The Thirteenth Amendment may be a bit more familiar to you and most other Americans. Maybe you can’t remember off the top of your head what it did but as soon as you read it, you’ll go, “Oh yeah, I knew that.” But there’s much more to it than the obvious, and that’s what this blog post is here to explain.
Section 1 Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2 Congress shall have power to enforce this article by appropriate legislation.
Did you just have the “duh” moment I predicted? This is a short amendment, is it not? It’s easier to understand than last week’s Twelfth Amendment, I assume. Most of us will read it and go, “ah yes, this is the amendment that bans slavery”, think we understand the scope of it and move on. But is that all it does? As the employers of government, it serves us better to stop leaving all the deep thinking about the Constitution to the nine imperials on the Court and start doing that deep thinking for ourselves. So, let’s start that deep thinking with how I always start, with historical context.
This amendment’s historical context is likely a bit more obvious to you than the historical context of a few of the other amendments. Many could argue that slavery is and was this nation’s greatest shame and sin. For a nation built on the ideas of liberty, limited government power, the avoidance of arbitrary power, slavery made a hypocrite of everyone in the country, slave owner or not. Slavery is the epitome of arbitrary power. A slave is always living at the behest of another, subject to their arbitrary and unconfined will. It is tyranny at the individual scale. Tyranny at a national scale exists when government possesses arbitrary power over its citizens, while tyranny at the individual scale exists when an individual possesses arbitrary power over another, regardless of the other’s desire to be in such a position. It’s involuntary servitude. So, America’s shame comes from the reality that she rejected national tyranny but embraced and allowed individual tyranny.
The Thirteenth Amendment was officially ratified on December 6, 1865, right at the close of the war between the states. The nation was drowning under the weight of the ideals she espoused and the guilt of not living up to those ideals in reality (yes, there were many economic and practical factors that led to the Civil War and abolition of slavery, but in this post, I’m focusing on the ideals). The Thirteenth Amendment, ratified two years after Lincoln’s emancipation proclamation, formally established that slavery was no longer an accepted practice in this country. It is, to this day, the only amendment to have the sitting president’s signature on it. Presidents are not needed or required to sign amendments, but Lincoln did so in an attempt to throw his full support behind this amendment.
What makes this amendment so unique is this: it confines the U.S. citizenry’s power rather than government’s power. Did you get that? Prior to this amendment, the Constitution/amendments existed for the sole purpose of defining and confining federal government power. In other words, “we the people” could not violate the Constitution because the Constitution was the law for government. We could only violate laws that the government writes. The government violates the Constitution when it writes laws that the Constitution does not give it power to write.
But, look at the language of this amendment. This amendment establishes that in this country, no private individual or company or state, no one, can ever engage in any form of slavery again. Section Two of the amendment takes this blanket rule and applies it to government, expanding government’s job description by saying that the federal Congress is empowered to write any laws necessary to carry out this new rule, and further, these laws empower the rest of government to enforce this amendment accordingly.
Yes, slavery is that bad. It was so bad that the states, collectively, were compelled to fundamentally alter and expand the power of the federal government in order to confine the power of individuals, private companies and states. Seems like “no slavery” should go without saying, but that’s not how human nature or any country in history has worked. Tyranny, slavery and arbitrary power, whether in government or else ware, has always been the way of things. In fact, in most countries today, it still is. And so, the Thirteenth Amendment exists.
What It Does
So, the obvious change this amendment made was this: there is no more chattel slavery allowed in the United States. Chattel means: “primarily, any article of movable goods”. So, this amendment made it illegal, actually unconstitutional, to buy and sell humans as goods. Again, seems like something that should go without saying.
However, notice the language. It doesn’t just say, “no more chattel slavery”, it says, no involuntary servitude nor slavery shall exist in the United States. “Involuntary servitude” has been taken to mean that no person can be compelled to work for someone against their will. For example, in the U.S., people cannot be compelled to work to pay off a debt (sometimes former slaves or poor citizens would become indebted to merchants or others and, unable to pay off their debts, would become trapped in a cycle of work-without-pay). The Supreme Court used the Thirteenth Amendment to formally abolish this form of slavery in a case in 1911. But this interpretation goes even further. Involuntary servitude could mean being forced to finish a service contract of employment when the individual is no longer willing to do so. In other words, forcing an employee to finish out their contract rather than giving them the option of paying a financial penalty to get out of the contract would likely being a violation of the Thirteenth Amendment (Greene and Mason). Fascinating, no?
We have an enduring principle here in the U.S. that individuals, groups, or anyone should never be subject to the arbitrary will of another. So much so, that in state constitutions, imprisonment for debt is even prohibited. This is something I’ve thought little about, but in most countries, throughout history, many people languished in prisons simply for owing money to someone. So, this principle of preventing not only slavery but involuntary servitude is key to the liberty this nation espouses.
Further, in Section Two of the amendment, Congress is empowered to enforce this amendment. It literally says, Congress shall have the power to enforce this article by legislation. Massive change of job description. It is empowering Congress with a new enumerated power. “For example, the Anti-Peonage Act of 1867 prohibits peonage, and another federal law, 18 U.S.C. § 1592, makes it a crime to take somebody’s passport or other official documents for the purpose of holding her as a slave” (Green and Mason).
Also, notice that this amendment does not mention race, sex or any identifying factors. Rather, it simply says that no one can be forced into slavery or involuntary servitude. This means that no race, sex, religion etc can be used to justify such a practice. Some have argued then that this amendment means Congress can write laws banning discrimination of any kind by private companies or individuals–which, admittedly, is a bit of a stretch. Others argue, if this amendment was meant to do such a thing, the Fourteenth and Fifteenth Amendments would not have been necessary.
“The Fourteenth Amendment makes all born within the United States, including former slaves, citizens of the United States and promises them both ‘the privileges and immunities of citizens’ and ‘equal protection of the laws.’ The Fifteenth Amendment prohibits denials of the right to vote based on a citizen’s ‘race, color, or previous condition of servitude.’ If the Thirteenth Amendment itself had banned discrimination and mandated a full range of civil and political rights, there would have been no need for the Fourteenth and Fifteenth Amendments. Thus, it is quite understandable that the Supreme Court has suggested that Section One of the Thirteenth Amendment is best understood solely as a ban on coerced labor. The Thirteenth Amendment paved the way for subsequent constitutional promises of equality, but it did not itself provide for that equality” (McAward).
Some argue that this amendment provides the justification for any and all federal laws preventing coerced or improper labor practices–labor laws. Others say that this amendment opens the door for a vast amount of Civil Rights legislation addressing any and all discriminatory practices, while others argue that this amendment empowers Congress to make race-based hate crimes punishable under federal law (which technically, right now, it is). However, Congress has been rather restrained in its interpretation and use of this amendment to legislate all forms of conduct that could be loosely tied to this amendment. The Court as well as Congress seem to agree that the primarily goal and expectation of this amendment is to prevent any form of coerced labor, and loosely, to prevent any subset of individuals from being “held back” from equal citizenship ( “…in an early exercise of Section Two power, Congress passed the Civil Rights Act of 1866, which the Supreme Court has construed as prohibiting racial discrimination in the making and enforcing of contracts and in property transactions, even by private parties” McAward.) Overall though, it’s a rarely used amendment for the following reason: it has already served its original purpose, eliminate and prevent all forms of slavery or involuntary servitude.
The Fourteenth and Fifteenth Amendments have overshadowed this amendment since, at least when it comes to Supreme Court use and precedent; but, without this amendment, there would be no need for the next two.
There’s so much to unpack here but for now, I’ll leave you with what I wrote above. This amendment is both beautiful and tragic. Beautiful in that it stopped and prevents one of humanities greatest besetting sins, and tragic that in a nation so set on promoting and idealizing liberty such an amendment was even necessary. The amendment has been used for good, to stop the arbitrary power of individuals. Let’s just hope it is never used to justify the arbitrary power of government.
The Liberty Belle