1655

THIRTEENTH AMENDMENT 

SLAVERY AND INVOLUNTARY SERVITUDE 

CONTENTS

Page

Abolition of Slavery ................................................................................................................... 1657 

Origin and Purpose ............................................................................................................ 1657

Peonage ............................................................................................................................... 1661 

Situations in Which the Amendment Is Inapplicable ..................................................... 1663 

1657

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 

1658 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 CONG. GLOBE 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, discussed under the next topic. 8 Civil Rights Cases, 109 U.S. 3, 20 (1883). 

9 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.’’

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, and the Court 

has not used section 1 of the Amendment against private parties. 9

In 1968, however, the Court overturned almost century-old precedent and held that Congress may regulate private activity in exercise of its section 2 power to enforce section 1 of the Amendment. 

AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE 1659

10 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). 11 109 U.S. 3 (1883). 12 203 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). 13 Ch. 114, 18 Stat. 335. 14 Civil Rights Cases, 109 U.S. 3, 20 (1883). 15 Ch. 31, 14 Stat. 27 (1886), now 42 U.S.C. §§ 1981–82. 16 Civil Rights Cases, 109 U.S. 3, 22 (1883). 

Certain early cases suggested broad congressional powers, 10

but the Civil Rights Cases 11 of 1883 began a process, culminating 

in Hodges v. United States, 12 which substantially curtailed these 

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

1875 law 13 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 thereby empowering Congress ‘‘to pass all laws necessary and proper for abolishing all 

badges and incidents of slavery in the United States.’’ 14

These badges and incidents as perceived by the Court, however, were those which Congress had in its 1866 legislation 15

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.’’ 16 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 arguVerDate Apr<15>2004 08:31 Jun 28, 2004 Jkt 077500 PO 00000 Frm 00003 Fmt 8222 Sfmt 8222 C:\CONAN\CON044.SGM PRFM99 PsN: CON044
1660 AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE 

17 109 U.S. at 24. 18 203 U.S. 1 (1906), overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409, 

441 n.78 (1968). 19 Ch. 31, 14 Stat. 27 (1866). The portion at issue is now 42 U.S.C. § 1982. 20 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. 21 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). 

ment into the ground to make it apply to every act of discrimination which a person may see fit to make. . . .’’ 17

Then in Hodges v. United States, 18 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. 

Hodges was overruled by the Court in a far-reaching decision 

in which it concluded that the 1866 congressional enactment, 19 far

from simply conferring on all persons the capacity to buy and sell 

property, also prohibited private denials of the right through refusals to deal, 20 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.’’ 21

AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE 1661

22 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). 23The 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 the same 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. 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. 24 83 U.S. (16 Wall.) 36 (1873). 

The Thirteenth Amendment, then, could provide the constitutional support for the various congressional enactments against private racial discrimination which Congress had previously based on 

the commerce clause. 22 Because the 1866 Act contains none of the 

limitations written into the modern laws, it has a vastly extensive 

application. 23 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 acknowledgment in the SlaughterHouse Cases that peonage was comprehended within the slavery 

and involuntary servitude proscribed by the Thirteenth Amendment, 24 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 

1662 AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE 

25Peonage Cases, 123 F. 671 (M.D. Ala. 1903). 26 219 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. 27 219 U.S. at 244. 28 235 U.S. 133 (1914). 29 315 U.S. 25 (1942). 30 322 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. 

of payment, by means of criminal proceedings, of a purely civil liability arising from breach of contract. 25

Several years later, in Bailey v. Alabama, 26 the Court voided 

another Alabama statute 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.’’ 27

In 1914, in United States v. Reynolds, 28 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. 

Bailey v. Alabama was followed in Taylor v. Georgia 29 and Pollock v. Williams, 30 in which statutes of Georgia and Florida, not 

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

AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE 1663

31 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). 32 18 U.S.C. § 241. 33 18 U.S.C. § 1584. 34 United States v. Kozminski, 487 U.S. 931 (1988). Compulsion of servitude 

through ‘‘psychological coercion,’’ the Court ruled, is not prohibited by these statutes.35 Robertson v. Baldwin, 165 U.S. 275, 282 (1897). 

to be unconstitutional. Although the Georgia statute prohibited the 

defendant from testifying under oath, it did not prevent him from 

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 section 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. 31

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, 32 the other prohibiting the holding of a person in a condition of involuntary servitude. 33 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.’’ 34

Situations in Which the Amendment Is Inapplicable 

The Thirteenth Amendment has been held inapplicable in a 

wide range of situations. 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. 35 Similarly, enforcement of those duties which individuals owe the government, such as service in the military and on 

1664 AMDT. 13—SLAVERY AND INVOLUNTARY SERVITUDE 

36 Butler v. Perry, 240 U.S. 328, 333 (1916). 37 Butler v. Perry, 240 U.S. 328 (1916). 38Selective 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. 39Marcus Brown Co. v. Feldman, 265 U.S. 170, 199 (1921). 40 United States v. Petrillo, 332 U.S. 1, 12–13 (1947). 41 UAW v. WERB, 336 U.S. 245 (1949). 

juries, is not covered. 36 A state law requiring every able-bodied 

man within its jurisdiction to labor for a reasonable time on public 

roads near his residence without direct compensation was sustained. 37 A Thirteenth Amendment challenge to conscription for 

military service was summarily rejected. 38 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. 39 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. 40 Injunctions and cease and desist orders in labor disputes requiring return to work do not violate the Amendment. 41