Thirteenth Amendment to the United States Constitution

The Thirteenth Amendment (Amendment XIII) to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime. In Congress, it was passed by the Senate on April 8, 1864, and by the House on January 31, 1865. The amendment was ratified by the required number of states on December 6, 1865. On December 18, 1865, Secretary of State William H. Seward proclaimed its adoption. It was the first of the three Reconstruction Amendments adopted following the American Civil War.

Since the American Revolution, states had divided into states that allowed and states that prohibited slavery. Slavery was implicitly permitted in the original Constitution through provisions such as Article I, Section 2, Clause 3, commonly known as the Three-Fifths Compromise, which detailed how each slave state's enslaved population would be factored into its total population count for the purposes of apportioning seats in the United States House of Representatives and direct taxes among the states. Though many slaves had been declared free by President Abraham Lincoln's 1863 Emancipation Proclamation, their post-war status was uncertain. On April 8, 1864, the Senate passed an amendment to abolish slavery. After one unsuccessful vote and extensive legislative maneuvering by the Lincoln administration, the House followed suit on January 31, 1865. The measure was swiftly ratified by nearly all Northern states, along with a sufficient number of border and "reconstructed" Southern states, to cause it to be adopted before the end of the year.

Though the amendment formally abolished slavery throughout the United States, factors such as Black Codes, white supremacist violence, and selective enforcement of statutes continued to subject some black Americans to involuntary labor, particularly in the South. In contrast to the other Reconstruction Amendments, the Thirteenth Amendment was rarely cited in later case law, but has been used to strike down peonage and some race-based discrimination as "badges and incidents of slavery". The Thirteenth Amendment applies to the actions of private citizens, while the Fourteenth and Fifteenth Amendments apply only to state actors. The amendment also enables Congress to pass laws against sex trafficking and other modern forms of slavery.

Text

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.

Section 2. Congress shall have power to enforce this article by appropriate legislation.[1]

Slavery in the United States

Abolitionist imagery focused on atrocities against slaves[2] (1863 photo of Gordon)

The institution of slavery existed in all of the original thirteen British North American colonies. Prior to the Thirteenth Amendment, the United States Constitution (adopted in 1789) did not expressly use the words slave or slavery but included several provisions about unfree persons. The Three-Fifths Compromise (in Article I, Section 2, Clause 3) allocated Congressional representation based "on the whole Number of free Persons" and "three fifths of all other Persons". This clause was a compromise between Southerners who wished slaves to be counted as 'persons' for congressional representation and northerners rejecting these out of concern of too much power for the South, because representation in the new Congress would be based on population in contrast to the one-vote-for-one-state principle in the earlier Continental Congress.[3] Under the Fugitive Slave Clause (Article IV, Section 2, Clause 3), "No person held to Service or Labour in one State" would be freed by escaping to another. Article I, Section 9, Clause 1 allowed Congress to pass legislation outlawing the "Importation of Persons", but not until 1808. However, for purposes of the Fifth Amendment—which states that, "No person shall... be deprived of life, liberty, or property, without due process of law"—slaves were understood as property.[4] Although abolitionists used the Fifth Amendment to argue against slavery, it became part of the legal basis in Dred Scott v. Sandford (1857) for treating slaves as property.[5]

Stimulated by the philosophy of the Declaration of Independence between 1777 and 1804, every Northern state provided for the immediate or gradual abolition of slavery. Most of the slaves involved were household servants. No Southern state did so, and the slave population of the South continued to grow, peaking at almost 4 million people in 1861. An abolitionist movement headed by such figures as William Lloyd Garrison grew in strength in the North, calling for the end of slavery nationwide and exacerbating tensions between North and South. The American Colonization Society, an alliance between abolitionists who felt the races should be kept separated and slaveholders who feared the presence of freed blacks would encourage slave rebellions, called for the emigration and colonization of both free blacks and slaves to Africa. Its views were endorsed by politicians such as Henry Clay, who feared that the main abolitionist movement would provoke a civil war.[6] Proposals to eliminate slavery by constitutional amendment were introduced by Representative Arthur Livermore in 1818 and by John Quincy Adams in 1839, but failed to gain significant traction.[7]

As the country continued to expand, the issue of slavery in its new territories became the dominant national issue. The Southern position was that slaves were property and therefore could be moved to the territories like all other forms of property.[8] The 1820 Missouri Compromise provided for the admission of Missouri as a slave state and Maine as a free state, preserving the Senate's equality between the regions. In 1846, the Wilmot Proviso was introduced to a war appropriations bill to ban slavery in all territories acquired in the Mexican–American War; the Proviso repeatedly passed the House, but not the Senate.[8] The Compromise of 1850 temporarily defused the issue by admitting California as a free state, instituting a stronger Fugitive Slave Act, banning the slave trade in Washington, D.C., and allowing New Mexico and Utah self-determination on the slavery issue.[9]

Despite the compromise, tensions between North and South continued to rise over the subsequent decade, inflamed by, amongst other things, the publication of the 1852 anti-slavery novel Uncle Tom's Cabin; fighting between pro-slavery and abolitionist forces in Kansas, beginning in 1854; the 1857 Dred Scott decision, which struck down provisions of the Compromise of 1850; abolitionist John Brown's 1859 attempt to start a slave revolt at Harpers Ferry and the 1860 election of slavery critic Abraham Lincoln to the presidency. The Southern states seceded from the Union in the months following Lincoln's election, forming the Confederate States of America, and beginning the American Civil War.

Proposal and ratification

Crafting the amendment

Representative James Mitchell Ashley proposed an amendment abolishing slavery in 1863.

Acting under presidential war powers, Lincoln issued the Emancipation Proclamation on January 1, 1863, which proclaimed the freedom of slaves in the ten states that were still in rebellion.[10] However, it did not affect the status of slaves in the border states that had remained loyal to the Union.[11] That December, Lincoln again used his war powers and issued a "Proclamation for Amnesty and Reconstruction", which offered Southern states a chance to peacefully rejoin the Union if they abolished slavery and collected loyalty oaths from 10% of their voting population.[12] Southern states did not readily accept the deal, and the status of slavery remained uncertain.

In the final years of the Civil War, Union lawmakers debated various proposals for Reconstruction.[13] Some of these called for a constitutional amendment to abolish slavery nationally and permanently. On December 14, 1863, a bill proposing such an amendment was introduced by Representative James Mitchell Ashley of Ohio.[14][15] Representative James F. Wilson of Iowa soon followed with a similar proposal. On January 11, 1864, Senator John B. Henderson of Missouri submitted a joint resolution for a constitutional amendment abolishing slavery. The Senate Judiciary Committee, chaired by Lyman Trumbull of Illinois, became involved in merging different proposals for an amendment.

Radical Republicans led by Massachusetts Senator Charles Sumner and Pennsylvania Representative Thaddeus Stevens sought a more expansive version of the amendment.[16] On February 8, 1864, Sumner submitted a constitutional amendment stating:

All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere in the United States.[17][18]

Sumner tried to promote his own more expansive wording by circumventing the Trumbull-controlled Judiciary Committee, but failed.[19] On February 10, the Senate Judiciary Committee presented the Senate with an amendment proposal based on drafts of Ashley, Wilson and Henderson.[20][21]

The Committee's version used text from the Northwest Ordinance of 1787, which stipulates, "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted."[22][23]:1786 Though using Henderson's proposed amendment as the basis for its new draft, the Judiciary Committee removed language that would have allowed a constitutional amendment to be adopted with only a majority vote in each House of Congress and ratification by two-thirds of the states (instead of two-thirds and three-fourths, respectively).[24]

Passage by Congress

The Senate passed the amendment on April 8, 1864, by a vote of 38 to 6; two Democrats, Reverdy Johnson of Maryland and James Nesmith of Oregon voted "aye." However, just over two months later on June 15, the House failed to do so, with 93 in favor and 65 against, thirteen votes short of the two-thirds vote needed for passage; the vote split largely along party lines, with Republicans supporting and Democrats opposing.[25] In the 1864 presidential race, former Free Soil Party candidate John C. Frémont threatened a third-party run opposing Lincoln, this time on a platform endorsing an anti-slavery amendment. The Republican Party platform had, as yet, failed to include a similar plank, though Lincoln endorsed the amendment in a letter accepting his nomination.[26][27] Fremont withdrew from the race on September 22, 1864 and endorsed Lincoln.[28]

With no Southern states represented, few members of Congress pushed moral and religious arguments in favor of slavery. Democrats who opposed the amendment generally made arguments based on federalism and states' rights.[29] Some argued that the proposed change so violated the spirit of the Constitution that it would not be a valid "amendment" but would instead constitute "revolution".[30] Representative White, among other opponents, warned that the amendment would lead to full citizenship for blacks.[31]

Republicans portrayed slavery as uncivilized and argued for abolition as a necessary step in national progress.[32] Amendment supporters also argued that the slave system had negative effects on white people. These included the lower wages resulting from competition with forced labor, as well as repression of abolitionist whites in the South. Advocates said ending slavery would restore the First Amendment and other constitutional rights violated by censorship and intimidation in slave states.[31][33]

White Northern Republicans, and some Democrats, became excited about an abolition amendment, holding meetings and issuing resolutions.[34] Many blacks, particularly in the South, focused more on landownership and education as the key to liberation.[35] As slavery began to seem politically untenable, an array of Northern Democrats successively announced their support for the amendment, including Representative James Brooks,[36] Senator Reverdy Johnson,[37] and Tammany Hall, a powerful New York political machine.[38]

Celebration erupts after the amendment is passed by the House of Representatives.

President Lincoln had had concerns that the Emancipation Proclamation of 1863 might be reversed or found invalid after the war. He saw constitutional amendment as a more permanent solution.[39][40] He had remained outwardly neutral on the amendment because he considered it politically too dangerous.[41] Nonetheless, Lincoln's 1864 party platform resolved to abolish slavery by constitutional amendment.[42][43] After winning the election of 1864, Lincoln made the passage of the Thirteenth Amendment his top legislative priority, beginning his efforts while the "lame duck" session was still in office.[44][45] Popular support for the amendment mounted and Lincoln urged Congress on in his December 6 State of the Union speech: "there is only a question of time as to when the proposed amendment will go to the States for their action. And as it is to so go, at all events, may we not agree that the sooner the better?"[46]

Lincoln instructed Secretary of State William H. Seward, Representative John B. Alley and others to procure votes by any means necessary, and they promised government posts and campaign contributions to outgoing Democrats willing to switch sides.[47][48] Seward had a large fund for direct bribes. Ashley, who reintroduced the measure into the House, also lobbied several Democrats to vote in favor of the measure.[49] Representative Thaddeus Stevens commented later that "the greatest measure of the nineteenth century was passed by corruption, aided and abetted by the purest man in America"; however, Lincoln's precise role in making deals for votes remains unknown.[50]

Republicans in Congress claimed a mandate for abolition, having gained in the elections for Senate and House.[51] The 1864 Democratic vice-presidential nominee, Representative George H. Pendleton, led opposition to the measure.[52] Republicans toned down their language of radical equality in order to broaden the amendment's coalition of supporters.[53] In order to reassure critics worried that the amendment would tear apart the social fabric, some Republicans explicitly promised that the amendment would leave patriarchy intact.[54]

In mid-January 1865, Speaker of the House Schuyler Colfax estimated the amendment to be five votes short of passage. Ashley postponed the vote.[55] At this point, Lincoln intensified his push for the amendment, making direct emotional appeals to particular members of Congress.[56] On January 31, 1865, the House called another vote on the amendment, with neither side being certain of the outcome. With 183 House members present, 122 would have to vote "aye" to secure passage of the resolution; however eight members abstained, reducing the number to 117. Every Republican supported the measure, as well as 16 Democrats, almost all of them lame ducks. The amendment finally passed by a vote of 119 to 56,[57] narrowly reaching the required two-thirds majority.[58] The House exploded into celebration, with some members openly weeping.[59] Black onlookers, who had only been allowed to attend Congressional sessions since the previous year, cheered from the galleries.[60]

While under the Constitution, the President plays no formal role in the amendment process, the joint resolution was sent to Lincoln for his signature.[61] Under the usual signatures of the Speaker of the House and the President of the Senate, President Lincoln wrote the word "Approved" and added his signature to the joint resolution on February 1, 1865.[62] On February 7, Congress passed a resolution affirming that the Presidential signature was unnecessary.[63] The Thirteenth Amendment is the only ratified amendment signed by a President, although James Buchanan had signed the Corwin Amendment that the 36th Congress had adopted and sent to the states in March 1861.[64][65]

Ratification by the states

  Ratified amendment, 1865
  Ratified amendment post-enactment, 1865–1870
  Ratified amendment after first rejecting amendment, 1866–1995
  Territories of the United States in 1865, not yet states

When the Thirteenth Amendment was submitted to the states on February 1, 1865, it was quickly taken up by several legislatures. By the end of the month it had been ratified by eighteen states. Among them were the ex-Confederate states of Virginia and Louisiana, where ratifications were submitted by Reconstruction governments. These, along with subsequent ratifications from Arkansas and Tennessee raised the issues of how many seceded states had legally valid legislatures; and if there were fewer legislatures than states, if Article V required ratification by three-fourths of the states or three-fourths of the legally valid state legislatures.[66] President Lincoln in his last speech, on April 11, 1865, called the question about whether the Southern states were in or out of the Union a "pernicious abstraction." Obviously, he declared, they were not "in their proper practical relation with the Union"; whence everyone's object should be to restore that relation.[67] Lincoln was assassinated three days later.

With Congress out of session, the new President, Andrew Johnson, began a period known as "Presidential Reconstruction", in which he personally oversaw the creation of new state governments throughout the South. He oversaw the convening of state political conventions populated by delegates whom he deemed to be loyal. Three leading issues came before the conventions: secession itself, the abolition of slavery, and the Confederate war debt. Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina held conventions in 1865, while Texas' convention did not organize until March 1866.[68][69][70] Johnson hoped to prevent deliberation over whether to re-admit the Southern states by accomplishing full ratification before Congress reconvened in December. He believed he could silence those who wished to deny the Southern states their place in the Union by pointing to how essential their assent had been to the successful ratification of the Thirteenth Amendment.[71]

Direct negotiations between state governments and the Johnson administration ensued. As the summer wore on, administration officials began including assurances of the measure's limited scope with their demands for ratification. Johnson himself suggested directly to the governors of Mississippi and North Carolina that they could proactively control the allocation of rights to freedmen. Though Johnson obviously expected the freed people to enjoy at least some civil rights, including, as he specified, the right to testify in court, he wanted state lawmakers to know that the power to confer such rights would remain with the states.[72] When South Carolina provisional governor Benjamin Franklin Perry objected to the scope of the amendment's enforcement clause, Secretary of State Seward responded by telegraph that in fact the second clause "is really restraining in its effect, instead of enlarging the powers of Congress".[72] White politicians throughout the South were concerned that Congress might cite the amendment's enforcement powers as a way to authorize black suffrage.[73]

When South Carolina ratified the amendment in November 1865, it issued its own interpretive declaration that "any attempt by Congress toward legislating upon the political status of former slaves, or their civil relations, would be contrary to the Constitution of the United States".[23]:1786–1787[74] Alabama and Louisiana also declared that their ratification did not imply federal power to legislate on the status of former slaves.[23]:1787[75] During the first week of December, North Carolina and Georgia gave the amendment the final votes needed for it to become part of the Constitution.

The Thirteenth Amendment became part of the Constitution on December 6, 1865, based on the following ratifications:[76]

  1. Illinois — February 1, 1865
  2. Rhode Island — February 2, 1865
  3. Michigan — February 3, 1865
  4. Maryland — February 3, 1865
  5. New York — February 3, 1865
  6. Pennsylvania — February 3, 1865
  7. West Virginia — February 3, 1865
  8. Missouri — February 6, 1865
  9. Maine — February 7, 1865
  10. Kansas — February 7, 1865
  11. Massachusetts — February 7, 1865
  12. Virginia — February 9, 1865
  13. Ohio — February 10, 1865
  14. Indiana — February 13, 1865
  15. Nevada — February 16, 1865
  16. Louisiana — February 17, 1865
  17. Minnesota — February 23, 1865
  18. Wisconsin — February 24, 1865
  19. Vermont — March 8, 1865
  20. Tennessee — April 7, 1865
  21. Arkansas — April 14, 1865
  22. Connecticut — May 4, 1865
  23. New Hampshire — July 1, 1865
  24. South Carolina — November 13, 1865
  25. Alabama — December 2, 1865
  26. North Carolina — December 4, 1865
  27. Georgia — December 6, 1865

Having been ratified by the legislatures of three-fourths of the several states (27 of the 36 states, including those that had been in rebellion), Secretary of State Seward, on December 18, 1865, certified that the Thirteenth Amendment had become valid, to all intents and purposes, as a part of the Constitution.[77] Included on the enrolled list of ratifying states were the three ex-Confederate states that had given their assent, but with strings attached. Seward accepted their affirmative votes and brushed aside their interpretive declarations without comment, challenge or acknowledgment.[78]

The Thirteenth Amendment was subsequently ratified by:[76]

The Thirteenth Amendment became part of the Constitution 61 years after the Twelfth Amendment. This is the longest interval between constitutional amendments.[81]

Effects

Amendment XIII in the National Archives, bearing the signature of Abraham Lincoln

The impact of the abolition of slavery was felt quickly. When the Thirteenth Amendment became operational, the scope of Lincoln's 1863 Emancipation Proclamation was widened to include the entire nation. Although the majority of Kentucky's slaves had been emancipated, 65,000–100,000 people remained to be legally freed when the Amendment went into effect on December 18.[82][83] In Delaware, where a large number of slaves had escaped during the war, nine hundred people became legally free.[83][84]

In addition to abolishing slavery and prohibiting involuntary servitude, except as a punishment for crime, the Thirteenth Amendment also nullified the Fugitive Slave Clause and the Three-Fifths Compromise. The population of a state originally included (for congressional apportionment purposes) all "free persons", three-fifths of "other persons" (i.e., slaves) and excluded untaxed Native Americans. The Three-Fifths Compromise was a provision in the Constitution that required three-fifths of the population of slaves be counted for purposes of apportionment of seats in the House of Representatives and taxes among the states. This compromise had the effect of increasing the political power of slave-holding states by increasing their share of seats in the House of Representatives, and consequently their share in the Electoral College (where a state's influence over the election of the President is tied to the size of its congressional delegation).[85][86]

Even as the Thirteenth Amendment was working its way through the ratification process, Republicans in Congress grew increasingly concerned about the potential for there to be a large increase in the congressional representation of the Democratic-dominated Southern states. Because the full population of freed slaves would be counted rather than three-fifths, the Southern states would dramatically increase their power in the population-based House of Representatives.[87][88] Republicans hoped to offset this advantage by attracting and protecting votes of the newly enfranchised black population.[87][89][90]

Political and economic change in the South

Southern culture remained deeply racist, and those blacks who remained faced a dangerous situation. J. J. Gries reported to the Joint Committee on Reconstruction: "There is a kind of innate feeling, a lingering hope among many in the South that slavery will be regalvanized in some shape or other. They tried by their laws to make a worse slavery than there was before, for the freedman has not the protection which the master from interest gave him before."[91] W. E. B. Du Bois wrote in 1935:

Slavery was not abolished even after the Thirteenth Amendment. There were four million freedmen and most of them on the same plantation, doing the same work that they did before emancipation, except as their work had been interrupted and changed by the upheaval of war. Moreover, they were getting about the same wages and apparently were going to be subject to slave codes modified only in name. There were among them thousands of fugitives in the camps of the soldiers or on the streets of the cities, homeless, sick, and impoverished. They had been freed practically with no land nor money, and, save in exceptional cases, without legal status, and without protection.[92][93]

Official emancipation did not substantially alter the economic situation of most blacks who remained in the south.[94]

As the amendment still permitted labor as punishment for convicted criminals, Southern states responded with what historian Douglas A. Blackmon called "an array of interlocking laws essentially intended to criminalize black life".[95] These laws, passed or updated after emancipation, were known as Black Codes.[88] Mississippi was the first state to pass such codes, with an 1865 law titled "An Act to confer Civil Rights on Freedmen".[96] The Mississippi law required black workers to contract with white farmers by January 1 of each year or face punishment for vagrancy.[95] Blacks could be sentenced to forced labor for crimes including petty theft, using obscene language, or selling cotton after sunset.[97] States passed new, strict vagrancy laws that were selectively enforced against blacks without white protectors.[95][98] The labor of these convicts was then sold to farms, factories, lumber camps, quarries, and mines.[99]

After its ratification of the Thirteenth Amendment in November 1865, the South Carolina legislature immediately began to legislate Black Codes.[100] The Black Codes created a separate set of laws, punishments, and acceptable behaviors for anyone with more than one black great-grandparent. Under these Codes, Blacks could only work as farmers or servants and had few Constitutional rights.[101] Restrictions on black land ownership threatened to make economic subservience permanent.[35]

Some states mandated indefinitely long periods of child "apprenticeship".[102] Some laws did not target Blacks specifically, but instead affected farm workers, most of whom were Black. At the same time, many states passed laws to actively prevent Blacks from acquiring property.[103]

Congressional and executive enforcement

As its first enforcement legislation, Congress passed the Civil Rights Act of 1866, guaranteeing black Americans citizenship and equal protection of the law, though not the right to vote. The amendment was also used as authorizing several Freedmen's Bureau bills. President Andrew Johnson vetoed these bills, but Congress overrode his vetoes to pass the Civil Rights Act and the Second Freedmen's Bureau Bill.[104][105]

Proponents of the Act, including Trumbull and Wilson, argued that Section 2 of the Thirteenth Amendment authorized the federal government to legislate civil rights for the States. Others disagreed, maintaining that inequality conditions were distinct from slavery.[23]:1788–1790 Seeking more substantial justification, and fearing that future opponents would again seek to overturn the legislation, Congress and the states added additional protections to the Constitution: the Fourteenth Amendment (1868) defining citizenship and mandating equal protection under the law, and the Fifteenth Amendment (1870) banning racial voting restrictions.[106]

The Freedmen's Bureau enforced the amendment locally, providing a degree of support for people subject to the Black Codes.[107] Reciprocally, the Thirteenth Amendment established the Bureau's legal basis to operate in Kentucky.[108] The Civil Rights Act circumvented racism in local jurisdictions by allowing blacks access to the federal courts. The Enforcement Acts of 1870–1871 and the Civil Rights Act of 1875, in combating the violence and intimidation of white supremacy, were also part of the effort to end slave conditions for Southern blacks.[109] However, the effect of these laws waned as political will diminished and the federal government lost authority in the South, particularly after the Compromise of 1877 ended Reconstruction in exchange for a Republican presidency.[110]

Peonage law

Southern business owners sought to reproduce the profitable arrangement of slavery with a system called peonage, in which disproportionately black workers were entrapped by loans and compelled to work indefinitely because of their debt.[111][112] Peonage continued well through Reconstruction and ensnared a large proportion of black workers in the South.[113] These workers remained destitute and persecuted, forced to work dangerous jobs and further confined legally by the racist Jim Crow laws that governed the South.[112] Peonage differed from chattel slavery because it was not strictly hereditary and did not allow the sale of people in exactly the same fashion. However, a person's debt—and by extension a person—could still be sold, and the system resembled antebellum slavery in many ways.[114]

With the Peonage Act of 1867, Congress abolished "the holding of any person to service or labor under the system known as peonage",[115] specifically banning "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise."[116]

In 1939, the Department of Justice created the Civil Rights Section, which focused primarily on First Amendment and labor rights.[117] The increasing scrutiny of totalitarianism in the lead-up to World War II brought increased attention to issues of slavery and involuntary servitude, abroad and at home.[118] The U.S. sought to counter foreign propaganda and increase its credibility on the race issue by combatting the Southern peonage system.[119] Under the leadership of Attorney General Francis Biddle, the Civil Rights Section invoked the constitutional amendments and legislation of the Reconstruction Era as the basis for its actions.[120]

In 1947, the DOJ successfully prosecuted Elizabeth Ingalls for keeping domestic servant Dora L. Jones in conditions of slavery. The court found that Jones "was a person wholly subject to the will of defendant; that she was one who had no freedom of action and whose person and services were wholly under the control of defendant and who was in a state of enforced compulsory service to the defendant."[121] The Thirteenth Amendment enjoyed a swell of attention during this period, but from Brown v. Board (1954) until Jones v. Alfred H. Mayer Co. (1968) it was again eclipsed by the Fourteenth Amendment.[122]

Judicial interpretation

In contrast to the other "Reconstruction Amendments", the Thirteenth Amendment was rarely cited in later case law. As historian Amy Dru Stanley summarizes, "beyond a handful of landmark rulings striking down debt peonage, flagrant involuntary servitude, and some instances of race-based violence and discrimination, the Thirteenth Amendment has never been a potent source of rights claims".[123][124]

Black slaves and their descendants

U. S. v. Rhodes (1866),[125] one of the first Thirteenth Amendment cases, tested the Constitutionality of provisions in the Civil Rights Act of 1866 that granted blacks redress in the federal courts. Kentucky law prohibited blacks from testifying against whites—an arrangement which compromised the ability of Nancy Talbot ("a citizen of the United States of the African race") to reach justice against a white person accused of robbing her. After Talbot attempted to try the case in federal court, the Kentucky Supreme Court ruled this federal option unconstitutional. Noah Swayne (a Supreme Court justice sitting on the Kentucky Circuit Court) overturned the Kentucky decision, holding that without the material enforcement provided by the Civil Rights Act, slavery would not truly be abolished.[126][127] With In Re Turner (1867), Chief Justice Salmon P. Chase ordered freedom for Elizabeth Turner, a former slave in Maryland who became indentured to her former master.[128]

In Blyew v. U.S., (1872)[129] the Supreme Court heard another Civil Rights Act case relating to federal courts in Kentucky. John Blyew and George Kennard were white men visiting the cabin of a black family, the Fosters. Blyew apparently became angry with sixteen-year-old Richard Foster and hit him twice in the head with an ax. Blyew and Kennard killed Richard's parents, Sallie and Jack Foster, and his blind grandmother, Lucy Armstrong. They severely wounded the Fosters' two young daughters. Kentucky courts would not allow the Foster children to testify against Blyew and Kennard. But federal courts, authorized by the Civil Rights Act, found Blyew and Kennard guilty of murder. When the Supreme Court took the case, they ruled (5–2) that the Foster children did not have standing in federal courts because only living people could take advantage of the Act. In doing so, the Courts effectively ruled that Thirteenth Amendment did not permit a federal remedy in murder cases. Swayne and Joseph P. Bradley dissented, maintaining that in order to have meaningful effects, the Thirteenth Amendment would have to address systemic racial oppression.[130]

Though based on a technicality, the Blyew case set a precedent in state and federal courts that led to the erosion of Congress's Thirteenth Amendment powers. The Supreme Court continued along this path in the Slaughter-House Cases (1873), which upheld a state-sanctioned monopoly of white butchers. In United States v. Cruikshank (1876), the Court ignored Thirteenth Amendment dicta from a circuit court decision to exonerate perpetrators of the Colfax massacre and invalidate the Enforcement Act of 1870.[109]

John Marshall Harlan became known as "The Great Dissenter" for his minority opinions favoring powerful Thirteenth and Fourteenth Amendments.[131]

The Thirteenth Amendment was not solely a ban on chattel slavery, but also covers a much broader array of labor arrangements and social deprivations.[132] As the U.S. Supreme Court explicated in the Slaughter-House Cases (1873) with respect to the Fourteenth and Fifteenth Amendment and the Thirteenth Amendment in special:

Undoubtedly while negro 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 Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it.[133]

In the Civil Rights Cases (1883),[134] the Supreme Court reviewed five consolidated cases dealing with the Civil Rights Act of 1875, which outlawed racial discrimination at "inns, public conveyances on land or water, theaters, and other places of public amusement". The Court ruled that the Thirteenth Amendment did not ban most forms of racial discrimination by non-government actors.[135] In the majority decision, Bradley wrote (again in non-binding dicta) that the Thirteenth Amendment empowered Congress to attack "badges and incidents of slavery". However, he distinguished between "fundamental rights" of citizenship, protected by the Thirteenth Amendment, and the "social rights of men and races in the community".[136] The majority opinion held that "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 as to guests he will entertain, or as to the people he will take into his coach or cab or car; or admit to his concert or theatre, or deal with in other matters of intercourse or business."[137] In his solitary dissent, John Marshall Harlan (a Kentucky lawyer who changed his mind about civil rights law after witnessing organized racist violence) argued that "such discrimination practiced by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude, the imposition of which congress may prevent under its power."[138]

The Court in the Civil Rights Cases also held that appropriate legislation under the amendment 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 thus Congress was empowered "to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States."[134] The Court stated about the scope the amendment:

This amendment, as well as the Fourteenth, 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. Still, 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.[134]

Attorneys in Plessy v. Ferguson (1896)[139] argued that racial segregation involved "observances of a servile character coincident with the incidents of slavery", in violation of the Thirteenth Amendment. In their brief to the Supreme Court, Plessy's lawyers wrote that "distinction of race and caste" was inherently unconstitutional.[140] The Supreme Court rejected this reasoning and upheld state laws enforcing segregation under the "separate but equal" doctrine. In the (7–1) majority decision, the Court found that "a statute which implies merely a legal distinction between the white and colored races—a distinction which is founded on the color of the two races and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude."[141] Harlan dissented, writing: "The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor, atone for the wrong this day done."[142]

In Hodges v. United States (1906),[143] the Court struck down a federal statute providing for the punishment of two or more people who "conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States". A group of white men in Arkansas conspired to violently prevent eight black workers from performing their jobs at a lumber mill; the group was convicted by a federal grand jury. The Supreme Court ruled that the federal statute, which outlawed conspiracies to deprive citizens of their liberty, was not authorized by the Thirteenth Amendment. It held that "no mere personal assault or trespass or appropriation operates to reduce the individual to a condition of slavery". Harlan dissented, maintaining his opinion that the Thirteenth Amendment should protect freedom beyond "physical restraint".[144] Corrigan v. Buckley (1922) reaffirmed the interpretation from Hodges, finding that the amendment does not apply to restrictive covenants.

Enforcement of federal civil rights law in the South created numerous peonage cases, which slowly traveled up through the judiciary. The Supreme Court ruled in Clyatt v. United States (1905) that peonage was involuntary servitude. It held that although employers sometimes described their workers' entry into contract as voluntary, the servitude of peonage was always (by definition) involuntary.[145]

In Bailey v. Alabama the U.S. Supreme Court again reaffirmed its holding that Thirteenth Amendment was not solely a ban on chattel slavery, but also covers a much broader array of labor arrangements and social deprivations[132] In addition to the aforesaid the Court also ruled on Congress enforcement power under the Thirteenth Amendment. The Court said:

The plain intention [of the amendment] was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit, which is the essence of involuntary servitude. While the Amendment was self-executing, so far as its terms were applicable to any existing condition, Congress was authorized to secure its complete enforcement by appropriate legislation.[146]

Jones and beyond

Legal histories cite Jones v. Alfred H. Mayer Co. (1968) as a turning point of Thirteen Amendment jurisprudence.[147][148] The Supreme Court confirmed in Jones that Congress may act "rationally" to prevent private actors from imposing "badges and incidents of servitude".[147][149] The Joneses were a black couple in St. Louis County, Missouri who sued a real estate company for refusing to sell them a house. The Court held:

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. [...] this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery – its "burdens and disabilities" – included restraints upon "those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens." Civil Rights Cases, 109 U. S. 3, 109 U. S. 22.[150]
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.
Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom—freedom to "go and come at pleasure" and to "buy and sell when they please"—would be left with "a mere paper guarantee" if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. 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.[151]

The Court in Jones reopened the issue of linking racism in contemporary society to the history of slavery in the United States.[152]

The Jones precedent has been used to justify Congressional action to protect migrant workers and target sex trafficking.[153] The direct enforcement power found in the Thirteenth Amendment contrasts with that of the Fourteenth, which allows only responses to institutional discrimination of state actors.[154]

Other cases of involuntary servitude

The Supreme Court has taken an especially narrow view of involuntary servitude claims made by people not descended from black (African) slaves. In Robertson v. Baldwin (1897), a group of merchant seamen challenged federal statutes which criminalized a seaman's failure to complete their contractual term of service. The Court ruled that seamen's contracts had been considered unique from time immemorial, and that "the amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional." In this case, as in numerous "badges and incidents" cases, Justice Harlan authored a dissent favoring broader Thirteenth Amendment protections.[155]

In Selective Draft Law Cases,[156] the Supreme Court ruled that the military draft was not "involuntary servitude". In United States v. Kozminski,[157] the Supreme Court ruled that the Thirteenth Amendment did not prohibit compulsion of servitude through psychological coercion.[158][159] Kozminski defined involuntary servitude for purposes of criminal prosecution as "a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury or by the use or threat of coercion through law or the legal process. This definition encompasses cases in which the defendant holds the victim in servitude by placing him or her in fear of such physical restraint or injury or legal coercion."[157]

The U.S. Courts of Appeals, in Immediato v. Rye Neck School District, Herndon v. Chapel Hill, and Steirer v. Bethlehem School District, have ruled that the use of community service as a high school graduation requirement did not violate the Thirteenth Amendment.[160]

Prior proposed Thirteenth Amendments

During the six decades following the 1804 ratification of the Twelfth Amendment two proposals to amend the Constitution were adopted by Congress and sent to the states for ratification. Neither has been ratified by the number of states necessary to become part of the Constitution. Commonly known as the Titles of Nobility Amendment and the Corwin Amendment, both are referred to as Article Thirteen, as was the successful Thirteenth Amendment, in the joint resolution passed by Congress.

See also

References

Notes

    Citations

    1. ↑ "13th Amendment". Legal Information Institute. Cornell University Law School. November 20, 2012. Retrieved November 30, 2012.
    2. ↑ Kenneth M. Stampp (1980). The Imperiled Union:Essays on the Background of the Civil War. Oxford University Press. p. 85. ISBN 9780199878529.
    3. ↑ Jean Allain (2012). The Legal Understanding of Slavery: From the Historical to the Contemporary. Oxford University Press. p. 117. ISBN 9780199660469.
    4. ↑ Jean Allain (2012). The Legal Understanding of Slavery: From the Historical to the Contemporary. Oxford University Press. pp. 119–120. ISBN 9780199660469.
    5. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 14.
    6. ↑ Foner, 2010, pp. 20–22
    7. ↑ Vile, John R., ed. (2003). "Thirteenth Amendment". Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues: 1789–2002. ABC-CLIO. pp. 449–52.
    8. 1 2 Goodwin, 2005, p. 123
    9. ↑ Foner, 2010, p. 59
    10. ↑ "The Emancipation Proclamation". National Archives and Records Administration. Retrieved 2013-06-27.
    11. ↑ McPherson, 1988, p. 558
    12. ↑ Vorenberg, Final Freedom (2001), p. 47.
    13. ↑ Vorenberg, Final Freedom (2001), p. 48–51.
    14. ↑ Leonard L. Richards, Who Freed the Slaves?: The Fight over the Thirteenth Amendment (2015) excerpt
    15. ↑ "James Ashley". Ohio History Central. Ohio Historical Society.
    16. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), (2001), pp. 38–42.
    17. ↑ Stanley, "Instead of Waiting for the Thirteenth Amendment" (2010), pp. 741–742.
    18. ↑ Michigan State Historical Society (1901). Historical collections. Michigan Historical Commission. p. 582. Retrieved December 5, 2012.
    19. ↑ Vorenberg, Final Freedom (2001), pp. 52–53. "Sumner made his intentions clearer on February 8, when he introduced his constitutional amendment to the Senate and asked that it be referred to his new committee. So desperate was he to make his amendment the final version that he challenged the well-accepted custom of sending proposed amendments to the Judiciary Committee. His Republican colleagues would hear nothing of it.
    20. ↑ "Congressional Proposals and Senate Passage" Archived November 7, 2006, at the Wayback Machine., Harpers Weekly, The Creation of the 13th Amendment, Retrieved Feb 15, 2007
    21. ↑ Vorenberg, Final Freedom (2001), p. 53. "It was no coincidence that Trumbull's announcement came only two days after Sumner had proposed his amendment making all persons 'equal before the law.' The Massachusetts senator had spurred the committee into final action."
    22. ↑ "Northwest Ordinance; July 13, 1787". Avalon Project. Lillian Goldman Law Library, Yale Law School. Retrieved February 17, 2014.
    23. 1 2 3 4 McAward, Jennifer Mason (November 2012). "McCulloch and the Thirteenth Amendment". Columbia Law Review. Columbia Law School. 112 (7): 1769–1809. JSTOR 41708164. Pdf.
    24. ↑ Vorenberg, Final Freedom (2001), p. 54. "Although it made Henderson's amendment the foundation of the final amendment, the committee rejected an article in Henderson's version that allowed the amendment to be adopted by the approval of only a simple majority in Congress and the ratification of only two-thirds of the states."
    25. ↑ Goodwin, 2005, p. 686
    26. ↑ Goodwin, 2005, pp. 624–25
    27. ↑ Foner, 2010, p. 299
    28. ↑ Goodwin, 2005, p. 639
    29. ↑ Benedict, "Constitutional Politics, Constitutional Law, and the Thirteenth Amendment" (2012), p. 179.
    30. ↑ Benedict, "Constitutional Politics, Constitutional Law, and the Thirteenth Amendment" (2012), p. 179–180. Benedict quotes Sen. Garrett Davis: "there is a boundary between the power of revolution and the power of amendment, which the latter, as established in our Constitution, cannot pass; and that if the proposed change is revolutionary it would be null and void, notwithstanding it might be formally adopted." The full text of Davis's speech, with comments from others, appears in Great Debates in American History (1918), ed. Marion Mills Miller.
    31. 1 2 Colbert, "Liberating the Thirteenth Amendment" (1995), pp. 10–11.
    32. ↑ Benedict, "Constitutional Politics, Constitutional Law, and the Thirteenth Amendment" (2012), p. 182.
    33. ↑ tenBroek, Jacobus (June 1951). "Thirteenth Amendment to the Constitution of the United States: Consummation to Abolition and Key to the Fourteenth Amendment". California Law Review. California Law Review, Inc. via JSTOR. 39 (2): 180. JSTOR 3478033. doi:10.2307/3478033. It would make it possible for white citizens to exercise their constitutional right under the comity clause to reside in Southern states regardless of their opinions. It would carry out the constitutional declaration "that each citizen of the United States shall have equal privileges in every other state." It would protect citizens in their rights under the First Amendment and comity clause to freedom of speech, freedom of press, freedom of religion and freedom of assembly Preview.
    34. ↑ Vorenberg, Final Freedom (2001), p. 61.
    35. 1 2 Trelease, White Terror (1971), p. xvii. "Negroes wanted the same freedom that white men enjoyed, with equal prerogatives and opportunities. The educated black minority emphasized civil and political rights more than the masses, who called most of all for land and schools. In an agrarian society, the only kind most of them knew, landownership was associated with freedom, respectability, and the good life. It was almost universally desired by Southern blacks, as it was by landless peasants the world over. Give us our land and we can take care of ourselves, said a group of South Carolina Negroes to a Northern journalist in 1865; without land the old masters can hire us or starve us as they please."
    36. ↑ Vorenberg, Final Freedom (2001), p. 73. "The first notable convert was Representative James Brooks of New York, who, on the floor of Congress on February 18, 1864, declared that slavery was dying if not already dead, and that his party should stop defending the institution."
    37. ↑ Vorenberg, Final Freedom (2001), p. 74. "The antislavery amendment caught Johnson's eye, however, because it offered an indisputable constitutional solution to the problem of slavery."
    38. ↑ Vorenberg, Final Freedom (2001), p. 203.
    39. ↑ Foner, 2010, pp. 312–14
    40. ↑ Donald, 1996, p. 396
    41. ↑ Vorenberg, Final Freedom (2001), p. 48. "The president worried that an abolition amendment might foul the political waters. The amendments he had recommended in December 1862 had gone nowhere, mainly because they reflected an outdated program of gradual emancipation, which included compensation and colonization. Moreover, Lincoln knew that he did not have to propose amendments because others more devoted to abolition would, especially if he pointed out the vulnerability of existing emancipation legislation. He was also concerned about negative reactions from conservatives, particularly potential new recruits from the Democrats.
    42. ↑ Willis, John C. "Republican Party Platform, 1864". University of the South. Retrieved 2013-06-28. Resolved, That as slavery was the cause, and now constitutes the strength of this Rebellion, and as it must be, always and everywhere, hostile to the principles of Republican Government, justice and the National safety demand its utter and complete extirpation from the soil of the Republic; and that, while we uphold and maintain the acts and proclamations by which the Government, in its own defense, has aimed a deathblow at this gigantic evil, we are in favor, furthermore, of such an amendment to the Constitution, to be made by the people in conformity with its provisions, as shall terminate and forever prohibit the existence of Slavery within the limits of the jurisdiction of the United States.
    43. ↑ "1864: The Civil War Election". Get Out the Vote. Cornell University. 2004. Retrieved 2013-06-28. Despite internal Party conflicts, Republicans rallied around a platform that supported restoration of the Union and the abolition of slavery.
    44. ↑ Goodwin, 2005, pp. 686–87
    45. ↑ Vorenberg, Final Freedom (2001), p. 176–177, 180.
    46. ↑ Vorenberg, Final Freedom (2001), p. 178.
    47. ↑ Foner, 2010, pp. 312–13
    48. ↑ Goodwin, 2005, p. 687
    49. ↑ Goodwin, 2005, pp. 687–689
    50. ↑ Donald, 1996, p. 554
    51. ↑ Vorenberg, Final Freedom (2001), p. 187. "But the clearest sign of the people's voice against slavery, argued amendment supporters, was the recent election. Following Lincoln's lead, Republican representatives like Godlove S. Orth of Indiana claimed that the vote represented a 'popular verdict . . . in unmistakable language' in favor of the amendment."
    52. ↑ Goodwin, 2005, p. 688
    53. ↑ Vorenberg, Final Freedom (2001), p. 191. "The necessity of keeping support for the amendment broad enough to secure its passage created a strange situation. At the moment that Republicans were promoting new, far-reaching legislation for African Americans, they had to keep this legislation detached from the first constitutional amendment dealing exclusively with African American freedom. Republicans thus gave freedom under the antislavery amendment a vague construction: freedom was something more than the absence of chattel slavery but less than absolute equality."
    54. ↑ Vorenberg, Final Freedom (2001), pp. 191–192. "One of the most effective methods used by amendment supporters to convey the measure's conservative character was to proclaim the permanence of patriarchal power within the American family in the face of this or any textual change to the Constitution. In response to Democrats who charged that the antislavery was but the first step in a Republican design to dissolve all of society's foundations, including the hierarchical structure of the family, the Iowa Republican John A. Kasson denied any desire to interfere with 'the rights of a husband to a wife' or 'the right of [a] father to his child."
    55. ↑ Vorenberg, Final Freedom (2001), pp. 197–198.
    56. ↑ Vorenberg, Final Freedom (2001), p. 198. "It was at this point that the president wheeled into action on behalf of the Amendment […] Now he became more forceful. To one representative whose brother had died in the war, Lincoln said, 'your brother died to save the Republic from death by the slaveholders' rebellion. I wish you could see it to be your duty to vote for the Constitutional amendment ending slavery.'"
    57. ↑ "TO PASS S.J. RES. 16. (P. 531-2).". GovTrack.us.
    58. ↑ Foner, 2010, p. 313
    59. ↑ Foner, 2010, p. 314
    60. ↑ McPherson, 1988, p. 840
    61. ↑ Harrison, "Lawfulness of the Reconstruction Amendments" (2001), p. 389. "For reasons that have never been entirely clear, the amendment was presented to the President pursuant to Article I, Section 7, of the Constitution, and signed.
    62. ↑ "Joint Resolution Submitting 13th Amendment to the States; signed by Abraham Lincoln and Congress". The Abraham Lincoln Papers at the Library of Congress: Series 3. General Correspondence. 1837–1897. Library of Congress.
    63. ↑ Thorpe, Constitutional History (1901), p. 154. "But many held that the President's signature was not essential to an act of this kind, and, on the fourth of February, Senator Trumbull offered a resolution, which was agreed to three days later, that the approval was not required by the Constitution; 'that it was contrary to the early decision of the Senate and of the Supreme Court; and that the negative of the President applying only to the ordinary cases of legislation, he had nothing to do with propositions to amend the Constitution'."
    64. ↑ Thorpe, Constitutional History (1901), p. 154. "The President signed the joint resolution on the first of February. Somewhat curiously the signing has only one precedent, and that was in spirit and purpose the complete antithesis of the present act. President Buchanan had signed the proposed amendment of 1861, which would make slavery national and perpetual."
    65. ↑ Lincoln's struggle to get the amendment through Congress, while bringing the war to an end, is portrayed in Lincoln.
    66. ↑ Harrison (2001), Lawfulness of the Reconstruction Amendments, p. 390.
    67. ↑ Samuel Eliot Morison (1965). The Oxford History of the American People. Oxford University Press. p. 710.
    68. ↑ Harrison, "Lawfulness of the Reconstruction Amendments" (2001), pp. 394–397.
    69. ↑ Eric L. McKitrick (1960). Andrew Johnson and Reconstruction. U. Chicago Press. p. 178. ISBN 9780195057072.
    70. ↑ Clara Mildred Thompson (1915). Reconstruction in Georgia: economic, social, political, 1865–1872. Columbia University Press. p. 156.
    71. ↑ Vorenberg (2001), Final Freedom, pp. 227–228.
    72. 1 2 Vorenberg (2001), Final Freedom, p. 229.
    73. ↑ Du Bois (1935), Black Reconstruction, p. 208.
    74. ↑ Thorpe (1901), Constitutional History, p. 210.
    75. ↑ Tsesis (2004), The Thirteenth Amendment and American Freedom, p. 48.
    76. 1 2 U.S. GOVERNMENT PRINTING OFFICE, 112th Congress, 2nd Session, SENATE DOCUMENT No. 112–9 (2013). "THE CONSTITUTION of the UNITED STATES OF AMERICA ANALYSIS AND INTERPRETATION Centennial Edition INTERIM EDITION: ANALYSIS OF CASES DECIDED BY THE SUPREME COURT OF THE UNITED STATES TO JUNE 26, 2013s" (PDF). p. 30. Retrieved February 17, 2014.
    77. ↑ Seward certificate proclaiming the Thirteenth Amendment to have been adopted as part of the Constitution as of December 6, 1865.
    78. ↑ Vorenberg (2001), Final Freedom, p. 232.
    79. ↑ Kocher, Greg (February 23, 2013). "Kentucky supported Lincoln's efforts to abolish slavery – 111 years late". Lexington Herald-Leader. Retrieved February 17, 2014.
    80. ↑ Ben Waldron (February 18, 2013). "Mississippi Officially Abolishes Slavery, Ratifies 13th Amendment". ABC News. Archived from the original on June 4, 2013. Retrieved April 23, 2013.
    81. ↑ "The Constitution of the United States: Amendments 11–27". United States National Archives. United States National Archives. Retrieved 24 February 2014.
    82. ↑ Lowell Harrison & James C. Klotter, A New History of Kentucky, University Press of Kentucky, 1997; p. 180; ISBN 9780813126210
    83. 1 2 Forehand, "Striking Resemblance" (1996), p. 82.
    84. ↑ Hornsby, Alan, ed. (2011). "Delaware". Black America: A State-by-State Historical Encyclopedia. ABC-CLIO. p. 139. ISBN 9781573569767.
    85. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), pp. 17 & 34.
    86. ↑ "The Thirteenth Amendment", Primary Documents in American History, Library of Congress. Retrieved Feb 15, 2007
    87. 1 2 Goldstone 2011, p. 22.
    88. 1 2 Stromberg, "A Plain Folk Perspective" (2002), p. 111.
    89. ↑ Nelson, William E. (1988). The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Harvard University Press. p. 47. ISBN 9780674041424. Retrieved June 6, 2013.
    90. ↑ Stromberg, "A Plain Folk Perspective" (2002), p. 112.
    91. ↑ J. J. Gries to the Joint Committee on Reconstruction, quoted in Du Bois, Black Reconstruction (1935), p. 140.
    92. ↑ Du Bois, Black Reconstruction (1935), p. 188.
    93. ↑ Quoted in Vorenberg, Final Freedom (2001), p. 244.
    94. ↑ Trelease, White Terror (1971), p. xviii. "The truth seems to be that, after a brief exulation with the idea of freedom, Negroes realized that their position was hardly changed; they continued to live and work much as they had before."
    95. 1 2 3 Blackmon 2008, p. 53.
    96. ↑ Novak, Wheel of Servitude (1978), p. 2.
    97. ↑ Blackmon 2008, p. 100.
    98. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), pp. 51–52.
    99. ↑ Blackmon 2008, p. 6.
    100. ↑ Vorenberg, Final Freedom (2001), pp. 230–231. "The black codes were a violation of freedom of contract, one of the civil rights that Republicans expected to flow from the amendment. Because South Carolina and other states anticipated that congressional Republicans would try to use the Thirteenth Amendment to outlaw the codes, they made the preemptive strike of declaring in their ratification resolutions that Congress could not use the amendment's second clause to legislate on freed people's civil rights."
    101. ↑ Benjamin Ginsberg, Moses of South Carolina: A Jewish Scalawag during Radical Reconstruction; Johns Hopkins Press, 2010; pp. 44–46.
    102. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 50.
    103. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 51.
    104. ↑ Vorenberg, Final Freedom (2001), pp. 233–234.
    105. ↑ W. E. B. Du Bois, "The Freedmen's Bureau", The Atlantic, March 1901.
    106. ↑ Goldstone 2011, pp. 23–24.
    107. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), pp. 50–51. "Blacks applied to local provost marshalls and Freedmen's Bureau for help against these child abductions, particularly in those cases where children were taken from living parents. Jack Prince asked for help when a woman bound his maternal niece. Sally Hunter requested assistance to obtain the release of her two nieces. Bureau officials finally put an end to the system of indenture in 1867".
    108. ↑ Forehand, "Striking Resemblance" (1996), p. 99–100, 105.
    109. 1 2 Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 66–67.
    110. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), pp. 56–57, 60–61. "If the Republicans had hoped to gradually use section 2 of the Thirteenth Amendment to pass Reconstruction legislation, they would soon learn that President Johnson, using his veto power, would make increasingly more difficult the passage of any measure augmenting the power of the national government. Further, with time, even leading antislavery Republicans would become less adamant and more willing to reconcile with the South than protect the rights of the newly freed. This was clear by the time Horace Greely accepted the Democratic nomination for president in 1872 and even more when President Rutherford B. Hayes entered the Compromise of 1877, agreeing to withdraw federal troops from the South."
    111. ↑ Wolff, "The Thirteenth Amendment and Slavery in the Global Economy" (2002), p. 981. "Peonage was a system of forced labor that depended upon the indebtedness of a worker, rather than an actual property right in a slave, as the means of compelling work. A prospective employer would offer a laborer a "loan" or "advance" on his wages, typically as a condition of employment, and then use the newly created debt to compel the worker to remain on the job for as long as the employer wished."
    112. 1 2 Wolff, "The Thirteenth Amendment and Slavery in the Global Economy" (2002), p. 982. "Not surprisingly, employers used peonage arrangements primarily in industries that involved hazardous working conditions and very low pay. While black workers were not the exclusive victims of peonage arrangements in America, they suffered under its yoke in vastly disproportionate numbers. Along with Jim Crow laws that segregated transportation and public facilities, these laws helped to restrict the movement of freed black workers and thereby keep them in a state of poverty and vulnerability."
    113. ↑ Wolff, "The Thirteenth Amendment and Slavery in the Global Economy" (2002), p. 982. "Legally sanctioned peonage arrangements blossomed in the South following the Civil War and continued into the twentieth century. According to the Professor Jacqueline Jones, 'perhaps as many as one-third of all [sharecropping farmers] in Alabama, Mississippi, and George were being held against their will in 1900."
    114. ↑ Wolff, "The Thirteenth Amendment and Slavery in the Global Economy" (2002), p. 982. "It did not recognize a property right in a human being (a peon could not be sold in the manner of a slave); and the condition of peonage did not work 'corruption of blood' and travel to the children of the worker. Peonage, in short, was not chattel slavery. Yet the practice unquestionably reproduced many of the immediate practical realities of slavery—a vast underclass of laborers, held to their jobs by force of law and threat of imprisonment, with few if any opportunities for escape."
    115. ↑ Goluboff, "Lost Origins of Civil Rights" (2001), p. 1638.
    116. ↑ Soifer, "Prohibition of Voluntary Peonage" (2012), p. 1617.
    117. ↑ Goluboff, "Lost Origins of Civil Rights" (2001), p. 1616.
    118. ↑ Goluboff, "Lost Origins of Civil Rights" (2001), pp. 1619–1621.
    119. ↑ Goluboff, "Lost Origins of Civil Rights" (2001), pp. 1626–1628.
    120. ↑ Goluboff, "Lost Origins of Civil Rights" (2001), pp. 1629, 1635.
    121. ↑ Goluboff, "Lost Origins of Civil Rights" (2001), p. 1668.
    122. ↑ Goluboff, "Lost Origins of Civil Rights", pp. 1680–1683.
    123. ↑ Amy Dru Stanley (June 2010). "Instead of Waiting for the Thirteenth Amendment: The War Power, Slave Marriage, and Inviolate Human Rights". American Historical Review. 115 (3): 735.
    124. ↑ Kenneth L. Karst (January 1, 2000). "Thirteenth Amendment (Judicial Interpretation)". Encyclopedia of the American Constitution.  – via HighBeam Research (subscription required) . Retrieved June 16, 2013.
    125. ↑ 27 Fed. Cas. 785 (1866)
    126. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), pp. 62–63.
    127. ↑ Seth P. Waxman, "orgetown.edu/facpub/287/ Twins at Birth: Civil Rights and the Role of the Solicitor General", Indiana Law Journal 75, 2000; pp. 1302–1303.
    128. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), pp. 63–64.
    129. ↑ 80 U.S. 581 (1871)
    130. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), pp. 64–66.
    131. ↑ Waskey, Andrew J. "John Marshall Harlan". In Wilson, Steven Harmon. The U.S. Justice System: An Encyclopedia: An Encyclopedia. ABC-CLIO. p. 547. ISBN 978-1-59884-305-7.
    132. 1 2 Maria L. Ontiveros, Professor of Law, University of San Francisco School of Law, and Joshua R. Drexler, J.D. Candidate, May 2008, University of San Francisco School of Law (21 July 2008), The Thirteenth Amendment and Access to Education for Children of Undocumented Workers: A New Look at Plyler v. Doe'; Publisher: University of San Francisco Law Review, Volume 42, Spring 2008, Pages 1045–1076; here page 1058-1059. The article was developed from a working paper prepared for the roundtable, "The Education of All Our Children: The 25th Anniversary of Plyler v. Doe," sponsored by the Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity (University of California, Berkeley, Boalt Hall School of Law), held on May 7, 2007.
    133. ↑ The Slaughter-House Cases, 83 U.S. (36 Wall.), at 72 (1873)
    134. 1 2 3 Text of Civil Rights Cases, 109 U.S. 3 (1883) is available from:  Findlaw  Justia  LII 
    135. ↑ Goldstone 2011, p. 122.
    136. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 70.
    137. ↑ Appleton's Annual Cyclopædia and Register of Important Events of the Year ... D. Appleton & Company. 1888. p. 132. Retrieved June 11, 2013.
    138. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 73.
    139. ↑ 163 U.S. 537 (1896)
    140. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 76.
    141. ↑ Goldstone 2011, pp. 162, 164–65.
    142. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 78.
    143. ↑ 203 U.S. 1 (1906)
    144. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 79–80.
    145. ↑ Wolff, "The Thirteenth Amendment and Slavery in the Global Economy" (2002), p. 983.
    146. ↑ Bailey v. Alabama, 219 U.S. 219, 241 (1910).
    147. 1 2 Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 3. "After Reconstruction, however, a series of Supreme Court decisions substantially diminished the amendment's significance in achieving genuine liberation. The Court did not revisit the amendment's meaning until 1968, during the heyday of the Civil Rights movement. In Jones v. Alfred H. Mayer, the Court found that the Thirteenth Amendment not only ended unrecompensed, forced labor but that its second section also empowered Congress to develop legislation that is 'rationally' related to ending any remaining 'badges and incidents of servitude'."
    148. ↑ Colbert, "Liberating the Thirteenth Amendment" (1995), p. 2.
    149. ↑ "Jones v. Alfred H. Mayer Co. 392 U.S. 409 (1968)". Legal Information Institute at Cornell University Law Schhool. Retrieved 22 October 2015. Syllabus: "[T]he badges and incidents of slavery that the Thirteenth Amendment empowered Congress to eliminate included restraints upon those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens. Civil Rights Cases, 09 U.S. 3, 22. Insofar as Hodges v. United States, 203 U.S. 1, suggests a contrary holding, it is overruled." Footnote 78: "[W]e note that the entire Court [in the Civil Rights Cases; content added] agreed upon at least one proposition: the Thirteenth Amendment authorizes Congress not only to outlaw all forms of slavery and involuntary servitude, but also to eradicate the last vestiges and incidents of a society half slave and half free by securing to all citizens, of every race and color, 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. [...] The conclusion of the majority in Hodges rested upon a concept of congressional power under the Thirteenth Amendment irreconcilable with the position taken by every member of this Court in the Civil Rights Cases and incompatible with the history and purpose of the Amendment itself. Insofar as Hodges is inconsistent with our holding today, it is hereby overruled."
    150. ↑ 'Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)
    151. ↑ Alison Shay, "Remembering Jones v. Alfred H. Mayer Co. Archived September 28, 2013, at the Wayback Machine.", Publishing the Long Civil Rights Movement, 17 June 2012.
    152. ↑ Colbert, "Liberating the Thirteenth Amendment" (1995), pp. 3–4.
    153. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 3. "The Court's holding in Jones enables Congress to pass statutes against present-day human rights violations, such as the trafficking of foreign workers as sex slaves and the exploitation of migrant agricultural workers as peons."
    154. ↑ Tsesis, The Thirteenth Amendment and American Freedom (2004), pp. 112–113. "... the Thirteenth Amendment remains the principal constitutional source requiring the federal government to protect individual liberties against arbitrary private and public infringements that resemble the incidents of involuntary servitude. Moreover, the Thirteenth Amendment is a positive injunction requiring Congress to pass laws to that end, while the Fourteenth Amendment is 'responsive' to 'unconstitutional behavior.'"
    155. ↑ Wolff, "The Thirteenth Amendment and Slavery in the Global Economy" (2002), p. 977.
    156. ↑ 245 U.S. 366 (1918)
    157. 1 2 487 U.S. 931 (1988)
    158. ↑ "Thirteenth Amendment—Slavery and Involuntary Servitude", GPO Access, U.S. Government Printing Office, p. 1557
    159. ↑ Risa Goluboff (2001), "The 13th Amendment and the Lost Origins of Civil Rights," Duke Law Journal, Vol 50, no. 228, p. 1609
    160. ↑ Loupe, Diane (August 2000). "Community Service: Mandatory or Voluntary? – Industry Overview". School Administrator: 8. Archived from the original on May 15, 2011.
    161. ↑ Mark W. Podvia (2009). "Titles of Nobility". In David Andrew Schultz. Encyclopedia of the United States Constitution. Infobase. pp. 738–39. ISBN 9781438126777.
    162. ↑ "Constitutional Amendments Not Ratified". United States House of Representatives. Archived from the original on 2012-07-02. Retrieved 2013-11-21.
    163. ↑ Foner, 2010, p. 158

    Bibliography


    Maryland Law Review, special issue: Symposium – the Maryland Constitutional Law Schmooze


    Columbia Law Review, special issue: Symposium: The Thirteenth Amendment: Meaning, Enforcement, and Contemporary Implications

    Primary sources

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