Thirteenth Amendment--Slavery and Involuntary Servitude

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                          THIRTEENTH AMENDMENT

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                    SLAVERY AND INVOLUNTARY SERVITUDE

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                                CONTENTS

                                                                    Page
        Abolition of Slavery......................................  1551
        Origin and Purpose........................................  1551
        Peonage...................................................  1555
        Situations in Which the Amendment Is Inapplicable.........  1557


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                          THIRTEENTH AMENDMENT

                    SLAVERY AND INVOLUNTARY SERVITUDE

                               __________

  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.

                          ABOLITION OF SLAVERY

      Origin and Purpose

        In 1863, President Lincoln issued an 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 loyalist 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\

        \1\12 Stat. 1267.
        \2\The legal issues were surveyed in Welling, The Emancipation
Proclamation, 130 No. Amer. Rev. 163 (1880). See also J. Randall,
Constitutional Problems Under Lincoln 371-404 (rev. ed. 1951).
        \3\K. Stampp, The Peculiar Institution: Slavery in the Ante-
Bellum South (1956).
        \4\The congressional debate on adoption of the Amendment is
conveniently collected in 1 B. Schwartz, Statutory History of the United
States--Civil Rights 25-96 (1970).
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        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

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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.''
But while the Court was initially in doubt whether persons other than
African Americans 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 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.''\7\

        \5\Bailey v. Alabama, 219 U.S. 219, 240 (1911). During the
debate, Senator Howard noted that the language was ``the good old Anglo-
Saxon language employed by our fathers in the ordinance of 1787, an
expression which has been adjudicated upon repeatedly, which is
perfectly well understood both by the public and by judicial tribunals.
. . .'' Cong. Globe, 38th Cong., 1st Sess. 1489 (1864).
        \6\Id. at 1313-14.
        \7\Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 69, 71-72
(1873). This general applicability was again stated in Hodges v. United
States, 203 U.S. 1, 16-17 (1906), and confirmed by the result of the
peonage cases. Infra. p.1555.
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        ``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\9\ and it has not used Sec. 1 of the
Amendment against private parties.\10\ A major change, however, has
recently been wrought with regard to the

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scope of congressional power under Sec. 2 to enforce Sec. 1 of the
Amendment.

        \8\Civil Rights Cases, 109 U.S. 3, 20 (1883).
        \9\Infra, p.1555.
        \10\In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968),
the Court left open the question whether the Amendment itself, unaided
by legislation, would reach the ``badges and incidents'' of slavery not
directly associated with involuntary servitude, and it continued to
reserve the question in City of Memphis v. Greene, 451 U.S. 100, 125-26
(1981). See Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Justice Harlan
dissenting). The Court drew back from the possibility in Palmer v.
Thompson, 403 U.S. 217, 226-27 (1971).
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        Certain early cases suggested broad congressional powers,\11\
but the Civil Rights Cases\12\ of 1883 began a process, culminating in
Hodges v. United States,\13\ which substantially curtailed these powers.
In the former decision, the Court held unconstitutional an 1875 law\14\
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 thus Congress was empowered
``to pass all laws necessary and proper for abolishing all badges and
incidents of slavery in the United States.''\15\ But these badges and
incidents as perceived by the Court were those which Congress had in its
1866 legislation\16\ 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.''\17\ 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

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to make it apply to every act of discrimination which a person may see
fit to make. . . .''\18\

        \11\United States v. Rhodes, 27, F. Cas. 785 (No. 16,151) (C.C.
Ky. 1866) (Justice Swayne on circuit): United States v. Cruikshank, 25
F. Cas. 707 (No. 14,897) (C.C. La. 1874) (Justice Bradley on circuit),
aff'd on other grounds, 92, U.S. 542 (1876); United States v. Harris,
106 U.S. 629, 640 (1883); Blyew v. United States, 80 U.S. 581, 601
(1871) (dissenting opinion, majority not addressing the issue).
        \12\109 U.S. 3 (1883).
        \13\203 U.S. 1 (1906). See also Plessy v. Ferguson, 163 U.S.
537, 542-43 (1896); Corrigan v. Buckley, 271 U.S. 323, 331 (1926); Hurd
v. Hodge, 334 U.S. 24, 31 (1948).
        \14\Ch. 114, 18 Stat. 335.
        \15\Civil Rights Cases, 109 U.S. 3, 20 (1883).
        \16\Ch. 31, 14 Stat. 27 (1886), now 42 U.S.C. Sec. Sec. 1981-82.
        \17\Civil Rights Cases, 109 U.S. 3, 22 (1883).
        \18\Id. at 24.
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        Then in Hodges v. United States,\19\ the Court set aside the
convictions of three men for conspiring to drive several African
Americans from their employment in a lumber mill. 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.

        \19\203 U.S. 1 (1906), overruled by Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 441 n.78 (1968).
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        The latter case was overruled by the Court in a far-reaching
decision in which it concluded that the 1866 congressional
enactment,\20\ far from simply conveying on all persons the capacity to
buy and sell property, also prohibited private denials of the right
through refusals to deal\21\ 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.''\22\ The Amendment, then, could provide the
constitutional support for the various congressional en

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actments against private racial discrimination which Congress had
previously based on the commerce clause;\23\ because the 1866 Act
contains none of the limitations written into the modern laws it has a
vastly extensive application.\24\ Whether the Court will yet carry its
interpretation of the statute to the fullest extent possible is, of
course, not now knowable.

        \20\Ch. 31, 14 Stat. 27 (1866). The portion at issue is now 42
U.S.C. Sec. 1982.
        \21\Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420-37 (1968).
Justices Harlan and White dissented from the Court's interpretation of
the statute. Id. at 449. Chief Justice Burger joined their dissent in
Sullivan v. Little Hunting Park, 396 U.S. 229, 241 (1969). The 1968
Civil Rights Act forbidding discrimination in housing on the basis of
race was enacted a brief time before the Court's decision. Pub. L. No.
90-284, 82 Stat. 81, 42 U.S.C. Sec. 3601-31.
        \22\Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-43 (1968).
See also City of Memphis v. Greene, 451 U.S. 100, 124-26 (1981).
        \23\E.g., federal prohibition of racial discrimination in public
accommodations, found lacking in constitutional basis under the
Thirteenth and Fourteenth Amendments in the Civil Rights Cases, 109 U.S.
3 (1883), was upheld as an exercise of the commerce power in Heart of
Atlanta Motel v. United States, 379 U.S. 241 (1965), and Katzenbach v.
McClung, 379 U.S. 294 (1965).
        \24\The 1968 statute on housing and the 1866 act are compared in
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413-17 (1968). The
expansiveness of the 1866 statute and of congressional power is shown by
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (1866 law protects
share in neighborhood recreational club which ordinarily went with the
lease or ownership of house in area); Runyon v. McCrary, 427 U.S. 160
(1976) (guarantee that all persons shall have right to make and enforce
contracts as is enjoyed by white persons protects the right of black
children to gain admission to private, commercially operated,
nonsectarian schools); Johnson v. Railway Express Agency, 421 U.S. 454,
459-60 (1975) (statute affords a federal remedy against discrimination
in private employment on the basis of race); McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 285-96 (1976) (statute protects against
racial discrimination in private employment against whites as well as
nonwhites). See also Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S.
431 (1973). The Court has also concluded that pursuant to its Thirteenth
Amendment powers Congress could provide remedial legislation for African
Americans deprived of their rights because of their race in Griffin v.
Breckenridge, 403 U.S. 88, 104-05 (1971). Conceivably, the reach of the
1866 law could extend to all areas in which Congress has so far
legislated and to other areas as well, justifying legislative or
judicial enforcement of the Amendment itself in such areas as school
segregation.
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      Peonage

        Notwithstanding its early acknowledgement in the Slaughter-House
Cases that peonage was comprehended within the slavery and involuntary
servitude proscribed by the Thirteenth Amendment,\25\ the Court has had
frequent occasion to determine whether state legislation or the conduct
of individuals has contributed to reestablishment of that prohibited
status. Defined as a condition of enforced servitude by which the
servitor is compelled to labor against his will in liquidation of some
debt or obligation, either real or pretended, peonage was found to have
been unconstitutionally sanctioned by an Alabama statute, directed at
defaulting sharecroppers, which imposed a criminal liability and
subjected to imprisonment farm workers or tenants who abandoned their
employment, breached their contracts, and exercised their legal right to
enter into employment of a similar nature with another person. The clear
purpose of such a statute was declared to be the coercion of payment, by
means of criminal proceedings, of a purely civil li

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ability arising from breach of contract.\26\ Several years later, in
Bailey v. Alabama,\27\ the Court voided another Alabama statue which
made the refusal without just cause to perform the labor called for in a
written contract of employment, or to refund the money or pay for the
property advanced thereunder, prima facie evidence of an intent to
defraud and punishable as a criminal offense, and which was enforced
subject to a local rule of evidence which prevented the accused, for the
purpose of rebutting the statutory presumption, from testifying as to
his ``uncommunicated motives, purpose, or intention.'' Inasmuch as a
state ``may not compel one man to labor for another in payment of a debt
by punishing him as a criminal if he does not perform the service or pay
the debt,'' the Court refused to permit it ``to accomplish the same
result [indirectly] by creating a statutory presumption which, upon
proof of no other fact, exposes him to conviction.''\28\

        \25\83 U.S. (16 Wall.) 36 (1873).
        \26\Peonage Cases, 123 F. 671 (M.D. Ala. 1903).
        \27\219 U.S. 219 (1911). Justice Holmes, joined by Justice
Lurton, dissented on the ground that a State was not forbidden by this
Amendment from punishing a breach of contract as a crime. ``Compulsory
work for no private master in a jail is not peonage.'' Id. at 247.
        \28\Id. at 244.
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        In 1914, in United States v. Reynolds,\29\ a third Alabama
enactment was condemned as conducive to peonage through the permission
it accorded to persons, fined upon conviction for a misdemeanor, to
confess judgment with a surety in the amount of the fine and costs, and
then to agree with said surety, in consideration of the latter's payment
of the confessed judgment, to reimburse him by working for him upon
terms approved by the court, which, the Court pointed out, might prove
more onerous than if the convict had been sentenced to imprisonment at
hard labor in the first place. Fulfillment of such a contract with the
surety was viewed as being virtually coerced by the constant fear it
induced of rearrest, a new prosecution, and a new fine for breach of
contract, which new penalty the convicted person might undertake to
liquidate in a similar manner attended by similar consequences. More
recently, Bailey v. Alabama has been followed in Taylor v. Georgia\30\
and Pollock v. Williams,\31\ in which statutes of Georgia and Florida,
not materially different from that voided in the Bailey case, were found
to be unconstitutional. Although the Georgia statute prohibited the
defendant from testifying under oath, it did not prevent him from

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entering an unsworn denial both of the contract and of the receipt of
any cash advancement thereunder, a factor which, the Court emphasized,
was no more controlling than the customary rule of evidence in Bailey.
In the Florida case, notwithstanding the fact that the defendant pleaded
guilty and accordingly obviated the necessity of applying the prima
facie presumption provision, the Court reached an identical result,
chiefly on the ground that the presumption provision, despite its
nonapplication, ``had a coercive effect in producing the plea of
guilty.''

        \29\235 U.S. 133 (1914).
        \30\315 U.S. 25 (1942).
        \31\322 U.S. 4 (1944). Justice Reed, with Chief Justice Stone
concurring, contended in a dissenting opinion that a State is not
prohibited by the Thirteenth Amendment from ``punishing the fraudulent
procurement of an advance in wages.'' Id. at 27.
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        Pursuant to its Sec. 2 enforcement powers, Congress enacted a
statute by which it abolished peonage and prohibited anyone from
holding, arresting, or returning, or causing or aiding in the arresting
or returning, of a person to peonage.\32\

        \32\Ch. 187, Sec. 1, 14 Stat. 546, now in 42 U.S.C. Sec. 1994
and 18 U.S.C. Sec. 1581. Upheld in Clyatt v. United States, 197 U.S. 207
(1905); and see United States v. Gaskin, 320 U.S. 527 (1944). See also
18 U.S.C. Sec. 1584, which is a merger of 3 Stat. 452 (1818), and 18
Stat. 251 (1874), dealing with involuntary servitude. Cf. United States
v. Shackney, 333 F.2d 475, 481-83 (2d Cir. 1964).
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        The Court looked to the meaning of the Thirteenth Amendment in
interpreting two enforcement statutes, one prohibiting conspiracy to
interfere with exercise or enjoyment of constitutional rights,\33\ the
other prohibiting the holding of a person in a condition of involuntary
servitude.\34\ For purposes of prosecution under these authorities, the
Court held, ``the term `involuntary servitude' necessarily means 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.''\35\

        \33\18 U.S.C. Sec. 241.
        \34\18 U.S.C. Sec. 1584.
        \35\United States v. Kozminski, 487 U.S. 931 (1988). Compulsion
of servitude through ``psychological coercion,'' the Court ruled, is not
prohibited by these statutes.
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      Situations in Which the Amendment Is Inapplicable

        In a wide range of situations the Thirteenth Amendment has been
unsuccessfully pressed into service. Thus, under a rubric of ``services
which have from time immemorial been treated as exceptional,'' the Court
held that contracts of seamen, involving to a certain extent the
surrender of personal liberty, may be enforced without regard to the
Amendment.\36\ Similarly, enforcement of those duties which individuals
owe the government, such as service in the military and on juries, is
not covered.\37\ A state law requiring every able-bodied man within its
jurisdiction to labor for a reason

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able time on public roads near his residence without direct compensation
was sustained.\38\ A Thirteenth Amendment challenge to conscription for
military service was summarily rejected.\39\ A state law making it a
misdemeanor for a lessor, or his agent or janitor, intentionally to fail
to furnish such water, heat, light, elevator, telephone, or other
services as may be required by the terms of the lease and necessary to
the proper and customary use of the building was held not to create an
involuntary servitude.\40\ A federal statute making it unlawful to
coerce, compel, or constrain a communications licensee to employ persons
in excess of the number of the employees needed to conduct his business
was held not to implicate the Amendment.\41\

        \36\Robertson v. Baldwin, 165 U.S. 275, 282 (1897).
        \37\Butler v. Perry, 240 U.S. 328, 333 (1916).
        \38\Id.
        \39\Selective Draft Law Cases, 245 U.S. 366 (1918). The Court's
analysis, in full, of the Thirteenth Amendment issue raised by a
compulsory military draft was the following: ``As we are unable to
conceive upon what theory the exaction by government from the citizen of
the performance of his supreme and noble duty of contributing to the
defense of the rights and honor of the nation, as the result of a war
declared by the great representative body of the people, can be said to
be the imposition of involuntary servitude in violation of the
prohibitions of the Thirteenth Amendment, we are constrained to the
conclusion that the contention to that effect is refuted by its mere
statement.'' Id. at 390. While the Supreme Court has never squarely held
that conscription need not be premised on a declaration of war,
indications are that the power is not constrained by the need for a
formal declaration of war by ``the great representative body of the
people.'' During the Vietnam War (an undeclared war) the Court,
upholding a conviction for burning a draft card, declared that the power
to classify and conscript manpower for military service was ``beyond
question.'' United States v. O'Brien, 391 U.S. 367, 377 (1968). See also
United States v. Holmes, 387 F.2d 781, 784 (7th Cir. 1968) (``the power
of Congress to raise armies and to take effective measures to preserve
their efficiency, is not limited by either the Thirteenth Amendment or
the absence of a military emergency''), cert. denied 391 U.S. 956.
        \40\Marcus Brown Co. v. Feldman, 265 U.S. 170, 199 (1921).
        \41\United States v. Petrillo, 332 U.S. 1, 12-13 (1947).
Injunctions and cease and desist orders in labor disputes requiring
return to work do not violate the Amendment. UAW v. WERB, 336 U.S. 245
(1949).