1549

THIRTEENTH AMENDMENT

SLAVERY AND INVOLUNTARY SERVITUDE

CONTENTS

Page

Abolition of Slavery ................................................................................................................... 1551

Origin and Purpose .................................................................................................................... 1551

Peonage ....................................................................................................................................... 1555

Situations in Which the Amendment Is Inapplicable ............................................................. 1557

1551

1 12 Stat. 1267.

2The legal issues were surveyed in Welling, The Emancipation Proclamation,

130 NO. AMER. REV. 163 (1880). See also J. RANDALL, CONSTITUTIONAL PROBLEMS

UNDER LINCOLN 371–404 (rev. ed. 1951). 3K. STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN THE ANTE-BELLUM SOUTH

(1956). 4The congressional debate on adoption of the Amendment is conveniently collected in 1 B. SCHWARTZ, STATUTORY HISTORY OF THE UNITED STATES—CIVIL

RIGHTS 25–96 (1970).

SLAVERY AND INVOLUNTARY SERVITUDE

THIRTEENTH AMENDMENT

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.

ABOLITION OF SLAVERY

Origin and Purpose

In 1863, President Lincoln issued an Emancipation Proclamation 1 declaring, based on his war powers, that within named States

and parts of States in rebellion against the United States ‘‘all persons held as slaves within said designated States, and parts of

States, are, and henceforward shall be free; . . .’’ The Proclamation

did not allude to slaves held in the loyalist States, and moreover,

there were questions about the Proclamation’s validity. Not only

was there doubt concerning the President’s power to issue his order

at all, but also there was a general conviction that its effect would

not last beyond the restoration of the seceded States to the Union. 2

Because the power of Congress was similarly deemed not to run to

legislative extirpation of the ‘‘peculiar institution,’’ 3 a constitutional amendment was then sought; after first failing to muster a

two-thirds vote in the House of Representatives, the amendment

was forwarded to the States on February 1, 1865, and ratified by

the following December 18. 4

In selecting the text of the Amendment, Congress ‘‘reproduced

the historic words of the ordinance of 1787 for the government of

the Northwest Territory, and gave them unrestricted application
1552 AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE

5 Bailey v. Alabama, 219 U.S. 219, 240 (1911). During the debate, Senator Howard noted that the language was ‘‘the good old Anglo-Saxon language employed by

our fathers in the ordinance of 1787, an expression which has been adjudicated

upon repeatedly, which is perfectly well understood both by the public and by judicial tribunals. . . .’’ CONG. GLOBE, 38th Cong., 1st Sess. 1489 (1864).

6 Id. at 1313–14.

7Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 69, 71–72 (1873). This general

applicability was again stated in Hodges v. United States, 203 U.S. 1, 16–17 (1906),

and confirmed by the result of the peonage cases. Infra. p. 1555.

8 Civil Rights Cases, 109 U.S. 3, 20 (1883).

9 Infra, p. 1555.

10 In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968), the Court left open

the question whether the Amendment itself, unaided by legislation, would reach the

‘‘badges and incidents’’ of slavery not directly associated with involuntary servitude,

and it continued to reserve the question in City of Memphis v. Greene, 451 U.S.

100, 125–26 (1981). See Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Justice Harlan dissenting). The Court drew back from the possibility in Palmer v. Thompson,

403 U.S. 217, 226–27 (1971).

within the United States.’’ 5 By its adoption, Congress intended,

said Senator Trumbull, one of its sponsors, to ‘‘take this question

[of emancipation] entirely away from the politics of the country. We

relieve Congress of sectional strifes. . . .’’ 6 An early Supreme Court

decision, rejecting a contention that the Amendment reached servitudes on property as it did on persons, observed in dicta that the

‘‘word servitude is of larger meaning than slavery, . . . and the obvious purpose was to forbid all shades and conditions of African

slavery.’’ But while the Court was initially in doubt whether persons other than African Americans could share in the protection afforded by the Amendment, it did continue to say that although

‘‘[N]egro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery,

now or hereafter. If Mexican peonage or the Chinese coolie labor

system shall develop slavery of the Mexican or Chinese race within

our territory, this amendment may safely be trusted to make it

void.’’ 7

‘‘This Amendment . . . is undoubtedly self-executing without

any ancillary legislation, so far as its terms are applicable to any

existing state of circumstances. By its own unaided force and effect

it abolished slavery, and established universal freedom.’’ 8 These

words of the Court in 1883 have generally been noncontroversial

and have evoked little disagreement in the intervening years. The

‘‘force and effect’’ of the Amendment itself has been invoked only

a few times by the Court to strike down state legislation which it

considered to have reintroduced servitude of persons 9 and it has

not used § 1 of the Amendment against private parties. 10 A major

change, however, has recently been wrought with regard to the
AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE 1553

11 United States v. Rhodes, 27, F. Cas. 785 (No. 16,151) (C.C. Ky. 1866) (Justice

Swayne on circuit): United States v. Cruikshank, 25 F. Cas. 707 (No. 14,897) (C.C.

La. 1874) (Justice Bradley on circuit), aff’d on other grounds, 92, U.S. 542 (1876);

United States v. Harris, 106 U.S. 629, 640 (1883); Blyew v. United States, 80 U.S.

581, 601 (1871) (dissenting opinion, majority not addressing the issue). 12 109 U.S. 3 (1883). 13 203 U.S. 1 (1906). See also Plessy v. Ferguson, 163 U.S. 537, 542–43 (1896);

Corrigan v. Buckley, 271 U.S. 323, 331 (1926); Hurd v. Hodge, 334 U.S. 24, 31

(1948). 14 Ch. 114, 18 Stat. 335. 15 Civil Rights Cases, 109 U.S. 3, 20 (1883). 16 Ch. 31, 14 Stat. 27 (1886), now 42 U.S.C. §§ 1981–82. 17 Civil Rights Cases, 109 U.S. 3, 22 (1883).

scope of congressional power under § 2 to enforce § 1 of the Amendment.

Certain early cases suggested broad congressional powers, 11

but the Civil Rights Cases 12 of 1883 began a process, culminating

in Hodges v. United States, 13 which substantially curtailed these

powers. In the former decision, the Court held unconstitutional an

1875 law 14 guaranteeing equality of access to public accommodations. Referring to the Thirteenth Amendment, the Court conceded

that ‘‘legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe

proper modes of redress for its violation in letter or spirit. And

such legislation may be primary and direct in its character; for the

amendment is not a mere prohibition of State laws establishing or

upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United

States.’’ Appropriate legislation under the Amendment, the Court

continued, could go beyond nullifying state laws establishing or upholding slavery, because the Amendment ‘‘has a reflex character

also, establishing and decreeing universal civil and political freedom throughout the United States’’ and thus Congress was empowered ‘‘to pass all laws necessary and proper for abolishing all

badges and incidents of slavery in the United States.’’ 15 But these

badges and incidents as perceived by the Court were those which

Congress had in its 1866 legislation 16 sought ‘‘to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely the same right to make and enforce contracts, to sue,

be parties, give evidence, and to inherit, purchase, lease, sell and

convey property, as is enjoyed by white citizens.’’ 17 But the Court

could not see that the refusal of accommodations at an inn or a

place of public amusement, without any sanction or support from

any state law, could inflict upon such person any manner of servitude or form of slavery, as those terms were commonly understood. ‘‘It would be running the slavery argument into the ground
1554 AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE

18 Id. at 24. 19 203 U.S. 1 (1906), overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409,

441 n.78 (1968). 20 Ch. 31, 14 Stat. 27 (1866). The portion at issue is now 42 U.S.C. § 1982. 21 Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420–37 (1968). Justices Harlan

and White dissented from the Court’s interpretation of the statute. Id. at 449. Chief

Justice Burger joined their dissent in Sullivan v. Little Hunting Park, 396 U.S. 229,

241 (1969). The 1968 Civil Rights Act forbidding discrimination in housing on the

basis of race was enacted a brief time before the Court’s decision. Pub. L. No. 90–

284, 82 Stat. 81, 42 U.S.C. § 3601–31. 22 Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440–43 (1968). See also City of

Memphis v. Greene, 451 U.S. 100, 124–26 (1981).

to make it apply to every act of discrimination which a person may

see fit to make. . . .’’ 18

Then in Hodges v. United States, 19 the Court set aside the convictions of three men for conspiring to drive several African Americans from their employment in a lumber mill. The Thirteenth

Amendment operated to abolish, and to authorize Congress to legislate to enforce abolition of, conditions of enforced compulsory service of one to another and no attempt to analogize a private impairment of freedom to a disability of slavery would suffice to give the

Federal Government jurisdiction over what was constitutionally a

matter of state remedial law.

The latter case was overruled by the Court in a far-reaching

decision in which it concluded that the 1866 congressional enactment, 20 far from simply conveying on all persons the capacity to

buy and sell property, also prohibited private denials of the right

through refusals to deal 21 and that this statute was fully supportable by the Thirteenth Amendment. ‘‘Surely Congress has the

power under the Thirteenth Amendment rationally to determine

what are the badges and the incidents of slavery, and the authority

to translate that determination into effective legislation. Nor can

we say that the determination Congress has made is an irrational

one. . . . Just as the Black Codes, enacted after the Civil War to

restrict the free exercise of those rights, were substitutes for the

slave system, so the exclusion of Negroes from white communities

became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.

. . . At the very least, the freedom that Congress is empowered to

secure under the Thirteenth Amendment includes the freedom to

buy whatever a white man can buy, the right to live wherever a

white man can live. If Congress cannot say that being a free man

means at least this much, then the Thirteenth Amendment made

a promise the Nation cannot keep.’’ 22 The Amendment, then, could

provide the constitutional support for the various congressional en-
AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE 1555

23 E.g., federal prohibition of racial discrimination in public accommodations,

found lacking in constitutional basis under the Thirteenth and Fourteenth Amendments in the Civil Rights Cases, 109 U.S. 3 (1883), was upheld as an exercise of

the commerce power in Heart of Atlanta Motel v. United States, 379 U.S. 241

(1965), and Katzenbach v. McClung, 379 U.S. 294 (1965). 24The 1968 statute on housing and the 1866 act are compared in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413–17 (1968). The expansiveness of the 1866 statute and of congressional power is shown by Sullivan v. Little Hunting Park, 396

U.S. 229 (1969) (1866 law protects share in neighborhood recreational club which

ordinarily went with the lease or ownership of house in area); Runyon v. McCrary,

427 U.S. 160 (1976) (guarantee that all persons shall have right to make and enforce contracts as is enjoyed by white persons protects the right of black children

to gain admission to private, commercially operated, nonsectarian schools); Johnson

v. Railway Express Agency, 421 U.S. 454, 459–60 (1975) (statute affords a federal

remedy against discrimination in private employment on the basis of race); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 285–96 (1976) (statute protects

against racial discrimination in private employment against whites as well as

nonwhites). See also Tillman v. Wheaton-Haven Recreation Ass’n, 410 U.S. 431

(1973). The Court has also concluded that pursuant to its Thirteenth Amendment

powers Congress could provide remedial legislation for African Americans deprived

of their rights because of their race in Griffin v. Breckenridge, 403 U.S. 88, 104–

05 (1971). Conceivably, the reach of the 1866 law could extend to all areas in which

Congress has so far legislated and to other areas as well, justifying legislative or

judicial enforcement of the Amendment itself in such areas as school segregation. 25 83 U.S. (16 Wall.) 36 (1873).

actments against private racial discrimination which Congress had

previously based on the commerce clause; 23 because the 1866 Act

contains none of the limitations written into the modern laws it

has a vastly extensive application. 24 Whether the Court will yet

carry its interpretation of the statute to the fullest extent possible

is, of course, not now knowable.

Peonage

Notwithstanding its early acknowledgement in the SlaughterHouse Cases that peonage was comprehended within the slavery

and involuntary servitude proscribed by the Thirteenth Amendment, 25 the Court has had frequent occasion to determine whether

state legislation or the conduct of individuals has contributed to reestablishment of that prohibited status. Defined as a condition of

enforced servitude by which the servitor is compelled to labor

against his will in liquidation of some debt or obligation, either real

or pretended, peonage was found to have been unconstitutionally

sanctioned by an Alabama statute, directed at defaulting sharecroppers, which imposed a criminal liability and subjected to imprisonment farm workers or tenants who abandoned their employment, breached their contracts, and exercised their legal right to

enter into employment of a similar nature with another person.

The clear purpose of such a statute was declared to be the coercion

of payment, by means of criminal proceedings, of a purely civil li-
1556 AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE

26Peonage Cases, 123 F. 671 (M.D. Ala. 1903). 27 219 U.S. 219 (1911). Justice Holmes, joined by Justice Lurton, dissented on

the ground that a State was not forbidden by this Amendment from punishing a

breach of contract as a crime. ‘‘Compulsory work for no private master in a jail is

not peonage.’’ Id. at 247. 28 Id. at 244. 29 235 U.S. 133 (1914). 30 315 U.S. 25 (1942). 31 322 U.S. 4 (1944). Justice Reed, with Chief Justice Stone concurring, contended in a dissenting opinion that a State is not prohibited by the Thirteenth

Amendment from ‘‘punishing the fraudulent procurement of an advance in wages.’’

Id. at 27.

ability arising from breach of contract. 26 Several years later, in

Bailey v. Alabama, 27 the Court voided another Alabama statue

which made the refusal without just cause to perform the labor

called for in a written contract of employment, or to refund the

money or pay for the property advanced thereunder, prima facie

evidence of an intent to defraud and punishable as a criminal offense, and which was enforced subject to a local rule of evidence

which prevented the accused, for the purpose of rebutting the statutory presumption, from testifying as to his ‘‘uncommunicated motives, purpose, or intention.’’ Inasmuch as a state ‘‘may not compel

one man to labor for another in payment of a debt by punishing

him as a criminal if he does not perform the service or pay the

debt,’’ the Court refused to permit it ‘‘to accomplish the same result

[indirectly] by creating a statutory presumption which, upon proof

of no other fact, exposes him to conviction.’’ 28

In 1914, in United States v. Reynolds, 29 a third Alabama enactment was condemned as conducive to peonage through the permission it accorded to persons, fined upon conviction for a misdemeanor, to confess judgment with a surety in the amount of the

fine and costs, and then to agree with said surety, in consideration

of the latter’s payment of the confessed judgment, to reimburse him

by working for him upon terms approved by the court, which, the

Court pointed out, might prove more onerous than if the convict

had been sentenced to imprisonment at hard labor in the first

place. Fulfillment of such a contract with the surety was viewed as

being virtually coerced by the constant fear it induced of rearrest,

a new prosecution, and a new fine for breach of contract, which

new penalty the convicted person might undertake to liquidate in

a similar manner attended by similar consequences. More recently,

Bailey v. Alabama has been followed in Taylor v. Georgia 30 and

Pollock v. Williams, 31 in which statutes of Georgia and Florida, not

materially different from that voided in the Bailey case, were found

to be unconstitutional. Although the Georgia statute prohibited the

defendant from testifying under oath, it did not prevent him from
AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE 1557

32 Ch. 187, § 1, 14 Stat. 546, now in 42 U.S.C. § 1994 and 18 U.S.C. § 1581.

Upheld in Clyatt v. United States, 197 U.S. 207 (1905); and see United States v.

Gaskin, 320 U.S. 527 (1944). See also 18 U.S.C. § 1584, which is a merger of 3 Stat.

452 (1818), and 18 Stat. 251 (1874), dealing with involuntary servitude. Cf. United

States v. Shackney, 333 F.2d 475, 481–83 (2d Cir. 1964). 33 18 U.S.C. § 241. 34 18 U.S.C. § 1584. 35 United States v. Kozminski, 487 U.S. 931 (1988). Compulsion of servitude

through ‘‘psychological coercion,’’ the Court ruled, is not prohibited by these statutes.36 Robertson v. Baldwin, 165 U.S. 275, 282 (1897). 37 Butler v. Perry, 240 U.S. 328, 333 (1916).

entering an unsworn denial both of the contract and of the receipt

of any cash advancement thereunder, a factor which, the Court emphasized, was no more controlling than the customary rule of evidence in Bailey. In the Florida case, notwithstanding the fact that

the defendant pleaded guilty and accordingly obviated the necessity

of applying the prima facie presumption provision, the Court

reached an identical result, chiefly on the ground that the presumption provision, despite its nonapplication, ‘‘had a coercive effect in producing the plea of guilty.’’

Pursuant to its § 2 enforcement powers, Congress enacted a

statute by which it abolished peonage and prohibited anyone from

holding, arresting, or returning, or causing or aiding in the arresting or returning, of a person to peonage. 32

The Court looked to the meaning of the Thirteenth Amendment in interpreting two enforcement statutes, one prohibiting conspiracy to interfere with exercise or enjoyment of constitutional

rights, 33 the other prohibiting the holding of a person in a condition of involuntary servitude. 34 For purposes of prosecution under

these authorities, the Court held, ‘‘the term ‘involuntary servitude’

necessarily means a condition of servitude in which the victim is

forced to work for the defendant by the use or threat of physical

restraint or physical injury, or by the use or threat of coercion

through law or the legal process.’’ 35

Situations in Which the Amendment Is Inapplicable

In a wide range of situations the Thirteenth Amendment has

been unsuccessfully pressed into service. Thus, under a rubric of

‘‘services which have from time immemorial been treated as exceptional,’’ the Court held that contracts of seamen, involving to a certain extent the surrender of personal liberty, may be enforced without regard to the Amendment. 36 Similarly, enforcement of those

duties which individuals owe the government, such as service in

the military and on juries, is not covered. 37 A state law requiring

every able-bodied man within its jurisdiction to labor for a reason-
1558 AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE

38 Id.

39Selective Draft Law Cases, 245 U.S. 366 (1918). The Court’s analysis, in full,

of the Thirteenth Amendment issue raised by a compulsory military draft was the

following: ‘‘As we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war

declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth

Amendment, we are constrained to the conclusion that the contention to that effect

is refuted by its mere statement.’’ Id. at 390. While the Supreme Court has never

squarely held that conscription need not be premised on a declaration of war, indications are that the power is not constrained by the need for a formal declaration of

war by ‘‘the great representative body of the people.’’ During the Vietnam War (an

undeclared war) the Court, upholding a conviction for burning a draft card, declared

that the power to classify and conscript manpower for military service was ‘‘beyond

question.’’ United States v. O’Brien, 391 U.S. 367, 377 (1968). See also United States

v. Holmes, 387 F.2d 781, 784 (7th Cir. 1968) (‘‘the power of Congress to raise armies

and to take effective measures to preserve their efficiency, is not limited by either

the Thirteenth Amendment or the absence of a military emergency’’), cert. denied

391 U.S. 956.

40Marcus Brown Co. v. Feldman, 265 U.S. 170, 199 (1921).

41 United States v. Petrillo, 332 U.S. 1, 12–13 (1947). Injunctions and cease and

desist orders in labor disputes requiring return to work do not violate the Amendment. UAW v. WERB, 336 U.S. 245 (1949).

able time on public roads near his residence without direct compensation was sustained. 38 A Thirteenth Amendment challenge to

conscription for military service was summarily rejected. 39 A state

law making it a misdemeanor for a lessor, or his agent or janitor,

intentionally to fail to furnish such water, heat, light, elevator,

telephone, or other services as may be required by the terms of the

lease and necessary to the proper and customary use of the building was held not to create an involuntary servitude. 40 A federal

statute making it unlawful to coerce, compel, or constrain a communications licensee to employ persons in excess of the number of

the employees needed to conduct his business was held not to implicate the Amendment. 41