Amdt13.1 Thirteenth Amendment: Historical Background

On January 1, 1863, President Lincoln issued the Emancipation Proclamation1 declaring, based on his war powers, that within named states and parts of states in rebellion against the United States all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free . . . . The Proclamation did not allude to slaves held in the loyal states, and, moreover, there were questions about the Proclamation’s validity. Not only was there doubt concerning the President’s power to issue his order at all, but also there was a general conviction that its effect would not last beyond the restoration of the seceded states to the Union.2 Because the power of Congress was similarly deemed not to run to legislative extirpation of the peculiar institution,3 a constitutional amendment was then sought. After first failing to muster a two-thirds vote in the House of Representatives, the amendment was forwarded to the states on February 1, 1865, and ratified by the following December 18.4

In selecting the text of the Amendment, Congress reproduced the historic words of the ordinance of 1787 for the government of the Northwest Territory, and gave them unrestricted application within the United States.5 By its adoption, Congress intended, said Senator Trumbull, one of its sponsors, to take this question [of emancipation] entirely away from the politics of the country. We relieve Congress of sectional strifes . . . .6 An early Supreme Court decision, rejecting a contention that the Amendment reached servitudes on property as it did on persons, observed in dicta that the word servitude is of larger meaning than slavery, . . . and the obvious purpose was to forbid all shades and conditions of African slavery.

Although the Court was initially in doubt whether persons other than formerly enslaved people could share in the protection afforded by the Amendment, it did continue to say that, although [N]egro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If . . . slavery of the Mexican or Chinese race [were to develop] within our territory, this amendment may safely be trusted to make it void.7


  1.  Jump to essay-112 Stat. 1267. On September 22, 1862, Lincoln had issued the preliminary Emancipation Proclamation, which announced his intention to issue the Emancipation Proclamation on January 1, 1863.
  2.  Jump to essay-2The legal issues were surveyed in Welling, The Emancipation Proclamation, 130 No. Amer. Rev. 163 (1880). See also J. Randall, Constitutional Problems Under Lincoln 371-404 (rev. ed. 1951); Allen C. Guelzo, Lincoln's Emancipation Proclamation: The End of Slavery in America (2004); and Frank J. Williams, Doing Less and Doing More: The President and the Proclamation – Legally, Militarily, and Politically, in Harold Holzer, Edna Greene Medford, and Frank J. Williams, The Emancipation Proclamation: Three Views (2006).
  3.  Jump to essay-3K. Stampp, The Peculiar Institution: Slavery in the Ante-Bellum South (1956).
  4.  Jump to essay-4The congressional debate on adoption of the Amendment is conveniently collected in 1 B. Schwartz, Statutory History of the United States: Civil Rights 25-96 (1970).
  5.  Jump to essay-5Bailey v. Alabama, 219 U.S. 219, 240 (1911). During the debate, Senator Howard noted that the language was the good old Anglo-Saxon language employed by our fathers in the ordinance of 1787, an expression which has been adjudicated upon repeatedly, which is perfectly well understood both by the public and by judicial tribunals. . . . Cong. Globe, 38th Cong., 1st Sess. 1489 (1864).
  6.  Jump to essay-6Cong. Globe at 1313-14.
  7.  Jump to essay-7Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 69, 71-72 (1873). This general applicability was again stated in Hodges v. United States, 203 U.S. 1, 16-17 (1906), and confirmed by the result of the peonage cases, discussed under the next topic.