The Innovations, Limits, and Unrealized Potential of the Thirteenth Amendment
Juneteenth was last week, and the topic of emancipation has been on my mind. The legacy of the Thirteenth Amendment is complex and thought-provoking. On its face, the amendment abolishes slavery (“Neither slavery nor involuntary servitude . . . shall exist within the United States[.]”). But emancipation was only half of the equation. The other half: what legal status did the formerly enslaved have? Specifically, did emancipation confer full citizenship, or did it create a status above slave, but below citizen? This was an unsettled question in the early Reconstruction period.
Most Congressional Republicans believed the Thirteenth Amendment was expansive and authorized all manner of civil rights legislation.[1] The Civil Rights Act of 1866, which codified the principle of equal protection under the law, was enacted pursuant to the Thirteenth Amendment. Representative John Bingham disagreed that the Thirteenth empowered this kind of sweeping legislation, even though he supported racial equality. Bingham was partly concerned that a cynical and corrupt Supreme Court could narrow the scope of the Thirteenth Amendment and nullify associated civil rights legislation. The Fourteenth Amendment was ratified as an insurance policy to safeguard Congress’ efforts to secure full and equal citizenship for former slaves. And while the Fourteenth Amendment has advanced liberty in profound ways, it has made it easy to overlook a robust interpretation of the Thirteenth.
Our modern understanding of the Thirteenth Amendment is narrow, as if it were a vestigial part of the Constitution. But as the Supreme Court chips away at the Fourteenth Amendment and strikes down civil rights protections, there is a small but growing effort to reconsider the limits of the Thirteenth. Precedent establishes the Thirteenth Amendment allows Congress to legislate against the “badges and incidents” of slavery. Some scholars argue these terms are elastic enough to address “hate speech, the removal of confederate monuments, racial profiling, sexual orientation discrimination, violence against women, limitations on the right to an abortion, sexual harassment, sweatshop labor, and more.” This is not a silver bullet, but it is an invitation to expand our minds. Emancipation can mean more than just abolition. It can also encompass those reforms that secure full citizenship rights and equality before the law.
Some further thoughts:
The Thirteenth Amendment explicitly overturned the Supreme Court’s decision in Dred Scott. Its ratification serves as a reminder that our constitutional order is not set in stone by the justices, but remains responsive to popular sovereignty.
Section 2 of the Thirteenth Amendment, which authorizes Congress to “enforce this article by appropriate legislation” was a constitutional revolution. Up to that point, the Constitution and its amendments constrained the federal government. Famously, the First Amendment provides that “Congress shall make no law . . . .” The Thirteenth Amendment is the mirror opposite; it empowers Congress to protect the rights of citizens. The language of Section 2 became a consistent feature of subsequent constitutional amendments. Collectively, these amendments have remade the federal government into something much different than the original founders intended.
The Thirteenth Amendment is first and foremost an instrument to secure individual freedom. But it also abolished a corrupt economic order. Slavery was an entire economic system that competed against free labor capitalism. Slaves were the “largest concentration of property in the country” amounting to “nearly four billion 1860 dollars[.]”[2] There were competing proposals for abolition that contemplated paying off slaveholders. The Thirteenth Amendment rejected such an approach – it categorically eliminated the slaveholders’ property interest in human beings. There’s a tendency to frame the U.S. Constitution as entirely a document about civil and political rights with little to say about economic matters. But the Thirteenth Amendment can be understood as establishing a form of economic justice and labor protections.
Finally, the Thirteenth Amendment includes a loophole that has resulted in longstanding racial injustice. Specifically, the amendment provides that forced labor is permissible “as a punishment for crime[.]” Activists and scholars have argued the modern-day carceral system relies on constitutionally sanctioned forced labor in ways that mirror the institution of slavery. This loophole is a good reminder to adopt a critical eye and acknowledge the shortcomings of even the most celebrated legal protections.
[1] From an originalist perspective, their opinions matters because they wrote the amendment and are therefore uniquely positioned to opine on its scope.
[2] The Second Founding, by Eric Foner at p.15.