Juneteenth Versus the Plausible Alternatives

by Michael C. Dorf

With SCOTUS issuing its opinions on Thursdays and Fridays for the last couple of weeks, I ended up writing a Verdict column and blog post for yesterday that were driven by the news cycle. Hence, I missed the opportunity to observe that yesterday was Juneteenth. It was. I apologize for the failure to say something about the holiday yesterday and will accordingly try to remedy the omission today.

My ostensible topic for this essay: Why June 19 rather than some other day?

To be clear, that's only a framing device. The reason to recognize Juneteenth is obvious. That's the day that most African Americans whose ancestors were enslaved have traditionally celebrated the end of slavery. Although the abolition of slavery was and should be important to all Americans, it would be perverse for white America--or me, a white guy--to try to dictate some other day. Hence, I'm not in any sense proposing a different day.

Nor am I asking a historical question. June 19, 1865 was the day on which the Union Army reached Galveston, Texas to inform still-enslaved Americans and their enslavers that the Emancipation Proclamation, which by its terms was effective throughout the Confederacy for nearly two and a half years by that time, was going to be enforced locally as well. I understand why Juneteenth came to have significance for the formerly enslaved people of Galveston and their descendants. I also understand that it came to stand in for the broader process of emancipation.

The question is why not some other date.

To my mind, the answer is that Juneteenth makes more sense than either of the plausible alternatives--commemorating the Emancipation Proclamation or the Thirteenth Amendment.

(1) When I was in elementary school, I was taught that Abraham Lincoln issued the Emancipation Proclamation and shazam, slavery ended. Of course that's not what happened at all. Under the Constitution as it then was authoritatively still construed per Dred Scott, emancipating enslaved people was a deprivation of "property" without due process of law. Even if one takes Dred Scott out of the equation, it's hardly clear that the Constitution permitted abolition through a Presidential order, as opposed to a statute. So the legality of the Emancipation Proclamation was dubious. (Lincoln himself recognized these problems and thus supported what became the Thirteenth Amendment.)

More fundamentally, the Proclamation was not the great moral statement that generations of schoolchildren were told. After all, it purported to end slavery in the states that sided with the Confederacy but not in the Union-loyal states in which slavery remained legal. That fact was at best a concession to reality: given that Lincoln barely made it through Maryland for his first Inauguration, he could ill afford to further alienate these states. Even so, the upshot was that the Emancipation Proclamation did not apply in just those places over which the Union had the best chance of enforcing it.

To be sure, I don't go nearly as far as some of Lincoln's critics. True, he was not an abolitionist before the Civil War, and as late as August 1862 he avowed that his primary goal was to save the Union, which he would do by preserving slavery if necessary. But a genuine abolitionist could not have been elected in 1860, and there's no indication that Lincoln was pro-slavery. An appropriately full picture of Lincoln recognizes him as a man of his times: more egalitarian than many; substantially less so than some; a statesman but also a pragmatic politician. Frederick Douglas captured the point with characteristic eloquence in an 1876 speech when he observed: "Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined."

Lincoln deserves his place as a national icon, but commemorating slavery's official end via the Emancipation Proclamation itself would be problematic.

(2) What about the Thirteenth Amendment--which applied throughout the country and as a formal matter did end slavery, because, as a constitutional amendment, it superseded Dred Scott and any other constitutional obstacles? Although arguably a better choice than the Emancipation Proclamation, there are a number of reasons why it would not make sense to choose the Thirteenth Amendment as a day to commemorate the end of slavery. 

For one thing, there's the practical question of what date to choose. House approval for the Thirteenth Amendment came on January 31, 1865 (following earlier approval by a Senate that still excluded delegations from the Confederate states), and then only as a result of what Thaddeus Stevens reportedly called "corruption," (although the quote most commonly attributed to him is probably fictional). In any event, passage of an amendment is typically commemorated upon ratification, not Congressional proposal.

But marking the ratification of the Thirteenth Amendment as the end of slavery would itself be problematic. Georgia's ratification made the Thirteenth Amendment formally effective on December 6, 1865, but Georgia and the other Confederate ratifiers did so only as a condition of rejoining the Union. There would be something a bit perverse about commemorating slavery's end by marking the occasion of coerced enactment of the Thirteenth Amendment.

Moreover, while the Thirteenth Amendment formally ended slavery, states of the former Confederacy soon enacted the infamous "Black Codes" that reinstated what was effectively near-slavery in all but name. They were the impetus for civil rights legislation and the Fourteenth Amendment. And of course, ending slavery did not ensure political equality for the formerly enslaved men and women, leading to the enactment of the Fifteenth Amendment (extending the franchise to men of all races) and a half-century later, the Nineteenth Amendment (extending the franchise regardless of sex).

Thus, we might better mark the end of the system of slavery by some occasion that commemorates the Reconstruction Amendments as a group. Except, of course, that following the political deal that ended the Presidential election of 1876, Reconstruction ended, Jim Crow took root, and the entire project would be judged a failure were it not for the Civil Rights movement of the mid-to-late twentieth century. Even now--indeed, especially now, with white supremacy resurgent--Reconstruction is an unfinished project.

Accordingly, Juneteenth is an appropriate day to mark an important step along the winding road towards expiating America's original sin and to note how much work remains to be done.