Thirteenth Amendment (Judicial Interpretation)

Author:Kenneth L. Karst

Page 2693

Ratification of the Thirteenth Amendment in 1865 not only diminished the urgency of the debate over the constitutionality of the EMANCIPATION PROCLAMATION but also wrote a new substantive value into the Constitution. The amendment's first section abolished SLAVERY and involuntary servitude throughout the nation, and its second section empowered Congress to enforce abolition. If any of the amendment's framers expected it to end the system of racial dominance and dependence, they were soon divested of that illusion. The persistence of a plantation economy and the adoption in southern states of the BLACK CODES kept blacks in a position of subordination that was not only economic but political and social as well.

The question thus arose whether section 2 of the Thirteenth Amendment gave Congress the power to do more than provide sanctions against slavery or involuntary servitude, narrowly defined. Over a presidential veto, Congress adopted the CIVIL RIGHTS ACT OF 1866, which not only declared the CITIZENSHIP of the freed slaves but also protected them against the sort of RACIAL DISCRIMINATION that had been embodied in the Black Codes, such as disqualification to own property, to make contracts, or to serve on juries. President ANDREW JOHNSON had explained his veto of the bill partly on the ground that the Thirteenth Amendment had not empowered Congress to adopt legislation aimed at such purposes. Reacting to this argument, Congress proposed the FOURTEENTH AMENDMENT as a means of assuring the validity of the 1866 Act and placing beyond doubt the power of Congress to enforce the CIVIL RIGHTS of the freed slaves.

From the beginning it was arguable that the abolition of slavery implied that the persons so freed would take on the status of free citizens?that the amendment should be read broadly as a response to the whole social system of racial subordination associated with slavery. But in the early years, this view did not prosper in the Supreme Court; it was found mainly in OBITER DICTA and in dissenting opinions. All agreed that section 1 of the amendment was self-executing: slavery and involuntary servitude were abolished, whether or not Congress enacted civil or criminal sanctions to enforce the abolition. Because the amendment contained no STATE ACTION limitation, it operated directly, of its own force, against either public or private conduct that imposed slavery. But the Court limited the notion of "involuntary servitude" to personal servitude, refusing to extend it (by analogy to feudal servitudes) to cover the granting of monopolies or other similar privileges. (See SLAUGHTERHOUSE CASES). By the end of the nineteenth century, the Court was saying that slavery implied no more than "a state of bondage," and the lack of "a legal right to the disposal of [one's] own person, property, and services"; thus the Thirteenth Amendent standing alone did not even forbid a state to impose racial segregation...

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