Thirteenth Amendment to the United States Constitution

• 1. Introduction

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  The Thirteenth Amendment to the United States Constitution was proclaimed on the 18th of December 1865, and with that proclamation, slavery became illegal throughout the United States for the first time in the nation's nearly nine decades of existence. It was the first of three amendments added to the Constitution in the aftermath of the Civil War, and it changed the legal status of roughly four million people. But the story of how those words came to be ratified is tangled with political maneuvering, open bribery, the assassination of a president, and a loophole that its own drafters barely discussed. And the story of what those words actually meant in practice is more troubled still. Who wrote the amendment's text, and where did that language come from? How did it pass a House of Representatives that had rejected it just months before? What happened to the people it was meant to free? And how has a document ratified in 1865 been used to prosecute sex traffickers in the twenty-first century?

• 2. Slavery Written Into Law

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  Slavery existed and was legal in the United States upon its founding in 1776, established by European colonization across all thirteen original colonies. The original Constitution never used the words slave or slavery, but it recognized the institution through careful euphemism. The Three-Fifths Compromise, Article I, Section 2, Clause 3, counted enslaved people as three-fifths of a person for the purpose of allocating congressional seats and Electoral College votes. That compromise emerged from a conflict: Southern politicians wanted enslaved African Americans counted fully as persons to gain more representation; Northern politicians refused, fearing the South would accumulate too much power.

  The Fugitive Slave Clause, Article IV, Section 2, Clause 3, ensured that an enslaved person who escaped to a free state was not thereby freed. Article I, Section 9 allowed Congress to pass legislation banning the importation of persons, though that law would not arrive until 1808. For purposes of the Fifth Amendment's due-process clause, enslaved people were legally understood as property. That reading became the legal foundation for the 1857 Dred Scott v. Sandford decision.

  Between 1777 and 1804, every Northern state provided for the immediate or gradual abolition of slavery, though most of those freed were household servants. Vermont had never permitted slavery at all, having prohibited it in its 1777 constitution. No Southern state followed, and the enslaved population of the South continued to grow, peaking at almost four million in 1861. An abolitionist movement led by figures including William Lloyd Garrison, Theodore Dwight Weld, and Angelina Grimke pressed for immediate nationwide abolition, sharpening the friction between the regions. Proposals for a constitutional amendment abolishing slavery were introduced as early as 1818 by Representative Arthur Livermore, and again in 1839 by John Quincy Adams, but neither effort gained meaningful ground.

  The question of slavery in newly acquired western territories pushed the crisis toward breaking point. The Missouri Compromise of 1820 admitted Missouri as a slave state and Maine as a free state to preserve a Senate balance. The Wilmot Proviso of 1846 tried to ban slavery in all territory gained from Mexico; it repeatedly passed the House but never the Senate. The Compromise of 1850 temporarily eased tension by admitting California as a free state, instituting a stronger Fugitive Slave Act, and banning the slave trade in Washington, D.C. Then came the 1852 publication of Uncle Tom's Cabin, the 1857 Dred Scott ruling that struck down the Missouri Compromise, John Brown's 1859 raid on Harpers Ferry, and Abraham Lincoln's election in 1860. The Southern states seceded in the months following Lincoln's election, and the Civil War began.

• 3. Drafting the Words

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  Acting under presidential war powers, Lincoln issued the Emancipation Proclamation on the 22nd of September 1862, to take effect on the 1st of January 1863, declaring the freedom of enslaved people in the ten states still in rebellion. The proclamation did not reach the border states that had remained in the Union, such as Kentucky and Delaware, where slavery remained legal. On the 1st of December 1862, Lincoln's State of the Union message to Congress presented a plan for what he called "gradual emancipation and deportation," envisioning three constitutional amendments, one of which would have required states to abolish slavery by the 1st of January 1900.

  By December 1863, Lincoln worried that the Emancipation Proclamation might be reversed or found invalid after the war. On the 14th of December 1863, Representative James Mitchell Ashley of Ohio introduced a bill proposing a constitutional amendment to abolish slavery nationally and permanently. Representative James F. Wilson of Iowa submitted a similar proposal shortly after. On the 11th of January 1864, Senator John B. Henderson of Missouri submitted a joint resolution to the same end. The Senate Judiciary Committee, chaired by Lyman Trumbull of Illinois, took on the task of merging the different proposals.

  Radical Republicans wanted broader language. On the 8th of February 1864, Massachusetts Senator Charles Sumner submitted a version declaring that "all persons are equal before the law" and granting Congress the power to legislate toward that end everywhere in the United States. Sumner tried to route his amendment to his own committee rather than Trumbull's Judiciary Committee; the Senate refused. On the 10th of February, the Judiciary Committee presented its own draft, which drew its language from the Northwest Ordinance of 1787: "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted." Thomas Jefferson had authored an early version of that ordinance's anti-slavery clause. Jefferson was an admirer of Italian criminologist Cesare Beccaria, whose 1764 work On Crimes and Punishments argued that the death penalty should be replaced with a lifetime of labor for the worst criminals; Jefferson likely included the crime-punishment exception on account of Beccaria's influence. The Judiciary Committee also removed a provision from Henderson's draft that would have allowed the amendment to pass with only a majority vote in each house and ratification by two-thirds of the states, rather than the standard two-thirds and three-fourths requirements.

• 4. A Vote Bought and Won

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  The Senate passed the amendment on the 8th of April 1864, by 38 votes to 6. Two Democrats, Oregon Senators Benjamin F. Harding and James Nesmith, crossed party lines to vote in favor. On the 15th of June, however, the House fell short: 93 votes in favor, 65 against, thirteen votes short of the required two-thirds. The split tracked closely along party lines, Republicans for and Democrats against.

  Lincoln made the passage of the Thirteenth Amendment his top legislative priority after winning reelection in 1864. He focused his efforts on the "lame duck" session of Congress, in which many members had already been replaced by newly elected successors. In his the 6th of December 1864 State of the Union address, he urged Congress to act, saying: "there is only a question of time as to when the proposed amendment will go to the States for their action. And as it is to so go, at all events, may we not agree that the sooner the better?"

  Lincoln instructed Secretary of State William H. Seward, Representative John B. Alley, and others to secure votes by any means necessary. They promised government posts and campaign contributions to outgoing Democrats willing to switch sides. Seward maintained a large fund reserved for direct bribes. Representative Thaddeus Stevens later commented that "the greatest measure of the nineteenth century was passed by corruption aided and abetted by the purest man in America." Lincoln's precise role in the deal-making has never been fully documented.

  In mid-January 1865, Speaker of the House Schuyler Colfax estimated the amendment to be five votes short of passage. Ashley postponed the vote. With 183 House members and one vacant seat, 122 affirmative votes would have been needed for passage; but eight Democrats abstained, lowering the threshold to 117. On the 31st of January 1865, every Republican (84), both Independent Republicans (2), all sixteen Unconditional Unionists, fourteen Democrats, and three Unionists voted yes. The final tally was 119 to 56. The House erupted into celebration, members openly weeping. Black observers, who had only been permitted to attend congressional sessions since the previous year, cheered from the galleries. Though the Constitution assigns the president no formal role in the amendment process, Lincoln wrote the word "Approved" and signed the joint resolution on the 1st of February 1865.

• 5. Ratification's Tangled Path

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  When the proposed amendment was submitted to the states on the 1st of February 1865, there were 36 states in the union; 27 had to ratify for adoption. Illinois moved first, ratifying on that same day. By the end of February, 18 states had ratified, including Virginia and Louisiana. In those cases, it was Union-recognized legislatures operating from Alexandria, Virginia, and New Orleans, respectively, that cast the votes, raising questions about whether legislatures operating inside Confederate territory had legal standing.

  Lincoln was assassinated three days after his the 11th of April 1865 speech addressing those questions about Southern states' legal status. His successor, Andrew Johnson, began what became known as Presidential Reconstruction, personally overseeing the creation of new state governments throughout the South. Johnson pressed for ratification before Congress reconvened in December, believing that full ratification would silence those who wanted to deny Southern states their seats in the union. He communicated directly with the governors of Mississippi and North Carolina, suggesting they could proactively control the allocation of rights to freed people, leaving that power at the state level.

  When South Carolina ratified in November 1865, it issued an interpretive declaration stating that any congressional attempt to legislate on the political status or civil relations of former slaves "would be contrary to the Constitution." Alabama and Louisiana issued similar declarations. Secretary of State Seward accepted these affirmative votes and set aside the declarations without comment, challenge, or acknowledgment. During the first week of December 1865, North Carolina and Georgia provided the final votes. Seward certified the amendment as valid on the 18th of December 1865, including three ex-Confederate states on the enrolled list of ratifying states. Mississippi, notably, did not ratify the amendment until 1995, and certification of that ratification did not occur until 2013.

• 6. Freedom and Its Limits

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  When the amendment went into effect on the 18th of December 1865, approximately 65,000 to 100,000 people in Kentucky remained to be legally freed. In Delaware, where many had escaped during the war, nine hundred people became legally free. The immediate practical impact in the South, however, was constrained from the start. W. E. B. Du Bois wrote in 1935 that slavery was not abolished even after the Thirteenth Amendment. Four million freed people remained on the same plantations doing the same work, receiving roughly the same wages, subject to slave codes modified only in name.

  Mississippi was the first state to pass Black Codes, with an 1865 law titled "An Act to confer Civil Rights on Freedmen," which required black workers to contract with white farmers by January 1 of each year or face punishment for vagrancy. Blacks could be sentenced to forced labor for crimes including petty theft, using obscene language, or selling cotton after sunset. After South Carolina ratified the amendment in November 1865, its legislature immediately began to legislate its own Black Codes, creating a separate legal system for anyone with more than one black great-grandparent, restricting occupations to farming or service, and threatening to make economic subservience permanent through restrictions on black land ownership.

  The amendment's exception for penal labor had been treated as noncontroversial during drafting; almost no discussion of the provision appears in the legislative record. That gap left room for what historian Douglas A. Blackmon called "an array of interlocking laws essentially intended to criminalize black life." Convict labor was sold to farms, factories, lumber camps, quarries, and mines. Leasing of convicts was not forbidden at the federal level until Franklin D. Roosevelt's administration in 1941. J. J. Gries reported to the Joint Committee on Reconstruction that a "lingering hope" persisted in the South that slavery would be "regalvanized in some shape or other."

  Slavery also continued in a different form in New Mexico, where peonage had operated as a Spanish colonial workaround since the New Laws of 1542. Workers were entrapped by loans and compelled to work indefinitely to repay debt. The Peonage Act of 1867 specifically addressed New Mexico and banned nationwide the holding of any person to service or labor "in liquidation of any debt or obligation, or otherwise." Peonage still ensnared a large share of black workers well through Reconstruction. In 1947, the Department of Justice prosecuted Elizabeth Ingalls for keeping domestic servant Dora L. Jones in conditions of slavery; the court found that Jones was "a person wholly subject to the will of defendant." As of 2017, most prison labor programs in the United States did compensate prisoners, though often with very low wages and with as much as 80% of earnings withheld in the harshest cases.

• 7. What the Courts Made of It

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  Supreme Court justices Noah Haynes Swayne and Salmon P. Chase were the first to apply the Thirteenth Amendment while riding circuit. In United States v. Rhodes (1866), Swayne moved a Kentucky robbery case to federal court because a state law prohibited black witnesses from testifying against white defendants. The Supreme Court reached the opposite conclusion in the 7-2 decision of Blyew v. United States (1872). In re Turner (1867), Chase voided a Maryland law allowing courts to apprentice black children with fewer rights than those granted to white children.

  In the Civil Rights Cases (1883), the Court reviewed five consolidated cases under the Civil Rights Act of 1875, which prohibited racial discrimination at inns, theaters, and public conveyances. The majority held that the Thirteenth Amendment did not ban most forms of racial discrimination by private actors. Justice Bradley's majority opinion introduced the phrase "badges and incidents of slavery," distinguishing between fundamental rights protected by the amendment and what he called the "social rights of men and races in the community." In his solitary dissent, John Marshall Harlan, a Kentucky lawyer who had changed his views after witnessing organized racist violence, argued that discrimination by corporations exercising public functions was "a badge of servitude" that Congress had power to prevent.

  In Plessy v. Ferguson (1896), attorneys for Homer Plessy argued that racial segregation involved "observances of a servile character coincident with the incidents of slavery." The Court's 7-1 majority upheld the "separate but equal" doctrine, finding that a statute implying a legal distinction between races had "no tendency to destroy the legal equality of the two races." Harlan dissented again, writing: "The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead anyone."

  The amendment's reach extended beyond race in Jones v. Alfred H. Mayer Co. (1968), which legal historians treat as a turning point. The Joneses were a black couple in St. Louis County, Missouri, who sued a real estate company for refusing to sell them a house. The Court held that Congress has power under the Thirteenth Amendment to determine rationally what constitutes a badge or incident of slavery, and to translate that determination into legislation. The Court wrote that "when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery." That ruling has since been invoked to justify congressional action protecting migrant workers and targeting sex trafficking. In 2020, Senator Jeff Merkley and Representative William Lacy Clay introduced a resolution to create a new amendment closing the penal-labor loophole that Kanye West had called a "trap door" in a 2018 meeting with President Donald Trump.