Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute


Amendment XIII, Section 2

  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.
  2. Congress shall have power to enforce this article by appropriate legislation.

The Thirteenth Amendment to the United States Constitution officially made all forms of slavery and involuntary servitude except as punishment for a crime unlawful.

Introduced by Ohio Rep. James Ashley originally in 1863, it languished for over a year until companion legislation was introduced in the United States Senate. To give the resolution a final strong push, President Abraham Lincoln had pushed for its inclusion in the GOP platform in 1864 and personally persuaded Democrats from pro-union states to support the effort.

Ultimately, it was passed by the Senate on April 8, 1864, by the House on January 31, 1865, and adopted on December 6, 1865.

Historians record that when the House vote was announced the galleries cheered, congressmen embraced and wept, and Capitol cannons boomed a 100-gun salute.  One Representative, Congressmen George Julian of Indiana wrote in his diary, “I have felt, ever since the vote, as if I were in a new country.”

On December 18, Secretary of State William H. Seward declared that it had been officially ratified by the states.  It was the first such change to the Constitution in 61 years, and it happened just two and a half months before President Lincoln would be tragically assassinated.

Since our country’s founding the issue of slavery had bedeviled our nation.  At the Constitutional Convention good men like George Mason of Virginia argued vehemently against slavery, warning his fellow delegates:   “Every master of slaves is born a petty tyrant.  They bring the judgment of heaven on a country.  As nations cannot be rewarded or punished in the next world, they must be in this.  By an inevitable chain of causes and effects, providence punishes national sins by national calamities.”

While the Constitution that was ultimately adopted failed to completely resolve the slavery issue, it was neither completely silent nor neutral.

The oft-criticized 3/5th compromise specially limited the ability of southern slave-holding states to obtain equal representation in the House of Representatives with that of the non-slave-holding northern states.  Ultimately this would result in a pro-freedom tilt in the House of Representatives.  The Constitution also gave Congress the power to prohibit the importation of new slaves after 1808, which Congress promptly did once it was legally allowed to.

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

With the passage of the 13th Amendment (specifically clause 2) Congress was given full power to stamp out slavery in all its forms. The motivations of the Members of Congress give us a great degree of insight into the meanings and operations of clause 2 of the 13th Amendment.  While most discussions of the 13th amendment include the 14th and 15th, Congress’ treatment is quite different.  At the time of its introduction, its Republican supporters in Congress and abolitionists across the land saw this amendment and Section 2 in particular as a comprehensive tool to root out not just slavery, but all of its vestiges.

It is for this reason that they didn’t stop with just banning or ending slavery; they empowered Congress to root it out.  Their goal was to assure that the ending of slavery wasn’t a hollow victory, that passage lead to a national commitment to adopt whatever substantive changes were needed to eliminate all “badges and incidents of slavery.”

The men surrounding the introduction were very clear in their objectives.  Leaders like Senator James Harlan, Rep. Thaddeus Stevens, Sen. Charles Sumner, and Rep. Wilson were virulently anti-slavery.  They worked assiduously to draft language that would cover “every proposition regarding slavery.”   And they also saw the 13th amendment as the affirmation of the founder’s principles.  Rep. Godlove Orth (R-IN) said that the 13th Amendment to “be a practical application of that self-evident truth” of the Declaration of Independence “that all men are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.”

It was in this context that within days of passage of the 13th Amendment, Members of Congress began debating new statutes to achieve the Thirteenth Amendment’s purposes.  The first bill introduced roughly a week after the amendment was ratified was S. 427 by Senator Henry Wilson (R-MA).  This bill prohibited states, municipalities, corporations and all persons from excluding any person on account of race from travel on railroads or navigable waters.  Although this bill ultimately stalled in Congress, within 2 years four laws using the congress’ enforcement power would be enacted:  The Civil Rights Act of 1866, The Slave Kidnapping Act of 1866, the Peonage Act of 1867, and the Judiciary Act of 1867.  The Civil Rights Act of 1866 in particular set the pace for an aggressive intervention on the part of Congress on behalf of the newly freed slaves.   It provided litigants the right to transfer their legal disputes to federal court when the local and state court system failed to allow them an opportunity for relief.  Across the nation the new law aided families and individuals that had never had access to the court or to equal protection of the law.

Unfortunately for the abolitionists, subsequent elections and the deaths of key leaders would result in an ebbing of enthusiasm for use of the 13th amendment’s authority to remediate the wrongs of slavery.  The deaths of Salmon P. Chase, Thaddeus Stevens, and Edwin Stanton were huge losses for the freedom agenda.  And new President Andrew Johnson was particularly hostile to their efforts going so far as to veto many of the remaining anti-slavery measures that could pass Congress.  But the final death knell for robust authority arising under the 13th amendment came from the Supreme Court.

In a series of lawsuits groups together as the Civil Rights cases, the Supreme Court struck down parts of the Civil Rights Act of 1875 (18 Stat. 335) originally proposed by Senator Charles Sumner and Representative Benjamin F. Butler (both Republicans) in 1870, passed by Congress in February, 1875 and signed by President Grant on March 1, 1875.

The Act protected everyone, regardless of race, color, or previous condition of servitude, to the same treatment in “public accommodations” (i.e. inns, public conveyances on land or water, theaters, and other places of public amusement).  Violators could face a penalty anywhere from $500 to $1,000 and/or 30 days to 1 year in prison. In a setback that the drafters of the 13th amendment would not have expected, the Supreme Court ruled that the 13th amendment like the 14th and 15th amendment didn’t authorize Congress to intervene in private non-government areas. The Court’s ruling would stifle Congress’ ability to exercise its Section 2 power for nearly a century.

It is ironic that many of the 1875 Act’s provisions were later enacted in the Civil Rights Act of 1964 and the Fair Housing Act, this time using the federal power to regulate interstate commerce.

Eventually the Court would reverse itself.  In 1968, in a case called Jones v. Alfred H. Mayer Co. the US Supreme Court case once again dealt with the Civil Rights Act of 1866.  In that case they held that Congress could regulate the sale of private property in order to prevent racial discrimination: “42 U.S.C. § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment.”

A long time coming, the view of the framers was finally validated.  Today as during Reconstruction, Congress, the President and the Courts recognize that Section 2 gives Congress the power to “determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation” to prevent its effects.

Horace Cooper is the Director of the Institute for Liberty’s Center for Law and Regulation and is a legal commentator

April 24, 2012

Essay #47


3 replies
  1. Barb Zakszewski
    Barb Zakszewski says:

    Now, I hate slavery in all forms, and still cannot understand how some of the Founders could not outlaw slavery completely right from the start. But perhaps Section 2 of the Amendment, even today, has contributed to the expansions of federal government powers way beyond what the Founders and Framers intended.. It’s not always about justice, but more about power, in most cases. At most, it is selective justice..

  2. Marc W. Stauffer
    Marc W. Stauffer says:

    The 3/5ths rule is quite something. The South wanted slaves as property but wanted that “property” to be able to vote. Always loved some of the Northern comebacks like; “since their donkeys were “property” they should have a vote as well!”. The slavery mentality….oh how hypocritical!

  3. H Cooper
    H Cooper says:

    There’s little evidence that any use of Section 2 has expanded federal powers beyond what the Founders and Framers intended. If you recall, the power associated with Section 2 must target the institution or vestiges of slavery. So in order to pass the law, you’d have to specifically tie this law to eradicating slavery itself or its related consequences. You can look extensively through the federal code and you won’t find too many instances where Congress actually has used this power. It has only been since the late 1960s that the Supreme Court actually overturned early rulings severely limiting its application. And since that time Congress except for sex trafficking and kidnapping cases hasn’t relied much at all on this power.


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