The Thirteenth Amendment

The 1865 ratification of the Thirteenth Amendment was a transformative moment in American history. The first Section’s declaration that “neither slavery nor involuntary servitude shall exist” had the immediate and powerful effect of abolishing chattel slavery in the southern United States. One year later, Congress used its power to “enforce” the ban on slavery—conveyed by the second Section of the Thirteenth Amendment—to pass the Civil Rights Act of 1866, our nation’s first civil rights law. That law invalidated the Black Codes, laws passed by southern states after the Civil War that sought to keep the former slaves effectively tethered to their former plantation owners. For example, one state law required all African Americans to enter into yearlong employment contracts and to agree that they would forfeit the entire year’s wages if they left before the year’s end. The Civil Rights Act of 1866 ended such laws, conveying (among other things) an equal right to enter into and enforce contracts without respect to race. Although the Civil Rights Act of 1866 was very controversial, Congress concluded that the Black Codes imposed de facto slavery and therefore that Section Two of the Thirteenth Amendment empowered Congress to pass the Act.

Since those early days, however, the Thirteenth Amendment has not been a frequently-invoked part of our constitutional canon. Why is this? Most likely, it is because the purpose of the Amendment has already been fulfilled. Slavery is gone and we have numerous laws in place to prevent and/or punish any form of coerced labor. 

Some argue that Section One of the Thirteenth Amendment not only abolished slavery, but all of the racially discriminatory practices that accompanied the institution of slavery. Thus, the argument goes, the Amendment also bans discrimination and promises a full measure of freedom. The problem with this argument is that it in many ways it renders the Fourteenth and Fifteenth Amendments redundant. The Fourteenth Amendment makes all born within the United States, including former slaves, citizens of the United States and promises them both “the privileges and immunities of citizens” and “equal protection of the laws.” The Fifteenth Amendment prohibits denials of the right to vote based on a citizen’s “race, color, or previous condition of servitude.” If the Thirteenth Amendment itself had banned discrimination and mandated a full range of civil and political rights, there would have been no need for the Fourteenth and Fifteenth Amendments. Thus, it is quite understandable that the Supreme Court has suggested that Section One of the Thirteenth Amendment is best understood solely as a ban on coerced labor. The Thirteenth Amendment paved the way for subsequent constitutional promises of equality, but it did not itself provide for that equality.

Section Two of the Thirteenth Amendment empowers Congress to “enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” According to the Supreme Court, federal laws passed pursuant to this provision can address a broader range of discriminatory conduct than just coerced labor. To enforce the ban on slavery and involuntary servitude, Congress can address not only slavery, but also its “badges and incidents.” Although the Civil Rights Act of 1866 has been upheld as proper Section Two legislation, the Supreme Court struck down an 1875 civil rights law, holding that race discrimination in privately-operated businesses like hotels, theaters, and transportation was not a badge or incident of slavery. Since that time, Congress’s legislative activity pursuant to Section Two has been relatively restrained, particularly with respect to conduct that is not closely connected to coerced labor.

Some scholars have argued that Section Two of the Thirteenth Amendment provides Congress with an untapped power to pass nationwide civil rights legislation. This argument states that Congress can label a broad range of discriminatory practices as “badges and incidents of slavery” and then address them legislatively. However, Congress has not actively adopted this theory, and an increasing number of judges and scholars are skeptical that it is correct. They argue that the concept of the badges and incidents of slavery has a limited range of meaning and thus constrains the topics on which Section Two permits Congress to legislate. Moreover, they argue that Congress should legislate only where it finds that there is a close connection between current discrimination and present or future conditions of slavery or involuntary servitude. It likely would be difficult for Congress to satisfy this inquiry.

This argument about the scope of Congress’s power under Section Two of the Thirteenth Amendment is starting to play out in challenges to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. That Act, among other things, makes race-based hate crimes punishable under federal law. While racially-motivated violence was certainly part and parcel of the American system of chattel slavery in the past, the question is whether that historical connection is sufficient for Section Two purposes, or whether there must also be a link today between racially-motivated violence and present or future conditions of slavery or involuntary servitude. These questions may ultimately lead the Supreme Court to issue another of its rare opinions on the meaning of the Thirteenth Amendment.

The Thirteenth Amendment is easy to overlook. Section One of the Amendment officially prohibited chattel slavery, but by the end of the Civil War its return was already unthinkable. William Lloyd Garrison, the country’s most famous abolitionist, helped ring in the fighting’s end by attending the flag-raising ceremony at Fort Sumter on the invitation of the Secretary of War: Amendment or not, there was no going back. The Thirteenth Amendment prohibits indentured servitude and peonage but does not extend to other forms of involuntary service such as military or jury duty or work by convicted prisoners. To the extent the Amendment reaches official racial discrimination, it is overshadowed by the Fourteenth and Fifteenth Amendments, which seem to go even further.

But the Thirteenth Amendment is distinctive and its constitutional potential remains untapped. Most significantly, Section Two of the Amendment empowers Congress to enforce Section One “by appropriate legislation.” This language had never before appeared in a constitutional amendment, but it echoed the famous words of McCulloch v. Maryland, an 1819 decision in which the Supreme Court referred to “appropriate” federal laws in order to signal a broad scope for congressional power. In an unbroken series of cases beginning in 1883, the Supreme Court has understood Section Two to permit Congress “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”

It is beyond question that this language permits Congress to forbid certain private acts and not just the acts of states. Thus, in an early exercise of Section Two power, Congress passed the Civil Rights Act of 1866, which the Supreme Court has construed as prohibiting racial discrimination in the making and enforcing of contracts and in property transactions, even by private parties. More recently, Congress has used this authority to prohibit racially-motivated violence.

These laws are grounded in the view that slavery was not just the holding of black Americans to unpaid service, but an entire system of social relations designed to enforce a racial hierarchy. Refusing to enforce contracts of blacks, barring them from leasing or owning property, and assaulting them with impunity were—among other abuses—widespread in the states of the Confederacy before, during, and immediately after the Civil War. These practices denied the equal citizenship status, and implicitly the humanity, of African Americans.

The badges and incidents of racial hierarchy persist in the United States, and the Thirteenth Amendment authorizes Congress to address them. The Thirteenth Amendment should permit Congress to redress further issues, including: bidding practices that effectively exclude minority contractors from economic life; admissions policies that exclude minorities from selective colleges and universities; and electoral practices such as voter ID laws and abbreviated voting windows that have the effect of limiting minority political participation.

Significantly, though the Thirteenth Amendment singles out slavery and involuntary servitude, it does not single out race. Accordingly, Section Two also empowers Congress to reach social and economic relationships that are akin to slavery and peonage. Marriage laws once abided and facilitated the economic and physical subordination of women and the denial of women’s individual personhood. The Supreme Court should not, therefore, have invalidated Congress’s attempt in the 1994 Violence Against Women Act to provide a federal remedy for women who are the victims of sexual and other forms of gender-based violence. The Thirteenth Amendment provided ample authority to pass that law.

American workers are also protected by the Thirteenth Amendment. Employers who coerce undocumented workers into accepting subsistence wages, who pressure employees not to file worker’s compensation claims, and who rob them of tips and overtime pay, are in direct violation of the Constitution. Congress’s power under the Thirteenth Amendment also should be broadly construed to permit it to require good-faith collective bargaining (which federal labor laws already require) and to mandate that both public and private employees pay union dues (which federal labor laws do not require), thereby permitting such bargaining to survive.

The Thirteenth Amendment has awoken before, inspiring the National Labor Relations Act, anti-peonage laws, fair housing laws, sex trafficking laws, and hate crimes legislation. The Amendment’s true potential is not so much to require judges to invalidate particular practices or even to empower Congress to legislate to protect civil rights. Rather, it is to motivate ordinary Americans to understand the persistence of social caste—whether because of race, gender, or economic situation—as a constitutional injury that should not exist in the United States.