Thirteenth Amendment (Judicial Interpretation)

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THIRTEENTH AMENDMENT (Judicial Interpretation)

Ratification of the Thirteenth Amendment in 1865 not only diminished the urgency of the debate over the constitutionality of the emancipation proclamation but also wrote a new substantive value into the Constitution. The amendment's first section abolished slavery and involuntary servitude throughout the nation, and its second section empowered Congress to enforce abolition. If any of the amendment's framers expected it to end the system of racial dominance and dependence, they were soon divested of that illusion. The persistence of a plantation economy and the adoption in southern states of the black codes kept blacks in a position of subordination that was not only economic but political and social as well.

The question thus arose whether section 2 of the Thirteenth Amendment gave Congress the power to do more than provide sanctions against slavery or involuntary servitude, narrowly defined. Over a presidential veto, Congress adopted the civil rights act of 1866, which not only declared the citizenship of the freed slaves but also protected them against the sort of racial discrimination that had been embodied in the Black Codes, such as disqualification to own property, to make contracts, or to serve on juries. President andrew johnson had explained his veto of the bill partly on the ground that the Thirteenth Amendment had not empowered Congress to adopt legislation aimed at such purposes. Reacting to this argument, Congress proposed the fourteenth amendment as a means of assuring the validity of the 1866 Act and placing beyond doubt the power of Congress to enforce the civil rights of the freed slaves.

From the beginning it was arguable that the abolition of slavery implied that the persons so freed would take on the status of free citizens—that the amendment should be read broadly as a response to the whole social system of racial subordination associated with slavery. But in the early years, this view did not prosper in the Supreme Court; it was found mainly in obiter dicta and in dissenting opinions. All agreed that section 1 of the amendment was self-executing: slavery and involuntary servitude were abolished, whether or not Congress enacted civil or criminal sanctions to enforce the abolition. Because the amendment contained no state action limitation, it operated directly, of its own force, against either public or private conduct that imposed slavery. But the Court limited the notion of "involuntary servitude" to personal servitude, refusing to extend it (by analogy to feudal servitudes) to cover the granting of monopolies or other similar privileges. (See slaughterhouse cases). By the end of the nineteenth century, the Court was saying that slavery implied no more than "a state of bondage," and the lack of "a legal right to the disposal of [one's] own person, property, and services"; thus the Thirteenth Amendent standing alone did not even forbid a state to impose racial segregation on seating in railroad cars. (See plessy v. ferguson.)

This narrow view of the Thirteenth Amendment's self-executing reach was reflected in the Supreme Court's treatment of the power granted to Congress by section 2. In the civil rights cases (1883) the Court, in the face of a powerful dissenting opinion by Justice john marshall harlan, held invalid the civil rights act of 1875, a congressional statute forbidding racial discrimination in such public accommodations as hotels, theaters, and railroads. Both the majority and the dissent agreed that the Thirteenth Amendment was designed to put an end to the "incidents" of slavery as well as slavery itself. The question was whether racially based refusals of access to public accommodations amounted to "badges of slavery and servitude," and the majority held that they did not. This severely restrictive interpretation of the power of Congress to enforce the Thirteenth Amendment culminated in 1906, when the Court decided hodges v. united states. Congress could prohibit no more than the "entire subjection" of one person to another, as in laws forbidding peonage; Congress was not empowered by section 2 to go further in erasing "badges" or "incidents" of slavery.

So matters stood for six decades. The Thirteenth Amendment, like the Fourteenth Amendment's guarantee of the equal protection of the laws, lay dormant, offering no effective protection against racial discrimination. The judicial interpretation of the Thirteenth Amendment mirrored the nation's political history; Congress adopted no civil rights legislation from the time of Reconstruction to the late 1950s. The first modern civil rights law of major importance was the civil rights act of 1964; its public accommodations provisions were upheld by the Supreme Court, but on the basis of the commerce clause, not the Thirteenth or Fourteenth Amendments. (See heart of atlanta motel v. united states; katzenbach v. mcclung.) The Court seemed determined to uphold congressional legislation aimed at establishing racial equality, and in united states v. guest (1966) six Justices agreed in two separate opinions that Congress could reach even private conduct that interfered with the exercise of Fourteenth Amendment rights. The state action limitation, in other words, would not bar congressional enforcement of the equal protection clause of the Fourteenth Amendment's prohibition on private discrimination.

The reach of the equal protection clause, of course, is not limited to racial inequalities. Perhaps some of the Justices were reluctant to pursue the line of doctrinal development suggested by the separate opinions in Guest, for fear of giving Congress an invitation without apparent limitation. The solution to this puzzle—if it was a puzzle—came only two years after the Guest decision, in the form of a complete turnabout in the interpretation of the power of Congress to enforce the Thirteenth Amendment.

The turnabout came in jones v. alfred h. mayer co. (1968), when the Court interpreted the 1866 Civil Rights Act to prohibit all racial discrimination in the sale of property and upheld the act as so construed. The Court overruled the Hodges decision and essentially adopted the dissenting views of Justice Harlan in the Civil Rights Cases. The Thirteenth Amendment was held to empower Congress not only to eliminate slavery but also to eliminate slavery's "badges and incidents." Furthermore, said the Court, it is for Congress itself "rationally to determine what are the badges and incidents of slavery," and to enact laws to eradicate any such "relic of slavery" it might find.

This broad language is not limited to racial discrimination. Commentators have asked whether the Court, in seeking to avoid an open-ended interpretation of congressional power under the Fourteenth Amendment, has offered Congress a different set of constitutional bootstraps. In the quoted passage from the Jones opinion, the Court appears to authorize Congress to define a given right—any right—as one that is essential to freedom, to define its impairment as an incident of slavery, and to enact a law protecting the right against both public and private interference.

When the right in question is a right to be free from racial discrimination, this line of reasoning accords not only with the language of the Jones opinion but also with the decision's place in the historical process of constitutional validation of modern civil rights legislation. Outside the racial context, however, the reasoning is unlikely to be adopted by the Supreme Court. Of course the Thirteenth Amendment prohibits the enslavement of anyone, of any race. And the Court has upheld an application of the 1866 act to a case of racial discrimination against whites, evidently (but without discussion) on the basis of Congress's power to enforce the Thirteenth Amendment, in McDonald v. Santa Fe Trail Transportation Co. (1976). The decision is defensible, despite the lack of historic links between slavery and discrimination against whites. There is a basis in experience for a congressional conclusion that discrimination against one racial group affects attitudes toward race generally and promotes discrimination against other races. It would be much harder to justify a similar conclusion about the effects of discrimination on the basis of gender, or sexual preference, or physical handicap. Even if the analogy were stronger, the doctrinal context of the Jones decision cautions against a prediction that its "badges and incidents" reasoning will be extended beyond cases of racial discrimination. The Thirteenth Amendment seems to have had its main appeal as a basis for congressional power precisely because that power could be contained within the confines of remedies for racial discrimination. The "badges and incidents of slavery" which justify congressional intervention are to be found in racial discrimination if they are to be found at all.

The power of Congress to enforce the Thirteenth Amendment, like any other congressional power, is subject to the limitations of the bill of rights. Without question, the amendment empowers Congress to prohibit racial discrimination in all the public areas of life, including commercial dealings. In runyon v. mccrary (1976), for example, the Supreme Court relied on the Thirteenth Amendment to uphold application of the 1866 act to a private school that accepted applicants from children in the public at large but excluded blacks. The potential limitations of the Bill of Rights found expression in that case. Justice lewis f. powell, concurring, cautioned that some hypothetical congressional enforcements of the Thirteenth Amendment might violate constitutional rights of privacy or associational freedom, as when a litigant might seek application of the 1866 act to a case of racial discrimination in the selection of a home tutor or babysitter.

The expansion of the power of Congress to enforce the Thirteenth Amendment has not been accompanied by a corresponding expansion of the amendment's reach as a self-executing provision. The Jones opinion left open the question whether the amendment "by its own terms did anything more than abolish slavery," and although memphis v. greene (1981) raised the issue, the Court did not reach it. Thus, even though a great many forms of private racial discrimination may constitute "badges and incidents of slavery" justifying congressional action to secure their elimination, if Congress has not acted, these same "badges and incidents" are insufficient to trigger the operation of the amendment's section 1. The practical significance of this difference, however, is slight. The Supreme Court has construed existing civil rights legislation broadly enough to prohibit a wide range of private acts of racial discrimination.

Even assuming that the Thirteenth Amendment's self-executing force is limited to cases of bondage to personal service, there is room for debate about the kinds of compulsion that constitute involuntary servitude. Debt bondage—the requirement that a person work in discharge of a debt—is a classic case of peonage and is plainly forbidden by the amendment. However, compulsory military service (or alternative service for conscientious objectors), hard labor for persons imprisoned for crime, and restrictions on the right to strike all have been sustained against Thirteenth Amendment attacks.

Kenneth L. Karst
(1986)