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David S. Bogen

Excerpted from: David S. Bogen, From Racial Discrimination to Separate but Equal: the Common Law Impact of the Thirteenth Amendment, 38 Ohio Northern University Law Review 117 (2011) (125 Footnotes)


Some constitutional amendments have an impact beyond their terms: they transform the way people look at the world. An amendment evidences a consensus for change, and may be a catalyst for more. For example, by the end of the Civil War the North reached a consensus against slavery that it implemented by the 13th Amendment. The prohibition of slavery profoundly altered society: reflecting a view of African-Americans as members of society entitled to the fundamental rights of citizens. Abolition pushed against the racial discrimination embedded in law, and the Civil Rights Act of 1866 and the 14th Amendment followed. Abolition also altered the common law both directly and indirectly.

The 13th Amendment commands that [n]either slavery nor involuntary servitude ... shall and empowers Congress to enforce that command. The narrow legal application of the amendment does not prohibit all racial discrimination and limits Congressional power under it to issues concerning slavery, involuntary servitude, and their badges and incidents. Nevertheless, abolition led to an acknowledgement of African-American citizenship that transformed the racial aspects of common carrier law. Statutes and judicial decisions ended antebellum racial exclusion and discrimination on common carriers, but the Constitution did not control all aspects of private relationships. The idea of equality met existing racial prejudice. The collision produced the doctrine of separate but equal in public transport. Segregation grew in the shadow of the 13th Amendment until it took over the 14th Amendment in Plessy.


Section 1 of the 13th Amendment abolished slavery and involuntary servitude. Any law triggered by or expressly dependent on slavery no longer had force. Former slaveholders might continue to treat their former slaves as though nothing had happened, but the situation had changed. Abolition removed the powers that slaveholders had over their slaves, such as a right to use physical force--moderate correction. But abolition did not end racial prejudice.

Southern states adopted racially-discriminatory laws--restrictions on contract, property, and procedural rights--to compel the former slaves to remain in virtually the same position. States contended that these Black Codes did not constitute slavery or involuntary servitude because they did not impose all the characteristics of slavery.

Courts took a broader view of the essence of the prohibition, applying it even where the subjects retained some rights. For example, Supreme Court Justice Salmon P. Chase, on circuit in 1867, struck down the discriminatory Maryland apprentice law as an involuntary servitude prohibited by the 13th Amendment. In the Slaughter-House Justice Miller pointed to Chase's decision to illustrate how the amendment reached involuntary servitude.

Nevertheless, the Court rejected arguments that would broaden involuntary servitude to apply to any restrictions on liberty. The plaintiffs in the Slaughter-House Cases argued that the slaughter-house monopoly created an involuntary servitude because it forced them against their will to use the sanctioned company. Justice Miller denied this interpretation of the amendment:

To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government--a declaration designed to establish the freedom of four millions of slaves--and with a microscopic search endeavor to find in it a reference to servitudes, which may have been attached to property in certain localities, requires an effort, to say the least of it.

Scholars debate the breadth of the 13th Amendment's command, ranging from the view that it prohibits only slavery to contentions that a variety of constraints on individual choice constitute involuntary servitude. Thus far the Court has used section 1 of the 13th Amendment only for slavery or for involuntary servitude that was very close to slavery, like the Maryland apprentice laws and peonage in Alabama, and has turned a deaf ear to more extensive claims.


Section 2 of the amendment empowered Congress to enforce the abolition of slavery and involuntary servitude. Thus, Congress may establish a remedial framework for persons held in involuntary servitude or may make criminal the act of holding another in slavery. Section 2 also supports Congressional legislation against the badges and incidents of slavery to assure that slavery and involuntary servitude will not exist. Pursuant to this reasoning, Congress passed the Civil Rights Act of 1866, arguing that the abolition of slavery also authorized them to prohibit racial discrimination in contracts, property, and rights in court.

Courts agreed that Congress could protect against a revival of slavery. Restrictions on commerce, property ownership, and court enforcement could compel the victims to servitude. Blot out this act and deny the constitutional power to pass it, and the worst effects of slavery might speedily follow. It would be a virtual abrogation of the More than a century later, the Supreme Court held that the Civil Rights Act of 1866 forbade racial discrimination in private transactions, and that the 13th Amendment authorized Congress to legislate to eliminate badges or incidents of slavery.

When Congress enacted the Civil Rights Act of 1875 prohibiting racial discrimination in public accommodations, Justice Harlan said that innkeepers, common carriers, and places of public accommodation had a quasi-public character that required them to be open to all, and that discrimination by such a quasi-public entity was a badge or incident of slavery. Nevertheless, Justice Bradley wrote for the majority of the Supreme Court that it would be running the slavery argument into the ground to find the amendment authorized such legislation. Unlike the civil rights protected by the 1866 Act, Justice Bradley considered public accommodations a social right that was not a badge or incident of slavery.

Plaintiffs had argued that exclusion from public accommodations was a badge or incident of slavery because laws in some states during slavery required carriers and places of public accommodations to deny African-Americans access. Bradley responded that the exclusion was a means of preventing slaves from escaping and not an incident of slavery itself. Slaves lack legal rights and therefore could not contract, own property, or sue. But slaves could ride on carriers with their master or with their master's permission. Discrimination on carriers had long been common in the North where slavery did not exist, and Bradley considered it a purely associational matter.

Scholars continue to debate the deference to be paid to Congressional views on the badges and incidents of slavery, and whether the specific legislation is necessary and appropriate to remove them; however, the Court has not yet reversed its Civil Rights Cases decision that racial discrimination in public accommodations is not a badge or incident of slavery and that Congress enjoys only a limited power under the 13th Amendment.


Although the Supreme Court did not consider racial discrimination in public accommodations to violate section 1 of the 13th Amendment and believed it beyond the reach of the section 2 enforcement power of Congress, supporters thought the amendment would have far greater effect than its words alone suggest. They were right.


Many abolitionists contended that slavery corrupted the masters and the society that tolerated or approved it. Some Republican advocates of the amendment emphasized the impact of slavery on free men of both races, arguing that it deprived them of fundamental rights. The debaters were not clear on how the amendment would secure fundamental rights such as free speech. Nevertheless, proponents believed that the abolition of slavery would affect a broad network of ideology and relationships, not just the narrow conception of status.

Abolition's social, economic, and political effects satisfied traditional requirements of changed conditions for overturning old constitutional interpretations and common law decisions. The understanding that abolition should result in the protection of fundamental rights of African-Americans resulted in the extension of citizenship for African-Americans and changes in the law of common carriers. The amendment altered laws that did not expressly turn on slave status because courts took a different view of African-Americans in its wake.


Chief Justice Taney's opinion in Dred Scott v. divided people born in the United States and subject solely to its jurisdiction into three classes: citizens, slaves, and free negroes. Although the 13th Amendment abolished slavery, it did not on its face affect the status of free negroes. Nevertheless, the Civil Rights Act of 1866 stated that all persons born in the United States were citizens. Republicans supporting the statute believed that the amendment had effectively overruled Dred But how did it do so? A close look at the mechanism for this transformation reveals how the amendment could affect change in an area beyond its direct scope--not only black citizenship, but also racial discrimination by common carriers.

The 13th Amendment did not expressly make citizens of all African-Americans born in the United States. An opponent of black citizenship could argue, as Taney did in Dred Scott, that free blacks were not considered citizens under the original Constitution and that Congress could only confer citizenship on persons born abroad. Republicans argued that the 13th Amendment transformed the position of African-Americans and made it appropriate for Congress to state that change, as it did in the first section of the Civil Rights Act of 1865. The amendment destroyed the rationale for denial of citizenship.

Taney's controversial views rested on three premises: First, that negroes could be reduced to slavery. The 13th Amendment rendered the first premise irrelevant--no one could be reduced to slavery any more.

Taney's second premise contended that African-Americans were stigmatized by anti-miscegenation laws, but this was a weak premise from the start. The anti-miscegenation laws may have been stigmatic, but they restricted both races. Finally, Taney's third premise for denying citizenship to African-Americans was that American society viewed discrimination against African-Americans as necessary. He illustrated the third premise by showing that nowhere in the nation except Maine did they have civil and political rights equal to whites. He argued that the consequences of citizenship would endow blacks with privileges and immunities that were unacceptable to whites, such as the right to travel, freedom of speech, and the right to bear arms. Finally he said that this class of persons were governed by special legislation directed expressly to them, and always connected with provisions for the government of slaves, and not with those for the government of free white

Taney's home state of Maryland provided strong evidence for his final premise. Many laws discriminating against free African-Americans arose from concern to maintain the institution of slavery. Fearing slaves might revolt against their masters, legislatures prohibited unlicensed meetings of free blacks, possession of dogs and guns, and immigration into the state. Attempting to prevent slaves from escaping, states imposed licensing requirements for travel out of state and excluded free black testimony that might help free slaves or limit a master's power over them. Concerned that rebellious slaves might steal from their masters, states required licenses for African-Americans who sold farm goods.

In Dred Scott, Taney argued that free African-Americans were not citizens because they could have their rights stripped from them, but most laws stripped them of rights in order to maintain slavery. Because Taney's third premise flowed from slavery, abolition undermined his argument. When there are no slaves, there is no sense in having laws connected with provisions for the government of slaves Thus, the destruction of the institution meant that many racially-discriminatory laws lost their rationale.

The 14th Amendment resolved the question of African-American citizenship without the need for a court decision on the citizenship effect of the 13th Amendment. Nevertheless, the reasoning for the citizenship consequences of the 13th Amendment played a critical role in some judicial decisions in other areas.


The abolition of slavery impacted transportation. Although common carriers had a common law obligation to carry all goods and passengers, antebellum carriers treated race as good cause for an exception because there were so many reasons to refuse passage to African-Americans, whether slave or free. Abolition undercut the reasons for refusal and led courts and legislatures to eliminate the exception.


Prior to the Civil War, African-Americans could be refused passage on common carriers in the South on the grounds that the captain feared that they might be slaves trying to escape; Justice Bradley remarked on this in the Civil Rights In Maryland, railroads and steamboats carefully guarded against transporting slaves because the ship's master could be held liable. In 1834, the Court of Appeals of Maryland upheld liability against a steamboat company for failure to find a runaway slave even though the ship's master permitted a limited search. Based on the law of 1839, the company would be liable for a penalty of five hundred dollars for transporting any slave without the written permission of the slave's owner and--in the event the slave escaped--the transportation company would also be liable to the owner for the value of the slave.

Maryland Federal District Court Judge William Fell Giles explained how these laws supported carrier discrimination:

As long as slavery existed a slave could make no contract, and the laws were very stringent to prevent common carriers from transporting colored persons who were slaves; in fact, some of the common carriers of the State refused to carry colored people as passengers without first obtaining a bond of indemnity signed by white persons to save them harmless in the event that the passengers should turn out to be slaves. This grew out of the fact that the Court of Appeals had decided that color was presumptive evidence of the condition of servitude.

As Judge Giles noted, carriers used fear of slave escapes to justify exclusion of free African-Americans as well. Statutes also imposed travel limits on free blacks. Statutes required free blacks traveling by ship to have a certificate of freedom plus a certificate of identity describing them. Further, any negro or mulatto leaving the state for more than thirty days without leaving a written statement of his plans and intention to return with the clerk of the county court, or without bringing back a certificate showing that he was restrained from returning by illness or coercion, would be treated as a resident of another state. The free negro would thus be subject to all the laws prohibiting immigration from another state. A number of states prevented free negroes from entering. This was constitutional under Dred Scott because if African-Americans were not citizens, the Privileges and Immunities Clause of Article IV did not apply to them. The corollary of exclusion empowered common carriers to refuse to carry African-Americans whose transport they feared might violate the laws of the state.


Slaves might accompany their masters in steamboat facilities in the South, but African-Americans traveling on their own often received shabby treatment. William Chambers wrote of the inferior eating areas for coloreds on a steamer crossing the Susquehanna river. Steamboats often had separate quarters for negroes, sometimes in the hull next to the crew.

Even in northern states like Michigan and Pennsylvania, African-Americans received second class treatment. The courts reasoned that the common law obligation of carriage did not cover the manner and location and allowed companies to exclude African-Americans from the enclosed portion of vehicles. Samuel Ringgold Ward wrote of other discrimination in the North. His ticket for a voyage to Liverpool had a notation that specifically required him to eat in his cabin because of his race, and his wife and children were excluded from a ship's cabin on a trip from New York to Canada. Although a conductor in Ohio who excluded an African-American from a streetcar was convicted of battery, the exclusion was total and the opinion did not require equal facilities. In short, carriers freely discriminated against African-Americans before the war in both the North and the South, contending successfully either that they were justified in excluding them or in treating them as second-class travelers so long as they were carried.


The abolition of slavery transformed antebellum racial practices. As Professor Joseph Singer has written:

The year 1865 marked an enormous turning point in the history of public accommodations law .... The case law that emerged after 1865 is absolutely consistent in affirming a common-law right of access to places of public accommodation without regard to race until the time of the Jim Crow laws of the 1890s. This right of access is premised not only on the traditional duties of public accommodation, but also on newly emerging conceptions of racial equality.

Northern states outlawed discrimination in public accommodations after the war by legislation and by common law decision or both. The change in common carrier law after the Civil War had two aspects. Carriers could no longer exclude African-Americans on the basis of race--the amendment rendered fears of escape or immigration law violation baseless. But carriers were also prohibited from treating negroes worse than they treated whites: courts imposed a common law separate but equal standard that prohibited the previously-existing disparity in facilities.

For example, a Philadelphia lower court in 1865 found ejection from a streetcar was actionable because the war had changed the common law, even before the 13th Amendment was ratified:

The logic of events of the past four years has in many respects cleared our vision and corrected our judgment; and no proposition has been more clearly wrought out by them than that the men who have been deemed worthy, to become the defenders of the country, to wear the uniforms of the soldier of the United States, should not be denied the rights common to humanity ....

A few years later, the Pennsylvania Supreme Court approved segregation on streetcars when the accommodations for African-Americans were not inferior. The decision assumed that common carrier law required carriers to carry African-Americans and that the requirement had an equality component--imposing a separate but equal standard. The court noted that the case arose before the passage of the Act of 22d March 1867, declaring it an offence [sic] for railroad companies to make any distinction between passengers on account of race or color, recognizing the probability that the statute went beyond the new common law to forbid segregation as well.

The changes in the common law were not limited to the North. In Maryland, Judge Giles struck down streetcar discrimination in Baltimore as a violation of the common law. He acknowledged that carriers freely discriminated against colored people before the war, but:

[a]ll that, however, has passed away. Slavery has been abolished, and the reason for such rule and regulation no longer exists. Under the Fourteenth Amendment to the Constitution of the United States the colored man has become a citizen, and can sue in the United States Courts. After citing several authorities, Judge Giles said: It appears to me that no common carrier has a right to refuse to carry any peaceable man who is willing to pay his

Judge Giles' reference to 14th-Amendment citizenship referred to the ability of the plaintiff to get the suit into federal court, but the abolition of slavery provided the fulcrum for his substantive decision that common carriers must carry African-Americans. The application of the common carrier law to African-Americans gave them a common law right of access to passage, and, moreover, that right included equal treatment with other passengers. Judge Giles followed his own decision in several later cases in which plaintiffs won judgments for common carrier mistreatment on the grounds that their accommodations were inferior to those of whites.

In the Civil Rights Cases, Justice Bradley assumed that African-Americans were entitled to equal access to common carriers and public accommodations as part of state law--i.e. the common law. If the state enforced the right of others to public accommodations and common carriers but did not protect African-Americans, it would violate the 14th Amendment because the antebellum exception could no longer be justified. If the carrier's exclusion policy violated anyone's rights:

his redress is to be sought under the laws of the State; or if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws, or State action, prohibited by the Fourteenth Amendment.

States avoided the 14th Amendment's constitutional prohibition in two ways. First, the state could abolish the common law by statute and deny the right of access to carriers and inns to everyone. Although Tennessee did this in 1875, the impact of the denial on white travelers made it politically problematic.

Alternatively, states could enforce a right of access while permitting the carrier to choose the location of the passenger--i.e., equal in access and physical accommodations but separated by race. Both races would have the right to first-class facilities, but the state would not give either race a right to a particular location, leaving the carrier free to segregate the races. This was the path chosen.

African-Americans brought numerous suits in the latter half of the 19th century on the basis of either a common law or a statutory right to carriage arising after the Civil War. Separate but equal became the legal standard behind which they won victory after victory against discriminatory treatment. That same standard became a barrier when subsequently applied by the Court in the very different context of the equal protection clause of the 14th Amendment.

. Professor Emeritus of Law University of Maryland Francis King Carey School of Law.