"Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, providence punishes national sins by national calamities."
Southern delegates, on the other hand, argued strenuously that the new government should not be allowed to interfere with the institution of slavery. Delegate John Rutledge of South Carolina, for example, told delegates that "religion and humanity have nothing to do with the questions" of whether the Constitution should protect slavery--it was simply a question of property rights.
The Constitution that the delegates proposed included several provisions that explicity recognized and protected slavery. Without these provisions, southern delegates would not support the new Constitution--and without the southern states on board, the Constitution had no chance of being ratified. Provisions allowed southern states to count slaves as 3/5 persons for purposes of apportionment in Congress (even though the slaves could not, of course, vote), expressly denied to Congress the power to prohibit importation of new slaves until 1808, and prevented free states from enacting laws protecting fugitive slaves.
Slavery, as all students of history know, continued to be a divisive issue up through the Civil War. Southern states worried that the balance in Congress might tip against slavery, and so were anxious to extend slavery to new territories and states. The Missouri Compromise of 1820 (enacted at a time when slave states and non-slave states had equal representation in the Senate) permitted slavery in Missouri, but prohibited slavery in portions of the Louisiana purchase north of 36°30'.
The Supreme Court, in its infamous decision in Dred Scott v Sandford (1857), ruled that Congress lacked the power to prohibit slavery in its territories. In so doing, Scott v Sandford invited slave owners to pour into the territories and pass pro-slavery constitutions. The decision made the Civil War inevitable. Chief Justice Roger Taney, writing for the majority in Scott, also concluded that people of African ancestry (whether free or a slave, including Scott) could never become "citizens" within the meaning of the Constitution, and hence lacked the ability to bring suit in federal court.
Less than a year after ratification of the Thirteenth Amendment, Congress used its newly conferred power to pass the Civil Rights Act of 1866, giving black citizens "the same right in every state...to make and enforce contracts, to sue, be parties, ...to inherit, purchase, sell, and convey real and personal property; and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens." Supporters if the 1866 law argued that its guarantees constituted "appropriate" means of "enforcing" the right of blacks not to be held in bondage.
The Thirteenth Amendment, unlike most provisions in the Constitution, is self-executing, in that it directly reaches-even without action by Congress- conduct by private individuals (slave holders). Because of this fact, Congress's power under the Thirteenth Amendment allows it to punish forms of private conduct when it might not be able to do so under an amendment such as the Fourteenth, which restricts the conduct of states (prohibiting states from denying equal protection of the laws or due process).
The Thirteenth Amendment has not produced nearly the volume of Supreme Court decisions as has the Fourteenth Amendment, or even the Fifteenth Amendment (guaranteeing the vote to black citizens). In 1916, in Butler v Perry, the Court rejected a challenge brought by a Florida man to a state law that required all able-bodied men between 21 and 45, when called to do so, to work for up to 60 hours on maintaining public roads. The plaintiff, convicted of failing to put in his time on the roads and sentenced to jail, argued that the law mandated "involuntary servitude" in violation of the Thirteenth Amendment. Justice McReynolds, writing for the Court, concluded "the term 'involuntary servitude' was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results."
Jones vs Alfred H. Mayer Co. (1968) arose when the developer of a surburban St. Louis subdivision refused to sell Joseph Jones a home because he was black. Jones sued the developer, alleging a violation of the 1866 Civil Rights Act (42 U.S.C. 1982) which granted "all citizens of the United States...the same right as is enjoyed by white citizens...to purchase...real property." The Court rejected the developer's argument that Congress lacked the power under Section 2 of the 13th Amendment to ban private discrimination in housing. According to the Court in Jones, so long as Congress could rationally conclude that private discrimination in the housing market was "a badge of slavery," the statute should be upheld.
Finally, in Memphis v Greene (1981) the Court reversed a 6th Circuit ruling that the closing of a road separating an all-white neighborhood from a predominately black neighborhood constituted a violation of the Thirteenth Amendment. The Court found that the modest inconvenience and speculative loss of property value to black residents was insufficient either to be considered "a badge of slavery" protected against by the Thirteenth Amendment, or a violation of the 1866 Civil Rights Act enacted under the power granted to Congress by Section 2 of the amendment. Four dissenting justices would have found the closing to violate the 1866 Act.
Dred Scott v Sandford (1857)
Butler v Perry (1916)
Jones v Alfred H. Mayer Co. (1968)
Memphis v Greene (1981)
2. It is worth noting that Scott v Sandford was the only case in eight decades of pre-Civil War constitutional history in which the Supreme Court limited congressional power in any substantial way. What does it say about the Court's jurisprudence that the Court upheld the Fugitive Slave Act, finding it well within the powers of Congress?
3. Slavery laws have been applied to some private criminal enterprises, such as prostitution rings. When might states violate the Thirteenth Amendment? Butler suggests that mandatory work requirements are generally not violations, but what if state law required all able-bodied adults to pick cotton for 100 hours a year? If the same law applied only to African-Americans, it would undoubtedly violate the Equal Protection Clause--would it also violate the Thirteenth Amendment?
4. Would a real estate agency that steered potential black buyers away from white neighborhoods violate the Thirteenth Amendment? The 1866 Civil Rights Act?
5. The 13th Amendment is unique in that by its own words it applies to private individuals as well as government. How far does Section 2 of the 13th Amendment go in allowing Congress to reach forms of private discrimination? If discrimination in housing can be "a badge of slavery," might also discrimination in the membership policies of a private club?
6. Supreme Court decisions subsequent to Jones pointedly avoid assuming that Congress has unlimited discretion to call any private conduct it chooses "a badge of slavery," and then regulate it. How should a court decide whether a particular form of private discrimination in reachable by Section 2 of the 13th Amendment?
7. Should whites be protected by the Thirteenth Amendment against the same sorts of private discrimination as are African-Americans?