Amdt13.S2.1.1.1 Enforcement Clause: Overview

Thirteenth Amendment, Section 2:

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

This Amendment . . . is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom.1 These words of the Court in 1883 have generally been noncontroversial and have evoked little disagreement in the intervening years. The force and effect of the Amendment itself has been invoked only a few times by the Court to strike down state legislation which it considered to have reintroduced servitude of persons, and the Court has not used section 1 of the Amendment against private parties.2 In 1968, however, the Court overturned almost century-old precedent and held that Congress may regulate private activity in exercise of its section 2 power to enforce section 1 of the Amendment.

Footnotes

  1.  Jump to essay-1Civil Rights Cases, 109 U.S. 3, 20 (1883).
  2.  Jump to essay-2In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968), the Court left open the question whether the Amendment itself, unaided by legislation, would reach the badges and incidents of slavery not directly associated with involuntary servitude, and it continued to reserve the question in City of Memphis v. Greene, 451 U.S. 100, 125–26 (1981). See Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Justice Harlan dissenting). The Court drew back from the possibility in Palmer v. Thompson, 403 U.S. 217, 226–27 (1971).