increasingly accepted across a broad spectrum of the community and yet is widely rejected by federal and state legislatures. Similar tension exists between core democratic principles and the treatment of non-citizens throughout the United States. Further, and most pervasively, the structural legal benefits granted to financial elites-whether in the form of corporate free speech rights, pervasive lobbying, or campaign contribution entitlements-are profoundly enshrined in both legislative enactments as well as in the Constitution itself (at least according to modern doctrine), and yet fundamentally conflict with broader principles of participatory democracy and the idea of actual, as opposed to merely formal, equality for rich and poor alike. The Thirteenth Amendment thus not only reflects this nation's struggle with slavery but also provides a roadmap for the resolution of contemporary and future social struggles.

Part I of this Article discusses models of social change in democratic societies and their application to the abolitionist movement in the United States. The remainder of the article expounds upon the history of abolitionism, culminating with passage of the Thirteenth Amendment, as a model for revolutionary change.

Part II discusses the clash between the ideal of liberty and the reality of slavery at the founding of the American republic and argues that the governmental framework adopted at the Constitutional Convention of 1787 distorted the new democracy in favor of southern slaveholders, thereby embedding slavery and ending any realistic hope of gradual, nationwide abolitionism.

Part III discusses the effects of that democratic distortion, arguing that events during the Antebellum Era both created and demonstrated the growing chasm between the laws ensconcing slavery and prevailing social norms, at least outside the southern United States.

Part IV examines the emergence of abolitionism in the United States and the limitations of that movement; specifically, the distinction between opposition to slavery and support for abolitionism during the nineteenth century.

Finally, Part V reviews the competing paths to abolitionism considered during the Civil War itself and discusses why gradual emancipation, despite being clearly preferred by the federal executive, ultimately was not a viable option. The Article concludes by exploring the central lessons of the Thirteenth Amendment as applied to contemporary legal and social norms.

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The story of abolitionism in the United States, particularly in the states that did not end slavery voluntarily, illustrates the potential for volatile and revolutionary change that results from distortions in or capture of the democratic process. Because the southern states were so successful in warping the framework of the American Republic to insulate and nurture the institution of slavery, “gentle nudges” in the opposite direction simply did not materialize. The absence of such “nudges” precluded the success of attempts to ease slavery out of existence in these states, at least at the national level. Moreover, the South's political dominance created “hard shoves” in the opposite direction, as the federal government utilized its power to protect slavery and to enable its export to the Territories of the expanding nation. As the laws digressed ever further from the social norms and firmly held beliefs of citizens living in the free states, they became harder to enforce. The democratic distortions that enabled such laws to be passed in the first place were well known to these citizens and further undermined the laws' perceived legitimacy.

Against this backdrop, Abraham Lincoln was elected the sixteenth President of the United States, the first Republican ever to hold the office. Lincoln's election signaled the end of the South's hegemony in the federal government, which southern slaveholders feared would equate the end of their “peculiar institution,” a result that they could not tolerate. Therefore, these states seceded from the Union, a step which in hindsight turned out to be the ultimate in self-defeating “hard shoves.”

The ensuing Civil War, which caused more American deaths than all other wars combined, was the result of the nation's internal struggles with the institution of slavery. At least 600,000 Americans died in the Civil War. If a similar percentage of people living in the United States died today, the death toll would reach five million. The Civil War-the magnitude and importance of which is difficult to overestimate-ultimately enabled the complete abolition of slavery.

As social norms evolve and change over time, the law typically and eventually changes along with them. The law also influences social norms, as political leaders make value judgments as to moral issues that hopefully have a salutary impact on their constituents' behavior. However, when democratic feedback loops break down, such that the law ensconces the norms of one overly empowered group and ignores or undervalues the voices of others, gradual change-particularly when it is resisted by the empowered group-becomes difficult if not impossible to achieve. As a result, the law becomes “stuck,” causing it to deviate ever further from prevailing social norms. Eventually, the law must lurch forward or risk becoming irrelevant. Hence lie the seeds of revolution.

Associate Professor, Thomas Jefferson School of Law.