Thirteenth Amendment, Section 2

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

Because the Thirteenth Amendment is self-executing, its prohibitions on slavery and involuntary servitude became effective upon ratification without the need for further government action.1 Nonetheless, Section 2 of the Amendment grants Congress the power to enforce the Amendment’s prohibitions by enacting “appropriate legislation.” 2 Congress may use its enforcement power to address specific circumstances and provide remedies for violations of the Thirteenth Amendment’s prohibitions.3 Because the Thirteenth Amendment’s Prohibitions Clause extends to private conduct as well as government action, the Supreme Court has long held that Congress may enforce the Amendment through legislation that directly regulates private individuals’ activities.4

After the Civil War, newly freed slaves faced various forms of state-sanctioned and private discrimination. For example, some states enforced Black Codes that denied African Americans equal rights under the law, including the rights to vote, hold property, and use public facilities.5 Some states codified the practice of peonage, enabling individuals to use the threat of force or legal action to compel African Americans to perform services to satisfy a financial obligation.6 In addition, some operators of public accommodations, such as hotels and restaurants, sought to prevent African Americans from patronizing their businesses.7 In response, beginning in 1866, Congress enacted civil rights legislation that sought to ensure that people of all races would have equal rights to make and enforce contracts and hold property, among other fundamental rights.8 In various cases, individuals challenged the constitutionality of these laws, arguing that Congress’s Thirteenth Amendment enforcement power did not authorize it to enact such laws.

For more than a century after the states ratified the Thirteenth Amendment, the Supreme Court determined that Congress’s power to legislate against the “badges” and “incidents” of slavery did not authorize it to enact legislation that broadly sought to protect African Americans from private racial discrimination.9 However, the Court’s views on Congress’s enforcement power changed significantly with its 1968 decision in Jones v. Alfred H. Mayer Co.10 In that case, the Court adopted a more deferential approach toward Congress’s enforcement power, determining that Congress may play a significant role in determining the scope of its power through the enactment of legislation.11 Although the Court has since upheld Congress’s power to enforce the Thirteenth Amendment by enacting laws to combat some forms of private racial discrimination, Congress’s power to combat harms beyond racial discrimination is less clear.12

Footnotes

1

The Civil Rights Cases, 109 U.S. 3, 20 (1883) ( “This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” ).

2

U.S. Const. amend. XIII, § 2.

3

The Civil Rights Cases, 109 U.S. at 20. The Fourteenth and Fifteenth Amendments contain similar enforcement language. For more information on Congress’s power to enforce the Fourteenth Amendment, see Amdt14.S5.2 Who Congress May Regulate. For more information on Congress’s power to enforce the Fifteenth Amendment, see Amdt15.S2.2 Federal Remedial Legislation.

4

Clyatt v. United States, 197 U.S. 207, 217 (1905) (citing The Civil Rights Cases, 109 U.S. at 20, 23).

5

See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426–37 (1968); Bell v. Maryland, 378 U.S. 226, 288, 303 (1964) (Goldberg, J., concurring).

6

See Peonage Cases, 123 F. 671, 673–74 (M.D. Ala. 1903).

7

See, e.g., The Civil Rights Cases, 109 U.S. at 8–10, 23.

8

See, e.g., Act of April 9, 1866, 39 Cong. ch. 31, 14 Stat. 27, 27–30. See also 42 U.S.C. §§ 1981–1982.

9

See Amdt13.S2.2 Early Doctrine on Enforcement Clause of Thirteenth Amendment.

10

392 U.S. 409 (1968).

11

Id. at 440.

12

See Amdt13.S2.3 Scope of Enforcement Clause of Thirteenth Amendment.