Thirteenth Amendment, Section 1

Neither slavery nor involuntary servitude, shall exist within the United States, or any place subject to their jurisdiction.

The Supreme Court has often addressed the scope of the Thirteenth Amendment’s prohibitions when considering the extent of Congress’s power to enforce the Thirteenth Amendment by enacting legislation.1 For example, in 1883, the Supreme Court considered the scope of the Amendment’s Prohibition Clause in cases that implicated Congress’s power to criminalize the racially discriminatory denial of a person’s access to public accommodations.2 In the consolidated Civil Rights Cases, the Court held that the Thirteenth Amendment prohibited “slavery and its incidents.” 3 However, the Court determined that the Thirteenth Amendment’s concept of prohibited “badges” and “incidents” of slavery did not encompass private racial discrimination that denied a person access to accommodations.4 Instead, the Court explained, the “badges and incidents” of slavery included: (1) compulsory service for another’s benefit; (2) restrictions on freedom of movement; (3) the inability to hold property or enter into contracts; and (4) the incapacity to have standing in court or testify against a White person.5

Although the Supreme Court’s decision in the Civil Rights Cases rested on its interpretation of the prohibitions in Section 1 of the Thirteenth Amendment, the Court implied that Congress’s enforcement power under Section 2 did not authorize Congress to prohibit the private racial discrimination at issue.6 Subsequently, in Plessy v. Ferguson, the Court held that state-sanctioned segregation in railway cars did not violate Section 1 of the Thirteenth Amendment, writing that a “statute which implies merely a legal distinction between the white and [African American] races . . . has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.” 7

During the Civil Rights Era of the 1960s, the Supreme Court’s views shifted significantly. The Court held that Congress may play an important role in determining the scope of its enforcement power through the enactment of legislation.8 The Court also held that Congress’s power may enable it to forbid some forms of private racial discrimination that might not fall within the prohibitions of Section 1 of the Thirteenth Amendment, but, in Congress’s view, amount to “badges” or “incidents” of slavery.9

Footnotes

1

For more on Congress’s enforcement power under Section 2 of the Thirteenth Amendment, see Amdt13.S2.1 Overview of Enforcement Clause of Thirteenth Amendment.

2

The Civil Rights Cases, 109 U.S. 3, 8–9 (1883).

3

Id. at 23.

4

Id. at 25. See also Corrigan v. Buckley, 271 U.S. 323, 327, 330–32 (1926) (holding that the Thirteenth Amendment did not prohibit the Supreme Court of the District of Columbia from enforcing a covenant among private individuals that forbade the lease, sale, or occupancy of real estate by African Americans for twenty-one years).

5

The Civil Rights Cases, 109 U.S. at 22.

6

Id. at 24–25.

7

Plessy v. Ferguson, 163 U.S. 537, 542–43 (1896) (upholding the constitutionality of a Louisiana law mandating racial segregation in railway cars), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954). For an example of another case involving state action in which the Supreme Court interpreted the Thirteenth Amendment’s prohibition on slavery without addressing the scope of Congress’s Section 2 enforcement power, see Palmer v. Thompson, 403 U.S. 217, 226–27 (1971) (holding that a city’s closing of swimming pools to all persons, even if done with the intent to prevent African Americans and Whites from swimming together, did not amount to a “badge or incident” of slavery prohibited under the Thirteenth Amendment).

8

For a discussion of the relevant cases, see Amdt13.S2.3 Scope of Enforcement Clause of Thirteenth Amendment.

9

See id.