The Thirteenth Amendment: The Abolition of Slavery
The Issue:  What is the history behind the 13th Amendment?  Is it "self-enacting"?  What sorts of private activities might Congress regulate under its enforcement provision?
Delegates to the Constitutional Convention of 1787 hotly debated the issue of slavery.  George Mason of Virginia argued eloquently against slavery, warning his fellow delegates:
 "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. 

Dred Scott

Before the Civil War ended, Congress passed, and sent to the states for ratification, the Thirteenth Amendment which abolished "slavery" and "involuntary servitude" and authorized Congress to enact "appropriate legislation" implementing the abolition.  The Amendment was understood to also make blacks citizens of the United States (overruling Dred Scott on that point).  The House vote to propose the Thirteenth Amendment followed the Senate vote, and barely made the 2/3 majority requirement.  When the vote was announced the galleries cheered, congressmen embraced and wept, and Capitol cannons boomed a 100-gun salute.  Congressmena George Julian of Indiana wrote in his diary, "I have felt, ever since the vote, as if I were in a new country."  Ratification by the states quickly followed, and Secretary of State Seward proclaimed the Amendment adopted on December 18, 1865.

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 make and enforce contracts, to sue, be parties, 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 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.

42 U.S.C. 1982: (1866 Civil Rights Act, which the Court found to be a constitutional exercise of Congress's power under Section 2 of the 13th Amendment--even as it reaches private discrimination):
"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."

Dred Scott v Sandford (1857)
Butler v Perry (1916)
Jones v Alfred H. Mayer Co. (1968)
Memphis v Greene (1981)

The Constitution and Slavery:
Provisions in the Original Constitution

Article I, Section. 2 [Slaves count as 3/5 persons]
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons [i.e., slaves].
Article I, Section. 9, clause 1.  [No power to ban slavery until 1808]
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
Article IV,
Section. 2. [Free states cannot protect slaves]
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Article V [No Constitutional Amendment to Ban Slavery Until 1808]
...No Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article.
The Thirteenth Amendment
Passed by Congress January 31, 1865. Ratified December 6, 1865.
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.

Was the Civil War about slavery?
The short answer is "yes."  One might consider, for example, Mississippi's 21-paragraph declaration of reasons in 1861 for leaving the Union.  Only two paragraphs, one introductory and the other conclusory, did not mention slavery.  The state's principal complaints concerned the refusal of free states to return fugitive slaves and opposition of the extension of slavery into the territories.  The election of Abraham Lincoln, on an anti-slavery platform, obviously had a lot to do with the decisions of southern states to secede as well. 
The best evidence that "states' rights" was a secondary interest of the southern states is the Confederate Constitution which forced states to accept central authority on the issue of slavery and required all new territories in the Confederation to become slave states, regardless of the popular will of the people of the new state.

Lincoln's Three Proposed Constitutional Amendments of 1862
1.  Federal compensation provided for states agreeing to abolish slavery by January 1, 1900.
2.  Frees slaves who "enjoyed actual freedom by the chances of war" before "the end of the rebellion."
3.  Congress authorized to provide for colonization outside of the United States of free blacks by their own consent.

Chief Justice Roger Taney, author of the Court's opnion in Scott v Sandford


1.  What does it tell us about constitutional interpretation when we observe that the seven justices in the majority in Scott v Sandford were from slave-holding southern states, and that the two diessenters were from northern states?
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?
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?

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