Origin and Purpose

On January 1, 1863, President Lincoln issued the Emancipation Proclamation1 declaring, based on his war powers, that within named states and parts of states in rebellion against the United States “all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free . . . .” The Proclamation did not allude to slaves held in the loyal states, and, moreover, there were questions about the Proclamation’s validity. Not only was there doubt concerning the President’s power to issue his order at all, but also there was a general conviction that its effect would not last beyond the restoration of the seceded states to the Union.2 Because the power of Congress was similarly deemed not to run to legislative extirpation of the “peculiar institution,”3 a constitutional amendment was then sought. After first failing to muster a two-thirds vote in the House of Representatives, the amendment was forwarded to the states on February 1, 1865, and ratified by the following December 18.4

In selecting the text of the Amendment, Congress “reproduced the historic words of the ordinance of 1787 for the government of the Northwest Territory, and gave them unrestricted application within the United States.”5 By its adoption, Congress intended, said Senator Trumbull, one of its sponsors, to “take this question [of emancipation] entirely away from the politics of the country. We relieve Congress of sectional strifes . . . .”6 An early Supreme Court decision, rejecting a contention that the Amendment reached servitudes on property as it did on persons, observed in dicta that the “word servitude is of larger meaning than slavery, . . . and the obvious purpose was to forbid all shades and conditions of African slavery.”

Although the Court was initially in doubt whether persons other than African-Americans could share in the protection afforded by the Amendment, it did continue to say that, although “[N]egro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void.”7

“This Amendment . . . is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom.”8 These words of the Court in 1883 have generally been noncontroversial and have evoked little disagreement in the intervening years. The “force and effect” of the Amendment itself has been invoked only a few times by the Court to strike down state legislation which it considered to have reintroduced servitude of persons, and the Court has not used section 1 of the Amendment against private parties.9 In 1968, however, the Court overturned almost century-old precedent and held that Congress may regulate private activity in exercise of its section 2 power to enforce section 1 of the Amendment.

Certain early cases suggested broad congressional powers,10 but the Civil Rights Cases11 of 1883 began a process, culminating in Hodges v. United States,12 that substantially curtailed these powers. In the former decision, the Court held unconstitutional an 1875 law

13 guaranteeing equality of access to public accommodations. Referring to the Thirteenth Amendment, the Court conceded that “legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” Appropriate legislation under the Amendment, the Court continued, could go beyond nullifying state laws establishing or upholding slavery, because the Amendment “has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States,” and thereby empowering Congress “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”14

These badges and incidents as perceived by the Court, however, were those that Congress in its 1866 legislation15 had sought “to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.”16 But the Court could not see that the refusal of accommodations at an inn or a place of public amusement, without any sanction or support from any state law, could inflict upon such person any manner of servitude or form of slavery, as those terms were commonly understood. “It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make. . . .”17

Then, in Hodges v. United States,18 the Court set aside the convictions of three men for conspiring to drive several African-Americans from their employment in a lumber mill. The Thirteenth Amendment operated to abolish, and to authorize Congress to legislate to enforce abolition of, conditions of enforced compulsory service of one to another, and no attempt to analogize a private impairment of freedom to a disability of slavery would suffice to give the Federal Government jurisdiction over what was constitutionally a matter of state remedial law.

Hodges was overruled by the Court in a far-reaching decision that concluded that the 1866 congressional enactment,19 far from simply conferring on all persons the capacity to buy and sell property, also prohibited private denials of the right through refusals to deal,20 and that this statute was fully supportable by the Thirteenth Amendment. “Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational one. . . . Just as the Black Codes, enacted after the Civil War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery. . . . At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.”21

The Thirteenth Amendment, then, could provide the constitutional support for the various congressional enactments against private racial discrimination that Congress had previously based on the Commerce Clause.22 Because the 1866 Act contains none of the limitations written into the modern laws, it has a vastly extensive application.23


12 Stat. 1267. On September 22, 1862, Lincoln had issued the preliminary Emancipation Proclamation, which announced his intention to issue the Emancipation Proclamation on January 1, 1863. [Back to text]
The legal issues were surveyed in Welling, The Emancipation Proclamation, 130 NO. AMER. REV. 163 (1880). See also J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 371–404 (rev. ed. 1951); ALLEN C. GUELZO, LINCOLNS EMANCIPATION PROCLAMATION: THE END OF SLAVERY IN AMERICA (2004); and Frank J. Williams, “Doing Less” and “Doing More”: The President and the Proclamation—Legally, Militarily, and Politically, in HAROLD HOLZER, EDNA GREENE MEDFORD, AND FRANK J. WILLIAMS, THE EMANCIPATION PROCLAMATION: THREE VIEWS (2006). [Back to text]
The congressional debate on adoption of the Amendment is conveniently collected in 1 B. SCHWARTZ, STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS 25–96 (1970). [Back to text]
Bailey v. Alabama, 219 U.S. 219, 240 (1911). During the debate, Senator Howard noted that the language was “the good old Anglo-Saxon language employed by our fathers in the ordinance of 1787, an expression which has been adjudicated upon repeatedly, which is perfectly well understood both by the public and by judicial tribunals. . . .” CONG. GLOBE, 38th Cong., 1st Sess. 1489 (1864). [Back to text]
CONG. GLOBE at 1313–14. [Back to text]
Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 69, 71–72 (1873). This general applicability was again stated in Hodges v. United States, 203 U.S. 1, 16–17 (1906), and confirmed by the result of the peonage cases, discussed under the next topic. [Back to text]
Civil Rights Cases, 109 U.S. 3, 20 (1883). [Back to text]
In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968), the Court left open the question whether the Amendment itself, unaided by legislation, would reach the “badges and incidents” of slavery not directly associated with involuntary servitude, and it continued to reserve the question in City of Memphis v. Greene, 451 U.S. 100, 125–26 (1981). See Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Justice Harlan dissenting). The Court drew back from the possibility in Palmer v. Thompson, 403 U.S. 217, 226–27 (1971). [Back to text]
United States v. Rhodes, 27 F. Cas. 785 (No. 16,151) (C.C. Ky. 1866) (Justice Swayne on circuit); United States v. Cruikshank, 25 Fed. Cas. 707, (No. 14,897) (C.C.D. La. 1874) (Justice Bradley on circuit), aff ’d on other grounds, 92 U.S. 542 (1876); United States v. Harris, 106 U.S. 629, 640 (1883); Blyew v. United States, 80 U.S. 581, 601 (1871) (dissenting opinion, majority not addressing the issue). [Back to text]
109 U.S. 3 (1883). [Back to text]
203 U.S. 1 (1906). See also Plessy v. Ferguson, 163 U.S. 537, 542–43 (1896); Corrigan v. Buckley, 271 U.S. 323, 331 (1926); Hurd v. Hodge, 334 U.S. 24, 31 (1948). [Back to text]
Ch. 114, 18 Stat. 335. [Back to text]
Civil Rights Cases, 109 U.S. 3, 20 (1883). [Back to text]
Ch. 31, 14 Stat. 27 (1886), now 42 U.S.C. §§ 1981–82. [Back to text]
Civil Rights Cases, 109 U.S. 3, 22 (1883). [Back to text]
109 U.S. at 24. [Back to text]
203 U.S. 1 (1906), overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968). [Back to text]
Ch. 31, 14 Stat. 27 (1866). The portion at issue is now 42 U.S.C. § 1982. [Back to text]
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420–37 (1968). Justices Harlan and White dissented from the Court’s interpretation of the statute. Id. at 449. Chief Justice Burger joined their dissent in Sullivan v. Little Hunting Park, 396 U.S. 229, 241 (1969). The 1968 Civil Rights Act forbidding discrimination in housing on the basis of race was enacted a brief time before the Court’s decision. Pub. L. No. 90–284, 82 Stat. 81, 42 U.S.C. § 3601–31. [Back to text]
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440–43 (1968). See also City of Memphis v. Greene, 451 U.S. 100, 124–26 (1981). [Back to text]
E.g., federal prohibition of racial discrimination in public accommodations, found lacking in constitutional basis under the Thirteenth and Fourteenth Amendments in the Civil Rights Cases, 109 U.S. 3 (1883), was upheld as an exercise of the commerce power in Heart of Atlanta Motel v. United States, 379 U.S. 241 (1965), and Katzenbach v. McClung, 379 U.S. 294 (1965). [Back to text]
The 1968 statute on housing and the 1866 act are compared in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413–17 (1968). The expansiveness of the 1866 statute and of congressional power is shown by Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (1866 law protects share in a neighborhood recreational club which ordinarily went with the lease or ownership of house in area); Runyon v. McCrary, 427 U.S. 160 (1976) (guarantee that all persons shall have the same right to make and enforce contracts as is enjoyed by white persons protects the right of black children to gain admission to private, commercially operated, nonsectarian schools); Johnson v. Railway Express Agency, 421 U.S. 454, 459–60 (1975) (statute affords a federal remedy against discrimination in private employment on the basis of race); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 285–96 (1976) (statute protects against racial discrimination in private employment against whites as well as nonwhites). See also Tillman v. Wheaton-Haven Recreation Ass’n, 410 U.S. 431 (1973). The Court has also concluded that pursuant to its Thirteenth Amendment powers Congress could provide remedial legislation for African-Americans deprived of their rights because of their race. Griffin v. Breckenridge, 403 U.S. 88, 104–05 (1971). Conceivably, the reach of the 1866 law could extend to all areas in which Congress has so far legislated and to other areas as well, justifying legislative or judicial enforcement of the Amendment itself in such areas as school segregation. [Back to text]