thesis of 13th amendment

The 13th Amendment: History and Impact

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The 13th Amendment to the United States Constitution , ratified just months after the end of the American Civil War , abolished enslavement and involuntary servitude—except as a punishment for a crime—in the entire United States. As passed by Congress on January 31, 1865, and ratified by the states on December 6, 1865, the full text of the 13th Amendment reads:

Section One 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 Two Congress shall have power to enforce this article by appropriate legislation.

Along with the 14th Amendment and the 15th Amendment , the 13th Amendment was the first of the three Reconstruction Period amendments adopted following the Civil War.

Two Centuries of Enslavement in America

While the Declaration of Independence of 1776 and the U.S. Constitution as adopted in 1789 both stressed liberty and equality as foundations of the American vision, the 13th Amendment of 1865 marked the first explicit mention of human enslavement in the Constitution.

Key Takeaways: The 13th Amendment

• The 13th Amendment abolished enslavement and involuntary servitude—except when applied as punishment for a crime—in the entire United States.
• The 13th Amendment was passed by Congress on January 31, 1865, and ratified on December 6, 1865.
• Along with the 14th and 15th Amendments, the 13th Amendment was the first of the three Reconstruction Period amendments adopted following the Civil War.
• The Emancipation Proclamation of 1863 freed enslaved people only in the 11 Confederate states.
• Unlike the 14th and 15th Amendments, which apply only to the government, the 13th Amendment applies to the actions of private citizens.
• Despite the 13th Amendment, vestiges of racial discrimination and inequality continue to exist in America well into the 20th century.

Since the 1600s, the enslavement and trade of people had been legal in all 13 American colonies . Indeed, many of the Founding Fathers , though feeling that enslavement was wrong, enslaved people themselves.

President Thomas Jefferson signed the Act Prohibiting Importation of Slaves in 1807. Still, enslavement—particularly in the South—flourished until the start of the Civil War in 1861.

As the Civil War began, an estimated 4 million people—almost 13% of the total U.S population at the time—most of them African Americans, were enslaved in 15 southern and the North-South Border States.

Emancipation Proclamation’s Slippery Slope

Despite his long-held hatred of enslavement, President Abraham Lincoln wavered in dealing with it.

In a last-ditch effort to prevent the Civil War in 1861, then President-elect Lincoln implicitly endorsed the so-called Corwin Amendment , a never-ratified constitutional amendment that would have banned the U.S. government from abolishing enslavement in the states where it existed at the time.

By 1863, with the outcome of the Civil War still in doubt, Lincoln decided that freeing enslaved people in the South would cripple the economy of the 11 Confederate States and help win the war. His famous Emancipation Proclamation ordered that all enslaved people held in those states “then in rebellion against the United States, shall be then, thenceforward, and forever free.”

However, since it only applied to the areas of the Confederate states not already back under Union control, the Emancipation Proclamation alone failed to end enslavement in the United States. Doing so would require a constitutional amendment that abolished and forever banned the institution of slavery.

The 13th Amendment is unique in that it affects everyday people, while most other constitutional provisions outline what the government can and cannot do. It was also the first mention of the practice of enslavement in the Constitution. 

In addition to enslavement, the amendment also bans other forms of “involuntary servitude” including peonage, the act of forcing a person to work as a way of paying off debt without regard to working conditions. The 13th Amendment has also been interpreted as empowering Congress to make laws against modern forms of slavery, such as sex trafficking.

Notably, however, the Amendment does not prevent persons convicted of a crime from being forced to work. Thus, prison labor practices, from chain gangs to prison laundries, do not violate the 13th Amendment. The 13th Amendment has also been interpreted to permit the government to require certain forms of public service, presumably extending to the military draft and jury duty .

Passage and Ratification

The 13th Amendment’s road to enactment began in April 1864, when the U.S. Senate passed it by the required two-thirds supermajority vote .

However, the amendment hit a roadblock in the House of Representatives , where it faced opposition by a significant number of Democrats who felt that the abolishment of enslavement by the federal government would amount to a violation of the rights and powers reserved to the states.

As Congress adjourned in July of 1864, with the presidential election looming, the future of the 13th Amendment remained cloudy at best.

With the help of his growing popularity generated by recent Union military victories, Lincoln easily won re-election over his Democratic opponent, General George McClellan. Since the election took place during the Civil War, it was not contested in the states that had seceded from the Union.

By the time Congress reconvened in December of 1864, Republicans, empowered by Lincoln’s landslide victory, made a big push to pass the proposed 13th Amendment.

Lincoln himself personally lobbied Union-loyal Border State Democrats to change their “nay” votes to “ayes.” As Lincoln famously reminded his political friends and foes alike,

“I leave it to you to determine how it shall be done; but remember that I am President of the United States, clothed with immense power, and I expect you to procure those votes.”

And “procure those votes” they did. On January 31, 1865, the House passed the proposed 13th Amendment by a vote of 119-56, barely over the two-thirds majority required.

On February 1, 1865, Lincoln ordered the joint resolution proposing the amendment sent to the states for ratification.

As the end of 1865 approached, nearly all of the Northern states and enough of the already “ reconstructed ” Southern states had ratified the measure to qualify it for final adoption. 

Tragically assassinated on April 14, 1865, Lincoln did not live to see the final ratification of the 13th Amendment, which did not come until December 6, 1865.

Even after the 13th Amendment abolished enslavement, racially-discriminatory measures like the post-Reconstruction Black Codes and Jim Crow Laws , along with state-sanctioned labor practices like convict leasing , continued to force many Black Americans into involuntary labor for years.

Since its adoption, the 13th Amendment has been cited in prohibiting peonage—a system where employers could force workers to pay off debts with work—and some other racially-discriminatory practices by labeling them as “badges and incidents of slavery.”

While the 14th and 15th Amendments apply only to the actions of the government—by granting formerly enslaved people citizenship and the right to vote—the 13th Amendment applies to the actions of private citizens. In this manner, the amendment gives Congress the power to enact laws against modern forms of enslavement like human trafficking.

Despite the intent and efforts of the 13th, 14th, and 15th Amendments to achieve equality for Black Americans, full equality and a guarantee of the civil rights of all Americans regardless of race are still being fought for well into the 20th century.

The Civil Rights Act of 1964 and the Voting Rights Act of 1965, both enacted as part of the “ Great Society ” social reform program of President Lyndon B. Johnson , are considered to be the turning point in the long struggle for civil rights and racial equality in the United States.

• “ 13th Amendment to the U.S. Constitution: Abolition of Slavery (1865) .”  Our Documents - 13th Amendment to the U.S. Constitution: Abolition of Slavery (1865)
• " The 13th Amendment: Slavery And Involuntary Servitude ." National Constitution Center – Constitutioncenter.org.
• Crofts, Daniel W. Lincoln and the Politics of Slavery: The Other Thirteenth Amendment and the Struggle to Save the Union , The University of North Carolina Press, 2016, Chapel Hill, N.C.
• Foner, Eric. The Fiery Trial: Abraham Lincoln and American Slavery . W.W. Norton, 2010, New York.
• Goodwin, Doris Kearns. Team of Rivals: The Political Genius of Abraham Lincoln. Simon & Schuster, 2006, New York.
• What Were the Top Causes of the Civil War?
• What Is a Literacy Test?
• Black History Timeline: 1865–1869
• Convict Leasing
• The Reconstruction Era (1865–1877)
• The Corwin Amendment, Enslavement, and Abraham Lincoln
• About the Civil Rights Cases of 1883
• What Does the Constitution Say About Enslavement?
• 14th Amendment Summary
• Equal Rights Amendment
• About the US Civil Rights Act of 1875
• 15th Amendment Grants Voting Rights to Black American Men
• The Black Codes and Why They Still Matter Today
• The History of Juneteenth Celebrations
• Background and Significance of the Emancipation Proclamation
• The History of the Three-Fifths Compromise

Thirteenth Amendment :

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. Congress shall have power to enforce this article by appropriate legislation.

Congress shall have power to enforce this article by appropriate legislation.

The Thirteenth Amendment prohibits slavery and involuntary servitude in all places subject to U.S. jurisdiction, except when imposed as punishment for a crime for which a person has been duly convicted. 1 Footnote U.S. Const. amend. XIII, § 1 . Proposed by Congress and ratified by the states in the wake of the Civil War, the Thirteenth Amendment was the first of the three Reconstruction Amendments. 2 Footnote The other two Reconstruction Amendments were the Fourteenth Amendment , which, among other things, requires states to accord due process and equal protection of the laws to all persons, and the Fifteenth Amendment , which prohibits the federal and state governments from denying or abridging the right to vote based on “race, color, or previous condition of servitude.” For more on the Fourteenth Amendment , see infra Amdt14.1 Overview through Amdt14.S5.4 Modern Doctrine. For more on the Fifteenth Amendment , see infra Amdt15.1 Historical Background on the Fifteenth Amendment through . Together, these amendments aimed to safeguard the rights of newly emancipated slaves and ensure that states accorded due process and equal protection of the laws to all persons. 3 Footnote Supra note 2. Congress proposed the Thirteenth Amendment in January 1865, shortly before the end of the Civil War. The states ratified the Amendment in December 1865, seven months after the war ended. See supra Ratification of Amendments to the Constitution , Intro.3.1.1 Overview of Ratification. Unlike the other Reconstruction Amendments—the Fourteenth and Fifteenth Amendment s and, indeed, the rest of the Constitution—the Thirteenth Amendment ’s prohibitions apply directly to private individuals in addition to government actors. 4 Footnote George Rutherglen , State Action, Private Action, and the Thirteenth Amendment , 94 Va. L. Rev. 1367 , 1370 (2008) ( “The Thirteenth Amendment stands out in the Constitution as the only provision currently in effect that directly regulates private action. The Eighteenth Amendment, imposing Prohibition, applied directly to private individuals, but its repeal by the Twenty-First Amendment eliminated that instance of direct constitutional regulation of private conduct.” ).

The states’ ratification of the Thirteenth Amendment abolishing slavery effectively negated two of the Constitution’s original provisions: (1) the so-called “Fugitive Slave Clause,” which granted a slave owner the right to seize and repossess the slave in another state, regardless of that state’s laws; 5 Footnote U.S. Const. art. IV, § 2, cl. 3 . See also supra Fugitive Slave Clause: Doctrine and Practice , . and (2) the Three-Fifths Clause, a compromise among the Founders that counted three-fifths of a state’s slave population for the purposes of apportioning seats in the House of Representatives and levying certain types of taxes. 6 Footnote U.S. Const. art. I, § 2, cl. 3 . See also supra Enumeration Clause , ArtI.S2.C3.1 Enumeration Clause and Apportioning Seats in the House of Representatives. Subsequently, the Fourteenth Amendment explicitly repealed the Three-Fifths Clause. U.S. Const. amend. XIV, § 2 ( “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” ).

Because the Thirteenth Amendment was self-executing, its prohibitions on slavery and involuntary servitude became effective upon ratification without the need for further government action. 7 Footnote The Civil Rights Cases, 109 U.S. 3, 20 (1883) ( “This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” ). Nonetheless, Section 2 of the Thirteenth Amendment grants Congress the power to enforce the prohibitions in Section 1 by enacting “appropriate legislation.” 8 Footnote U.S. Const. amend. XIII, § 2 . The Supreme Court has long held that Congress may use its enforcement power to remove or remedy burdens on individuals that constitute the “badges” or “incidents” of slavery. 9 Footnote The Civil Rights Cases , 109 U.S. at 20.

Questions about the scope of Congress’s Section 2 enforcement power have played a central role in the Supreme Court’s Thirteenth Amendment jurisprudence. After the Civil War, newly freed slaves faced various forms of state-sanctioned and private discrimination. For example, some states enforced Black Codes that denied African-Americans equal rights under the law, including the rights to vote, hold property, and use public facilities. 10 Footnote See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426 – 37 (1968) ; Bell v. Maryland, 378 U.S. 226, 288, 303 (1964) (Goldberg, J., concurring). Some states codified the practice of peonage, enabling individuals to use the threat of force or legal action to compel African-Americans to perform services to satisfy a financial obligation. 11 Footnote See Peonage Cases , 123 F. 671, 673 – 74 (M.D. Ala. 1903) . In addition, some operators of public accommodations, such as hotels and restaurants, sought to prevent African-Americans from patronizing their businesses. 12 Footnote See, e.g. , The Civil Rights Cases , 109 U.S. at 8 – 10, 23 . In response, beginning in 1866, Congress enacted civil rights legislation that sought to ensure that people of all races would have equal rights to make and enforce contracts and hold property, among other fundamental rights. 13 Footnote See, e.g. , Act of April 9, 1866, ch. 31, 14 Stat. 27 . See also 42 U.S.C. §§ 1981 – 1982 .

Despite these legislative efforts, for more than a century after the states ratified the Thirteenth Amendment , the Supreme Court determined that Congress could not use its power to legislate against the “badges” and “incidents” of slavery to protect African-Americans from many forms of private racial discrimination or state-sanctioned segregation. 14 Footnote See infra “Enforcement Clause: Early Doctrine” Amdt13.S2.1.1.2 Enforcement Clause: Early Doctrine. See also Plessy v. Ferguson, 163 U.S. 537, 542 – 43 (1896) (upholding the constitutionality of a Louisiana law mandating racial segregation in railway cars). However, the Court’s view of the scope of Congress’s enforcement power changed significantly with its 1968 decision in Jones v. Alfred H. Mayer Co . 15 Footnote 392 U.S. 409 (1968) . In that case, the Court adopted a more deferential approach toward Congress’s enforcement power, determining that Congress may play a significant role in determining the scope of that power through the enactment of legislation. 16 Footnote Id. at 440 . Although the Court has since upheld Congress’s power to enforce the Thirteenth Amendment by enacting laws to combat some of the harms of private racial discrimination, the precise scope of Congress’s Thirteenth Amendment power remains unclear. 17 Footnote See infra “Enforcement Clause: Current Doctrine.” Amdt13.S2.1.1.2 Enforcement Clause: Early Doctrine.

The following essays examine the Thirteenth Amendment ’s prohibitions on slavery and involuntary servitude beginning with an overview of the Amendment’s historical background. The essays then examine relevant Supreme Court decisions and historical practices related to the scope of the Amendment’s prohibitions and its exception for criminal punishment. The essays conclude by discussing the extent of Congress’s power to enforce the Thirteenth Amendment through the enactment of legislation.

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The first amendment, interpretation & debate, the thirteenth amendment, matters of debate, common interpretation, the thirteenth amendment: a constitutional success story, the thirteenth amendment and the constitutional imagination.

by Jamal Greene

Dwight Professor of Law at Columbia Law School

by Jennifer Mason McAward

Associate Professor of Law and Director of Klau Center for Civil and Human Rights at the University of Notre Dame Law School

Slavery is America’s original sin. Despite the bold commitment to equality in the Declaration of Independence, slavery was legal in all of the thirteen colonies in 1776. By the start of the Civil War, four million people, nearly all of African descent, were held as slaves in 15 southern and border states. Slaves represented one-eighth of the U.S. population in 1860.

Many think that slavery ended with the Emancipation Proclamation, issued by President Abraham Lincoln on January 1, 1863. However, the Emancipation Proclamation freed only slaves held in the eleven Confederate states that had seceded, and only in the portion of those states not already under Union control.  

The true abolition of slavery was achieved when the Thirteenth Amendment was ratified on December 6, 1865. The first section of the Amendment declares: “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.” The Amendment is unique in the Constitution because it bars every person from holding slaves or engaging in other forms of involuntary servitude, whereas most constitutional provisions only constrain or regulate the government. It is unique in another way as well: although the Constitution obliquely acknowledged and accommodated slavery in its original text, the Thirteenth Amendment was the first explicit mention of slavery in the Constitution.

The most immediate impact of the Thirteenth Amendment was to end chattel slavery as it was practiced in the southern United States. However, the Amendment also bars “involuntary servitude,” which covers a broader range of labor arrangements where a person is forced to work by the use or threatened use of physical or legal coercion. For example, the Thirteenth Amendment bans peonage, which occurs when a person is compelled to work to pay off a debt. Originally a Spanish practice, peonage was practiced in the New Mexico Territory and spread across the Southern United States after the Civil War. Former slaves and other poor citizens became indebted to merchants and plantation owners for living and working expenses. Unable to repay their debts, they became trapped in a cycle of work-without-pay. The Supreme Court held this practice unconstitutional in 1911. Bailey v. Alabama (1911).

Most scholars also assume it would violate the Thirteenth Amendment to order specific performance of a service contract. An example of this situation would be where an employee has a contract to work for a full year but wants to leave after six months. Forcing the employee to continue to work instead of paying a financial penalty to get out of her contract would almost certainly violate the Thirteenth Amendment.

Notably, the Amendment does allow a person convicted of a crime to be forced to work. Thus, prison labor practices, from chain gangs to prison laundries, do not run afoul of the Thirteenth Amendment. The Thirteenth Amendment has also been interpreted to permit the government to require certain forms of public service, presumably extending to military service and jury duty.

In addition to the first section’s ban on slavery and involuntary servitude, the second section of the Thirteenth Amendment gives Congress the “power to enforce” that ban by passing “appropriate legislation.” This provision allows Congress to pass laws pertaining to practices that violate the Amendment. For example, the Anti-Peonage Act of 1867 prohibits peonage, and another federal law, 18 U.S.C. § 1592, makes it a crime to take somebody’s passport or other official documents for the purpose of holding her as a slave.

Section Two of the Thirteenth Amendment has broader applicability as well. The Supreme Court has long held that this provision also allows Congress to pass laws to eradicate the “badges and incidents of slavery.” The Supreme Court has never defined the full scope of what the badges and incidents of slavery are, and instead has left it to Congress to flesh out a definition. In The Civil Rights Cases (1883), the Court held that racial discrimination in private inns, theaters, and public transportation did not qualify as a badge or incident of slavery. In a series of cases in the 1960s and 1970s, however, the Court held that racial discrimination by private housing developers and private schools is among the badges and incidents of slavery that Congress may outlaw under Section Two of the Thirteenth Amendment. Most recently, Congress has determined that Section Two provides a basis for a portion of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 (which criminalizes race-based hate crimes) and the Trafficking Victims Protection Act (which penalizes human trafficking and protects its survivors). The Supreme Court has yet to evaluate these laws.

Despite its significance in American history, the Thirteenth Amendment is not one of the more frequently invoked parts of our Constitution today. Now that slavery is a part of our past, the Amendment’s current relevance is subject to debate. Does it govern the fairness of modern labor practices?  Does it empower Congress to pass broad-ranging civil rights laws? Whatever the outcome of those debates, though, the Thirteenth Amendment deserves recognition as an historic and solemn promise that slavery will never again exist in the United States.

The 1865 ratification of the Thirteenth Amendment was a transformative moment in American history. The first Section’s declaration that “neither slavery nor involuntary servitude shall exist” had the immediate and powerful effect of abolishing chattel slavery in the southern United States. One year later, Congress used its power to “enforce” the ban on slavery—conveyed by the second Section of the Thirteenth Amendment—to pass the Civil Rights Act of 1866, our nation’s first civil rights law. That law invalidated the Black Codes, laws passed by southern states after the Civil War that sought to keep the former slaves effectively tethered to their former plantation owners. For example, one state law required all African Americans to enter into yearlong employment contracts and to agree that they would forfeit the entire year’s wages if they left before the year’s end. The Civil Rights Act of 1866 ended such laws, conveying (among other things) an equal right to enter into and enforce contracts without respect to race. Although the Civil Rights Act of 1866 was very controversial, Congress concluded that the Black Codes imposed de facto slavery and therefore that Section Two of the Thirteenth Amendment empowered Congress to pass the Act.

Since those early days, however, the Thirteenth Amendment has not been a frequently-invoked part of our constitutional canon. Why is this? Most likely, it is because the purpose of the Amendment has already been fulfilled. Slavery is gone and we have numerous laws in place to prevent and/or punish any form of coerced labor. 

Some argue that Section One of the Thirteenth Amendment not only abolished slavery, but all of the racially discriminatory practices that accompanied the institution of slavery. Thus, the argument goes, the Amendment also bans discrimination and promises a full measure of freedom. The problem with this argument is that it in many ways it renders the Fourteenth and Fifteenth Amendments redundant. The Fourteenth Amendment makes all born within the United States, including former slaves, citizens of the United States and promises them both “the privileges and immunities of citizens” and “equal protection of the laws.” The Fifteenth Amendment prohibits denials of the right to vote based on a citizen’s “race, color, or previous condition of servitude.” If the Thirteenth Amendment itself had banned discrimination and mandated a full range of civil and political rights, there would have been no need for the Fourteenth and Fifteenth Amendments. Thus, it is quite understandable that the Supreme Court has suggested that Section One of the Thirteenth Amendment is best understood solely as a ban on coerced labor. The Thirteenth Amendment paved the way for subsequent constitutional promises of equality, but it did not itself provide for that equality.

Section Two of the Thirteenth Amendment empowers Congress to “enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” According to the Supreme Court, federal laws passed pursuant to this provision can address a broader range of discriminatory conduct than just coerced labor. To enforce the ban on slavery and involuntary servitude, Congress can address not only slavery, but also its “badges and incidents.” Although the Civil Rights Act of 1866 has been upheld as proper Section Two legislation, the Supreme Court struck down an 1875 civil rights law, holding that race discrimination in privately-operated businesses like hotels, theaters, and transportation was not a badge or incident of slavery. Since that time, Congress’s legislative activity pursuant to Section Two has been relatively restrained, particularly with respect to conduct that is not closely connected to coerced labor.

Some scholars have argued that Section Two of the Thirteenth Amendment provides Congress with an untapped power to pass nationwide civil rights legislation. This argument states that Congress can label a broad range of discriminatory practices as “badges and incidents of slavery” and then address them legislatively. However, Congress has not actively adopted this theory, and an increasing number of judges and scholars are skeptical that it is correct. They argue that the concept of the badges and incidents of slavery has a limited range of meaning and thus constrains the topics on which Section Two permits Congress to legislate. Moreover, they argue that Congress should legislate only where it finds that there is a close connection between current discrimination and present or future conditions of slavery or involuntary servitude. It likely would be difficult for Congress to satisfy this inquiry.

This argument about the scope of Congress’s power under Section Two of the Thirteenth Amendment is starting to play out in challenges to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. That Act, among other things, makes race-based hate crimes punishable under federal law. While racially-motivated violence was certainly part and parcel of the American system of chattel slavery in the past, the question is whether that historical connection is sufficient for Section Two purposes, or whether there must also be a link today between racially-motivated violence and present or future conditions of slavery or involuntary servitude. These questions may ultimately lead the Supreme Court to issue another of its rare opinions on the meaning of the Thirteenth Amendment.

The Thirteenth Amendment is easy to overlook. Section One of the Amendment officially prohibited chattel slavery, but by the end of the Civil War its return was already unthinkable. William Lloyd Garrison, the country’s most famous abolitionist, helped ring in the fighting’s end by attending the flag-raising ceremony at Fort Sumter on the invitation of the Secretary of War: Amendment or not, there was no going back. The Thirteenth Amendment prohibits indentured servitude and peonage but does not extend to other forms of involuntary service such as military or jury duty or work by convicted prisoners. To the extent the Amendment reaches official racial discrimination, it is overshadowed by the Fourteenth and Fifteenth Amendments, which seem to go even further.

But the Thirteenth Amendment is distinctive and its constitutional potential remains untapped. Most significantly, Section Two of the Amendment empowers Congress to enforce Section One “by appropriate legislation.” This language had never before appeared in a constitutional amendment, but it echoed the famous words of  McCulloch v. Maryland , an 1819 decision in which the Supreme Court referred to “appropriate” federal laws in order to signal a broad scope for congressional power. In an unbroken series of cases beginning in 1883, the Supreme Court has understood Section Two to permit Congress “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”

It is beyond question that this language permits Congress to forbid certain private acts and not just the acts of states. Thus, in an early exercise of Section Two power, Congress passed the Civil Rights Act of 1866, which the Supreme Court has construed as prohibiting racial discrimination in the making and enforcing of contracts and in property transactions, even by private parties. More recently, Congress has used this authority to prohibit racially-motivated violence.

These laws are grounded in the view that slavery was not just the holding of black Americans to unpaid service, but an entire system of social relations designed to enforce a racial hierarchy. Refusing to enforce contracts of blacks, barring them from leasing or owning property, and assaulting them with impunity were—among other abuses—widespread in the states of the Confederacy before, during, and immediately after the Civil War. These practices denied the equal citizenship status, and implicitly the humanity, of African Americans.

The badges and incidents of racial hierarchy persist in the United States, and the Thirteenth Amendment authorizes Congress to address them. The Thirteenth Amendment should permit Congress to redress further issues, including: bidding practices that effectively exclude minority contractors from economic life; admissions policies that exclude minorities from selective colleges and universities; and electoral practices such as voter ID laws and abbreviated voting windows that have the effect of limiting minority political participation.

Significantly, though the Thirteenth Amendment singles out slavery and involuntary servitude, it does not single out race. Accordingly, Section Two also empowers Congress to reach social and economic relationships that are akin to slavery and peonage. Marriage laws once abided and facilitated the economic and physical subordination of women and the denial of women’s individual personhood. The Supreme Court should not, therefore, have invalidated Congress’s attempt in the 1994 Violence Against Women Act to provide a federal remedy for women who are the victims of sexual and other forms of gender-based violence. The Thirteenth Amendment provided ample authority to pass that law.

American workers are also protected by the Thirteenth Amendment. Employers who coerce undocumented workers into accepting subsistence wages, who pressure employees not to file worker’s compensation claims, and who rob them of tips and overtime pay, are in direct violation of the Constitution. Congress’s power under the Thirteenth Amendment also should be broadly construed to permit it to require good-faith collective bargaining (which federal labor laws already require) and to mandate that both public and private employees pay union dues (which federal labor laws do not require), thereby permitting such bargaining to survive.

The Thirteenth Amendment has awoken before, inspiring the National Labor Relations Act, anti-peonage laws, fair housing laws, sex trafficking laws, and hate crimes legislation. The Amendment’s true potential is not so much to require judges to invalidate particular practices or even to empower Congress to legislate to protect civil rights. Rather, it is to motivate ordinary Americans to understand the persistence of social caste—whether because of race, gender, or economic situation—as a constitutional injury that should not exist in the United States.

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Cornell Law Review

Cornell Law Review Online Vol. 104, Issue 4

Introduction: Reviving the Thirteenth Amendment

Erwin Chemerinsky , Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.

Abortion , Civil Rights Act of 1866 , Civil Rights Cases , Collective self-determination , incarceration , Jones v. Alfred H. Mayer Co , police abuse , prison labor , Punishment , Punishment Clause , Race Selection , Racial Equality , Reproductive Rights , Slaughterhouse Cases , Slavery , Surrogacy , Textualism , Thirteenth Amendment

30 Sep 2019

Amendment XIII

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.

Congress shall have power to enforce this article by appropriate legislation.

What has been the legal significance of the Thirteenth Amendment? Section 1 outlawed slavery. Abraham Lincoln’s Emancipation Proclamation declared this, but Lincoln knew the limited legal significance of that declaration. It is why he felt it essential that the Thirteenth Amendment be adopted before the end of the Civil War.

[t]he most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times . . . [that there was] one pervading purpose found in them all . . . [:] the freedom of the slave race, the security and firm establishment of that freedom, and the protection of thenewly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. 9 9. Id . at 67–71. jQuery('#footnote_plugin_tooltip_596_1_9').tooltip({ tip: '#footnote_plugin_tooltip_text_596_1_9', tipClass: 'footnote_tooltip', effect: 'fade', predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: 'top right', relative: true, offset: [10, 10], });

It is thus a very exciting collection of essays that offers ways to use the Thirteenth Amendment to deal with a host of serious social ills: over-incarceration, prison labor, police abuse, reproductive rights, and more. Uniting these essays is the belief that the Thirteenth Amendment provides opportunities for progressive reform that might not occur under other Amendments. None of these authors is constrained by what is realistic from the current Supreme Court. All of these essays examine how the Thirteenth Amendment can be used by a future Congress and a future Court. They challenge other scholars to follow their creative lead. This symposium is thus legal scholarship at its very best: bold, innovative, and inspiring.

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The Thirteenth Amendment and American Freedom

A legal history.

• Alexander Tsesis
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• Language: English
• Publisher: New York University Press
• Copyright year: 2004
• Audience: Professional and scholarly;
• Published: December 12, 2004
• ISBN: 9780814784341

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History Resources

Primary Sources on Slavery Winter 2004

Past Issues

69 | The Reception and Impact of the Declaration of Independence, 1776-1826 | Winter 2023

68 | The Role of Spain in the American Revolution | Fall 2023

67 | The Influence of the Declaration of Independence on the Civil War and Reconstruction Era | Summer 2023

66 | Hispanic Heroes in American History | Spring 2023

65 | Asian American Immigration and US Policy | Winter 2022

64 | New Light on the Declaration and Its Signers | Fall 2022

63 | The Declaration of Independence and the Long Struggle for Equality in America | Summer 2022

62 | The Honored Dead: African American Cemeteries, Graveyards, and Burial Grounds | Spring 2022

61 | The Declaration of Independence and the Origins of Self-Determination in the Modern World | Fall 2021

60 | Black Lives in the Founding Era | Summer 2021

59 | American Indians in Leadership | Winter 2021

58 | Resilience, Recovery, and Resurgence in the Wake of Disasters | Fall 2020

57 | Black Voices in American Historiography | Summer 2020

56 | The Nineteenth Amendment and Beyond | Spring 2020

55 | Examining Reconstruction | Fall 2019

54 | African American Women in Leadership | Summer 2019

53 | The Hispanic Legacy in American History | Winter 2019

52 | The History of US Immigration Laws | Fall 2018

51 | The Evolution of Voting Rights | Summer 2018

50 | Frederick Douglass at 200 | Winter 2018

49 | Excavating American History | Fall 2017

48 | Jazz, the Blues, and American Identity | Summer 2017

47 | American Women in Leadership | Winter 2017

46 | African American Soldiers | Fall 2016

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2 | Primary Sources on Slavery | Winter 2004

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The Reconstruction Amendments: Official Documents as Social History

By eric foner.

Like other Radical Republicans, Stevens believed that Reconstruction was a golden opportunity to purge the nation of the legacy of slavery and create a "perfect republic," whose citizens enjoyed equal civil and political rights, secured by a powerful and beneficent national government. In his speech on June 13 he offered an eloquent statement of his political dream—"that the intelligent, pure and just men of this Republic . . . would have so remodeled all our institutions as to have freed them from every vestige of human oppression, of inequality of rights, of the recognized degradation of the poor, and the superior caste of the rich." Stevens went on to say that the proposed amendment did not fully live up to this vision. But he offered his support. Why? "I answer, because I live among men and not among angels." A few moments later, the Fourteenth Amendment was approved by the House. It became part of the Constitution in 1868. The Fourteenth Amendment did not fully satisfy the Radical Republicans. It did not abolish existing state governments in the South and made no mention of the right to vote for blacks. Indeed it allowed a state to deprive black men of the suffrage, so long as it suffered the penalty of a loss of representation in Congress proportionate to the black percentage of its population. (No similar penalty applied, however, when women were denied the right to vote, a provision that led many advocates of women’s rights to oppose ratification of this amendment.) Nonetheless, the Fourteenth Amendment was the most important constitutional change in the nation’s history since the Bill of Rights. Its heart was the first section, which declared all persons born or naturalized in the United States (except Indians) to be both national and state citizens, and which prohibited the states from abridging their "privileges and immunities," depriving any person of life, liberty, or property without due process of law, or denying them "equal protection of the laws." In clothing with constitutional authority the principle of equality before the law regardless of race, enforced by the national government, this amendment permanently transformed the definition of American citizenship as well as relations between the federal government and the states, and between individual Americans and the nation. We live today in a legal and constitutional system shaped by the Fourteenth Amendment. The Fourteenth Amendment was one of three changes that altered the Constitution during the Civil War and Reconstruction. The Thirteenth Amendment, ratified in 1865, irrevocably abolished slavery throughout the United States. The Fifteenth, which became part of the Constitution in 1870, prohibited the states from depriving any person of the right to vote because of race (although leaving open other forms of disenfranchisement, including sex, property ownership, literacy, and payment of a poll tax). In between came the Reconstruction Act of 1867, which gave the vote to black men in the South and launched the short-lived period of Radical Reconstruction, during which, for the first time in American history, a genuine interracial democracy flourished. "Nothing in all history," wrote the abolitionist William Lloyd Garrison, equaled "this . . . transformation of four million human beings from . . . the auction-block to the ballot-box." These laws and amendments reflected the intersection of two products of the Civil War era—a newly empowered national state and the idea of a national citizenry enjoying equality before the law. These legal changes also arose from the militant demands for equal rights from the former slaves themselves. As soon as the Civil War ended, and in some places even before, blacks gathered in mass meetings, held conventions, and drafted petitions to the federal government, demanding the same civil and political rights as white Americans. Their mobilization (given moral authority by the service of 200,000 black men in the Union Army and Navy in the last two years of the war) helped to place the question of black citizenship on the national agenda. The Reconstruction Amendments, and especially the Fourteenth, transformed the Constitution from a document primarily concerned with federal-state relations and the rights of property into a vehicle through which members of vulnerable minorities could stake a claim to substantive freedom and seek protection against misconduct by all levels of government. The rewriting of the Constitution promoted a sense of the document’s malleability, and suggested that the rights of individual citizens were intimately connected to federal power. The Bill of Rights had linked civil liberties and the autonomy of the states. Its language—"Congress shall make no law"—reflected the belief that concentrated power was a threat to freedom. Now, rather than a threat to liberty, the federal government, declared Charles Sumner, the abolitionist US senator from Massachusetts, had become "the custodian of freedom." The Reconstruction Amendments assumed that rights required political power to enforce them. They not only authorized the federal government to override state actions that deprived citizens of equality, but each ended with a clause empowering Congress to "enforce" them with "appropriate legislation." Limiting the privileges of citizenship to white men had long been intrinsic to the practice of American democracy. Only in an unparalleled crisis could these limits have been superseded, even temporarily, by the vision of an egalitarian republic embracing black Americans as well as white and presided over by the federal government. Constitutional amendments are often seen as dry documents, of interest only to specialists in legal history. In fact, as the amendments of the Civil War era reveal, they can open a window onto broad issues of political and social history. The passage of these amendments reflected the immense changes American society experienced during its greatest crisis. The amendments reveal the intersection of political debates at the top of society and the struggles of African Americans to breathe substantive life into the freedom they acquired as a result of the Civil War. Their failings—especially the fact that they failed to extend to women the same rights of citizenship afforded black men—suggest the limits of change even at a time of revolutionary transformation. Moreover, the history of these amendments underscores that rights, even when embedded in the Constitution, are not self-enforcing and cannot be taken for granted. Reconstruction proved fragile and short-lived. Traditional ideas of racism and localism reasserted themselves, Ku Klux Klan violence disrupted the Southern Republican party, and the North retreated from the ideal of equality. Increasingly, the Supreme Court reinterpreted the Fourteenth Amendment to eviscerate its promise of equal citizenship. By the turn of the century, the Fourteenth and Fifteenth Amendments had become dead letters throughout the South. A new racial system had been put in place, resting on the disenfranchisement of black voters, segregation in every area of life, unequal education and job opportunities, and the threat of violent retribution against those who challenged the new order. The blatant violation of the Fourteenth and Fifteenth Amendments occurred with the acquiescence of the entire nation. Not until the 1950s and 1960s did a mass movement of black southerners and white supporters, coupled with a newly activist Supreme Court, reinvigorate the Reconstruction Amendments as pillars of racial justice. Today, in continuing controversies over abortion rights, affirmative action, the rights of homosexuals, and many other issues, the interpretation of these amendments, especially the Fourteenth, remains a focus of judicial decision-making and political debate. We have not yet created the "perfect republic" of which Stevens dreamed. But more Americans enjoy more rights and freedoms than ever before in our history.

Eric Foner , the DeWitt Clinton Professor of History at Columbia University, is the author of numerous books on the Civil War and Reconstruction. His most recent book, The Fiery Trial: Abraham Lincoln and American Slavery (2010), has received the Pulitzer, Bancroft, and Lincoln Prizes.

Suggested Sources

Books and printed materials.

A selection of relevant books by the author of this essay: Foner, Eric. Forever Free: The Story of Emancipation and Reconstruction. New York: Knopf, 2005.

Foner, Eric. Nothing But Freedom: Emancipation and Its Legacy. Baton Rouge: Louisiana State University Press, 2007.

Foner, Eric. Reconstruction: America’s Unfinished Revolution, 1863–1807. New York: Perennial Classics, 2002.

On the adoption of the Reconstruction Amendments: Maltz, Earl M. Civil Rights, the Constitution, and Congress, 1863–1869 . Lawrence: University Press of Kansas, 1990.

The Reconstruction Amendments’ Debates: The Legislative History and Contemporary Debates in Congress on the 13th, 14th, and 15th Amendments . Richmond: Commission on Constitutional Government, 1963.

Richards, David A. Conscience and the Constitution: History, Theory, and Law of the Reconstruction Amendments. Princeton: Princeton University Press, 1993.

On Thaddeus Stevens: Stevens, Thaddeus. The Selected Papers of Thaddeus Stevens. Beverly Wilson Palmer and Holly Byers Ochoa, eds. 2 vols. Pittsburgh: University of Pittsburgh Press, 1997.

Internet Resources

Yale University’s "Avalon Project" for a multitude of documents related to American legal and constitutional history:  http://avalon.law.yale.edu/default.asp

For images of manuscript copies of the amendments, transcripts of their texts, and brief background information, see the National Archives’ "Our Documents" site: http://www.ourdocuments.gov/doc.php?doc=40 [Thirteenth Amendment] http://www.ourdocuments.gov/doc.php?doc=43 [Fourteenth Amendment] http://www.ourdocuments.gov/doc.php?doc=44 [Fifteenth Amendment]

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Ava DuVernay’s 13th Reframes American History

In her new documentary, the filmmaker explores how the Thirteenth Amendment led to an epidemic of mass incarceration in the United States.

Ava DuVernay’s 13th is a documentary about how the Thirteenth Amendment led to mass incarceration in the United States, but it’s also a gorgeous, evocative, and maddening exploration of words: of their power, their roots, their permanence. It’s about those who wield those words and those made to kneel by them. Many Americans by now are familiar with the coded language of the country’s racial hegemony. Some shun certain words while others make anthems out of them.

The film opens with an analysis of the eponymous amendment: “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.” 13th then spends more than an hour and a half tracing the path from the clause between those two commas to the 2.2 million prisoners in the American justice system.

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13th , out Friday on Netflix, compels viewers to sit upright, pay attention, and interrogate words in their most naked form as they’re analyzed and unpacked by DuVernay’s subjects, who include Angela Davis, Charles Rangel, and Henry Louis Gates. Sometimes the film confronts words in seemingly contradictory pairs: person / property , slave / freed person , labor force / prison workers . At other times it wrestles with oxymorons that target black Americans: truth in sentencing, War on Drugs, tough on crime, law and order, minor crimes.

Premised as a historical survey that maps the genetic link between slavery and today’s prison-industrial complex, 13th explodes the “mythology of black criminality,” as The New Yorker ’s Jelani Cobb at one point in the film refers to the successive and successful measures undertaken by political authorities to disempower African Americans over the past three centuries. The academic and civil-rights advocate Michelle Alexander unpacks how the rhetorical war started by Richard Nixon and continued by Ronald Reagan escalated into a literal war, a “nearly genocidal” one. The “southern strategy” is unmasked as a political calculation that decimated black neighborhoods but won the southern white vote.

Throughout the film’s continuous reveal, a single word flashes in giant white letters on a black background: CRIMINAL . Is it a condemnation of past deeds or an accusation aimed at everyone who is complicit? Its effect doesn’t numb the viewer. It pricks and prods throughout the documentary’s 100-minute run time.

I talked with DuVernay about her words, about her intent, and about how she came to listen so well and hear so clearly. The conversation has been edited for clarity and length.

Juleyka Lantigua-Williams : A lot of the film is about questioning definitions of things and questioning the way that things are labeled. What is a person? What is property? What is an enslaved person? Is he really free? What is a minor crime? Listening to it as I’m watching it, I’m hearing emphasis on the duality, on who gets to name things. Were you trying to create that?

DuVernay : Yeah, absolutely. Identification, labels, how those very things have worked against us. Who is the criminal? Why do we think that? Do you understand the architecture around an idea that you hold in your head? The design of it, the very construction of it is most likely not truly yours but something that was given to you. The idea you have in your head was not built by you per se, but built by preconceived notions that were passed down generation after generation. The very ideas that we hold in our head are for someone’s profit and political gain. That stuff really trips me out. It makes me want to really interrogate what I think, read more deeply, understand more deeply. Rethink everything that I think, challenge myself. Do I think that? Or do I think what someone wants me to think of that? That’s what we try to excavate in the doc.

Lantigua-Williams : Let’s put that into political context right now. Three gifted black women gave us three very powerful words: black lives matter . What do you see in these three words? What is their primary role in the tradition that your film traces from slavery to mass incarceration?

DuVernay : The final act of our picture is all about Black Lives Matter, not as some kind of dutiful, “Oh it’s the present moment, we should do something.” Every line, every frame of this film leads you to that place, leads you to the now, leads you to the movement. The whole film is a virtual tour through racism. We’re giving you 150 years of oppression in 100 minutes. The film was 150 years in the making.

Really, it’s to give context to the current moment. The current moment of mass criminalization, of incarceration as an industry, prison as profit, punishment as profit. And the current moment of the declaration that the lives of black people, our very breath, our very dignity, our very humanity, are valuable and matter to the world. The film is designed to get us to that point, and those three words are more than words. They are the very blood that runs within us.

My hope is that this film has much of the beautiful art that’s coming out at this time, speaks to that in a way that is powerful, in a way that we can look back on and say this is how we felt. I’m honored to be making art during this time. I believe it’s happening in theater. It’s happening in film. It’s happening in television. It’s happening in music. Just this weekend, [ 13th debuted at the New York Film Festival on September 30]; you have Solange Knowles’ new album, which is a protest album expressing dissent. You have Luke Cage , another television piece on Netflix. On one day, across multiple platforms, you have black artists declaring our humanity, our dignity, essentially through all of these pieces, saying that black lives matter. So it is a real movement. It hits the political spectrum, the cultural spectrum. It all is one thing to me.

Lantigua-Williams : What words would you give your viewers and the people who follow your work, to get through this moment? What words would you give them to replace some of those very hurtful words that you’ve chronicled in your film?

DuVernay : I believe in fortification and I believe that at this time, we should be fortifying ourselves through knowledge, through self-care, through community. All of these speak through art. It’s really about rallying around this moment and taking in a totality of what it is, and making it internal in whatever way that means to you. If you know all this stuff, great. Pass it on. If you don’t know it, know it. You need to know it. Because at this point, after you see 13th , silence in this case is consent. You know all of this. You’re a forward-thinking person, you care about it. You can’t just walk out into the night after you see the movie or put down your iPad after you see it on Netflix and do nothing about it.

I’m not saying you have to join a march. I’m not saying you have to push for legislation. I’m saying what this film talks about is the very way that we deal with each other in the everyday. It’s about our relationship to each other as it deals with race. So there’s a lot there to be done. I’m stepping out of the conversation as it relates to this film. I’m doing two weekends talking to people and kind of giving birth to it and putting it out into the world. And then I’m going away because it’s not mine anymore. This is out in the world. I don’t want my voice clouding the conversation. I want people to be having their own conversation about it. That’s my great hope.

Lantigua-Williams : Before the movie, what was your general sense of the relationship between slavery and criminal justice and mass incarceration?

DuVernay : I knew a lot of it. I grew up in Compton. There was a heavy police presence growing up in the ’80s, ’90s in Compton. I’d see a cop and I didn’t think safety, like my counterpart who didn’t grow up in Compton. I’d think, “Oh boy, what are they coming for? And who are they coming after?” Definitely a lot of touching the criminal-justice system through interacting with people on probation and parole. Families of imprisoned people. Asking someone, “What are you doing this weekend?” “Oh, I’m going to see my father. He’s locked up.” Asking, “Hey, where’s Derrick who lives up the street? I haven’t seen him in a while.” “Oh, he got locked up.” Police officers coming to people’s houses on my block. Cruisers going up the street, ghetto birds overhead. That’s where I grew up.

So the idea that I could place all that in historical and cultural context when I got to UCLA as an African Studies major, it all solidified in my head. I was always very, very interested in reading about and staying connected to this issue. My second narrative film, Middle of Nowhere , is about a woman whose husband is currently incarcerated, and the life that families live as invisible prisoners. It’s always been something on my mind. It’s a story that I’ve held for a long time. So I knew everything that’s in the doc except the stuff about ALEC. I did not know about that. But this is not an investigation, right? All this information you can find in about seven amazing docs that tell different parts of the story. About 10 great books, right, that we could list for people. But this is the primary source for people that will not read and go see those films.

Also, I think there’s something to seeing it all together in one place. You can see the color red by itself, right? But when you put it next to other colors, it creates a different picture. I think we can talk about plea bargains by themselves. We can talk about the black codes and Reconstruction by itself. We can talk about Jim Crow by itself. But when you line them up and put them all side by side, that’s what the film does, and you think, “Lord, have mercy. Look at this picture. Look where we are.”

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Documentary '13TH' Argues Mass Incarceration Is An Extension Of Slavery

Filmmaker Ava DuVernay talks about her new documentary, 13TH , which explores the history of race and the criminal justice system in the United States. The film's title refers to the 13th Amendment.

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