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.
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.
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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
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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
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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
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