The Thirteenth Amendment

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.

—Kurt T. Lash

Introduction

The Thirteenth Amendment to the U.S. Constitution abolished chattel slavery on American soil and prohibited involuntary labor except upon due conviction for a crime. Congress drafted the amendment in the early months of 1864. Secretary of State William Seward officially declared it ratified on December 18, 1865. Although the nineteenth-century Supreme Court narrowly construed Congress’s power to enforce the Thirteenth Amendment, more recent Court opinions have upheld enforcement legislation banning discrimination in the making and enforcement of contracts and in the buying and selling of real estate. Of all the liberties protected by the federal Constitution, the most basic is the right that is protected by the Thirteenth Amendment: the indelible human right never to be bought and sold as a piece of property.

Historical Background

Prior to 1776, British policy allowed the practice of slavery in all thirteen American colonies. Following the successful break from British rule, the now “free and independent states”¹ could decide for themselves whether to continue the practice of chattel slavery. Southern slaveholding states maintained and eventually deepened their dependence on enslaved labor. Northern states moved toward abolition.²

Thomas Jefferson’s original draft of the Declaration of Independence condemned King George III for violating the “most sacred rights of life & liberty” by “captivating and carrying” “a distant people” “into slavery in another hemisphere.”³ The Continental Congress decided to delete this reference and instead added a provision equally condemnatory of slavery that became the battle cry of abolitionists for the next eighty years: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”⁴

Like the Declaration, the Articles of Confederation contained no express reference to slavery. In 1784, Thomas Jefferson drafted the Ordinance of 1784, which would have organized the western territories and divided them into states. Section 5 provided that “after the year 1800 of the Christian [Era], there shall be neither slavery nor involuntary servitude in any of the said states, otherwise than in punishment of crimes whereof the party shall have been convicted to have been personally guilty.”5 However, Congress struck out Section 5.6 Three years later, the Confederation Congress passed the 1787 Northwest Ordinance, which governed the federal territories northwest of the Ohio River. Article VI of the Ordinance included the language originally drafted by Jefferson declaring that “[t]here shall be neither slavery nor involuntary servitude in the said territory, other than in the punishment of crimes, whereof the party shall have been duly convicted.”⁵

The 1787 federal Constitution continued the post-Revolution policy of leaving the choice of allowing chattel slavery to the states. In fact, the Constitution did not contain the words “slave” or “slavery.” As James Madison of Virginia explained during the Constitutional Convention, it would be “wrong to admit in the Constitution the idea that there could be property in men.”⁶ Nevertheless, several constitutional provisions impliedly referenced slavery. The Three-Fifths Clause of Article I based representation on a counting of “free persons,” “Indians not taxed,” and “three-fifths of all other persons.” Article I also declared that Congress could not prohibit the “Migration or Importation of such Persons” until 1808. And the “Fugitive Slave” Clause of Article IV prohibited northern states from freeing persons escaping from slavery. (See Essay Nos. 9, 67, and 142.)

Despite these implicit acknowledgements of slavery, soon after the Constitution was ratified, Congress added a Bill of Rights. The Due Process Clause of the Fifth Amendment declared that “nor [shall any person] be deprived of life, liberty or property without due process of law.” (See Essay No. 172.) Over the next several decades, abolitionists repeatedly insisted that the Due Process Clause essentially constitutionalized the same human right to “life, liberty and the pursuit of happiness” originally proclaimed by the Declaration.

The growing abolitionism in the North and increasing reliance on slavery in the South guaranteed an unending series of political disputes. Dred Scott v. Sandford (1857) ruled that slavery could not be banned in federal territory and that black Americans were not and could not become citizens of the United States.⁷ Chief Justice Roger B. Taney’s majority opinion further inflamed an already divided nation. Republicans rejected Dred Scott’s reasoning. In the 1860 election, Abraham Lincoln and the pro-freedom Republican Party prevailed. Soon after, the slaveholding states of the deep South voted to secede from the Union, and a bloody Civil War followed.

Drafting of the Thirteenth Amendment

On January 11, 1864, in the opening days of the 38th Congress, Senator John Brooks Henderson of Missouri submitted a proposed amendment abolishing slavery.⁸ On February 17, Senator Lyman Trumbull of Illinois presented a revised version of Henderson’s proposal with the language substantially mirroring Jefferson’s language in the Northwest Ordinance.⁹ For the next four months, Congress debated the constitutional abolition of slavery.

Supporters of the amendment insisted that slavery violated the country’s foundational principles as articulated in the Declaration of Independence and the Due Process Clause of the Fifth Amendment. The Founders, they insisted, had expected slavery to die out quickly. Instead, the invention of the cotton gin and slaveholder avarice had thwarted those hopes. In their efforts to protect the institution of slavery, slave states had increasingly violated the fundamental rights of American citizens, including the rights of speech, press, assembly, and petition. Finally, in an ultimate act of constitutional betrayal, slavery convinced the southern states to secede and instigate a bloody civil war. Unless totally abolished, slavery would trigger another war in the future.¹⁰

Opponents in Congress insisted that slavery was an essential aspect of the original constitutional compact and could not be removed constitutionally.¹¹ For example, Representative Fernando Wood of New York argued that such a violation of the original compact would fatally undermine state sovereignty and the federalist nature of the Constitution as declared in the Ninth and Tenth Amendments.¹² (See Essay Nos. 187 and 188.) Even if such an amendment were constitutional, it was wrong to pursue the matter during wartime when so many states remained unrepresented. Democratic Senator Willard Saulsbury of Delaware, for example, argued that the amendment “would not be binding on any State whose interest was affected by it” if their representatives were not present to vote on the matter.¹³ Other Democrats like Representative Alexander Coffroth of Pennsylvania expressed concerns about the impact of taking the “property” of loyal slaveowners.¹⁴ Finally, opponents argued during the Civil War that abolishing slavery might prolong the war because the South would have little reason to lay down its arms if doing so meant economic ruin.¹⁵

Just before the Senate voted on the Thirteenth Amendment, Charles Sumner of Massachusetts objected that the language “seems to imply that ‘slavery or involuntary servitude’ may be provided ‘for the punishment of crime.’”¹⁶ In response, Senator Jacob Howard of Michigan defended the use of Jefferson’s language from the Northwest Ordinance, arguing that this “expression . . . has been adjudicated upon repeatedly” and “is perfectly well understood both by the public and by judicial tribunals.”¹⁷ Sumner’s effort to change the language failed.

Sumner also suggested that the amendment should echo the language of the original Constitution’s Necessary and Proper Clause and grant Congress “power to make all laws necessary and proper to carry the declaration into effect.” Instead, Congress added a second section to the amendment that granted Congress “power to enforce this article by appropriate legislation.” No framer at the time discussed whether the final language paraphrased the Necessary and Proper Clause or communicated a broader (or narrower) principle. The ambiguous language of Section Two became a matter of substantial discussion during the debates on the Thirteenth Amendment’s ratification.

Passage of the Thirteenth Amendment

On April 8, 1864, the Senate voted 38 to 6 in favor of the amendment, clearing the two-thirds majority required for passage.¹⁸ In the Senate, Republicans outnumbered Democrats 33 to 10, but in the House, the Republican majority was only 85 to 72. In order to meet the required two-thirds majority, House Republicans would have to convince a significant number of Democrats to support the amendment or at least abstain from voting. For some time, these efforts failed. On June 15, the House voted 93 to 65 in favor of the amendment with only four Democrats voting in support—thirteen votes shy of a two-thirds majority. At the last minute, Republican James Ashley of Ohio “changed his vote from the affirmative to the negative.” This switch would allow him to move for reconsideration at a future, more opportune moment.¹⁹

That moment came several months later. Over the summer of 1864, Union Army victories, including the fall of Atlanta, fueled northern public support for the war and helped to pave the way for Lincoln’s re-election in November 1864. Congressional Republicans, meanwhile, gained fifty congressional seats. These numbers seemed to guarantee passage of the Thirteenth Amendment during the next session of Congress. On November 13, 1864, Frederick Douglass noted in a speech in Rochester, New York that the election results “mean[t] that the Constitution of the United States shall be so changed that slavery can never again exist in any part of the United States.”²⁰ The only question was whether constitutional abolition should be left to the Thirty-Ninth Congress or revisited during the final weeks of the outgoing Thirty-Eighth Congress.

On December 6, 1864, in his annual message to Congress, Lincoln encouraged Congress to hold another vote on the amendment before the end of the Thirty-Eighth Congress.²¹ The Republican leadership agreed. On January 6, 1865, Representative Ashley moved for reconsideration of the abolition amendment.²² Although the same members were voting on the same proposed amendment, the political ground had shifted since June 1864. The people had returned Lincoln and an even greater number of Republicans to national office, so the passage of an abolition amendment by the next Congress seemed guaranteed. Moreover, as the Union’s victory now seemed inevitable, it was less necessary to hold out the preservation of slavery as an incentive for the South to come to the peace table. And by that time, the loyal slaveholding border states were already moving toward abolition without waiting for an amendment. Maryland abolished slavery just before the national election, and Missouri did the same in the middle of the second round of congressional debates.²³ Finally, several Democrats had lost their reelection bid in the fall elections, and during this “lame duck” session, they were less subject to pro-slavery political pressure. For a number of Democrats, these changed political circumstances were enough to move them from opposition to support—or at least provide them political cover for doing so.

On January 31, 1865, after a final round of speeches and debate, Ashley called the question. The final tally was 119 to 56, two votes more than needed for passage. In the end, eleven Democrats changed their earlier votes and supported the amendment, and eight members did not vote at all.²⁴

The Ratification Process

Having been passed by two-thirds of both houses of Congress, the amendment would now need to be ratified by three-fourths of the states. At the time, there were thirty-six states, and (at least in theory) twenty-seven states would be required for ratification. However, this precise count was debated. Some Radical Republicans would have required ratification only from states that remained loyal to the Union. The Confederate states, these Republicans argued, committed “state suicide” and were not to be counted. Other members of Congress insisted that Confederate states should also count in the denominator.

Several states, including Massachusetts, Pennsylvania, and West Virginia, quickly ratified the proposed abolition amendment. In Massachusetts, the vote was unanimous. In more politically divided northern states, however, the proposed amendment prompted substantial debate. In New York, for example, Democrats echoed their congressional counterparts. They insisted that constitutional abolition was an “encroachment upon the rights of the States” and warned that immediate emancipation was “dangerous both to the interests of the country and of the blacks themselves.” In response, Republicans argued that the Civil War had proven that slavery was “incompatible with a free government [and] should be abolished.”²⁵ Only a simple majority was needed from both chambers of the state legislature. In the end, the New York House voted 70 to 40 in favor of the amendment with the Senate concurring 17 to 8. Both votes indicated significant minority opposition but not enough to defeat adoption.²⁶ About a week later, a similar debate and outcome occurred in Indiana. Republicans blamed slavery for the Civil War, and Democrats claimed the amendment violated the reserved rights of the states. The Amendment passed 26 to 22 in the Indiana senate and 56 to 29 in the state house. Once again, there was significant opposition but not enough to defeat adoption.²⁷

Union states that voted against Lincoln in the 1864 presidential election also rejected the proposed Thirteenth Amendment. In February and March 1865, Delaware, Kentucky, and New Jersey rejected the amendment.²⁸ Governor Thomas Bramlette of Kentucky encouraged the legislature to ratify the amendment on the condition that the state receive compensation for its emancipated slaves. The legislature instead voted to reject the amendment outright on a vote of 21 to 12.²⁹ In New Jersey, a congressional committee suggested submitting the amendment to the people in a state referendum. The proposal was rejected, and the amendment failed to pass in a tied vote of 30 to 30.³⁰

Ratification in Virginia came about under unusual circumstances. The vote was cast by the government-in-exile located in Alexandria. Governor Francis Harrison Pierpont claimed that his government represented the “true” (Union-supporting) government of Virginia. Pierpont’s Administration authorized the creation of the State of West Virginia and then voted to ratify the Thirteenth Amendment. As a result, one Virginia in Alexandria ratified the Thirteenth Amendment while another in Richmond continued its military struggle against the Union.³¹

On April 9, 1865, Confederate General Robert E. Lee surrendered to Union General Ulysses S. Grant at Appomattox Courthouse in Virginia. On April 11, President Lincoln urged supporters of the Thirteenth Amendment to join him in restoring Louisiana’s status as a loyal member of the Union despite the relatively low numbers of Union supporters in the state. Lincoln explained that “if we reject Louisiana, we also reject one vote in favor of the proposed amendment to the national Constitution.” It would not be “questionable” to secure ratification of “three fourths of those States which have not attempted secession.” By contrast, “ratification by three-fourths of all the States would be unquestioned and unquestionable.”³² On April 14, Lincoln was shot by an assassin’s bullet, and died the following day.

Securing ratification of the Thirteenth Amendment now fell to Lincoln’s Vice President. Andrew Johnson, a Tennessee Democrat, quickly organized provisional governments in the former rebel states. He advised his newly appointed governors, including Provisional Mississippi Governor William L. Sharkey, to abolish slavery and support ratification of the amendment.³³ Johnson hoped that such actions would overcome Republican congressional opposition and pave the way for readmission of the former rebel states. The governments of the southern states, however, initially resisted ratifying the amendment. However, this was not out of a desire to maintain slavery. The former Confederates recognized that the institution was politically dead. Rather, they were concerned about the grant of congressional power in Section Two.

On November 1, 1865, Provisional South Carolina Governor Benjamin F. Perry wrote to Secretary of State William Seward regarding the state’s progress toward ratifying the amendment. According to Perry, the legislature has “no objection to adopting the first section of the amendment proposed but they fear that the second section may be construed to give congress power of local legislation over the Negroes and white men, too, after the abolishment of slavery.”³⁴ In response, President Johnson asked Seward to draft a letter to Governor Perry that dismissed South Carolina’s concerns about Section Two. Seward wrote that the objection to Section Two “is regarded as querulous and unreasonable.” That clause, he contended, “is really restraining in its effect, instead of enlarging the powers of Congress.”³⁵ Seward’s letter would be widely published.

On November 13, South Carolina ratified the Thirteenth Amendment but added a statement of legislative understanding to its official notice of ratification. The state declared “that any attempt by Congress towards legislating upon the political status of former slaves, or their civil relations, would be contrary to the Constitution of the United States, as it now is, or as it would be altered by the proposed amendment.”³⁶ Alabama, which ratified the amendment on December 2, included a similar ratification notice: “[T]his amendment to the Constitution of the United States, is adopted by the Legislature of Alabama with the understanding that it does not confer upon Congress the power to Legislate upon the political status of Freedmen in this State.”³⁷

On December 17, 1865, Georgia became the twenty-seventh state to ratify the Thirteenth Amendment, which cleared the three-fourths requirement. On December 18, a few days after the opening session of the 39th Congress, Seward officially announced the ratification of the amendment.³⁸ In doing so, Seward rejected Radical Republican theories of “state suicide” and counted the votes of every ratifying state, north and south.

Congressional Enforcement of the Thirteenth Amendment

Four months after the Thirteenth Amendment was ratified, Congress passed the Civil Rights Act of 1866, the first congressional effort to enforce the amendment.³⁹ The act declared that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States,” and that all such citizens enjoyed the same rights of property and contract as “white citizens.”⁴⁰ Lyman Trumbull of Illinois, the bill’s Senate sponsor, explained that the act exercised Congress’s power under the Thirteenth Amendment to “secure to all persons within the United States practical freedom.”⁴¹ In 1867, Congress relied on its Section Two powers to pass the Anti-Peonage Act.⁴² (Peonage imposed forced labor to work off a debt.)

However, not every Republican shared Trumbull’s broad reading of Section Two. These concerns helped to fuel the effort to pass the Fourteenth Amendment.⁴³ Following ratification of the Fourteenth Amendment in 1868, Congress reenacted the 1866 Act, this time as an exercise of its authority under the Fourteenth Amendment.⁴⁴

Judicial Precedent

There have been only a few Supreme Court decisions interpreting the Thirteenth Amendment. In the Slaughter-House Cases (1873), a majority of the Court rejected the idea that a state-granted monopoly amounted to “involuntary servitude” of the kind prohibited by the amendment.⁴⁵ In the Civil Rights Cases (1883), an eight-justice majority ruled that the Thirteenth and Fourteenth Amendments do not empower Congress to prohibit private racial discrimination in places of public accommodation.⁴⁶ According to Justice Joseph P. Bradley’s majority opinion, “[i]t would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make. . . .”⁴⁷ The lone dissenter, Justice John Marshall Harlan, argued that the Thirteenth Amendment “obliterated the race line, so far as all rights fundamental in a state of freedom are concerned.”⁴⁸

In the 1960s and 1970s, the Supreme Court held that portions of the 1866 Civil Rights Act were valid enforcements of the Thirteenth Amendment. These cases involved private racial discrimination in the sale of real estate and in the making and enforcement of contracts.⁴⁹

Open Questions

• Does the Thirteenth Amendment protect a right to abortion?⁵⁰ In the wake of Dobbs v. Jackson Women’s Health Organization (2022), this issue has become more relevant.⁵¹ Does the text cut the other way and protect developing human life? For example, would the amendment play a role in preventing the development of artificial wombs for the growing and harvesting of human organs?
• Does the adoption of the Thirteenth Amendment prove conclusively that the original Constitution was pro-slavery (and thus needed amending)? Or does it represent a victory for those who argued that the Constitution was not pro-slavery and thus could be amended without altering its fundamental structure?
• Was it constitutionally necessary to count the ratification votes of the former rebel states? Is it constitutionally permissible for Congress to declare that a state has forfeited its status as a member of the Union?
• Does the Thirteenth Amendment apply to animals? Some animal rights activists have tried to invoke the amendment to free whales and other animals held in captivity.⁵² Will developments in robotic artificial intelligence force a rethinking of what counts as an “enslaved person?”

1. Declaration of Independence, ¶ 32. ↩︎
2. Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation’s Founding 31 (2018). ↩︎
3. IV. Revised Report of the Committee, 22 March 1784, Founders Online, https://perma.cc/7CEF-XT3X. ↩︎
4. Declaration of Independence, ¶ 2. ↩︎
5. 1 The Reconstruction Amendments: Essential Documents 10 (Kurt T. Lash ed., 2021) (hereinafter “RA”). ↩︎
6. 2 Farrand’s 417. ↩︎
7. 60 U.S. 393 (1857). ↩︎
8. 1 RA 386. ↩︎
9. Id. at 390. ↩︎
10. Speeches of James Wilson (Mar. 19, 1864), Lyman Trumbull (Mar. 28, 1864), John Brooks Henderson (Apr. 7, 1864), and Charles Sumner (Apr. 8, 1864), in id. at 391, 402, 427, 434. ↩︎
11. Id. at 408. ↩︎
12. Id. at 450. ↩︎
13. 2 RA 416. ↩︎
14. 1 RA 452. ↩︎
15. Id. ↩︎
16. Id. at 437. ↩︎
17. Id. at 442. ↩︎
18. Id. ↩︎
19. Id. at 447. ↩︎
20. Id. at 465. ↩︎
21. Id. at 465. ↩︎
22. Id. at 466. ↩︎
23. Missouri: Emancipation Ordinance Adopted Almost Unanimously, N.Y. Daily Tribune, Jan. 12, 1865, p. 1, in id. at 481. ↩︎
24. 1 RA 492–96. ↩︎
25. Id. ↩︎
26. Id. at 506–11. ↩︎
27. Id. at 516–22. ↩︎
28. Id. at 523, 527; id. at 498. ↩︎
29. Id. at 523. ↩︎
30. Id. at 533. ↩︎
31. Id. at 498–99. ↩︎
32. Id. at 534. ↩︎
33. Id. at 543. ↩︎
34. Id. at 545. ↩︎
35. Id. at 546. ↩︎
36. Id. at 546. ↩︎
37. Id. at 558–59. ↩︎
38. Id. at 561. ↩︎
39. 14 Stat. 27–30 (Apr. 9, 1866). ↩︎
40. Id. ↩︎
41. 2 RA 67. ↩︎
42. Statutes at Large, 39th Cong., 2d Sess., ch. 187, p. 546 (Mar. 2, 1867). ↩︎
43. Speech of John Bingham in opposition to the Civil Rights Act (Mar. 9, 1866), in 2 RA 135. ↩︎
44. Act of May 31, 1870, ch. 114, § 18, 16 Stat. 144. ↩︎
45. 83 U.S. 38, 69 (1873). ↩︎
46. 109 U.S. 3 (1883). ↩︎
47. Id. at 24. ↩︎
48. Id. at 40. ↩︎
49. Jones v. Alfred H. Mayer, 392 U.S. 409 (1968); Runyon v. McCrary, 427 U.S. 160 (1976). ↩︎
50. Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480 (2015); Kurt T. Lash, Roe and the Original Meaning of the Thirteenth Amendment, 21 Geo. J.L. & Pub. Pol'y 131. ↩︎
51. Ari Blaff, D.C. Judge Argues 13th Amendment Prohibiting Slavery May Provide Constitutional Right to Abortion, Nat’l Rev. (Feb. 7, 2023), https://perma.cc/73YC-469W. ↩︎
52. Tilikum et al. v. Sea World Parks & Entertainment Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 2012); Sheri Flannery, The Thirteenth Amendment Won’t Help Free Willy, 15 The Scholar 29 (2012), https://perma.cc/7QLV-AD8E. ↩︎