Thirteenth Amendment:

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. Congress shall have power to enforce this article by appropriate legislation.

Congress shall have power to enforce this article by appropriate legislation.

The Thirteenth Amendment prohibits slavery and involuntary servitude in all places subject to U.S. jurisdiction, except when imposed as punishment for a crime for which a person has been duly convicted.1 Proposed by Congress and ratified by the states in the wake of the Civil War, the Thirteenth Amendment was the first of the three Reconstruction Amendments.2 Together, these amendments aimed to safeguard the rights of newly emancipated slaves and ensure that states accorded due process and equal protection of the laws to all persons.3 Unlike the other Reconstruction Amendments—the Fourteenth and Fifteenth Amendments and, indeed, the rest of the Constitution—the Thirteenth Amendment’s prohibitions apply directly to private individuals in addition to government actors.4

The states’ ratification of the Thirteenth Amendment abolishing slavery effectively negated two of the Constitution’s original provisions: (1) the so-called “Fugitive Slave Clause,” which granted a slave owner the right to seize and repossess the slave in another state, regardless of that state’s laws;5 and (2) the Three-Fifths Clause, a compromise among the Founders that counted three-fifths of a state’s slave population for the purposes of apportioning seats in the House of Representatives and levying certain types of taxes.6

Because the Thirteenth Amendment was self-executing, its prohibitions on slavery and involuntary servitude became effective upon ratification without the need for further government action.7 Nonetheless, Section 2 of the Thirteenth Amendment grants Congress the power to enforce the prohibitions in Section 1 by enacting “appropriate legislation.” 8 The Supreme Court has long held that Congress may use its enforcement power to remove or remedy burdens on individuals that constitute the “badges” or “incidents” of slavery.9

Questions about the scope of Congress’s Section 2 enforcement power have played a central role in the Supreme Court’s Thirteenth Amendment jurisprudence. After the Civil War, newly freed slaves faced various forms of state-sanctioned and private discrimination. For example, some states enforced Black Codes that denied African-Americans equal rights under the law, including the rights to vote, hold property, and use public facilities.10 Some states codified the practice of peonage, enabling individuals to use the threat of force or legal action to compel African-Americans to perform services to satisfy a financial obligation.11 In addition, some operators of public accommodations, such as hotels and restaurants, sought to prevent African-Americans from patronizing their businesses.12 In response, beginning in 1866, Congress enacted civil rights legislation that sought to ensure that people of all races would have equal rights to make and enforce contracts and hold property, among other fundamental rights.13

Despite these legislative efforts, for more than a century after the states ratified the Thirteenth Amendment, the Supreme Court determined that Congress could not use its power to legislate against the “badges” and “incidents” of slavery to protect African-Americans from many forms of private racial discrimination or state-sanctioned segregation.14 However, the Court’s view of the scope of Congress’s enforcement power changed significantly with its 1968 decision in Jones v. Alfred H. Mayer Co.15 In that case, the Court adopted a more deferential approach toward Congress’s enforcement power, determining that Congress may play a significant role in determining the scope of that power through the enactment of legislation.16 Although the Court has since upheld Congress’s power to enforce the Thirteenth Amendment by enacting laws to combat some of the harms of private racial discrimination, the precise scope of Congress’s Thirteenth Amendment power remains unclear.17

The following essays examine the Thirteenth Amendment’s prohibitions on slavery and involuntary servitude beginning with an overview of the Amendment’s historical background. The essays then examine relevant Supreme Court decisions and historical practices related to the scope of the Amendment’s prohibitions and its exception for criminal punishment. The essays conclude by discussing the extent of Congress’s power to enforce the Thirteenth Amendment through the enactment of legislation.

Footnotes

1

U.S. Const. amend. XIII, § 1.

2

The other two Reconstruction Amendments were the Fourteenth Amendment, which, among other things, requires states to accord due process and equal protection of the laws to all persons, and the Fifteenth Amendment, which prohibits the federal and state governments from denying or abridging the right to vote based on “race, color, or previous condition of servitude.” For more on the Fourteenth Amendment, see infra Amdt14.1 Overview through Amdt14.S5.4 Modern Doctrine. For more on the Fifteenth Amendment, see infra Amdt15.1 Historical Background on the Fifteenth Amendment through .

3

Supra note 2. Congress proposed the Thirteenth Amendment in January 1865, shortly before the end of the Civil War. The states ratified the Amendment in December 1865, seven months after the war ended. See supra Ratification of Amendments to the Constitution, Intro.3.1.1 Overview of Ratification.

4

George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1370 (2008) ( “The Thirteenth Amendment stands out in the Constitution as the only provision currently in effect that directly regulates private action. The Eighteenth Amendment, imposing Prohibition, applied directly to private individuals, but its repeal by the Twenty-First Amendment eliminated that instance of direct constitutional regulation of private conduct.” ).

5

U.S. Const. art. IV, § 2, cl. 3. See also supra Fugitive Slave Clause: Doctrine and Practice, .

6

U.S. Const. art. I, § 2, cl. 3. See also supra Enumeration Clause, ArtI.S2.C3.1 Enumeration Clause and Apportioning Seats in the House of Representatives. Subsequently, the Fourteenth Amendment explicitly repealed the Three-Fifths Clause. U.S. Const. amend. XIV, § 2 ( “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” ).

7

The Civil Rights Cases, 109 U.S. 3, 20 (1883) ( “This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” ).

8

U.S. Const. amend. XIII, § 2.

9

The Civil Rights Cases, 109 U.S. at 20.

10

See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426 – 37 (1968); Bell v. Maryland, 378 U.S. 226, 288, 303 (1964) (Goldberg, J., concurring).

11

See Peonage Cases, 123 F. 671, 673 – 74 (M.D. Ala. 1903).

12

See, e.g., The Civil Rights Cases, 109 U.S. at 8 – 10, 23.

13

See, e.g., Act of April 9, 1866, ch. 31, 14 Stat. 27. See also 42 U.S.C. §§ 1981 – 1982.

14

See infra “Enforcement Clause: Early Doctrine” Amdt13.S2.1.1.2 Enforcement Clause: Early Doctrine. See also Plessy v. Ferguson, 163 U.S. 537, 542 – 43 (1896) (upholding the constitutionality of a Louisiana law mandating racial segregation in railway cars).

15

392 U.S. 409 (1968).

16

Id. at 440.

17

See infra “Enforcement Clause: Current Doctrine.” Amdt13.S2.1.1.2 Enforcement Clause: Early Doctrine.