Federal Desk BookConstitution Annotated

Thirteenth Amendment — Abolition of Slavery

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.

Essays on this page (4)

Amdt13.1 Overview of Thirteenth Amendment, Abolition of Slavery

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.

Notes
  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 Amdt14.1 Overview of Fourteenth Amendment, Equal Protection and Rights of Citizens through Amdt14.S5.4 Modern Doctrine on Enforcement Clause. For more on the Fifteenth Amendment, see Amdt15.1 Overview of Fifteenth Amendment, Right of Citizens to Vote through Amdt15.S2.2 Federal Remedial Legislation. ↩
  3. See 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 Intro.3.1 Ratification of Amendments to the Constitution Generally. ↩
  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 ArtIV.S2.C3.1 Fugitive Slave Clause. ↩
  6. U.S. CONST. art. I, § 2, cl. 3. See also 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 Amdt13.S2.2 Early Doctrine on Enforcement Clause of Thirteenth Amendment. 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 Amdt13.S2.2 Early Doctrine on Enforcement Clause of Thirteenth Amendment. ↩

Amdt13.2 Slavery and Civil War

During the Federal Convention of 1787, the Constitution’s Framers vigorously debated the role that slavery would play in the newly created United States.1 Conflicts over slavery, which had been practiced in the British colonies of North America for over a century often pitted delegates from southern states that relied heavily on slave labor against northern states whose inhabitants increasingly opposed the practice on moral grounds.2 Despite fervent disagreement over the issue of slavery at the Convention, the Constitution’s original text did not specifically refer to slavery. For example, the so-called “Fugitive Slave Clause” did not employ the term “slave” but instead granted the owner of a “person held to service or labor” the right to seize and repossess him in another state, regardless of that state’s laws.3 Moreover, the Three-Fifths Clause, a cornerstone of the Great Compromise4 among the Founders, counted three-fifths of “all other Persons”—a term that included slaves—for the purposes of apportioning seats in the House of Representatives and levying certain types of taxes.5

In 1808, two decades after the Constitution’s ratification, Congress prohibited importing slaves from other countries.6 Although northern states had already abolished (or begun to abolish) slavery within their jurisidictions,7 the domestic slave trade continued to flourish in the South.

In the decades leading up to the Civil War, political tensions simmered as abolitionists and proponents of slavery argued over whether new U.S. territories would be admitted to the union as “slave” or “free” states.8 Initially, Congress resolved some of these disagreements. For example, in the Missouri Compromise of 1820, Congress admitted Maine as a free state and Missouri as a slave state.9 In addition, Congress sought to achieve additional understandings on the issue of slavery in the five Acts that made up the Compromise of 1850.10 Despite these early efforts, compromises on the issue of slavery began to unravel during the 1850s. The Kansas-Nebraska Act of 1854 repealed the Missouri Compromise, allowing each territory’s population to decide whether to permit slavery.11 This led to an outbreak of violence between abolitionists and proponents of slavery in Kansas.12 The Supreme Court’s 1857 decision in Dred Scott v. Sandford exacerbated tensions by declaring the Missouri Compromise to have been an unconstitutional deprivation of slaveholders’ property.13 Disagreements over slavery and President Abraham Lincoln’s election to the presidency were the primary causes of the Civil War, which erupted when the Confederate army fired on Fort Sumter on April 12, 1861.14

After almost two years of war, President Lincoln issued the “Emancipation Proclamation” by exercising his executive war powers.15 The Proclamation declared that, as of January 1, 1863, “all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free.”16 The Proclamation did not apply to slaves that resided in “loyal” states that had not seceded from the Union.17 Nor did it apply to slaves in portions of southern states under Union control.18 However, it applied to slaves in most of the rest of the core Confederate states’ territory.19

As the nation approached the end of the Civil War, questions arose about the legal authority for the Emancipation Proclamation; Congress’s power to ban slavery by enacting legislation; and the future status of slaves and freedmen throughout the United States.20 These questions played a prominent role in debates over Congress’s consideration of the joint resolution that would become the Thirteenth Amendment.21

Notes
  1. See, e.g., 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 364–65 (Max Farrand ed., 1911) (Madison’s notes, Aug. 21, 1787) (recording a debate over banning the importation of slaves); id. at 369–74 (Madison’s notes, Aug. 22, 1787). ↩
  2. See id. ↩
  3. U.S. CONST. art. IV, § 2, cl. 3. See also ArtIV.S2.C3.1 Fugitive Slave Clause. ↩
  4. The delegates to the Federal Convention devised the Great Compromise to address the states’ fear of an imbalance of power in Congress by providing for a bicameral legislature with proportional representation based on a state’s population for one chamber and equal state representation in the other. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 at 524 (Max Farrand ed., 1911). See also MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 104–07 (1913). ↩
  5. U.S. CONST. art. I, § 2, cl. 3. In addition, Article V, while not mentioning slavery specifically, prohibited amendments prior to 1808 that would have affected the Constitution’s limitations on Congress’s power to (1) restrict the slave trade, or (2) levy certain taxes on land or slaves. Id. art. V. See also id. art. I, § 9, cls. 1, 4. ↩
  6. Act of March 2, 1807, ch. 22, 2 Stat. 426. ↩
  7. See George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 VA. L. REV. 1367, 1373 & n.23 (2008). ↩
  8. The 1787 ordinance that the Confederation Congress enacted to govern the newly acquired Northwest Territory prohibited slavery and involuntary servitude, except as punishment for a crime. An ordinance for the government of the territory of the United States, North-west of the river Ohio, LIBR. OF CONG., https://www.loc.gov/resource/bdsdcc.22501/?st=gallery. The Northwest Ordinance, however, allowed for the “reclaiming” of slaves who escaped into the territory. See id. The Ordinance established the Ohio River as the boundary between newly admitted, northern territories that forbade slavery and southern territories that permitted slavery. Id. ↩
  9. Missouri Compromise: Primary Documents in American History, LIBR. OF CONG., https://guides.loc.gov/missouri- compromise. The compromise also limited the geographic expansion of slavery westward into newly acquired territories. Id. ↩
  10. Compromise of 1850: Primary Documents in American History, LIBR. OF CONG., https://guides.loc.gov/compromise-1850. The compromise strengthened federal judicial officials’ obligations to capture and return fugitive slaves; abolished the slave trade in Washington, D.C.; admitted California as a free state; and allowed New Mexico and Utah to decide whether to join the United States as free states or slaves states. Id. ↩
  11. Kansas-Nebraska Act: Primary Documents in American History, LIBR. OF CONG., https://guides.loc.gov/kansas- nebraska-act. ↩
  12. Id. ↩
  13. 60 U.S. (19 How.) 393, 451–52 (1857), superseded by constitutional amendment, U.S. CONST. amend. XIV. ↩
  14. Battle of Fort Sumter, April 1861, NAT’L PARK SERV., https://www.nps.gov/articles/battle-of-fort-sumter-april- 1861.htm. ↩
  15. The Emancipation Proclamation, NAT’L ARCHIVES, https://www.archives.gov/exhibits/featured-documents/emancipation-proclamation. On September 22, 1862, President Lincoln issued the preliminary Emancipation Proclamation, which announced his intention to issue the Emancipation Proclamation on January 1, 1863. See Preliminary Emancipation Proclamation, NAT’L ARCHIVES, https://www.archives.gov/exhibits/american_originals_iv/sections/preliminary_emancipation_proclamation.html. Although President Lincoln issued the Proclamation in 1863, some slaves in the South did not attain freedom until much later. For example, slaves in Texas attained freedom when Major General Gordon Granger and Union troops arrived in Galveston, Texas on June 19, 1865. Juneteenth, LIB. OF CONG., https://www.loc.gov/loc/lcib/9908/juneteenth.html. ↩
  16. See sources cited supra note 15. In 1861 and 1862, Congress enacted legislation known as the “Confiscation Acts” that freed slaves who came within Union lines and had been under Confederate masters, but this legislation was ineffective. President Lincoln was initially reluctant to enforce these laws strictly because of concerns that it would cause border states to secede from the Union. See Cong. Globe, 38th Cong., 1st Sess. 1313 (1864); Paul Finkelman, Lincoln, Emancipation, and the Limits of Constitutional Change, 2008 SUP. CT. REV. 349, 367–70 (2008). Congress abolished slavery in the District of Columbia in 1862 via the District of Columbia Compensated Emancipation Act. Act of Apr. 16, 1862, 37 Cong. ch. 54, 12 Stat. 376 . Congress abolished slavery in the territories in the Abolition of Slavery Act (Territories), 37 Cong. ch. 111, 12 Stat. 432 (1862). ↩
  17. Sources cited supra notes 15–16. ↩
  18. Id. ↩
  19. Id. ↩
  20. See Cong. Globe, 38th Cong., 1st Sess. 1313–14 (1864). ↩
  21. See, e.g., id. ↩

Amdt13.3 Drafting of Thirteenth Amendment

The drafters of the Thirteenth Amendment drew upon earlier efforts to abolish slavery within various U.S. states and territories. Before the Civil War, several states had banned slavery in their jurisdictions through various means, including by adopting language in their state constitutions.1 In addition, Article 6 of the 1787 federal ordinance governing the Northwest Territory banned slavery in that territory.2 That ordinance, which the Framers of the Thirteenth Amendment drew upon directly, provided: “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes whereof the party shall have been duly convicted.”3

On January 13, 1864, more than a year before the end of the Civil War, Senator John Henderson introduced a joint resolution proposing an amendment to the Constitution to abolish slavery and involuntary servitude.4 Representatives James Ashley and James Wilson had introduced similar resolutions in the House a month earlier.5 The Senate Judiciary Committee favorably reported a joint resolution that drew upon these drafts.6

Early in 1864, the Senate debated the resolution proposing the Thirteenth Amendment. Senator Lyman Trumbull blamed slavery as the cause of the war and argued that the nation’s Founders intended for the practice to end.7 A constitutional amendment was necessary, he argued, because of uncertainty over Congress’s power to prohibit slavery in the United States through legislation, and the need to prevent future majorities in Congress or state legislatures from reinstituting the practice.8 The intent of the amendment, in his view, was to take the question of slavery “entirely away from the politics of the country.”9 Proponents of the Thirteenth Amendment also argued passionately that slavery was wrong on moral grounds.10 Opponents of the Thirteenth Amendment generally argued that it would allow the federal government to intrude on property rights and other areas traditionally viewed as the exclusive domain of state authority.11

The Senate passed the joint resolution proposing the Thirteenth Amendment on April 8, 1864.12 The House considered the resolution in June 1864 but initially rejected it.13 In his State of the Union speech in December 1864, President Lincoln urged Congress to enact the joint resultion proposing the Thirteenth Amendment as soon as possible.14 After the Lincoln Administration engaged in a sustained effort to secure the necessary votes,15 the House passed the joint resolution on January 31, 1865.16

President Lincoln signed the joint resolution proposing the Thirteenth Amendment even though his signature was unnecessary for proposal or ratification of the Amendment.17 The Amendment was then submitted to the states for ratification.18

Notes
  1. See e.g., OHIO CONST. OF 1802, art. VIII, § 2; MICH. CONST. OF 1835, art. XI, § 1; WIS. CONST. OF 1848, art. I, § 2. See also George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 VA. L. REV. 1367, 1373 & n.23 (2008). ↩
  2. An ordinance for the government of the territory of the United States, North-west of the river Ohio, LIBR. OF CONG., https://www.loc.gov/resource/bdsdcc.22501/?st=gallery. ↩
  3. Id. At least one commentator has noted, however, that as “interpreted and applied . . . the Ordinance effected less than a complete abolition of slavery.” George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 VA. L. REV. 1367, 1373 (2008) ↩
  4. Cong. Globe, 38th Cong., 1st Sess. 145 (1864). Senator Charles Sumner unsuccessfully proposed a different formulation of the Thirteenth Amendment: “All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere in the United States.” Id. at 1482. ↩
  5. Id. at 19, 21 (1863). ↩
  6. See id. at 1313 (1864). ↩
  7. Id. ↩
  8. Id. at 1314. ↩
  9. Id. ↩
  10. Id. at 1320. ↩
  11. Id. at 1366. ↩
  12. Id. at 1490. ↩
  13. Id. at 2995. ↩
  14. Cong. Globe, 38th Cong., 2nd Sess. app’x at 3 (1864). ↩
  15. See Rebecca E. Zietlow, James Ashley, the Great Strategist of the Thirteenth Amendment, 15 GEO. J. L. & PUB. POL’Y 265, 300–01 (2017). ↩
  16. Cong. Globe, 38th Cong., 2nd Sess. 531 (1865). ↩
  17. 13th Amendment to the U.S. Constitution: Abolition of Slavery (1865), NAT’L ARCHIVES, https://www.ourdocuments.gov/document_data/pdf/doc_040.pdf. ↩
  18. A Resolution Submitting to the Legislatures of the Several States a Proposition to Amend the Constitution of the United States, https://memory.loc.gov/cgi-bin/ampage? collId=llsl&fileName=013/llsl013.db&recNum=596. ↩

Amdt13.4 Ratification of Thirteenth Amendment

Congress submitted the Thirteenth Amendment to the states for their consideration only a few months before the end of the Civil War.1 On April 14, 1865, President Abraham Lincoln, one of the Amendment’s foremost proponents, was assassinated.2 Vice President Andrew Johnson succeeded to the presidency and successfully pressured several southern states to ratify the Thirteenth Amendment as a condition of rejoining the Union.3 Secretary of State William Seward proclaimed the states’ ratification of the Thirteenth Amendment on December 18, 1865.4

Although the Thirteenth Amendment abolished slavery, state governments and private individuals continued to discriminate against African Americans and deny them equal rights under the law.5 Concerns that the Thirteenth Amendment did not sufficiently protect African Americans from various forms of discrimination led the Reconstruction-era Congress to enact civil rights legislation and propose the language that became the Fourteenth and Fifteenth Amendments to the Constitution.6

Notes
  1. A Resolution Submitting to the Legislatures of the Several States a Proposition to Amend the Constitution of the United States, https://memory.loc.gov/cgi-bin/ampage? collId=llsl&fileName=013/llsl013.db&recNum=596. ↩
  2. Rebecca E. Zietlow, James Ashley, the Great Strategist of the Thirteenth Amendment, 15 GEO. J. L. & PUB. POL’Y 265, 301 (2017). ↩
  3. Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453, 503–04 (1989). ↩
  4. Proclamation No. 52, 13 Stat. 774, 775 (1865) (proclamation by Secretary of State William H. Seward of December 18, 1865). The Amendment attained the threshold for ratification and entry into force on December 6, 1865. Although slavery had already been abolished in most U.S. jurisdictions by the time of ratification, the Thirteenth Amendment freed some slaves in Delaware and Kentucky. Eric Foner, Abraham Lincoln, the Thirteenth Amendment, and the Problem of Freedom, 15 GEO. J.L. & PUB. POL’Y 59, 62 (2017). ↩
  5. 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); The Civil Rights Cases, 109 U.S. 3, 8–10, 23 (1883); Peonage Cases, 123 F. 671, 673–74 (M.D. Ala. 1903). ↩
  6. See, e.g., Act of April 9, 1866, ch. 31, 14 Stat. 27. The Fourteenth Amendment was enacted, in part, because of concerns about the civil rights of African Americans after the Civil War. See Bell, 378 U.S. at 293 (Goldberg, J., concurring) (“A review of the relevant congressional debates reveals that the concept of civil rights which lay at the heart both of the contemporary legislative proposals and of the Fourteenth Amendment encompassed the right to equal treatment in public places—a right explicitly recognized to be a ‘civil’ rather than a ‘social’ right.”). See also Amdt14.S1.1.1 Historical Background on Citizenship Clause through Amdt14.S1.1.2 Citizenship Clause Doctrine; Amdt15.1 Overview of Fifteenth Amendment, Right of Citizens to Vote through Amdt15.S2.2 Federal Remedial Legislation. ↩