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13th Amendment to the United States Constitution

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13th Amendment to the United States Constitution

United States of America
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The Thirteenth Amendment to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime. It was passed by the Senate on April 8, 1864, by the House on January 31, 1865, and adopted on December 6, 1865. On December 18, 1865, Secretary of State William H. Seward proclaimed it to have been adopted. It was the first of the three Reconstruction Amendments adopted following the American Civil War.

Slavery had been tacitly protected in the original Constitution through clauses such as the Three-Fifths Compromise, in which three-fifths of the slave population was counted for representation in the United States House of Representatives. Prior to the Thirteenth Amendment, more than sixty years had passed since the last amendment to the Constitution had been successfully ratified. Though many slaves had been declared free by Lincoln's 1863 Emancipation Proclamation, their post-war status was uncertain. On April 8, 1864, the Senate passed an amendment to abolish slavery. After one unsuccessful vote and extensive legislative maneuvering by the Lincoln administration, the House followed suit on January 31, 1865. The measure was swiftly ratified by nearly all Union states, and by a sufficient number of border and "reconstructed" Southern states to cause it to be adopted before the end of the year.

Though the amendment formally abolished slavery throughout the United States, factors such as Black Codes, white supremacist violence, and selective enforcement of statutes continued to subject some black Americans to involuntary labor, particularly in the South. In contrast to the other Reconstruction Amendments, the Thirteenth Amendment was rarely cited in later case law, but has been used to strike down debt peonage and some race-based discrimination as "badges and incidents of slavery". Unlike the Fourteenth and Fifteenth Amendments, the Thirteenth applies to private citizens as well as state actors. The amendment also enables Congress to pass laws against sex trafficking and other modern forms of slavery.

Text

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.[1]

Slavery in the United States

Slavery existed in all of the original thirteen American colonies.[3] The United States Constitution of 1787 did not use the word "slavery" but included several provisions about unfree persons. The Three-Fifths Compromise (in Article I, Section 2) allocated Congressional representation based "on the whole Number of free Persons" and "three fifths of all other Persons".[4] Under the Fugitive Slave Clause (Article IV, Section 2), "[n]o person held to service or labour in one state" would be freed by escaping to another. Article I, Section 9 allowed Congress to pass legislation to outlaw the "Importation of Persons", but not until 1808.[5] However, for purposes of the Fifth Amendment—which states that, "No person shall... be deprived of life, liberty, or property, without due process of law"—slaves were understood as property.[6] Although abolitionists used the Fifth Amendment to argue against slavery, it became part of the legal basis for treating slaves as property with Dred Scott v. Sandford (1857).[7] Slavery was supported in law and in practice by a pervasive culture of white supremacy.[8]

Between 1777 and 1804, every Northern state provided for the immediate or gradual abolition of slavery. No Southern state did so, and the slave population of the South continued to grow, peaking at almost 4 million people in 1861.[9] An abolitionist movement headed by such figures as William Lloyd Garrison grew in strength in the North, calling for the end of slavery nationwide and exacerbating tensions between North and South. In 1836, the United States House of Representatives instituted a gag rule against abolitionist petitions and speeches, attempting to stifle John Quincy Adams and other abolitionist congressmen. The American Colonization Society, an alliance between abolitionists who felt the races should be kept separated and slaveholders who feared the presence of freed blacks would encourage slave rebellions, called for the emigration and colonization of both free blacks and slaves to Africa. Its views were endorsed by politicians such as Henry Clay, who feared that the main abolitionist movement would provoke a civil war.[10] Proposals to eliminate slavery by constitutional amendment were introduced by Representative Arthur Livermore in 1818 and by John Quincy Adams in 1839, but failed to gain significant traction.[11]

As the country continued to expand, the issue of slavery in its new territories became the dominant national issue. The Southern position was that slaves were property and therefore could be moved to the territories like all other forms of property.[12] The 1820 Missouri Compromise provided for the admission of Missouri as a slave state and Maine as a free state, preserving the Senate's equality between the regions. In 1846, the Wilmot Proviso was introduced to a war appropriations bill to ban slavery in all territories acquired in the Mexican–American War; the Proviso repeatedly passed the House, but not the Senate.[12] The Compromise of 1850 temporarily defused the issue by admitting California as a free state, instituting a stronger Fugitive Slave Act, banning the slave trade in Washington, D.C., and allowing New Mexico and Utah self-determination on the slavery issue.[13]

Despite the compromise, tensions between North and South continued to rise over the subsequent decade, inflamed by, amongst other things, the publication of the 1852 anti-slavery novel Uncle Tom's Cabin;[14] fighting between pro-slave and abolitionist forces in Kansas, beginning in 1854;[15] the 1857 Dred Scott decision, which struck down provisions of the Compromise of 1850;[16] abolitionist John Brown's 1859 attempt to start a slave revolt at Harpers Ferry;[17] and the 1860 election of slavery critic Abraham Lincoln to the presidency. The Southern states seceded from the Union in the months following Lincoln's election, forming the Confederate States of America, and beginning the American Civil War.[18]

Adoption

Acting under presidential war powers, Lincoln issued an Emancipation Proclamation on January 1, 1863, declaring all slaves in rebel-controlled territory to be free; however, the proclamation did not affect the status of slaves in the border states that had remained loyal to the Union.[19] Lincoln followed with the December 1863 "Proclamation for Amnesty and Reconstruction", which offered Southern states a chance to peacefully rejoin the Union if they abolished slavery and collected loyalty oaths from 10% of their voting population.[20] Southern states did not readily accept the deal, and the status of slavery remained uncertain.

In the final years of the Civil War, Union lawmakers debated various proposals for Reconstruction.[21] Some of these called for a constitutional amendment to abolish slavery nationally and permanently. On December 14, 1863, a bill proposing such an amendment was introduced by Representative James Mitchell Ashley.[22] Representative James F. Wilson soon followed with a similar proposal. On January 11, 1864, Senator John B. Henderson of Missouri submitted a joint resolution for a constitutional amendment abolishing slavery. The Senate Judiciary Committee, chaired by Lyman Trumbull, became involved in merging different proposals for an amendment.

Radical Republicans led by Senator Charles Sumner and Representative Thaddeus Stevens sought a more expansive version of the amendment.[23] On February 8, 1864, Sumner submitted a constitutional amendment stating:

“All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere in the United States.”[24][25]

Sumner tried to circumvent the Judiciary Committee, controlled by Trumbull, in order to promote his more expansive wording, but failed.[26] On February 10 the Senate Judiciary Committee presented the Senate with an amendment proposal based on drafts of Ashley, Wilson and Henderson.[27][28]

The Committee's version used text from the Northwest Ordinance of 1787, which stipulates (for territories in the region now called the Midwest): "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes, whereof the party shall have been duly convicted."[29] Though using Henderson's proposed amendment as the basis for its new draft, the Judiciary Committee removed language that would have allowed a constitutional amendment to be adopted with only a majority vote in each House of Congress and ratification by two-thirds of the states (instead of two-thirds and three-fourths, respectively).[30]

The Senate passed the amendment on April 8, 1864, by a vote of 38 to 6. However, just over two months later on June 15, the House failed to do so, with 93 in favor and 65 against, thirteen votes short of the two-thirds vote needed for passage; the vote split largely along party lines, with Republicans supporting and Democrats opposing.[31] In the 1864 presidential race, former Free Soil Party candidate John C. Frémont threatened a third party run opposing Lincoln, this time on a platform endorsing an anti-slavery amendment. The Republican Party platform had, as yet, failed to include a similar plank, though Lincoln endorsed the amendment in a letter accepting his nomination.[32][33] Fremont withdrew from the race on September 22, 1864, and endorsed Lincoln.[34]

Congressional debate

With no Southern states represented, few members of Congress pushed moral and religious arguments in favor of slavery. Democrats who opposed the amendment generally made arguments based on federalism and state's rights.[35] Some argued that the proposed change so violated the spirit of the Constitution that it would not be a valid "amendment" but would instead constitute "revolution".[36] Some opponents warned that the amendment would lead to full citizenship for blacks.[37]

Republicans argued that slavery was uncivilized and that abolition was a necessary step in national progress.[38] Amendment supporters also argued that the slave system had negative effects on white people. These included the lower wages resulting from competition with forced labor, as well as repression of abolitionist whites in the South. Ending slavery, said advocates, would restore the First Amendment and other constitutional rights violated by censorship and intimidation in slave states.[37][39]

White Northern Republicans, and some Democrats, became excited about an abolition amendment, holding meetings and issuing resolutions.[40] Many blacks, particularly in the South, focused more on landownership and education as the key to liberation.[41] As slavery began to seem politically untenable, an array of Northern Democrats gradually announced their support for the amendment, including Representative James Brooks,[42] Senator Reverdy Johnson,[43] and Tammany Hall, a powerful New York political machine.[44]

Passage by Congress

Lincoln had been concerned that the Emancipation Proclamation might be reversed or found invalid after the war and saw constitutional amendment as a more permanent solution.[45][46] He had remained outwardly neutral on the amendment because he considered it politically too dangerous.[47] Nonetheless, Lincoln's 1864 party platform resolved to abolish slavery by constitutional amendment.[48][49] After winning the election of 1864, Lincoln made the passage of the Thirteenth Amendment his top legislative priority, beginning his efforts while the "lame duck" session was still in office.[50][51] Popular support for the amendment was mounting and Lincoln urged Congress on in his December 6 State of the Union speech: “there is only a question of time as to when the proposed amendment will go to the States for their action. And as it is to so go, at all events, may we not agree that the sooner the better?”[52]

Secretary of State William H. Seward, Representative John B. Alley and others were instructed by Lincoln to procure votes by any means necessary, and promised government posts and campaign contributions to outgoing Democrats willing to switch sides.[53][54] Seward had a large fund for direct bribes. Ashley, who reintroduced the measure into the House, also lobbied several Democrats to vote in favor of the measure.[55] Representative Thaddeus Stevens commented later that "the greatest measure of the nineteenth century was passed by corruption, aided and abetted by the purest man in America"; however, Lincoln's precise role in making deals for votes remains unknown.[56]

Republicans in Congress claimed a mandate for abolition, having gained in the elections for Senate and House.[57] Opposition to the measure was led by the 1864 Democratic vice presidential nominee, Representative George H. Pendleton.[58] Republicans toned down their language of radical equality in order to broaden the amendment's coalition of supporters.[59] In order to reassure critics worried that the amendment would tear apart the social fabric, some Republicans explicitly promised that the amendment would leave patriarchy intact.[60]

In mid-January, Speaker of the House Schuyler Colfax estimated the amendment to be five votes short of passage. Ashley postponed the vote.[61] At this point, Lincoln intensified his push for the amendment, making direct emotional appeals to particular members of Congress.[62] On January 31, 1865, the House called another vote on the amendment, with neither side being certain of the outcome. Every Republican supported the measure, as well as 16 Democrats, almost all of them lame ducks. The amendment finally passed by a vote of 119 to 56,[63] narrowly reaching the required two-thirds majority.[64] The House exploded into celebration, with some members openly weeping.[65] Black onlookers, who had only been allowed to attend Congressional sessions since the previous year, cheered from the galleries.[66]

Lincoln signed the amendment on February 1, 1865. The Thirteenth Amendment is the only ratified amendment signed by a President, although James Buchanan had signed the failed pro-slavery Corwin Amendment in 1861.[67][68] The Thirteenth Amendment's archival copy bears Lincoln's signature, under the usual ones of the Speaker of the House and the President of the Senate, after the date.[69] On February 7, Congress passed a resolution affirming that the Presidential signature was unnecessary.[70]Template:Efn

Ratification

The amendment was sent to the state legislatures. Most Northern states quickly ratified it, though motions to ratify were defeated in the three states won by Democratic candidate George B. McClellan in the 1864 election (Delaware, Kentucky, and New Jersey).

The war had not officially ended, and the legal status of the defeated Southern states (and by extension, the legal requirements for Constitutional amendment) remained ambiguous. Nevertheless, ratifications from Reconstruction governments in the Southern states of Louisiana, Arkansas, Virginia, and Tennessee were submitted and accepted.[66][71] Kentucky rejected the amendment quickly and bitterly, having considered slavery its reward for loyalty during the War.[72]

On April 14, 1865, President Lincoln was assassinated. With Congress out of session, Lincoln's successor Andrew Johnson began a period known as "Presidential Reconstruction", in which he personally oversaw the creation of new governments in seven Southern states.Template:Efn Johnson established political conventions populated by delegates he had approved, and strongly encouraged them to ratify the amendment.[73][74][75] Johnson hoped to prevent deliberation over whether to re-admit the Southern states by accomplishing full ratification before Congress reconvened in December.[76]

Direct negotiations between state governments and the Johnson administration ensued. Johnson suggested directly to the governors of Mississippi and North Carolina that they could proactively control the allocation of rights to freedmen.[77] South Carolina's provisional governor Benjamin Franklin Perry objected to the scope of the Amendment's enforcement clause; Secretary of State Seward responded by telegraph that in fact the second clause "is really restraining in its effect, instead of enlarging the powers of Congress".[78] The white politicians of South Carolina, and of other Southern states, were concerned that Congress might cite the amendment's enforcement powers as authorization for black suffrage.[79] When South Carolina ratified the Amendment, it issued its own interpretive declaration that "any attempt by Congress toward legislating upon the political status of former slaves, or their civil relations, would be contrary to the Constitution of the United States".[80][81] Alabama and Louisiana also declared that their ratification did not imply federal power to legislate on the status of former slaves.[82][83][84]

With the 39th Congress about to convene, Seward pressed the remaining states for ratification.[85] South Carolina, Alabama, North Carolina, and Georgia ratified the amendment in November and December 1865, bringing the total to 27, three-quarters of the 36 states that had existed before the war.Template:Efn Seward accepted the conditional ratifications of South Carolina and Alabama.[85] On December 18, 1865, Seward proclaimed the amendment to have been adopted as of December 6 (the date of Georgia's ratification), acknowledging thereby that all 36 states were considered valid members of the Union.[86][87]

Oregon and California ratified in mid-December, 1865. Florida ratified the Amendment on December 28, 1865;[86] Iowa and New Jersey in January 1866;[88] Texas in 1870;[86] Delaware in 1901;[89] and Kentucky in 1976.[89] Mississippi, whose legislature voted in 1995 to ratify, belatedly notified the Office of the Federal Register in February 2013 of that legislative action, completing the legal process for the state.[90]

Effects

The Thirteenth Amendment legally prohibited chattel slavery, except as punishment, and mooted parts of the original constitution which deal with slavery.[91][92] Although the majority of Kentucky's slaves had been emancipated, 65,000–100,000 people remained to be legally freed when the Amendment went into effect on December 18.[93][94] In Delaware, whence a large number of slaves had escaped during the war, nine hundred people became legally free.[94][95]

Following the passage of the Thirteenth Amendment by Congress, Republicans grew concerned over the increase it would create in the congressional representation of the Democratic-dominated Southern states. Because the full population of freed slaves would be counted rather than three-fifths, the Southern states would dramatically increase their power in the population-based House of Representatives.[96][97] Republicans hoped to offset this advantage by attracting and protecting votes of the newly enfranchised black population.[96][98][99]

Political and economic change in the South

Southern culture remained deeply racist, and those blacks who remained faced a dangerous situation. J. J. Gries reported to the Joint Committee on Reconstruction: “There is a kind of innate feeling, a lingering hope among many in the South that slavery will be regalvanized in some shape or other. They tried by their laws to make a worse slavery than there was before, for the freedman has not the protection which the master from interest gave him before.”[100] W. E. B. Du Bois wrote in 1935:

Slavery was not abolished even after the Thirteenth Amendment. There were four million freedmen and most of them on the same plantation, doing the same work that they did before emancipation, except as their work had been interrupted and changed by the upheaval of war. Moreover, they were getting about the same wages and apparently were going to be subject to slave codes modified only in name. There were among them thousands of fugitives in the camps of the soldiers or on the streets of the cities, homeless, sick, and impoverished. They had been freed practically with no land nor money, and, save in exceptional cases, without legal status, and without protection.[101][102]

Official emancipation did not substantially alter the economic situation of most blacks who remained in the south.[103]

As the amendment still permitted labor as punishment for convicted criminals, Southern states responded with what historian Douglas A. Blackmon called "an array of interlocking laws essentially intended to criminalize black life".[104] These laws, passed or updated after emancipation, were known as Black Codes.[97] Mississippi was the first state to pass such codes, with an 1865 law titled “An Act to confer Civil Rights on Freedmen”.[105] The Mississippi law required black workers to contract with white farmers by January 1 of each year or face punishment for vagrancy.[104] Blacks could be sentenced to forced labor for crimes including petty theft, using obscene language, or selling cotton after sunset.[106] States passed new, strict vagrancy laws that were selectively enforced against blacks without white protectors.[104][107] The labor of these convicts was then sold to farms, factories, lumber camps, quarries, and mines.[108]

After (qualified) ratification of the Thirteenth Amendment in November 1865, the South Carolina legislature immediately began to legislate Black Codes.[109] The Black Codes created a separate set of laws, punishments, and acceptable behaviors for anyone with more than one black great-grandparent. Under these Codes, Blacks could only work as farmers or servants and had few Constitutional rights.[110] Restrictions on black land ownership threatened to make economic subservience permanent.[41]

Some states mandated indefinitely long periods of child "apprenticeship".[111] Some laws did not target Blacks specifically, but instead affected farm workers, most of whom were Black. At the same time, many states passed laws to actively prevent Blacks from acquiring property.[112]

Southern business owners sought to reproduce the profitable arrangement of slavery with a system called peonage, in which (disproportionately black) workers were entrapped by loans and compelled to work indefinitely because of their debt.[113][114] Peonage continued well through Reconstruction and ensnared a large proportion of black workers in the South.[115] These workers remained destitute and persecuted, forced to work dangerous jobs and further confined legally by the racist Jim Crow laws that governed the South.[114] Peonage differed from chattel slavery because it was not strictly hereditary and did not allow the sale of people in exactly the same fashion. However, a person's debt—and by extension a person—could still be sold, and the system resembled antebellum slavery in many ways.[116]

Congressional and executive enforcement

As its first enforcement legislation, Congress passed the Civil Rights Act of 1866, which guaranteed black Americans citizenship and equal protection of the law, though not the right to vote. The Amendment was also used as authorization for several Freedmen's Bureau bills. President Andrew Johnson vetoed these bills, but a Congressional supermajoirty overrode his veto to pass the Civil Rights Act and the Second Freedmen's Bureau Bill.[117][118]

Proponents of the Act including Trumbull and Wilson argued that Section 2 of the Thirteenth Amendment (enforcement power) authorized the federal government to legislate civil rights for the States. Others disagreed, maintaining that inequality conditions were distinct from slavery.[119] Seeking more substantial justification, and fearing that future opponents would again seek to overturn the legislation, Congress and the states added additional protections to the Constitution: the Fourteenth Amendment (1868), which defined citizenship and mandated equal protection under the law, and the Fifteenth Amendment (1870), which banned racial voting restrictions.[120]

The Freedmen's Bureau enforced the Amendment locally, providing a degree of support for people subject to the Black Codes.[121] (Reciprocally, the Thirteenth Amendment established the Bureau's legal basis to operate in Kentucky.)[122] The Civil Rights Act circumvented racism in local jurisdictions by allowing blacks access to the federal courts. The Enforcement Acts of 1870–1871 and the Civil Rights Act of 1875, in combating the violence and intimidation of white supremacy, were also part of the effort to end slave conditions for Southern blacks.[123] However, the effect of these laws waned as political will diminished and the federal government lost authority in the South, particularly after the Compromise of 1877 ended Reconstruction in exchange for a Republican presidency.[124]

Peonage law

With the Peonage Act of 1867, Congress abolished “the holding of any person to service or labor under the system known as peonage”,[125] specifically banning “the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise.”[126]

In 1939, the Department of Justice created the Civil Rights Section, which focused primarily on First Amendment and labor rights.[127] The increasing scrutiny of totalitarianism in the lead-up to World War II brought increased attention to issues of slavery and involuntary servitude, abroad and at home.[128] The U.S. sought to counter foreign propaganda and increase its credibility on the race issue by combatting the Southern peonage system.[129] Under the leadership of Attorney General Francis Biddle, the Civil Rights Section invoked the constitutional amendments and legislation of the Reconstruction Era as the basis for its actions.[130]

In 1947, the DOJ successfully prosecuted Elizabeth Ingalls for keeping domestic servant Dora L. Jones in conditions of slavery. The court found that Jones “was a person wholly subject to the will of defendant; that she was one who had no freedom of action and whose person and services were wholly under the control of defendant and who was in a state of enforced compulsory service to the defendant.”[131] The Thirteenth Amendment enjoyed a swell of attention during this period, but from Brown v. Board (1954) until Jones v. Alfred H. Mayer Co. (1968) it was again eclipsed by the Fourteenth Amendment.[132]

Human trafficking

Victims of human trafficking and other conditions of forced labor are commonly coerced by threat of legal actions to their detriment. Victims of forced labor and trafficking are protected by Title 18 of the U.S. Code.[133]

  • Title 18, U.S.C., Section 241 – Conspiracy Against Rights:
Conspiracy to injure, oppress, threaten, or intimidate any person's rights or privileges secured by the Constitution or the laws of the United States[134]
  • Title 18, U.S.C., Section 242 – Deprivation of Rights Under Color of Law:
It is a crime for any person acting under color of law (federal, state or local officials who enforce statutes, ordinances, regulations, or customs) to willfully deprive or cause to be deprived the rights, privileges, or immunities of any person secured or protected by the Constitution and laws of the U.S. This includes willfully subjecting or causing to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.[135]

Department of Justice definitions

Peonage[136]
Refers to a person in "debt servitude," or involuntary servitude tied to the payment of a debt. Compulsion to servitude includes the use of force, the threat of force, or the threat of legal coercion to compel a person to work.
Involuntary servitude[137]
Refers to a person held by actual force, threats of force, or threats of legal coercion in a condition of slavery – compulsory service or labor against his or her will. This includes the condition in which people are compelled to work by a "climate of fear" evoked by the use of force, the threat of force, or the threat of legal coercion (i.e., suffer legal consequences unless compliant with demands made upon them) which is sufficient to compel service. In Bailey v. Alabama (1911), the U.S. Supreme Court ruled that peonage laws violated the amendment's ban on involuntary servitude.
Requiring specific performance as a remedy for breach of personal services contracts has been viewed as a form of involuntary servitude by some scholars and courts, though other jurisdictions and scholars have rejected this argument; it is a popular rule in academia and many local jurisdictions, but has never been upheld by higher courts.[138]
Forced labor[139]
Labor or service obtained by:
  • threats of serious harm or physical restraint;
  • any scheme, plan, or pattern intended to cause a person to believe he would suffer serious harm or physical restraint if he did not perform such labor or services:
  • the abuse or threatened abuse of law or the legal process.

Judicial interpretation

In contrast to the other "Reconstruction Amendments", the Thirteenth Amendment was rarely cited in later case law. As historian Amy Dru Stanley summarizes, "beyond a handful of landmark rulings striking down debt peonage, flagrant involuntary servitude, and some instances of race-based violence and discrimination, the Thirteenth Amendment has never been a potent source of rights claims".[140][141]

Black slaves and their descendants

U. S. v. Rhodes (1866),[142] one of the first Thirteenth Amendment cases, tested the Constitutionality of provisions in the Civil Rights Act of 1866 that granted blacks redress in the federal courts. Kentucky law prohibited blacks from testifying against whites—an arrangement which compromised the ability of Nancy Talbot ("a citizen of the United States of the African race") to reach justice against a white person accused of robbing her. After Talbot attempted to try the case in federal court; the Kentucky Supreme Court ruled this federal option unconstitutional. Noah Swayne (a Supreme Court justice sitting on the Kentucky Circuit Court) overturned the Kentucky decision, holding that without the material enforcement provided by the Civil Rights Act, slavery would not truly be abolished.[143][144] With In Re Turner (1867), Chief Justice Salmon P. Chase ordered freedom for Elizabeth Turner, a former slave in Maryland who became indentured to her former master.[145]

In Blyew v. U.S., (1872)[146] the Supreme Court heard another Civil Rights Act case relating to federal courts in Kentucky. John Bylew and George Kennard were white men visiting the cabin of a black family, the Fosters. Bylew apparently became angry with sixteen-year-old Richard Foster and hit him twice in the head with an ax. Bylew and Kennard killed Richard's parents, Sallie and Jack Foster, and his blind grandmother, Lucy Armstrong. They severely wounded the Fosters' two young daughters. Kentucky courts would not allow the Foster children to testify against Blyew and Kennard. But federal courts, authorized by the Civil Rights Act, found Blyew and Kennard guilty of murder. When the Supreme Court took the case, they ruled (5–2) that the Foster children did not have standing in federal courts because only living people could take advantage of the Act. In doing so, the Courts effectively ruled that Thirteenth Amendment did not permit a federal remedy in murder cases. Swayne and Joseph P. Bradley dissented, maintaining that in order to have meaningful effects, the Thirteenth Amendment would have to address systemic racial oppression.[147]

Though based on a technicality, the Blyew case set a precedent in state and federal courts that led to the erosion of Congress's Thirteenth Amendment powers. The Supreme Court continued along this path in the Slaughter-House Cases (1873), which upheld a state-sanctioned monopoly of white butchers. In United States v. Cruikshank (1876), the Court ignored Thirteenth Amendment dicta from a circuit court decision to exonerate perpetrators of the Colfax massacre and invalidate the Enforcement Act of 1870.[123]


In the Civil Rights Cases (1883),[149] the Supreme Court reviewed five consolidated cases dealing with the Civil Rights Act of 1875, which outlawed racial discrimination at "inns, public conveyances on land or water, theaters, and other places of public amusement". The Court ruled that the Thirteenth Amendment did not ban most forms of racial discrimination by non-government actors.[150] In the majority decision, Bradley wrote (again in non-binding dicta) that the Thirteenth Amendment empowered Congress to attack "badges and incidents of slavery". However, he distinguished between "fundamental rights" of citizenship, protected by the Thirteenth Amendment, and the "social rights of men and races in the community".[151] The majority opinion held that "it would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to guests he will entertain, or as to the people he will take into his coach or cab or car; or admit to his concert or theatre, or deal with in other matters of intercourse or business."[152] In his solitary dissent, John Marshall Harlan (a Kentucky lawyer who changed his mind about civil rights law after witnessing organized racist violence) argued that "such discrimination practiced by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude, the imposition of which congress may prevent under its power."[153]

The Court in the Civil Rights Cases held that appropriate legislation under the amendment 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."[154] The Court stated about the scope the amendment:

Template:Cquote

Attorneys in Plessy v. Ferguson (1896)[155] argued that racial segregation involved "observances of a servile character coincident with the incidents of slavery", in violation of the Thirteenth Amendment. In their brief to the Supreme Court, Plessy's lawyers wrote that "distinction of race and caste" was inherently unconstitutional.[156] The Supreme Court rejected this reasoning and upheld state laws enforcing segregation under the "separate but equal" doctrine. In the (7–1) majority decision, the Court found that "a statute which implies merely a legal distinction between the white and colored races—a distinction which is founded on the color of the two races and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude."[157] Harlan dissented, writing: "The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor, atone for the wrong this day done."[158]

In Hodges v. United States (1906),[159] the Court struck down a federal statute providing for the punishment of two or more people who "conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States". A group of white men in Arkansas conspired to violently prevent eight black workers from performing their jobs at a lumber mill; the group was convicted by a federal grand jury. The Supreme Court ruled that the federal statute, which outlawed conspiracies to deprive citizens of their liberty, was not authorized by the Thirteenth Amendment. It held that "no mere personal assault or trespass or appropriation operates to reduce the individual to a condition of slavery". Harlan dissented, maintaining his opinion that the Thirteenth Amendment should protect freedom beyond "physical restraint".[160] Corrigan v. Buckley (1922) reaffirmed the interpretation from Hodges, finding that the amendment does not apply to restrictive covenants.

Enforcement of federal civil rights law in the South created numerous peonage cases, which slowly traveled up through the judiciary. The Supreme Court ruled in Clyatt v. United States (1905) that peonage was involuntary servitude. It held that although employers sometimes described their workers' entry into contract as voluntary, the servitude of peonage was always (by definition) involuntary.[161]

Jones and beyond

Legal histories cite Jones v. Alfred H. Mayer Co. (1968) as a turning point of Thirteen Amendment jurisprudence.[162][163] The Supreme Court confirmed in Jones that Congress may act “rationally” to prevent private actors from imposing "badges and incidents of servitude".[162] The Joneses were a black couple in St. Louis County, Missouri who sued a real estate company for refusing to sell them a house. The Court held:

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. [...] this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery -- its "burdens and disabilities" -- included restraints upon "those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens." Civil Rights Cases, 109 U. S. 3, 109 U. S. 22.[164]
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.
Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom—freedom to “go and come at pleasure” and to “buy and sell when they please”—would be left with “a mere paper guarantee” if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. 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.[165]

The Court in Jones reopened the issue of linking racism in contemporary society to the history of slavery in the United States.[166]

The Jones precedent has been used to justify Congressional action to protect migrant workers and target sex trafficking.[167] The direct enforcement power found in the Thirteenth Amendment contrasts with that of the Fourteenth, which allows only responses to institutional discrimination of state actors.[168]

Other cases of involuntary servitude

The Supreme Court has taken an especially narrow view of involuntary servitude claims made by people not descended from black (African) slaves. In Robertson v. Baldwin (1897), a sailor challenged federal rules mandating the capture and return of deserters. The Court ruled that "the amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional." In this case, as in numerous “badges and incidents” cases, Justice Harlan authored a dissent favoring broader Thirteenth Amendment protections.[169]

In Selective Draft Law Cases,[170] the Supreme Court ruled that the military draft was not "involuntary servitude". In United States v. Kozminski,[171] the Supreme Court ruled that the Thirteenth Amendment did not prohibit compulsion of servitude through psychological coercion.[172][173] Kozminski limited involuntary servitude to those situations in which "the master subjects the servant to (1) threatened or actual physical force, (2) threatened or actual state-imposed legal coercion, or (3) fraud or deceit where the servant is a minor or an immigrant or is mentally incompetent."[171]

U.S. Courts of Appeals, in Immediato v. Rye Neck School District, Herndon v. Chapel Hill, and Steirer v. Bethlehem School District, have ruled that the use of community service as a high school graduation requirement did not violate the Thirteenth Amendment.[174]

Earlier proposed amendments

Prior to the Thirteenth Amendment, no constitutional amendments had been adopted in more than 60 years. Two earlier amendments proposed by the Congress would have become the Thirteenth Amendment, but failed to be ratified by a sufficient number of states: the Titles of Nobility Amendment and the Corwin Amendment.

  • The Titles of Nobility Amendment was passed by the Senate on April 26, 1810, and by the House on May 1, 1810, but was ratified only by twelve states. It would have revoked the citizenship of anyone accepting any foreign payment without Congressional authorization or accepting a foreign title of nobility.[175]
  • The Corwin Amendment was passed by the House on February 28, 1861 and by the Senate on March 2, 1861, but was ratified only by Ohio, Illinois, and Maryland.[176][177] It would have forbidden the adopting of any constitutional amendment abolishing or restricting slavery within a state, or permitting the Congress to do so. Originally drafted by Abraham Lincoln's future Secretary of State, William H. Seward, and put forward by Senator Thomas Corwin of Ohio, this proposal was an unsuccessful attempt to persuade the border states not to secede from the Union.[178] In Lincoln's first inaugural address, he stated that he had "no objection" to the amendment, as he believed that its provisions were already implied in the Constitution.[178][179]

See also

References

Notes

Template:Notelist

Citations

Bibliography

  • Benedict, Michael Les. "Constitutional Politics, Constitutional Law, and the Thirteenth Amendment". Maryland Law Review 71 (1), October 31, 2012.
  • Colbert, Douglas L. “Liberating the Thirteenth Amendment”, Harvard Civil Rights – Civil Liberties Law Review 30, 1995; pp. 1 – 55.
  • DuBois, W. E. B. Black Reconstruction: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860–1880. New York: Russell & Russell, 1935.
  • Forehand, Beverly. “Striking Resemblance: Kentucky, Tennessee, Black Codes and Readjustment, 1865–1866”. Western Kentucky University, Masters Thesis, accepted May 1996.
  • Goluboff, Risa L. “The Thirteenth Amendment and the Lost Origins of Civil Rights”. Duke Law Journal 50, 2001; pp. 1609–1685.
  • Harrison, John. “The Lawfulness of the Reconstruction Amendments”. University of Chicago Law Review 68 (2); Spring, 2001; pp. 375–462. Accessed via JStor, June 8, 2013.
  • McAward, Jennifer Mason. "McCulloch and the Thirteenth Amendment", Columbia Law Review 112, 2012, pp. 1769–1809.
  • Novak, Daniel A. The Wheel of Servitude: Black Forced Labor after Slavery. University Press of Kentucky, 1978. ISBN 0813113717
  • Stanley, Amy Dru. “Instead of Waiting for the Thirteenth Amendment: The War Power, Slave Marriage, and Inviolate Human Rights”. American Historical Review 113 (3), June 2010; pp. 732 –765.
  • Stromberg, Joseph R. "A Plain Folk Perspective on Reconstruction, State-Building, Ideology, and Economic Spoils". Journal of Libertarian Studies 16 (2), Spring 2002; pp. 103–137.
  • TenBroek, Jacobus. “Thirteenth Amendment to the Constitution of the United States: Consummation to Abolition and Key to the Fourteenth Amendment”. California Law Review 39 (2), June 1951; pp. 171–203.
  • Thorpe, Francis Newton. The Constitutional History of the United States, vol. 3: 1861 – 1895. Chicago: Callaghan, 1901.
  • Trelease, Allen W. White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction. New York: Harper & Row, 1971. ISBN
  • Tsesis, Alexander. The Thirteenth Amendment and American Freedom: A Legal History. New York University Press, 2004. ISBN 0814782760
  • Vorenberg, Michael. ISBN 9781139428002
  • Wolff, Tobias Barrington. “The Thirteenth Amendment and Slavery in the Global Economy”. Columbia Law Review 102(4); May 2002; pp. 973–1050.

Further reading

  • Belz, Herman. Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era (1978) online
  • Holzer, Harold, et al. eds. Lincoln and Freedom: Slavery, Emancipation, and the Thirteenth Amendment (2007) excerpt and text search
  • Kachun, Mitch. Festivals of Freedom: Memory and Meaning in African American Emancipation Celebrations, 1808–1915 (2003) online
  • Ripley, C. Peter et al. eds. Witness for Freedom: African American Voices on Race, Slavery, and Emancipation (1993) online

External links

  • Thirteenth Amendment and related resources at the Library of Congress
  • National Archives: Thirteenth Amendment
  • CRS Annotated Constitution: Thirteenth Amendment
  • Original Document Proposing Abolition of Slavery
  • Model State Anti-trafficking Criminal Statute – U.S. Dept of Justice
  • "Abolishing Slavery: The Thirteenth Amendment Signed by Abraham Lincoln"; website of Seth Kaller, a dealer who has sold six Lincoln-signed copies of the Thirteenth Amendment.
  • Seward certificate announcing the Amendment's passage and affirming the existence of 36 States
  • Analysis of court decisions giving December 18, 1865, as the date of ratification

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