Abolition of Slavery

Section 1. 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.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Amendment XIII

The Thirteenth Amendment was intended to complete the destruction of slavery begun by the U.S. government during the Civil War in its policy of military emancipation. The official aim of the war was to preserve the Union and the Constitution against the attempt of eleven Southern states to secede from the Union by armed force. In an attempt to keep the peace and prevent further secession, Congress proposed a constitutional amendment on March 2, 1861, stating that the Constitution should never be amended to give Congress power to abolish or interfere with slavery within any state. Once the South had seceded, the status of slavery in the rebellious states was subject to change. Union policy recognized that emancipation of slaves employed in support of the rebellion was a legitimate war measure. The Emancipation Proclamation, issued by President Abraham Lincoln on January 1, 1863, signaled the transformation of an expedient military strategy into a settled executive policy for maintaining the freedom of slaves, emancipated by military means or through enforcement of confiscation and treason statutes enacted by Congress.

On the assumption that slavery was a state rather than national institution, antislavery advocates at first anticipated that military defeat of the Confederacy would result in its abolition through amendment of state constitutions. The Emancipation Proclamation shifted the focus of antislavery strategy to the national government. Lincoln's proclamation stated that "the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom" of emancipated slaves. The legal effect of the executive order on individual slaves was uncertain, however, and it was generally agreed that the proclamation did not repeal state constitutions and laws establishing slavery. To place slave emancipation on a secure constitutional footing, Congress proposed on January 31, 1865, to abolish slavery by constitutional amendment. Ratification of the Thirteenth Amendment, including approval by reconstructed governments in the former Confederate states, was completed on December 6, 1865.

The text of the Thirteenth Amendment reflects its historic character as the culmination of a movement that began during the American Revolution. Eschewing originality, the authors of the amendment relied on the language of the Northwest Ordinance of 1787, intended to keep slavery from being taken into national territory, to abolish it in lands where it had been established for over two centuries. This demonstration of textual fidelity to historic antislavery purpose expressed the desire of Congress to complete the Founders' system of constitutional liberty by making the personal liberty of individuals the concern of the national government.

The Thirteenth Amendment was intended to establish a positive guarantee of personal liberty, expressed in the negative form of a proscription of slavery or involuntary servitude. Viewed in historical context and in the tradition of American political thought, the amendment is an affirmation of the idea that liberty, in the most fundamental sense, consists in the right of individuals not to be interfered with in the exercise of their natural rights. As a guarantee of personal liberty for all persons in the United States, the amendment established a minimum national standard of equality.

The Thirteenth Amendment is libertarian in its nature and purpose, however, rather than egalitarian. The libertarian characteristic of the amendment was made clear in congressional debate in 1864. Congress rejected a more far-reaching proposal, which stated: "All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have the power to make all laws necessary and proper to carry this declaration into effect everywhere within the United States."

By conferring power on Congress to enforce the prohibition of slavery throughout the United States, the Thirteenth Amendment altered the relationship between the states and the federal government. State power to recognize or establish slavery as a legal institution was withdrawn; to that extent, at least, state authority to regulate the personal liberty and civil rights of individuals within their jurisdiction was restricted beyond the limits imposed by the original Constitution. Unlike most other parts of the Constitution, which are designed only to limit governmental action, enforcement of the Thirteenth Amendment is not limited by the requirement that it apply only to actions by states or state officials. The amendment establishes a rule of action for private individuals as well as for state governments. In the language of constitutional law, enforcement of the amendment is not limited by the requirement that the amendment's prohibitions apply only to state action. The U.S. Constitution, for the most part, does not apply to individuals except when they act under color of law (e.g., the policeman who searches your house). The Thirteenth Amendment is different because it applies to private individuals acting in their private capacities. A person violates the Thirteenth Amendment if he keeps a slave. Where the fundamental right of personal liberty is concerned, the distinction between public and private spheres, which otherwise serves as a limitation on government power in the United States, is not recognized under the Thirteenth Amendment.

In the view of its congressional framers, the comprehensive sweep of the abolition amendment was balanced by its libertarian purpose. The scope of the enforcement power delegated to Congress thus depends on the meaning of slavery and involuntary servitude. Explicit definition of these terms in the text of the Thirteenth Amendment was considered unnecessary because slavery was universally understood, and legally defined, as the right of a person to hold another human being as chattel. Slavery was appropriating the work of another person by irresistible power and not by his consent.

In legislative debate there was disagreement over the anticipated force and effect of the prohibition of slavery. The most narrow interpretation of the amendment viewed it as conferring only an individual right not to be held as the property of another. Except for this limitation, states otherwise retained authority to regulate the civil rights of persons within their jurisdiction, and private individuals enjoyed freedom of association, including the right to discriminate as they pleased in commercial and social interactions. This ultra-restrictive view of the abolition amendment was challenged by its congressional authors. They believed that prohibition of slavery and involuntary servitude necessarily implied the conferral of basic civil rights reasonably required to exercise the right of personal liberty guaranteed by the Thirteenth Amendment. Preeminent in their view were the rights to labor and enjoy the fruits thereof; to enter into marriage and establish family relationships; to make and enforce contracts; to bring suit and testify in court; and generally to receive the benefit of common-law protections of person and property. Content to rely on the Northwest Ordinance and reluctant further to engage the contentious issue of the effect of the abolition of slavery on the federal system, congressional authors refrained from writing specific civil rights guarantees into the text of the Thirteenth Amendment.

A year later, faced with restrictive laws (the "Black Codes") enacted by reconstructed state governments regulating the status and rights of blacks within their jurisdictions, Congress enacted civil rights protections that it believed necessary to vindicate the right of personal liberty conferred by the Thirteenth Amendment. This legislative response forms an important part of the framing of the Amendment because it can be viewed as an authoritative congressional construction of the national government's enforcement power.

The Civil Rights Act of 1866 declared that all persons born in the United States, except Indians not taxed, were citizens of the United States. Regardless of race, color, or previous condition of servitude, citizens had the same right to make and enforce contracts; to sue, be parties, and give evidence in court; to inherit, lease, or own property; and to have the full and equal benefit of all laws for the security of person and property as was enjoyed by white persons. The Civil Rights Act authorized the courts to protect persons denied the enumerated rights because of their race against anyone acting under color of state authority.

The constitutional basis for national civil rights legislation of this magnitude was a matter of dispute. Many Members of Congress were convinced that the classification and unequal treatment of black citizens under state laws in the reconstructed South were an infringement of liberty and a badge of servitude subject to legislative correction by Congress under Section 2 of the Thirteenth Amendment. Other lawmakers, objecting to the "Black Codes," doubted that the abolition amendment gave Congress power to displace the states in civil rights matters and impose criminal sanctions on their officers in the manner of the Civil Rights Act. To supply any supposed defect in constitutional authority to legislate on civil rights under the Thirteenth Amendment, Congress therefore proposed a constitutional amendment that expressly authorized national legislation against state civil rights infringement. Affirming the rule of citizenship adopted by the Civil Rights Act, the Fourteenth Amendment prohibited states from abridging the privileges and immunities of citizens of the United States, depriving persons of life, liberty, and property without due process of law, or denying persons equal protection of the laws.

Judicial and legislative construction has, in substantial measure, conformed to the original understanding of the Thirteenth Amendment. Slavery and involuntary servitude have been defined in personal libertarian terms with respect to conditions of enforced compulsory service, rather than in social egalitarian terms based on a subjective and metaphorical view of slavery that focuses on social and cultural systems of dominance and subordination.

The most serious challenge to the Thirteenth Amendment was presented by labor arrangements in the post-Reconstruction South intended to restrict the mobility of black citizens. In the first half of the twentieth century, the Supreme Court invalidated as forms of involuntary servitude state laws restricting employment and contract liberty and authorizing compulsory labor for indebtedness. Bailey v. State of Alabama (1911), United States v. Reynolds (1914), Taylor v. State of Georgia (1942), Pollock v. Williams (1944). In a wide variety of cases concerning, among other things, military conscription, public work laws, discrimination in contracts, social security benefits, deportation of aliens, treatment of the criminally insane, labor union activities, and duties required of public school students, courts generally rejected claims of involuntary servitude in violation of the Thirteenth Amendment.

In these cases the judiciary addressed the question of the meaning and unaided force and effect of the prohibitions in Section 1 of the amendment. In a second line of cases, dealing with the enforcement power of Congress under Section 2, a broader interpretation appears that suggests a more social egalitarian view of the Thirteenth Amendment.

In the Civil Rights Cases (1883), the Supreme Court stated that Congress's enforcement authority under Section 2 extended to the "badges and incidents of slavery." However, the Court adopted a narrow view of this concept, rejecting a claim that exclusion of black citizens from privately operated places of public accommodation was a badge of slavery. The Court declared that "compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of slavery."

Through most of the twentieth century, the Thirteenth Amendment was not utilized to try to dismantle state-sponsored racial discrimination. Federal civil rights enforcement policy in the 1950s and 1960s was principally based on the Fourteenth and Fifteenth Amendments. In 1968, however, the Supreme Court approved a dramatic expansion of the meaning of the "badges and incidents" of slavery in Jones v. Alfred H. Mayer, Co. The Supreme Court decided that racial discrimination in the sale of housing, in the form of a property owner's refusal to sell to a Negro buyer, was a "relic of slavery" prohibited under the Civil Rights Act of 1866. Avoiding the requirements of the state-action doctrine under the Fourteenth Amendment, which made prohibition of private discrimination problematic, the Court relied on the antislavery amendment and permitted Congress to define for itself what the "badges and incidents" of slavery were. The Court declared: "Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation." The Court did not describe what limits Congress must observe in enforcing the amendment by "appropriate" legislation as required in Section 2. Again in Runyon v. McCrary (1976), the Court avoided the public/private distinction requirement of the Fourteenth Amendment legislation and held that exclusion of a black student from a private school was a denial of the right to make and enforce contracts guaranteed by the Civil Rights Act of 1866 and prohibited by the Thirteenth Amendment.

On the other hand, in cases outside of Congress's Section 2 enforcement power, the Court was more careful to limit the "badges and incident of slavery" doctrine to its historical context. For example, the Supreme Court found that a city's closing of its swimming pools, rather than operating them on a desegregated basis, was not a badge of slavery. Palmer v. Thompson (1971). In City of Memphis v. Greene (1981), the Court decided that the closing of a street in a white neighborhood, even if it had a disparate impact on blacks outside the neighborhood, was not a badge or incident of slavery in violation of the Thirteenth Amendment. These cases indicate that Section 1 of the Thirteenth Amendment, unaided by legislation, does not reach the badges and incidents of slavery not directly associated with involuntary servitude.

The most significant recent judicial exploration of the meaning of the Thirteenth Amendment reaffirms a narrow definition of involuntary servitude under federal statutes. In United States v. Kozminski (1988), the Supreme Court unanimously decided that private employers of two mentally retarded men, forced to labor in squalid conditions, violated statutes based on the Thirteenth Amendment. Controversy in the Court focused on the criteria used to determine the existence of involuntary servitude. The opinion of the Court stated that involuntary servitude is compulsory servitude by the use of physical restraint or injury, or by the use or threat of coercion through legal process. Disputing a concurring opinion, the majority declared that compulsion by psychological coercion is not involuntary servitude under the Thirteenth Amendment.

Slavery and involuntary servitude in constitutional law retain the essential meaning intended by the framers of the Thirteenth Amendment, and congressional legislation under its enforcement clause remains limited. Since the reappearance of the Thirteenth Amendment in civil rights litigation in 1968, Congress has chosen not to enact any further legislation identifying and proscribing "badges and incidents of slavery."

Herman Belz
Professor Emeritus of History
Department of History
University of Maryland