The 13th Amendment's Second Section Gave Congress a New Kind of Power

For seventy-four years, every amendment to the Constitution said what government could not do, or adjusted how it worked. Congress shall make no law. No soldier shall be quartered. The judicial power shall not be construed. Then, in December 1865, the American people ratified an amendment that did something no amendment had done before. It handed Congress a sword.

The Thirteenth Amendment is remembered, rightly, for its first section, which abolished slavery. Its second section is a single sentence of eleven words, and it changed the architecture of American government. It was the first time the Constitution expressly gave Congress power to enforce an amendment. Every Reconstruction amendment after it copied the idea, and so did several later ones. Understanding that sentence, what it authorized and where it stops, matters for anyone who cares about civil rights, about Congress, and about limited government at the same time. Those three concerns are not in tension. Done right, they fit together.

The text, both sections

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.

Three features of Section 1 deserve notice before we reach Section 2.

1. It acts directly. It does not say "Congress may abolish slavery" or "no State shall permit slavery." It says slavery shall not exist. The sentence operates on everyone, governments and private persons alike, everywhere the United States has jurisdiction.
2. Its language is borrowed. The words track Article 6 of the Northwest Ordinance of 1787, which declared that there would be neither slavery nor involuntary servitude in the territory northwest of the Ohio River, otherwise than in the punishment of crimes whereof the party shall have been duly convicted. The Congress of 1865 reached back to the founding generation's own anti-slavery text; that story is in The Northwest Ordinance of 1787 Banned Slavery and Promised Schools.
3. It contains an exception. Involuntary servitude remains permitted "as a punishment for crime whereof the party shall have been duly convicted." We return to that clause below, because it was abused almost immediately.

How it passed

The Senate approved the amendment on April 8, 1864. The House at first fell short of two-thirds. After the 1864 elections and intense effort by President Abraham Lincoln and his allies, the House approved it on January 31, 1865. Lincoln signed the joint resolution the next day, even though the Constitution does not require a President's signature on amendments. He was killed in April, before ratification. Georgia's ratification on December 6, 1865 supplied the required three-quarters of the states, and Secretary of State William Seward certified the amendment on December 18, 1865.

It is worth pausing on what the original Constitution had done and not done. The framers in 1787 compromised with slavery in several clauses. But they kept the words "slave" and "slavery" out of the text, and Madison said at the Convention that it would be wrong to admit in the Constitution the idea that there could be property in men. That deliberate silence left the door open for 1865. See Madison Kept the Idea of Property in Men Out of the Constitution's Words.

Why Section 2 was new

Before 1865, Congress's powers came from the list in Article I, Section 8, and from the necessary and proper clause at its end. The Bill of Rights restrained Congress; it did not empower it. No amendment had ever said: Congress shall have power to enforce this.

Section 2 did, and the choice of the word "appropriate" was not random. In McCulloch v. Maryland (1819), Chief Justice John Marshall had described the scope of implied powers this way: if the end is legitimate and within the scope of the Constitution, all means which are appropriate, plainly adapted to that end, and not prohibited, are constitutional. The framers of the Thirteenth Amendment used Marshall's own word. They were telling future readers that Congress's enforcement power would be measured the way implied powers had always been measured: by fit to a legitimate end.

The end, here, is that slavery and involuntary servitude shall not exist. Section 2 gave Congress power to make that true in fact, not just on paper. The pattern spread quickly. The Fourteenth Amendment's Section 5 and the Fifteenth Amendment's Section 2 carry nearly identical language, and later amendments on voting, including the Nineteenth, Twenty-Fourth and Twenty-Sixth, followed suit.

The first use: the Civil Rights Act of 1866

Congress used the new power almost at once, because it had to.

In 1865 and 1866, legislatures in several former Confederate states passed what came to be called the Black Codes. They restricted the freedmen's ability to own or rent property, to travel, to testify in court and to choose their employers. Vagrancy laws allowed the arrest of black men without labor contracts, and the punishment for "vagrancy" could be forced labor, hired out to private parties. The punishment clause of Section 1 was being used to rebuild something close to slavery under a new name. The codes are examined in Black Codes, the freedmen and the Fourteenth Amendment's right to bear arms.

Senator Lyman Trumbull of Illinois, chairman of the Senate Judiciary Committee and an author of the amendment's language, introduced the Civil Rights Act. It declared that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, were citizens. And it gave all citizens, of every race, the same right in every state and territory to make and enforce contracts, to sue and give evidence, and to inherit, purchase, lease, sell, hold and convey real and personal property, as was enjoyed by white citizens, as well as the full and equal benefit of all laws for the security of person and property.

Look at that list closely. It is a list of what slavery had denied. A slave could not make a binding contract, could not own property, could not sue, could not testify against a white person. Trumbull's theory was that Section 2 empowered Congress to abolish not only the formal status of slavery but its legal incidents, the disabilities that made a person a slave in practice.

President Andrew Johnson vetoed the bill. Congress overrode the veto on April 9, 1866, the first time Congress overrode a presidential veto on a major piece of legislation. But some members, including Representative John Bingham of Ohio, doubted that Section 2 alone could support all of the Act. That doubt was a major reason Congress drafted the Fourteenth Amendment, to put the Act's principles beyond constitutional question. The Fourteenth's first great test came in the Slaughter-House Cases of 1873, discussed in The Slaughter-House Cases Gutted the 14th Amendment's Best Clause in 1873.

Badges and incidents: the Civil Rights Cases (1883)

The next great test of Section 2 came in the Civil Rights Act of 1875, which forbade racial discrimination in inns, public conveyances, theaters and other places of public amusement. Several cases challenging the Act were consolidated as the Civil Rights Cases and decided in 1883.

The Court, by 8 to 1 in an opinion by Justice Joseph Bradley, struck down the public accommodations provisions. On the Fourteenth Amendment, Bradley held that it reached only state action, not private conduct. On the Thirteenth, Bradley's analysis was more interesting, and it gave us the phrase that still frames the debate. He agreed that Section 2 gave Congress power to pass all laws necessary and proper for abolishing all "badges and incidents of slavery" in the United States, and that this power reached private individuals as well as states, because Section 1 itself operated on everyone. But he concluded that an innkeeper's or a theater owner's refusal to serve someone was not a badge or incident of slavery; it was an ordinary private wrong, to be remedied by state law.

Justice John Marshall Harlan dissented alone. He argued that such discrimination in places serving the public was precisely a badge of servitude, a remnant of the system Section 1 abolished, and that Congress had the power to judge it so. Harlan's dissents, here and later in Plessy v. Ferguson (1896), have aged far better than the majorities; see Justice Harlan's Lone Dissent in Plessy and the Colorblind Constitution.

The revival: Jones v. Alfred H. Mayer Co. (1968)

For decades, Section 2 lay mostly dormant, overshadowed by the Fourteenth Amendment. Then, in 1968, the Court decided a case brought by Joseph Lee Jones and his wife, who had sued a developer in St. Louis County, Missouri, alleging that it refused to sell them a home because Mr. Jones was black. Their claim relied not on the new Fair Housing Act, passed by Congress that spring, but on a surviving provision of the Civil Rights Act of 1866, now codified at 42 U.S.C. 1982, which guarantees all citizens the same right as white citizens to purchase and lease property.

The Supreme Court, by 7 to 2 in an opinion by Justice Potter Stewart, held two things. First, the 1866 Act, properly read, barred private as well as public racial discrimination in the sale and rental of property. Second, Congress had the power to enact it under Section 2 of the Thirteenth Amendment. Stewart wrote that Congress may rationally determine what the badges and incidents of slavery are and translate that determination into effective legislation. The Court said it was overruling, to the extent inconsistent, an earlier decision, Hodges v. United States (1906), that had read the power narrowly. Justice John Marshall Harlan II, the first Harlan's grandson, dissented, joined by Justice Byron White, arguing chiefly that the 1866 Congress had not meant the statute to reach private sales.

The strongest case for broad power, and the limits it needs

Here is the case for reading Section 2 broadly, stated at its strongest. Slavery was not merely a legal status. It was a whole system of domination that reached contracts, property, family, movement and dignity. Ending the status while leaving the system in place would have been a hollow victory, as the Black Codes proved within months. The amendment's framers gave Congress an enforcement power precisely because they did not trust the states to finish the job. The Court should defer to Congress's judgment about what remnants of that system require federal action, and Jones rightly said Congress may rationally decide.

Most of that is right, and conservatives should say so plainly. The 1866 Act was a model of what Section 2 was for: it guaranteed equal capacity to contract, own property, sue and testify, the exact legal disabilities slavery imposed. The Thirteenth Amendment is a triumph of the natural-rights principles of the Declaration, finally applied to every American. Defending a robust Section 2 aimed at slavery's actual incidents is a conservative position, not a concession.

But the "rationally determine" standard in Jones, taken at face value, has no stopping point, and that is a problem a constitutionalist cannot ignore.

1. Every power must have a limit. The Constitution is a charter of enumerated powers. Section 2 is a power to enforce Section 1, which abolishes slavery and involuntary servitude. If Congress may label anything a "badge or incident" of slavery so long as its judgment is rational, then Section 2 becomes a general police power over any subject touching race, and possibly beyond. That is not what "enforce this article" says.
2. Compare the Fourteenth. In City of Boerne v. Flores (1997), the Court held that Congress's power to enforce the Fourteenth Amendment requires congruence and proportionality between the injury to be prevented and the means adopted, and that Congress may enforce the amendment's guarantees but may not redefine them. The Court has not applied that test to the Thirteenth Amendment, and the difference is hard to justify on the text, since the two enforcement clauses are nearly identical.
3. History gives the anchor. The badges and incidents the 1866 Congress targeted were concrete: legal incapacities to contract, hold property, sue, testify, travel, and be free of compelled labor. A sound reading measures new legislation by its connection to those incidents and to involuntary servitude itself, not by whatever a legislative majority finds rational.

That is the conservative position: a strong enforcement power, aimed at the evil the amendment named, and bounded by it.

The punishment clause today

Finally, the exception in Section 1. After 1865, Southern states used vagrancy laws and convict leasing to force thousands of men, overwhelmingly freedmen, into labor for private companies under conditions that were often lethal. Congress responded in part with the Peonage Act of 1867, which outlawed debt servitude, and the Supreme Court struck down an Alabama law that made breach of a labor contract evidence of fraud in Bailey v. Alabama (1911). Later, in United States v. Kozminski (1988), the Court held that "involuntary servitude" under the federal criminal statutes requires compulsion by physical or legal coercion.

The clause itself remains. It permits prison labor after conviction, which every state uses in some form. Several states, beginning with Colorado in 2018, have removed similar exceptions from their own constitutions. Whether to amend the federal text is a fair question for Congress and the states to debate in the open, under Article V. That is how the Thirteenth Amendment itself came to be, and the Fifteenth, whose own slow path is told in The 15th Amendment Promised the Vote and Took Ninety-Five Years to Enforce.

The case in brief

1. The Thirteenth Amendment, ratified December 6, 1865, abolished slavery and involuntary servitude in words borrowed from the Northwest Ordinance, operating directly on governments and private persons alike.
2. Its Section 2 was the first clause in the Constitution expressly giving Congress power to enforce an amendment, and its word "appropriate" deliberately echoed Marshall's test in McCulloch.
3. Congress used the power at once in the Civil Rights Act of 1866, aimed at the legal incidents of slavery, and the Court later debated its reach in the Civil Rights Cases (1883) and Jones v. Alfred H. Mayer Co. (1968).
4. A faithful reading gives Congress a strong power aimed at slavery's real badges and incidents, bounded by that purpose, rather than the open-ended "rationally determine" test of Jones.

What you can do: read the Thirteenth, Fourteenth and Fifteenth Amendments together on the Constitution page, and check your member of Congress's record on civil rights and federal power through the scorecard.