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State Action and the Thirteenth Amendment

George Rutherglen, University of Virginia School of Law

Abstract

The Thirteenth Amendment speaks in terms that are universal: “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.” Unlike its close cousin, the Fourteenth Amendment, the Thirteenth Amendment does not restrain only government actors. It also acts as a restraint on private individuals. Private forms of “involuntary servitude” violate the self-executing provisions of the amendment and private attempts to perpetuate the “badges and incidents of slavery” can be prohibited by Congress in legislation to enforce the amendment. The amendment’s coverage of private action makes it virtually unique position among constitutional provisions.

This article begins by examining the status of this proposition in existing law, emphasizing its support in two otherwise inconsistent decisions, the Civil Rights Cases, decided after the end of Reconstruction, and Jones v. Alfred H. Mayer Co., decided during the Civil Rights Era. The analysis then examines to the historical conditions and events leading up to the adoption of the amendment: the role of private action in establishing antebellum slavery, the origins of the amendment’s text in the Northwest Ordinance, and the legislative debates over the amendment. These sources contain all of the major arguments for the amendment’s coverage of private action. The analysis then proceeds to the implications of these arguments for the separate question of what constitutes the “badges and incidents of slavery” that lie within the power of Congress to enforce the amendment. This article concludes by briefly considering the role of the Thirteenth Amendment in the jurisprudence of civil rights, now and in the future.

Subject Area

Constitutional Law, Public Law and Legal Theory

Recommended Citation

George Rutherglen, "State Action and the Thirteenth Amendment" (October 2007). University of Virginia Legal Working Paper Series. University of Virginia Public Law and Legal Theory Working Paper Series. Working Paper 78.
http://law.bepress.com/uvalwps/uva_publiclaw/art78

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