Thirteenth Amendment, Section 1:
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.
On January 1, 1863, President Lincoln issued the Emancipation Proclamation 1 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
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. 8 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. 9 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.
Certain early cases suggested broad congressional powers, 10 but the Civil Rights Cases 11 of 1883 began a process, culminating in Hodges v. United States, 12 that substantially curtailed these powers. In the former decision, the Court held unconstitutional an 1875 law 13 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. 14
These badges and incidents as perceived by the Court, however, were those that Congress in its 1866 legislation 15 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. 16 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. . . . 17
Then, in Hodges v. United States, 18 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.
Hodges was overruled by the Court in a far-reaching decision that concluded that the 1866 congressional enactment, 19 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, 20 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. 21
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. 22 Because the 1866 Act contains none of the limitations written into the modern laws, it has a vastly extensive application. 23