Abolition of Slavery

Section 1. Neither slavery norinvoluntary servitude, except as apunishment for crime whereof theparty shall have been duly convict-ed, shall exist within the UnitedStates, or any place subject to theirjurisdiction.

Section 2. Congress shall havepower to enforce this article byappropriate legislation.

(Amendment XIII)

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The Thirteenth Amendment was intended tocomplete the destruction of slavery begun bythe U.S. government during the Civil War in itspolicy of military emancipation. The officialaim of the war was to preserve the Union andthe Constitution against the attempt of elevenSouthern states to secede from the Union byarmed force. In an attempt to keep the peaceand prevent further secession, Congress pro-posed a constitutional amendment on March 2,1861, stating that the Constitution should neverbe amended to give Congress power to abolishor interfere with slavery within any state. Oncethe South had seceded, the status of slavery inthe rebellious states was subject to change.Union policy recognized that emancipation ofslaves employed in support of the rebellion wasa legitimate war measure. The EmancipationProclamation, issued by President AbrahamLincoln on January 1, 1863, signaled the trans-formation of an expedient military strategy intoa settled executive policy for maintaining thefreedom of slaves, emancipated by militarymeans or through enforcement of confiscationand treason statutes enacted by Congress.

On the assumption that slavery was a staterather than national institution, antislaveryadvocates at first anticipated that military defeatof the Confederacy would result in its abolitionthrough amendment of state constitutions. TheEmancipation Proclamation shifted the focusof antislavery strategy to the national govern-ment. Lincoln’s proclamation stated that “the

Executive government of the United States,including the military and naval authoritiesthereof, will recognize and maintain the free-dom” of emancipated slaves. The legal effect ofthe executive order on individual slaves wasuncertain, however, and it was generally agreedthat the proclamation did not repeal state con-stitutions and laws establishing slavery. To placeslave emancipation on a secure constitutionalfooting, Congress proposed on January 31,1865, to abolish slavery by constitutionalamendment. Ratification of the ThirteenthAmendment, including approval by recon-structed governments in the former Confeder-ate states, was completed on December 6, 1865.

The text of the Thirteenth Amendmentreflects its historic character as the culminationof a movement that began during the AmericanRevolution. Eschewing originality, the authorsof the amendment relied on the language of theNorthwest Ordinance of 1787, intended to keepslavery from being taken into national territory,to abolish it in lands where it had been estab-lished for over two centuries. This demonstra-tion of textual fidelity to historic antislaverypurpose expressed the desire of Congress tocomplete the Founders’ system of constitution-al liberty by making the personal liberty of indi-viduals the concern of the national government.

The Thirteenth Amendment was intended toestablish a positive guarantee of personal liber-ty, expressed in the negative form of a proscrip-tion of slavery or involuntary servitude. Viewedin historical context and in the tradition ofAmerican political thought, the amendment isan affirmation of the idea that liberty, in themost fundamental sense, consists in the right ofindividuals not to be interfered with in the exer-cise of their natural rights. As a guarantee ofpersonal liberty for all persons in the UnitedStates, the amendment established a minimumnational standard of equality.

The Thirteenth Amendment is libertarian inits nature and purpose, however, rather thanegalitarian. The libertarian characteristic of theamendment was made clear in congressionaldebate in 1864. Congress rejected a more far-reaching proposal, which stated:“All persons areequal before the law, so that no person can hold

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another as a slave; and the Congress shall havethe power to make all laws necessary and prop-er to carry this declaration into effect every-where within the United States.”

By conferring power on Congress to enforcethe prohibition of slavery throughout the Unit-ed States, the Thirteenth Amendment altered therelationship between the states and the federalgovernment. State power to recognize or estab-lish slavery as a legal institution was withdrawn;to that extent, at least, state authority to regulatethe personal liberty and civil rights of individualswithin their jurisdiction was restricted beyondthe limits imposed by the original Constitution.Unlike most other parts of the Constitution,which are designed only to limit governmentalaction, enforcement of the Thirteenth Amend-ment is not limited by the requirement that itapply only to actions by states or state officials.The amendment establishes a rule of action forprivate individuals as well as for state govern-ments. In the language of constitutional law,enforcement of the amendment is not limitedby the requirement that the amendment’s pro-hibitions apply only to state action. The U.S.Constitution, for the most part, does not applyto individuals except when they act under colorof law (e.g., the policeman who searches yourhouse). The Thirteenth Amendment is differentbecause it applies to private individuals actingin their private capacities. A person violates theThirteenth Amendment if he keeps a slave.Where the fundamental right of personal libertyis concerned, the distinction between public andprivate spheres, which otherwise serves as a lim-itation on government power in the UnitedStates, is not recognized under the ThirteenthAmendment.

In the view of its congressional framers, thecomprehensive sweep of the abolition amend-ment was balanced by its libertarian purpose.The scope of the enforcement power delegatedto Congress thus depends on the meaning ofslavery and involuntary servitude. Explicit defi-nition of these terms in the text of the ThirteenthAmendment was considered unnecessarybecause slavery was universally understood, andlegally defined, as the right of a person to holdanother human being as chattel. Slavery was

appropriating the work of another person byirresistible power and not by his consent.

In legislative debate there was disagreementover the anticipated force and effect of the prohi-bition of slavery. The most narrow interpretationof the amendment viewed it as conferring onlyan individual right not to be held as the propertyof another. Except for this limitation, states oth-erwise retained authority to regulate the civilrights of persons within their jurisdiction, andprivate individuals enjoyed freedom of associa-tion, including the right to discriminate as theypleased in commercial and social interactions.This ultra-restrictive view of the abolitionamendment was challenged by its congressionalauthors. They believed that prohibition of slaveryand involuntary servitude necessarily implied theconferral of basic civil rights reasonably requiredto exercise the right of personal liberty guaran-teed by the Thirteenth Amendment. Preeminentin their view were the rights to labor and enjoythe fruits thereof; to enter into marriage andestablish family relationships; to make andenforce contracts; to bring suit and testify incourt; and generally to receive the benefit of com-mon-law protections of person and property.Content to rely on the Northwest Ordinance andreluctant further to engage the contentious issueof the effect of the abolition of slavery on the fed-eral system, congressional authors refrained fromwriting specific civil rights guarantees into thetext of the Thirteenth Amendment.

A year later, faced with restrictive laws (the“Black Codes”) enacted by reconstructed stategovernments regulating the status and rights ofblacks within their jurisdictions, Congressenacted civil rights protections that it believednecessary to vindicate the right of personal lib-erty conferred by the Thirteenth Amendment.This legislative response forms an importantpart of the framing of the Amendment becauseit can be viewed as an authoritative congres-sional construction of the national govern-ment’s enforcement power.

The Civil Rights Act of 1866 declared that allpersons born in the United States, except Indi-ans not taxed, were citizens of the United States.Regardless of race, color, or previous conditionof servitude, citizens had the same right to make

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and enforce contracts; to sue, be parties, andgive evidence in court; to inherit, lease, or ownproperty; and to have the full and equal benefitof all laws for the security of person and prop-erty as was enjoyed by white persons. The CivilRights Act authorized the courts to protect per-sons denied the enumerated rights because oftheir race against anyone acting under color ofstate authority.

The constitutional basis for national civilrights legislation of this magnitude was a matterof dispute. Many Members of Congress wereconvinced that the classification and unequaltreatment of black citizens under state laws in thereconstructed South were an infringement of lib-erty and a badge of servitude subject to legisla-tive correction by Congress under Section 2 ofthe Thirteenth Amendment. Other lawmakers,objecting to the “Black Codes,” doubted that theabolition amendment gave Congress power todisplace the states in civil rights matters andimpose criminal sanctions on their officers in themanner of the Civil Rights Act. To supply anysupposed defect in constitutional authority tolegislate on civil rights under the ThirteenthAmendment, Congress therefore proposed aconstitutional amendment that expressly author-ized national legislation against state civil rightsinfringement. Affirming the rule of citizenshipadopted by the Civil Rights Act, the FourteenthAmendment prohibited states from abridgingthe privileges and immunities of citizens of theUnited States, depriving persons of life, liberty,and property without due process of law, ordenying persons equal protection of the laws.

Judicial and legislative construction has, insubstantial measure, conformed to the originalunderstanding of the Thirteenth Amendment.Slavery and involuntary servitude have beendefined in personal libertarian terms withrespect to conditions of enforced compulsoryservice, rather than in social egalitarian termsbased on a subjective and metaphorical view ofslavery that focuses on social and cultural sys-tems of dominance and subordination.

The most serious challenge to the ThirteenthAmendment was presented by labor arrange-ments in the post-Reconstruction South intend-ed to restrict the mobility of black citizens. In

the first half of the twentieth century, theSupreme Court invalidated as forms of involun-tary servitude state laws restricting employmentand contract liberty and authorizing compulso-ry labor for indebtedness. Bailey v. State ofAlabama (1911), United States v. Reynolds(1914), Taylor v. State of Georgia (1942), Pollockv. Williams (1944). In a wide variety of cases concerning, among other things, military con-scription, public work laws, discrimination incontracts, social security benefits, deportationof aliens, treatment of the criminally insane,labor union activities, and duties required ofpublic school students, courts generally rejectedclaims of involuntary servitude in violation ofthe Thirteenth Amendment.

In these cases the judiciary addressed thequestion of the meaning and unaided force andeffect of the prohibitions in Section 1 of theamendment. In a second line of cases, dealingwith the enforcement power of Congress underSection 2, a broader interpretation appears thatsuggests a more social egalitarian view of theThirteenth Amendment.

In the Civil Rights Cases (1883), the SupremeCourt stated that Congress’s enforcementauthority under Section 2 extended to the“badges and incidents of slavery.” However, theCourt adopted a narrow view of this concept,rejecting a claim that exclusion of black citizensfrom privately operated places of public accom-modation was a badge of slavery. The Courtdeclared that “compulsory service of the slavefor the benefit of the master, restraint of hismovements except by the master’s will, disabili-ty to hold property, to make contracts, to have astanding in court, to be a witness against a whiteperson, and such like burdens and incapacities,were the inseparable incidents of slavery.”

Through most of the twentieth century, theThirteenth Amendment was not utilized to tryto dismantle state-sponsored racial discrimina-tion. Federal civil rights enforcement policy inthe 1950s and 1960s was principally based on theFourteenth and Fifteenth Amendments. In 1968,however, the Supreme Court approved a dra-matic expansion of the meaning of the “badgesand incidents” of slavery in Jones v. Alfred H.Mayer, Co. The Supreme Court decided that

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racial discrimination in the sale of housing, inthe form of a property owner’s refusal to sell toa Negro buyer, was a “relic of slavery” prohibitedunder the Civil Rights Act of 1866. Avoiding therequirements of the state-action doctrine underthe Fourteenth Amendment, which made pro-hibition of private discrimination problematic,the Court relied on the antislavery amendmentand permitted Congress to define for itself whatthe “badges and incidents” of slavery were. TheCourt declared: “Surely Congress has the powerunder the Thirteenth Amendment rationally todetermine what are the badges and incidents ofslavery, and the authority to translate that deter-mination into effective legislation.” The Courtdid not describe what limits Congress mustobserve in enforcing the amendment by “appro-priate” legislation as required in Section 2. Againin Runyon v. McCrary (1976), the Court avoidedthe public/private distinction requirement of theFourteenth Amendment legislation and heldthat exclusion of a black student from a privateschool was a denial of the right to make andenforce contracts guaranteed by the Civil RightsAct of 1866 and prohibited by the ThirteenthAmendment.

On the other hand, in cases outside of Con-gress’s Section 2 enforcement power, the Courtwas more careful to limit the “badges and inci-dent of slavery” doctrine to its historical context.For example, the Supreme Court found that acity’s closing of its swimming pools, rather thanoperating them on a desegregated basis, was nota badge of slavery. Palmer v. Thompson (1971).In City of Memphis v. Greene (1981), the Courtdecided that the closing of a street in a whiteneighborhood, even if it had a disparate impacton blacks outside the neighborhood, was not abadge or incident of slavery in violation of theThirteenth Amendment. These cases indicatethat Section 1 of the Thirteenth Amendment,unaided by legislation, does not reach the badgesand incidents of slavery not directly associatedwith involuntary servitude.

The most significant recent judicial explo-ration of the meaning of the ThirteenthAmendment reaffirms a narrow definition ofinvoluntary servitude under federal statutes. InUnited States v. Kozminski (1988), the Supreme

Court unanimously decided that privateemployers of two mentally retarded men, forcedto labor in squalid conditions, violated statutesbased on the Thirteenth Amendment. Contro-versy in the Court focused on the criteria usedto determine the existence of involuntary servi-tude. The opinion of the Court stated thatinvoluntary servitude is compulsory servitudeby the use of physical restraint or injury, or bythe use or threat of coercion through legalprocess. Disputing a concurring opinion, themajority declared that compulsion by psycho-logical coercion is not involuntary servitudeunder the Thirteenth Amendment.

Slavery and involuntary servitude in consti-tutional law retain the essential meaningintended by the framers of the ThirteenthAmendment, and congressional legislationunder its enforcement clause remains limited.Since the reappearance of the ThirteenthAmendment in civil rights litigation in 1968,Congress has chosen not to enact any furtherlegislation identifying and proscribing “badgesand incidents of slavery.”

Herman Belz

See AlsoAmendment XIV

Amendment XV (Suffrage—Race)

Suggestions for Further ResearchHerman Belz, A New Birth of Freedom: The

Republican Party and Freedmen’s Rights,

1861–1866 (2000)

Sidney Buchanan, The Quest for Freedom: A Legal

History of the Thirteenth Amendment, 12 Hous. L.

Rev. 12 (1976)

1 Charles Fairman, Reconstruction and

Reunion, 1864–1888 (1971)

Robert L. Kohl, The Civil Rights Act of 1866, Its Hour

Come Round at Last, Jones v. Alfred J. Mayer Co.,

55 Va. L. Rev. 272 (1969)

Earl M. Maltz, Civil Rights, the Constitution,

and Congress, 1863–1869 (1990)

Ronald D. Rotunda, Congressional Power to Restrict

the Jurisdiction of the Lower Federal Courts and the

Problem of School Busing, 64 Geo. L.J. 839 (1976)

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Michael Vorenberg, Final Freedom: The Civil

War, the Abolition of Slavery, and the Thir-

teenth Amendment (2001)

Michael P. Zuckert, Completing the Constitution: The

Thirteenth Amendment, 4 Const. Comment. 7

(1987)

Significant CasesCivil Rights Cases, 109 U.S. 3 (1883)

Bailey v. State of Alabama, 219 U.S. 219 (1911)

United States v. Reynolds, 235 U.S. 133 (1914)

Taylor v. State of Georgia, 315 U.S. 25 (1942)

Pollock v. Williams, 322 U.S. 4 (1944)

Jones v. Alfred H. Mayer, Co., 392 U.S. 409 (1968)

Palmer v. Thompson, 403 U.S. 217 (1971)

Runyon v. McCrary, 427 U.S. 160 (1976)

City of Memphis v. Greene, 451 U.S. 100 (1981)

United States v. Kozminski, 487 U.S. 931 (1988)

Citizenship

All persons born or naturalized inthe United States, and subject tothe jurisdiction thereof, are citi-zens of the United States and of theState wherein they reside.

(Amendment XIV, Section 1)

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Before the adoption of the Fourteenth Amend-ment, citizens of the states were automaticallyconsidered citizens of the United States. In 1857,the Dred Scott v. Sanford decision had held thatno black of African descent (even a freed black)could be a citizen of the United States. The Four-teenth Amendment was thus necessary to over-turn Dred Scott and to settle the question of thecitizenship of the newly freed slaves. The Four-teenth Amendment made United States citizen-ship primary and state citizenship derivative. Theprimacy of federal citizenship made it impossi-ble for states to prevent former slaves frombecoming United States citizens by withholdingstate citizenship. States could no longer preventany black from United States citizenship or fromstate citizenship either.

The Civil Rights Act of 1866 had previouslyasserted that “All persons born in the UnitedStates and not subject to any foreign power,excluding Indians not taxed, are hereby declaredto be citizens of the United States.” The imme-diate impetus for the Fourteenth Amendmentwas to constitutionalize and validate the CivilRights Act because some had questionedwhether the Thirteenth Amendment was a suf-ficient basis for its constitutionality. A constitu-tional amendment would also have the advan-tage of preventing a later unfriendly Congressfrom repealing it.

One conspicuous departure from the lan-guage of the Civil Rights Act was the eliminationof the phrase “Indians not taxed.” Senator JacobHoward of Ohio, the author of the CitizenshipClause, defended the new language against thecharge that it would make Indians citizens of theUnited States. Howard assured skeptics that“Indians born within the limits of the UnitedStates, and who maintain their tribal relations,are not, in the sense of this amendment, bornsubject to the jurisdiction of the United States.”Senator Lyman Trumbull, Chairman of the Sen-ate Judiciary Committee, supported Howard,contending that “subject to the jurisdictionthereof ” meant “not owing allegiance to any-body else . . . subject to the complete jurisdictionof the United States.” Indians, he concluded,were not “subject to the jurisdiction”of the Unit-ed States because they owed allegiance—even ifonly partial allegiance—to their tribes. Thus,two requirements were set for United States citi-zenship: born or naturalized in the United Statesand subject to its jurisdiction.

By itself, birth within the territorial limits ofthe United States, as the case of the Indians indi-cated, did not make one automatically “subjectto the jurisdiction” of the United States. And“jurisdiction” did not mean simply subject tothe laws of the United States or subject to thejurisdiction of its courts. Rather, “jurisdiction”meant exclusive “allegiance” to the UnitedStates. Not all who were subject to the laws owedallegiance to the United States. As SenatorHoward remarked, the requirement of “juris-diction,” understood in the sense of “allegiance,”“will not, of course, include persons born in the

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