II. THE EMPOWERMENT OF CONGRESS--CONGRESS SHALL HAVE POWER TO ENFORCE THIS AMENDMENT
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.
