Early Doctrine on Enforcement Clause of Thirteenth Amendment

prev | next

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

For more than a century after the states ratified the Thirteenth Amendment, the Supreme Court adopted a narrow view of the scope of Congress’s power to enforce the Amendment’s prohibitions. In an early decision, the Court considered the extent of Congress’s enforcement power in cases that addressed equality of access to public accommodations (e.g., hotels and restaurants).1 In the consolidated 1883 Civil Rights Cases, the federal government indicted several defendants for violating the Civil Rights Act of 18752 by denying African Americans equal access to accommodations.3 The defendants argued that the Court should quash their indictments because Congress lacked the constitutional authority to enact the Act’s provisions the government alleged they violated.4

The Supreme Court acknowledged that the Thirteenth Amendment authorized Congress to enact laws that directly addressed some forms of private conduct.5 However, when addressing the government’s argument that the Thirteenth Amendment authorized Congress to enact the disputed provisions of the Act, the Supreme Court wrote that Congress’s enforcement power extended only to the subject of “slavery and its incidents.” 6 The Court defined these “badges and incidents” of slavery to include: (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.7

In the Civil Rights Cases, the Court held that racial discrimination by private individuals in the context of access to accommodations did not amount to a badge or incident of slavery as prohibited under the Thirteenth Amendment.8 Consequently, Congress lacked the power to outlaw such practices pursuant to its Thirteenth Amendment enforcement power. Accordingly, the provisions of the Civil Rights Act of 1875 at issue were unconstitutional.9

During the early twentieth century, the Supreme Court again adopted a narrow interpretation of Congress’s power under the Thirteenth Amendment’s Enforcement Clause. The Court considered whether Congress could punish conspiracies that sought to interfere with labor contracts entered into by African Americans.10 In Hodges v. United States, a group of White men threatened African Americans who worked at a lumber mill, seeking to prevent the workers from performing their jobs.11 The defendants were convicted under federal laws that criminalized conspiracies to deprive American citizens of their constitutional rights, which included the right to enter into contracts.12 Appealing their convictions, the defendants argued that Congress lacked the authority to enact legislation criminalizing such conspiracies.13 The Court, after determining that Congress lacked such power over private contracts under the Constitution’s original text, reviewed the Reconstruction Amendments to decide whether they authorized Congress to enact the legislation.14

The Supreme Court first determined that neither the Fourteenth nor Fifteenth Amendments authorized Congress to enact the laws at issue because these Amendments restricted state action, not private action.15 However, because the Thirteenth Amendment applied to private action, the Court considered whether Congress could enact the laws as an exercise of its power to enforce that Amendment.16 Ultimately, the Court answered this question in the negative, holding that private interference with an individual’s freedom to contract did not subject an individual to slavery or involuntary servitude within the Thirteenth Amendment’s meaning.17 The Court held that the federal government lacked jurisdiction over the conduct at issue and set aside the convictions.18 In so holding, the Court adopted a narrow view of the Thirteenth Amendment’s prohibitions on involuntary servitude, determining that, while the Amendment prohibited slavery, it did not protect many other individual rights of African Americans.19

1: The Civil Rights Cases, 109 U.S. 3, 8–11 (1883).
2: See Act of March 1, 1875, ch. 114, 18 Stat. 335.
3: The Civil Rights Cases, 109 U.S. at 26.
4: See id. at 8–9.
5: Id. at 20 ( “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.” ).
6: Id. at 23.
7: Id. at 22.
8: Id. at 24.
9: Id. at 26. The Supreme Court also held that Congress lacked the power to legislate the relevant provisions of the Act under the Fourteenth Amendment because that Amendment authorized Congress to enact corrective legislation negating state laws that violated Fourteenth Amendment guarantees and not to legislate new federal laws prohibiting private discrimination. Id. at 11–13. See also Ex parte Virginia, 100 U.S. 339, 344–46 (1879) (determining that the Thirteenth, Fourteenth, and Fifteenth Amendments authorized Congress to enact civil rights legislation prohibiting racial discrimination in jury selection because such discrimination implicated state action).
10: Hodges v. United States, 203 U.S. 1, 14–20 (1906), overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968).
11: The Supreme Court’s opinion in Hodges does not provide much detail as to the case’s background. See Jones, 392 U.S. at 441 n.78 (discussing the facts of Hodges).
12: Id.
13: See id.
14: Hodges, 203 U.S. at 14–15.
15: Id.
16: Id
17: Id. at 18–19.
18: Id. at 20. See also United States v. Harris, 106 U.S. 629, 642–43 (1883) (declaring that Congress lacked power under the Thirteenth Amendment to enact a law criminalizing conspiracies of two or more persons that sought to deprive another person of equal protection of the laws because upholding the law would “accord to Congress the power to punish every crime by which the right of any person to life, property, or reputation is invaded” ).
19: Id. The Court later determined that judicial enforcement of such covenants violated the Fourteenth Amendment’s Equal Protection Clause. Shelley v. Kraemer, 334 U.S. 1, 23 (1948). In a separate case, the Court determined that enforcement of such covenants in the District of Columbia, which is not subject to the Fourteenth Amendment, violated federal law and policy. Hurd v. Hodge, 334 U.S. 24, 32–36 (1948).