Thirteenth Amendment, Section 2:
Congress shall have power to enforce this article by appropriate legislation.
Hodges was overruled by the Court in a far-reaching decision that concluded that the 1866 congressional enactment,1 far from simply conferring on all persons the capacity to buy and sell property, also prohibited private denials of the right through refusals to deal,2 and that this statute was fully supportable by the Thirteenth Amendment.
Surely 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. Nor can we say that the determination Congress has made is an irrational one. . . . 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. . . . 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.3
The Thirteenth Amendment, then, could provide the constitutional support for the various congressional enactments against private racial discrimination that Congress had previously based on the Commerce Clause.4 Because the 1866 Act contains none of the limitations written into the modern laws, it has a vastly extensive application.5