Amdt13.S2. Enforcement Clause: Early Doctrine

Thirteenth Amendment, Section 2:

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

Certain early cases suggested broad congressional powers,1 but the Civil Rights Cases2 of 1883 began a process, culminating in Hodges v. United States,3 that substantially curtailed these powers. In the former decision, the Court held unconstitutional an 1875 law4 guaranteeing equality of access to public accommodations. Referring to the Thirteenth Amendment, the Court conceded that legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States. Appropriate legislation under the Amendment, the Court continued, could go beyond nullifying state laws establishing or upholding slavery, because the Amendment has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States, and thereby empowering Congress to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.5

These badges and incidents as perceived by the Court, however, were those that Congress in its 1866 legislation6 had sought to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.7 But the Court could not see that the refusal of accommodations at an inn or a place of public amusement, without any sanction or support from any state law, could inflict upon such person any manner of servitude or form of slavery, as those terms were commonly understood. It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make. . . .8

Then, in Hodges v. United States,9 the Court set aside the convictions of three men for conspiring to drive several African Americans from their employment in a lumber mill. The Court said that the Thirteenth Amendment operated to abolish, and to authorize Congress to legislate to enforce abolition of, conditions of enforced compulsory service of one to another, and no attempt to analogize a private impairment of freedom to a disability of slavery would suffice to give the Federal Government jurisdiction over what was constitutionally a matter of state remedial law.


  1.  Jump to essay-1United States v. Rhodes, 27 F. Cas. 785 (No. 16151) (C.C. Ky. 1866) (Justice Swayne on circuit); United States v. Cruikshank, 25 F. Cas. 707, (No. 14897) (C.C.D. La. 1874) (Justice Bradley on circuit), aff’d on other grounds, 92 U.S. 542 (1876); United States v. Harris, 106 U.S. 629, 640 (1883); Blyew v. United States, 80 U.S. 581, 601 (1871) (dissenting opinion, majority not addressing the issue).
  2.  Jump to essay-2109 U.S. 3 (1883).
  3.  Jump to essay-3203 U.S. 1 (1906). See also Plessy v. Ferguson, 163 U.S. 537, 542–43 (1896); Corrigan v. Buckley, 271 U.S. 323, 331 (1926); Hurd v. Hodge, 334 U.S. 24, 31 (1948).
  4.  Jump to essay-4Ch. 114, 18 Stat. 335.
  5.  Jump to essay-5Civil Rights Cases, 109 U.S. 3, 20 (1883).
  6.  Jump to essay-6Ch. 31, 14 Stat. 27 (1886), now 42 U.S.C. §§ 1981-82.
  7.  Jump to essay-7Civil Rights Cases, 109 U.S. 3, 22 (1883).
  8.  Jump to essay-8109 U.S. at 24.
  9.  Jump to essay-9203 U.S. 1 (1906), overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968).