The Potential Implications of the Thirteenth Amendment’s “Badges and Incidents of Slavery” Doctrine
By Scarlet Perez ’27
Introduction
Although the Thirteenth Amendment is widely known as the amendment that abolished chattel slavery in the United States, it has broader implications. Under strict textualism, the Thirteenth Amendment can be read to merely prohibit slavery and involuntary servitude; however, this reading disregards the historical context surrounding the amendment. In his dissenting opinion to the Court’s decision in The Civil Rights Cases (1883), Justice John Marshall Harlan argued that the second section of the Thirteenth Amendment, which grants Congress enforcement power to abolish slavery and involuntary servitude, also allows Congress to ban “badges and incidents of slavery.” (1) These “badges and incidents of slavery” included, but were not limited to, exclusion from private accommodations, such as transportation facilities, hotels, and places of public amusements. (2) Since Harlan’s opinion in 1883, the Court has adopted a strict interpretation of the Thirteenth Amendment for 90 years, until the Court re-examined Harlan’s argument. Other than outlawing chattel slavery in the U.S., in Jones v. Alfred H. Mayer Co. (1968), the Court affirmed Harlan’s interpretation of the Thirteenth Amendment, holding that racial discrimination by private or public housing developers constitutes “badges and incidents of slavery,” thereby granting Congress the power to outlaw it under Section Two of the amendment. (3)
Despite this success, the Thirteenth Amendment remains overlooked by both the Court and Congress today. However, the potential of the “badges and incidents of slavery” doctrine is a topic of extensive discussion in academic law journals. Since the Court has not defined the extent of the Thirteenth Amendment’s potential broad scope, journals have inquired into whether the amendment protects against forms of modern exploitation, racial and ethnic groups that are not African American, and what actions constitute “badges and incidents of slavery.” Moreover, a more expansive interpretation of the Thirteenth Amendment could have been applied in cases such as Heart of Atlanta Motel, Inc. v. United States (1964) and Katzenbach v. McClung (1964), which banned discrimination in private and public accommodations. Instead of establishing a broader scope of the Thirteenth Amendment, the Court failed to create a precedent for the “badges and incidents of slavery” doctrine, instead opting to use the Commerce Clause to uphold Civil Rights legislation in 1964.
By examining how the Thirteenth Amendment could have been applied in Heart of Atlanta and Katzenback to secure civil rights, the amendment's potential to address broader areas of racial justice becomes evident. This article argues that the Thirteenth Amendment’s “badges and incidents of slavery” doctrine can serve as a constitutional basis for challenging laws that perpetuate racial inequality, but only if courts develop a more expansive understanding of the amendment’s scope and Congress’s enforcement power.
Background
In general, the Court has not made specific references to the “badges and incidents of slavery” doctrine, but has defined some parameters of the application of the Thirteenth Amendment. In McDonald v. Santa Fe Trail Transp. Co. (1976), the Court held that, since the Thirteenth Amendment grants Congress the power to prohibit racial discrimination against African Americans, Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, applies to all racial groups, including African Americans and white people. (4) Similarly, others argue that the amendment may extend to prohibiting discrimination on the grounds of disability, religion, and ethnic groups (8). There is also ambiguity as to who can remedy these lingering effects of slavery. In the Circuit Court case, Alma Soc. Inc. v. Mellon (1978), the Court stated that, given Section Two of the amendment, Congress is the only institution empowered to pass legislation that protects against “badges and incidents of slavery,” limiting the Thirteenth Amendment’s applicability to federal legislation. (5)
Interpretations of the “badges and incidents of slavery” doctrine have included other racial groups. In United States v. Kozminski (1988), the Court held that the Thirteenth Amendment applies when involuntary servitude there is a superior who subjects their inferior servant to “(1) threatened or actual physical force, (2) threatened or actual state-imposed legal coercion, or (3) fraud or deceit where the servant is a minor or an immigrant or is mentally incompetent.” (6) Although this case addresses the ban of “involuntary servitude” as stated in the Thirteenth Amendment, the Court’s reasoning implies that the amendment may protect multiple racial groups, rather than solely African Americans. According to the Court, the Thirteenth Amendment’s “involuntary servitude” phrase is “limited to cases involving the compulsion of services by the use or threatened use of physical or legal coercion.” (7) This case suggests that the Thirteenth Amendment is not solely tied to a person’s racial identity but rather to having experiences that perpetuate conditions of antebellum slavery.
Following this logic, in the Second Circuit case United States v. Nelson (2002), the Court held that although Jewish people are not considered a distinct race, ethno-religious groups are also protected under the Thirteenth Amendment. (8) The court reasoned that since Jewish people were considered to be a distinct race at the time of the amendment’s passing and since the amendment protects against racial discrimination, the “badges and incidents of slavery” doctrine protects against any form of discrimination inflicted upon a person due to their race, including Jewish people. (9) As these judicial interpretations broaden the scope of who is protected under the Thirteenth Amendment, many argue that such expansions depart from the original intent of the doctrine.
I propose that when considering whether the Thirteenth Amendment applies in a case, the injury in question should be linked to the institution of slavery in the U.S. to be considered as one of the “badges or incidents of slavery.” In a UC Davis Law Review journal, William M. Carter, Jr. proposed a two-pronged test to interpret whether the amendment applies in a given case: “(1) the connection between the class to which the plaintiff belongs and the institution of chattel slavery, and (2) the connection the complained-of injury has to that institution.” (10)
Possibilities of Invoking the Thirteenth Amendment in place of the Commerce Clause
Article I, Section 8, Clause 3 of the U.S. Constitution gives Congress the power to regulate interstate commerce. (11) Following The Civil Rights Cases (1883), which narrowed the Thirteenth Amendment's reach, attorneys instead argued that the Civil Rights Act of 1964 was constitutional under the Commerce Clause. In Heart of Atlanta Motel, the Court unanimously ruled that the Commerce Clause encompasses the anti-discriminatory provisions of the Civil Rights Act because hotels and motels receive the majority of their business from outside Georgia. (12) The Thirteenth Amendment also applies in this case because Jim Crow was a system derived from white supremacy meant to subjugate black persons to an inferior status, similar to that held by enslaved persons, thereby making these laws “badges and incidents of slavery” and making Section Two of the Thirteenth Amendment applicable. While the same outcome was achieved under the Commerce Clause, by using the Thirteenth Amendment, the Court would have established a precedent that could have been applied in future cases addressing racial discrimination. Instead of framing the Heart of Atlanta as an economic regulation, it could have defended the Civil Rights Act for what it was: a ban on racial segregation throughout the country.
Similarly, in Katzenbach, the Thirteenth Amendment could have been applied to ban discrimination in restaurants. In this case, the Court found, under the Commerce Clause, that the Civil Rights Act of 1964 applies to restaurants that use food delivered in interstate commerce, thereby making discrimination in those restaurants illegal, and thus the plaintiff’s restaurant. (13) The Court’s use of the Commerce Clause to ban segregation in restaurants relies on location and food sources, when a simpler justification could have been derived under the Thirteenth Amendment. Similar to the Heart of Atlanta, the Court could have established a precedent: the Thirteenth Amendment, “badges and incidents of slavery” doctrine can be used to enforce laws outlawing segregation and racial discrimination, since the purposeful discrimination of African Americans linked to chattel slavery and the racist ideology that white people are superior to Black people. Therefore, this discrimination constitutes “badges and incidents of slavery.”
By using the Commerce Clause in these cases, the Court fails to acknowledge Congress’ right to protect people of color from discrimination. Ultimately, using the Thirteenth Amendment in Heart of Atlanta and Katzenbach could have legitimized Civil Rights legislation and removed loopholes present under the Commerce Clause.
Potential Contemporary Applications
Considering the Thirteenth Amendment’s potential role in contemporary Supreme Court cases, if the Court had set precedent in 1964 and 1883, the Thirteenth Amendment could be used to provide constitutional support for policies aimed at rectifying “badges and incidents of slavery” in the modern day. For example, if the Court had established a precedent in Heart of Atlanta and Katzenbach, the Thirteenth Amendment’s “badges and incidents of slavery” doctrine could have been used to uphold affirmative action in the college admissions process in Students for Fair Admissions v. President and Fellows of Harvard College (2023). In Grutter v. Bollinger (2003), the Court upheld affirmative action under the justification that it served a “compelling interest in achieving diversity in the student body” under the Fourteenth Amendment’s Equal Protection Clause. (14) However, in Students for Fair Admissions the Court determined that Harvard’s admissions program is unconstitutional because it did not demonstrate Harvard’s compelling interests in promoting diversity and did not provide an endpoint for when race-based admissions would end. (15) Affirmative action in educational institutions was created in response to the long-lasting effects of slavery: systematic discrimination faced by racial and ethnic minorities in the U.S. (16) Therefore, affirmative action is a remedial measure to an effect of slavery, and, under the Thirteenth Amendment, universities factoring race in admissions have constitutional support for their compelling interest in maintaining diversity within their institutions. Beyond affirmative action, the Thirteenth Amendment’s broad scope regarding race and discrimination suggests it could underpin policies addressing current issues of prejudice and inequality at the constitutional level.
Conclusion
Overlooked by the Court and Congress, a broader scope of the Thirteenth Amendment’s “badges and incidents of slavery” can serve as a constitutional basis for challenging laws that perpetuate racial inequality, as seen with the Civil Rights Act of 1964, and reducing racial inequality, as suggested with cases on affirmative action. By expanding the application of the amendment to examine the repercussions of chattel slavery in the U.S., the “badges and slavery” doctrine can be used to ban discrimination against Black Americans and possibly other racial or ethnic groups who also face discrimination due to systems, practices, and beliefs that stem from this history of American slavery.
Beyond the Civil Rights Act, the Thirteenth Amendment’s “badges and incidents of slavery” doctrine may apply to constitutional protections for other current issues, such as affirmative action and reproductive rights. Many interpret the amendment to include all people who face discrimination due to their race, while others believe that the amendment should only apply to African Americans. Since slavery profoundly impacted American institutions, culture, and public life, new applications of the Thirteenth Amendment could influence many areas of American life. Ultimately, if interpreted more broadly, the language and nature of the Thirteenth Amendment could support legislation that works to solve societal inequalities that plague American society today.
Endnotes
Congress, “U.S. Constitution - Thirteenth Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress,” constitution.congress.gov, December 6, 1865, https://constitution.congress.gov/constitution/amendment-13/.
Oyez, “The Civil Rights Cases,” Oyez, 2019, https://www.oyez.org/cases/1850-1900/109us3.
Justia Law, “Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968),” Justia Law, n.d., https://supreme.justia.com/cases/federal/us/392/409/.
Justia Law, “McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976),” Justia Law, n.d., https://supreme.justia.com/cases/federal/us/427/273/.
Justia Law, “Alma Soc. Inc. V. Mellon, 459 F. Supp. 912 (S.D.N.Y. 1978),” Justia Law, 2025, https://law.justia.com/cases/federal/district-courts/FSupp/459/912/1389292/.
Justia Law, “United States v. Kozminski, 487 U.S. 931 (1988),” Justia Law, n.d., https://supreme.justia.com/cases/federal/us/487/931/.
Justia Law, “United States v. Kozminski, 487 U.S. 931 (1988),” Justia Law, n.d., https://supreme.justia.com/cases/federal/us/487/931/.
Justia Law, “United States v. Nelson, 221 F. Supp. 2d 576 (E.D. Pa. 2002),” Justia Law, 2025, https://law.justia.com/cases/federal/district-courts/FSupp2/221/576/2486253/.
William M. Carter, Jr., “Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery,” (UC Davis Law Review, 2007), 1358-1365.
William M. Carter, Jr., “Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery,” (UC Davis Law Review, 2007), 1366-1371. Constitution Annotated, “Overview of the Commerce Clause | Constitution Annotated | Congress.gov | Library of Congress,” constitution.congress.gov, 1898, https://constitution.congress.gov/browse/essay/artI-S8-C3-1/ALDE_00013403/.
Oyez, “Heart of Atlanta Motel, Inc. V. United States,” Oyez, 2019, https://www.oyez.org/cases/1964/515.
Oyez, “Katzenbach v. McClung,” Oyez, 2019, https://www.oyez.org/cases/1964/543.
Oyez, “Grutter v. Bollinger,” Oyez, 2019, https://www.oyez.org/cases/2002/02-241.
Oyez, “Students for Fair Admissions v. President and Fellows of Harvard College,” Oyez, October 31, 2022, https://www.oyez.org/cases/2022/20-1199.
Jennifer Mason McAward, “Defining the Badges and Incidents of Slavery,” (Notre Dame Law Journal, 2012), 598-601.
