Thirteenth Amendment

The Thirteenth Amendment to the Constitution is remarkably compact. In one short sentence, it forever ended slavery in the United States: ‘‘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.’’ A second section added an entirely new concept to the American Constitution by declaring that ‘‘Congress shall have the power to enforce this article by appropriate legislation.’’ No other amendment had explicitly enhanced the powers Congress. Rather, the Bill of Rights had limited the powers of Congress or was at best a declaration of how laws ought to be in the United States. But the Thirteenth Amendment was different, explicitly granting Congress powers of enforcement.

Equally significant, the amendment altered the traditional relationship between the states and the federal government. Under the Constitution of 1787 the states were free to define the status of all people within their jurisdiction. The only exception to this was that Congress retained the power to regulate the naturalization of aliens. But the Thirteenth Amendment dramatically altered the status of millions of American. For the first time in the history of the nation, the national government had the power to regulate the status of individuals within the nation.

The amendment grew out of secession and the Civil War. By the time President Abraham Lincoln took office seven states had formally seceded from the Union and declared they were now part of a new nation, the Confederate States of America. In his first inaugural address Lincoln tried to assure the South that he was not a threat to slavery. He noted:

Apprehension seems to exist among the people of the Southern States that by the accession of a Republican Administration their property and their peace and personal security are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that ‘‘I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.

However, despite his pleas for peace and a return to the normal relations within the Union, the new Confederate nation moved forward and in April initiated hostilities against the United States by firing on Fort Sumter in the harbor of Charleston, South Carolina. Thus, the war began and four more slave states left the Union.

From the moment the war began, an increasing number of northerners wanted to make the conflict into a crusade against slavery. President Lincoln wisely ignored these demands, reiterating his view that he had no constitutional power to end slavery. More importantly, he understood that he could not move against slavery and hope to keep the southern border states—Maryland, Delaware, Kentucky, and Missouri—in the Union. Thus, shortly after the war began Lincoln quickly countermanded General John C. Fremont’s attempt to end slavery in Missouri. Later, when a group of ministers told Lincoln he would have God on his side if he ended slavery, the president allegedly responded: ‘‘I would like to have God on my side, but I must have Kentucky.’’

In the first Confiscation Act, passed on August 6, 1861, Congress authorized the confiscation and emancipation of any slaves used by the Confederates for military purposes, such as building forts or transporting supplies. The Second Confiscation Act, passed July 17, 1862, declared that all slaves owned by persons participating in the rebellion would be emancipated. By this time Lincoln had already concluded that he could free slaves everywhere in the confederacy, under his power as commander in chief of the Army. In September 1862, he issued the preliminary Emancipation Proclamation, declaring that in one hundred days, he would free all slaves in the Confederacy unless the rebellious states returned to the Union. Of course Lincoln knew that this would not happen and so on January 1, 1863, Lincoln issued the Emancipation Proclamation, which freed slaves living within the Confederacy. This proclamation applied to the vast majority of American slaves, but did not affect slaves in loyal slave states of Maryland, Kentucky, Delaware, and Missouri, as well as parts of Virginia and Louisiana that were under the control of the United States.

From the moment he issued the proclamation, Lincoln was concerned about its constitutionality. Slavery was clearly protected by the Constitution. This was understood by almost all legal scholars and politicians, North and South, at the beginning of the war. Virtually all legal scholars agreed that neither Congress nor the president had the power to end slavery in the states. The Supreme Court, in Dred Scott v. Sandford (60 U.S. 393, 1857) had emphatically supported this position as well, asserting slaves were a form of property explicitly protected by the Constitution. While Lincoln relied on the war power to issue the proclamation he was concerned that the Supreme Court would rule he lacked such powers. Indeed, as long as Roger B. Taney remained chief justice, the validity of the proclamation would be in doubt.

Lincoln feared that as soon as the war ended the Court would rule that the Emancipation Proclamation was unconstitutional. The Dred Scott precedent loomed large in this thinking. In that case Chief Justice Taney held that the Fifth Amendment to the Constitution prevented Congress from freeing slaves brought into the federal territories. If freeing a few slaves in the territories was an unconstitutional ‘‘taking’’ of private property without just compensation, then surely the Court might conclude that freeing millions of slaves during the war was also a taking.

Thus, in 1864 Senator Lyman Trumbull of Illinois, a longtime friend and political ally of the president, introduced the Thirteenth Amendment in Congress. This amendment would not only end slavery in the Confederate states, but also in the loyal slave states. By this time, however, slavery was virtually dead in those states and there was no chance that Kentucky or Missouri would leave the Union to join the crumbling Confederacy. In addition, by this time the U.S. Army had already brought freedom to hundreds of thousands of slaves in the Confederacy, and significant numbers of former slaves had been inducted into the army and were fighting to restore the Union and end slavery. Thus, Trumbull proposed his amendment to end slavery everywhere in the United States.

The Senate passed the amendment in December 1964 and sent it to the House. However, lame-duck House Democrats opposed the amendment and the Republicans in the House lacked the two-thirds majority to send the amendment on to the states. In his annual message, on December 6, 1864, Lincoln urged the House of Representatives to reconsider this vote and noted that the election results made clear that ‘‘the next Congress will pass the measure if this [Congress] does not.’’ Lincoln then successfully lobbied some northern Democrats to change their votes; on February 1, 1865, the House passed the amendment with the necessary two-thirds majority and it went to the states. On December 6, 1865, the amendment was ratified, and on December 15 Secretary of State William H. Seward announced this result to the nation.

As part of the price of losing the war, the legislatures of the former Confederate states ratified the amendment, although without much enthusiasm. The white leaders of these states—many of them former Confederate office holders and leaders—fully understood that their states would not be readmitted to the Union unless they ended slavery. The realists in the South must also have understood that it would be impossible to re-enslave the millions of now free people, especially since there were about one hundred fifty thousand black soldiers and veterans in the South who were armed and prepared to defend their newly acquired liberty. In the loyal slave states, however, there was no such necessity and Delaware stubbornly refused to ratify the amendment or end slavery on its own. Slavery did not end in that state until the amendment was ratified. In 1901, the state would symbolically ratify the Thirteenth Amendment and the other two Civil War amendments.

The language of the amendment was significant in three ways. First, it specifically empowered Congress to enforce the amendment with ‘‘appropriate legislation.’’ This open-ended language could have led to a massive federal intervention to preserve freedom. Second, the amendment was not limited to regulating government action. The Bill of Rights had limited the actions of the national government; the Fourteenth Amendment, which would be passed by Congress only a few months after the thirteenth was ratified, would limit state action. The Thirteenth Amendment, however, prohibited the status of slave, without regard to who or what created that statue. Thus, under the amendment, Congress could limit state action or go after individuals who might try to enslave people. The third important part was tied to this last point. The limitation in the amendment went beyond chattel slavery, as it had been known in the antebellum South, and prohibited all forms of ‘‘involuntary servitude.’’ This could include coercive contract, debt peonage, and labor conditions that forced people to work against their will.

The meaning of the amendment was unclear at the time of its adoption. Some leaders believed it was narrowly confined to the antebellum system of slavery— the owning, buying, and selling of people. But many Americans and most Republicans (the authors and supporters of the amendment) thought it had a much broader reach. Republican leaders like Senator Charles Sumner of Massachusetts and Representative Thaddeus Stevens of Pennsylvania believed the amendment allowed them to secure black civil and political rights. Ultimately, the Supreme Court would accept some of this analysis, concluding that the amendment prohibited ‘‘badges of slavery,’’ such as state-imposed limitations on property ownership, contracts, and mobility.

Many Republicans also believed that representative democracy was not possible if large portions of the population were disfranchised and no one in their community had any access to political power. These Republicans understood, as did most Americans at the time, that the franchise might not be available to everyone. Restrictions based on Citizenship, wealth, age, and gender seemed appropriate, but they believed that a representative democracy could not exist if large portions of the population were excluded from the political process.

The amendment raises a series of civil liberties issues. On one hand, the Thirteenth Amendment can be seen as the single most important expansion of civil liberty in American history. It secured freedom for nearly four million Americans who had previously been held as slaves. The first step to civil liberty is in fact liberty itself, which is what the amendment gave many Americans. But the amendment did not, in the end, preserve the civil liberties of former slaves. It did not guarantee the freedom of speech or assembly or fair trials. Freedom would have been hollow without the ability to protect that freedom and to participate freely in the economy and in politics. As noted, some Republican leaders thought the amendment did this, but others clearly saw that it did not, and thus Congress soon sent the Fourteenth and Fifteenth Amendments to the states. Ironically, the Thirteenth Amendment can also be seen as a violation of the civil liberties of slave owners, in that it took their property from them. Such an analysis might seem perverse, but the former masters of the Confederacy were bitter about losing the vast amount of wealth their slaves represented.

In addition to prohibiting slavery—the actual owning of people—the Thirteenth Amendment banned ‘‘involuntary servitude,’’ which would later be extended to debt peonage, various kinds of contract labor, and coercing immigrants to work to pay off the cost of coming to the United States. In 1867, Congress passed the Peonage Act to abolish the historic system of peonage in the New Mexico Territory. However, the act applied to the entire nation. In the late nineteenth and early twentieth centuries southern states developed a coercive economic system—often called debt peonage—supported by the police and prosecutors, that forced people to remain on the land while keeping them in perpetual poverty. In Clyatt v. United States (197 U.S. 207, 1905) the Supreme Court upheld a prosecution of individuals who held blacks in semislavery. In Bailey v. Alabama (219 U.S. 219, 1911) the Court struck down a state law that allowed people to be forced to work to pay off debts. The Court reached a similar conclusion in United States v. Reynolds (235 U.S. 133, 1914), which struck down Alabama’s criminal surety laws. As late as the 1930s, blacks were illegally held in peonage in the South.

An aspect of this part of the amendment that the framers did not anticipate would be harmful to the former slaves and their children. The amendment allowed involuntary servitude ‘‘as a punishment for crime whereof the party shall have been duly convicted.’’ In the late nineteenth century southern states would use law enforcement as a method of controlling black labor and reducing hundreds of thousands of free blacks to a form of slavery. Blacks would be convicted of small and frivolous crimes. When they could not pay their fines, they would be sold to employers, who would use them as free laborers until their fine was paid off by their labor. Alternatively, southern states sentenced poor people, usually but not always, blacks, to work as convict laborers, where their involuntary servitude enriched the state, rather than private parties.

In the mid-twentieth century, the court would find yet one more use for the amendment: to strike down discrimination in housing. In Jones v. Alfred H. Meyer, Co. (392 U.S. 409, 1968) the Court held that the refusal of a white-owned real estate company to sell a house to a black was a violation of the Thirteenth Amendment because it was private action that constituted a ‘‘badge of slavery.’’ Slaves could not own property, so to refuse to sell to blacks was a carryover from slavery. In the more recent years, immigrants have been held against their will to work in sweatshops, on rural farms, and in the sex and prostitution industries. To this day federal prosecutors use the Thirteenth Amendment and statutes passed to enforce it to prosecute people holding others in involuntary servitude.

PAUL FINKELMAN

References and Further Reading

• Hyman, Harold M., and William M. Wiecek. Equal Justice under Law: Constitutional Development, 1835–1875. New York: Harper and Row, 1982.
• ten Broek, Jacobus. The Antislavery Origins of the Fourteenth. Berkeley: University of California Press, 1951.

Cases and Statutes Cited

• Bailey v. Alabama, 219 U.S. 219 (1911)
• Clyatt v. United States, 197 U.S. 207 (1905)
• Dred Scott v. Sandford, 60 U.S. 393 (1857)
• Jones v. Alfred H. Meyer Co., 392 U.S. 409 (1968)
• United States v. Reynolds, 235 U.S. 133 (1914