Scope of Enforcement Clause of Thirteenth Amendment

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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 determined that Congress’s power to legislate against the “badges” and “incidents” of slavery did not authorize it to enact legislation that sought to protect African Americans from some forms of private racial discrimination.1 However, the Court significantly changed course with its 1968 decision in Jones v. Alfred H. Mayer Co.2 In that case, the Court overruled its earlier decision in Hodges v. United States and adopted a much more deferential approach, determining that Congress may play a significant role in determining the scope of its enforcement power by enacting legislation.3

In Jones, the Supreme Court held that Congress had authority to enact a provision in the Civil Rights Act of 1866 that barred private racial discrimination in the sale or rental of property.4 Overruling its earlier decision in Hodges, the Court held that Congress could prohibit private acts that interfered with African Americans’ “fundamental rights which are the essence of civil freedom,” including the right to lease or purchase real property, so long as Congress had a rational basis for doing so.5 The Court wrote that “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.” 6 Thus, in Jones, the Court adopted a more deferential approach toward Congress’s enforcement power, determining that legislation could prohibit practices, such as the discriminatory refusal to engage in real estate transactions with African Americans, that did not amount to slavery but retained the vestiges of some of its “badges” or “incidents.” 7

After deciding Jones, the Supreme Court held that Congress’s Thirteenth Amendment enforcement power allowed it to prohibit private racial discrimination in a variety of other contexts.8 For example, the Court confirmed that Congress’s enforcement power authorized it to enact laws barring racial discrimination in making and enforcing contracts, which prohibited racially discriminatory admissions policies for private schools.9 In addition, the Court held that Congress could enact remedial laws that granted individuals a statutory remedy against private persons that allegedly conspired to violate their civil rights because of their race.10

The Court has suggested, however, that the Congress that proposed the Thirteenth Amendment did not intend to prohibit practices that lacked discriminatory intent and merely had a disparate negative impact on African Americans.11 As a result, it is unclear whether Congress’s Thirteenth Amendment enforcement power extends to prohibiting such practices.

1: See Amdt13.S2.2 Early Doctrine on Enforcement Clause of Thirteenth Amendment.
2: 392 U.S. 409 (1968).
3: Id. at 440–42 & 441 n.78. The Supreme Court has confirmed that Congress’s power to address private racial discrimination is not limited to discrimination against African Americans, but encompasses all races. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 288 n.18 (1976) (citing Hodges v. United States, 203 U.S. 1, 16–17 (1906)), overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968).
4: Jones, 392 U.S. at 417–22, 440–44.
5: Id. at 440, 441 & n.78.
6: Id. at 440.
7: In this case, those vestiges were private acts that interfered with African Americans’ rights to hold property or enter into contracts. See id. at 441. The Court did not address whether the Thirteenth Amendment’s Prohibition Clause would itself have prohibited the practices at issue in the case without Congress’s enactment of legislation. 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 directly prohibited under the Thirteenth Amendment). In Palmer, however, the Court noted that Congress had not enacted a federal law barring this practice. Id.
8: In the 1960s, the Supreme Court also upheld congressional enactments against private racial discrimination in public accommodations that served interstate travelers as a proper exercise of Congress’s Commerce Clause power. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 250–51, 261–62 (1964). The Court rejected the notion that such enactments violated the Thirteenth Amendment as applied to the businesses furnishing public accommodations. See id. See also Katzenbach v. McClung, 379 U.S. 294, 304–05 (1964).
9: Runyon v. McCrary, 427 U.S. 160, 179 (1976) (evaluating Section 1 of the Civil Rights Act of 1866, which provided that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State . . . to make and enforce contracts . . . as is enjoyed by white citizens” ), superseded by 42 U.S.C.§ 1981(c). See also Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 235–40 (1969) (confirming that 42 U.S.C. § 1982, which Congress enacted pursuant to its Thirteenth Amendment enforcement power, prohibited private individuals from excluding an African American lessee, on the basis of race, from using community recreational facilities).
10: Griffin v. Breckenridge, 403 U.S. 88, 105 (1971). Nonetheless, the Supreme Court cautioned that the federal statute at issue in Griffin, 42 U.S.C. § 1985, was not a source of “general federal tort law” and that a successful claim required a showing of “invidiously discriminatory animus behind the conspirators’ action.” Id. at 102.
11: City of Memphis v. Greene, 451 U.S. 100, 126–29 (1981) (holding that a city’s closing of one end of a street to reduce the flow of traffic and increase safety, even if it disproportionately inconvenienced African American citizens, was not a “badge” of slavery prohibited under the Thirteenth Amendment). See also Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 387–89 (1982) (determining that the Congress that proposed the Thirteenth Amendment was not concerned with practices that had a disparate negative impact on African Americans but lacked a discriminatory purpose). For a discussion of how the Fourteenth Amendment’s guarantee of equal protection applies to facially neutral laws that have a disparate negative impact on a racial minority but lack discriminatory intent, see .