thesis statement about 13th amendment

The Passage of the 13th Amendment

Congressional passage of the Thirteenth Amendment on January 31, 1865 was a long-awaited, monumental reform in American life and politics. Yet it accomplished both more and less than we may have been taught to think. It proclaimed an end to the chattel slavery that had existed in America since earliest colonial times. It also introduced to the Constitution a new potential for federal authority over state actions. Yet it left open a loophole that states would exploit to continue profiting from coerced labor and to perpetuate an unjust social order.

Preparing the Ground for the Amendment

To those who had long advocated for abolition, the outbreak of the Civil War signaled that the time had come. While Lincoln maintained his measured and cautious approach to matters of abolition in his early administration, grassroots activists and influential congressional Republicans began pushing for an amendment to abolish slavery. And they thought the most promising champion of such an amendment would be Senator Charles Sumner. After all, Sumner had been one of the most fierce anti-slavery voices in the federal government in the 1850s — his outspokenness leading to the one incident that American history students likely know about him, his infamous near-death caning on the Senate floor by Congressman Preston Brooks in 1856. 

By the beginning of 1864, the Emancipation Proclamation had established a consistent yearlong military policy to welcome and incorporate enslaved people who fled to Union lines, both validating the efforts of those self-emancipating since the beginning of the war and prompting many more enslaved people near active fighting to flee to Union lines. All this activity heightened the moral imperative to permanently abolish slavery. Sumner had recovered from his injuries and resumed his anti-slavery and equal rights work in the halls of Congress. Seizing the momentum,  two black abolitionists delivered a petition with 100,000 signatures to Sumner advocating a freedom amendment in February 1864. Sumner took this momentum into committee meetings on the proposed amendment. 

 Grounding the Amendment in the American Political Tradition 

While the final language of the Thirteenth Amendment may seem striking for its time — and certainly more forceful than the strategically precise language of the Emancipation Proclamation, carefully framed as an act of “military necessity” — it was neither as sweeping as some supporters desired, nor was it foreign to federal history. Sumner initially found inspiration in the French Declaration of the Rights of Man and the Citizen , and he sought to craft an amendment that proclaimed not only liberty but also equal citizenship. However, the larger Senate Judiciary Committee deemed it more prudent to anchor themselves in the political tradition of the American founders. Accordingly, the committee slightly modified language from Article 6 of the 1787 Northwest Ordinance , which had banned slavery from the Northwest Territory. So , the proclamation of the Northwest Ordinance —

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 … 

— once pasted into the Thirteenth Amendment, became: 

Section 1. 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.

Lincoln had referenced the Northwest Ordinance in his arguments defending congressional oversight and regulation of slavery throughout the 1850s. In resurrecting this anti-slavery clause, the Thirteenth Amendment’s wordsmiths aligned themselves with the thinking of their party leader and grounded the amendment in the established American political tradition.

Introducing a New Conception of Federal Authority

While Sumner may have been disappointed that his equal rights clause didn’t make it into the final amendment, the Committee did adopt his preferred phrasing for Section 2 — language with striking ramifications for American federalism:

Section 2. Congress shall have power to enforce this article by appropriate legislation. 

This statement suggested a new constitutional posture. If the first five words of the First Amendment — “Congress shall make no law” — established the stance of the Bill of Rights toward political threats and federalism, “Congress shall have power” presented a very different attitude. While the Bill of Rights supposed the central government to be a threat to liberty, Section 2 of the Thirteenth Amendment presents the central government as (in Sumner’s later words) the “custodian of liberty” against threats from state governments. So this language (later repeated in the Fourteenth and Fifteenth Amendments) explicitly empowered Congress to enforce , and not merely to declare , freedom — to police the work of Reconstruction. (Alas, we know that after a brief period of enforcement, the Southern backlash against Reconstruction, and a shifting Northern emphasis on reunion over reconstruction, led the federal government to retreat from this work. So the power lay largely dormant for generations until the Second Reconstruction, the Civil Rights Movement of the mid-twentieth century.)

The Senate adopted the eventual Thirteenth Amendment in April 1864 by a 33-6 vote, sending the legislation to the House of Representatives — where it stalled in June. A combination of resistance and reticence (particularly from border-state Unionists and Northern Democrats) denied the amendment the two-thirds majority necessary for adoption. It would take over half a year, and another election season, for that majority finally to cohere.

How the  1864 Election Led to Congressional Passage

As he explained in a letter to Senator J.T. Hale in January 1861, Lincoln believed that “carr[ying] an election on principles fairly stated to the people” constituted a political mandate.  In other words: platforms and campaigns matter. The 1860 Republican Party Platform opposed the expansion of slavery without explicitly threatening the institution in the states where it already existed — points that Lincoln reinforced in his First Inaugural Address . Lincoln’s antislavery actions in his early administration were accordingly cautious, pushing decentralized emancipation efforts through local action in border states and Union-occupied territories. After issuing the Emancipation Proclamation , the Union effort became an increasingly explicit freedom campaign — militarily, but also politically. The Congressional road to the Thirteenth Amendment can be seen in this light. 

In the roughly year and a half between the Emancipation Proclamation and the 1864 campaign season, Congress passed a number of smaller antislavery measures (building up to the repeal of the Fugitive Slave Act in June 1864). Meanwhile, signatures on grassroots abolition petitions delivered to Congress grew to 400,000 throughout early 1864, lending popular support to these political efforts. The 1864 Republican Platform was a culmination of this public and private action, redoubling the party’s antislavery commitments by both underscoring the constitutionality of the Emancipation Proclamation (against its political opponents) and endorsing an abolition amendment to the Constitution — statements that, in tandem, affirmed the war effort to be as much about freedom as union . 

These platform points stood more as policy commitments than active campaign material through the 1864 election season; Republicans remained cautious on the campaign trail, cultivating antislavery sentiment without forcefully stumping for it. Nonetheless, GOP congressmen took the party’s success that fall — in the presidential, congressional, and key state-level elections — as a mandate to push their abolition amendment through to passage and ratification. At the beginning of the lame-duck final session of the 38th Congress, Lincoln signaled his commitment to abolition. He declared in his 1864 Annual Message that the “voice of the people … [had been] heard upon the question” of slavery in the 1864 election. Less than two months later, the House finally acted on that accord. Enough June holdouts changed their votes to surmount the two-thirds majority threshold needed for adoption. On January 31, 1865, the House voted  119-56 in favor of the amendment. President Lincoln signed the bill the following day, sending the amendment on its ratification journey (which would be completed in December). 

The Unfinished Work of Abolition

While the Thirteenth Amendment was hailed as a great step forward in the American experiment, the punishment exemption in Section 1 (“except as punishment for crime”) left a glaring loophole by which states could impose second-class citizenship through racist legal codes. The rise of black codes in the South — which spread as the Thirteenth Amendment was being ratified throughout 1865, and boomed after ratification that December —  sought to reestablish a social order as close to slavery as possible while technically complying with federal law. These abuses of power (among other unfinished Reconstruction matters) provoked Congress to pass the Civil Rights Act of 1866, and ultimately the Fourteenth Amendment, both of which sought to establish clearer terms for citizenship and freedom — and more closely approximated Charles Sumner’s initial hopes for the Thirteenth Amendment.

In recent years, reformers and activists have focused on the punishment exemption to critique exploitative prison work conditions. And in the November 2022 midterm elections, five geographically and politically diverse states voted on initiatives to strike punishment-exemption clauses from their state constitutions: Alabama, Louisiana, Tennessee, Oregon, and Vermont. The initiatives passed in all these states except Louisiana, where legislators abandoned their own measure in fear that its ambiguity might ironically create further loopholes. It remains to be seen what effect this momentum will have on incarceration practices or prison industries — or even on potential revisions of the Thirteenth Amendment itself — but this process echoes the journey of the Thirteenth Amendment even as it critiques  it. Like the Thirteenth Amendment, these modern initiatives have arisen through the collaboration of politicians and citizens, all advocating for structural change. Then as now, the work requires all of us who engage with it — as students of history or citizens in the present — to insist on adherence to the principles of liberty and equality in our governmental institutions.

Additional Sources

Ayers, Edward. The Thin Light of Freedom: The Civil War and Emancipation in the Heart of America . New York: Norton, 2017

Foner, Eric. The Fiery Trial: Abraham Lincoln and American Slavery . New York: Norton, 2010

Foner, Eric. Give Me Liberty: An American History , Brief Sixth Edition. New York: Norton, 2020

“ The Senate Passes the Thirteenth Amendment ” United States Senate. 

Abraham Lincoln and the Struggle over Slavery

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Emancipation Proclamation and 13th Amendment

The emancipation proclamation (1863).

The Emancipation Proclamation was a document of military necessity. President Lincoln issued it as commander in chief and accepted full responsibility for it. He used a Preliminary Emancipation Proclamation on September 22, 1862, to give the Confederate states an ultimatum: end the insurrection or see those they had enslaved permanently freed. The rebelling states were given until January 1, 1863 to decide. The Proclamation did not apply to or address enslavement in the Border States, in the North, or in parts of the Confederacy that had already come under Union control.

Learn more about The Emancipation Proclamation »

The Thirteenth Amendment to the U.S. Constitution (1865)

In 1864, as President Lincoln pushed for the states to enact abolition at the state-level, abolitionists and some Republicans called for a constitutional amendment that would end enslavement throughout the nation. A Thirteenth Amendment to that effect passed the Senate on April 8, 1864. A party-line vote in the House fell short of the required two-thirds majority. Lincoln then intervened more directly in the legislative process than ever before to get the Thirteenth Amendment passed.

Learn more about The Thirteenth Amendment »

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The first amendment, interpretation & debate, the thirteenth amendment, matters of debate, common interpretation, the thirteenth amendment: a constitutional success story, the thirteenth amendment and the constitutional imagination.

by Jamal Greene

Dwight Professor of Law at Columbia Law School

by Jennifer Mason McAward

Associate Professor of Law and Director of Klau Center for Civil and Human Rights at the University of Notre Dame Law School

Slavery is America’s original sin. Despite the bold commitment to equality in the Declaration of Independence, slavery was legal in all of the thirteen colonies in 1776. By the start of the Civil War, four million people, nearly all of African descent, were held as slaves in 15 southern and border states. Slaves represented one-eighth of the U.S. population in 1860.

Many think that slavery ended with the Emancipation Proclamation, issued by President Abraham Lincoln on January 1, 1863. However, the Emancipation Proclamation freed only slaves held in the eleven Confederate states that had seceded, and only in the portion of those states not already under Union control.  

The true abolition of slavery was achieved when the Thirteenth Amendment was ratified on December 6, 1865. The first section of the Amendment declares: “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.” The Amendment is unique in the Constitution because it bars every person from holding slaves or engaging in other forms of involuntary servitude, whereas most constitutional provisions only constrain or regulate the government. It is unique in another way as well: although the Constitution obliquely acknowledged and accommodated slavery in its original text, the Thirteenth Amendment was the first explicit mention of slavery in the Constitution.

The most immediate impact of the Thirteenth Amendment was to end chattel slavery as it was practiced in the southern United States. However, the Amendment also bars “involuntary servitude,” which covers a broader range of labor arrangements where a person is forced to work by the use or threatened use of physical or legal coercion. For example, the Thirteenth Amendment bans peonage, which occurs when a person is compelled to work to pay off a debt. Originally a Spanish practice, peonage was practiced in the New Mexico Territory and spread across the Southern United States after the Civil War. Former slaves and other poor citizens became indebted to merchants and plantation owners for living and working expenses. Unable to repay their debts, they became trapped in a cycle of work-without-pay. The Supreme Court held this practice unconstitutional in 1911. Bailey v. Alabama (1911).

Most scholars also assume it would violate the Thirteenth Amendment to order specific performance of a service contract. An example of this situation would be where an employee has a contract to work for a full year but wants to leave after six months. Forcing the employee to continue to work instead of paying a financial penalty to get out of her contract would almost certainly violate the Thirteenth Amendment.

Notably, the Amendment does allow a person convicted of a crime to be forced to work. Thus, prison labor practices, from chain gangs to prison laundries, do not run afoul of the Thirteenth Amendment. The Thirteenth Amendment has also been interpreted to permit the government to require certain forms of public service, presumably extending to military service and jury duty.

In addition to the first section’s ban on slavery and involuntary servitude, the second section of the Thirteenth Amendment gives Congress the “power to enforce” that ban by passing “appropriate legislation.” This provision allows Congress to pass laws pertaining to practices that violate the Amendment. For example, the Anti-Peonage Act of 1867 prohibits peonage, and another federal law, 18 U.S.C. § 1592, makes it a crime to take somebody’s passport or other official documents for the purpose of holding her as a slave.

Section Two of the Thirteenth Amendment has broader applicability as well. The Supreme Court has long held that this provision also allows Congress to pass laws to eradicate the “badges and incidents of slavery.” The Supreme Court has never defined the full scope of what the badges and incidents of slavery are, and instead has left it to Congress to flesh out a definition. In The Civil Rights Cases (1883), the Court held that racial discrimination in private inns, theaters, and public transportation did not qualify as a badge or incident of slavery. In a series of cases in the 1960s and 1970s, however, the Court held that racial discrimination by private housing developers and private schools is among the badges and incidents of slavery that Congress may outlaw under Section Two of the Thirteenth Amendment. Most recently, Congress has determined that Section Two provides a basis for a portion of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 (which criminalizes race-based hate crimes) and the Trafficking Victims Protection Act (which penalizes human trafficking and protects its survivors). The Supreme Court has yet to evaluate these laws.

Despite its significance in American history, the Thirteenth Amendment is not one of the more frequently invoked parts of our Constitution today. Now that slavery is a part of our past, the Amendment’s current relevance is subject to debate. Does it govern the fairness of modern labor practices?  Does it empower Congress to pass broad-ranging civil rights laws? Whatever the outcome of those debates, though, the Thirteenth Amendment deserves recognition as an historic and solemn promise that slavery will never again exist in the United States.

The 1865 ratification of the Thirteenth Amendment was a transformative moment in American history. The first Section’s declaration that “neither slavery nor involuntary servitude shall exist” had the immediate and powerful effect of abolishing chattel slavery in the southern United States. One year later, Congress used its power to “enforce” the ban on slavery—conveyed by the second Section of the Thirteenth Amendment—to pass the Civil Rights Act of 1866, our nation’s first civil rights law. That law invalidated the Black Codes, laws passed by southern states after the Civil War that sought to keep the former slaves effectively tethered to their former plantation owners. For example, one state law required all African Americans to enter into yearlong employment contracts and to agree that they would forfeit the entire year’s wages if they left before the year’s end. The Civil Rights Act of 1866 ended such laws, conveying (among other things) an equal right to enter into and enforce contracts without respect to race. Although the Civil Rights Act of 1866 was very controversial, Congress concluded that the Black Codes imposed de facto slavery and therefore that Section Two of the Thirteenth Amendment empowered Congress to pass the Act.

Since those early days, however, the Thirteenth Amendment has not been a frequently-invoked part of our constitutional canon. Why is this? Most likely, it is because the purpose of the Amendment has already been fulfilled. Slavery is gone and we have numerous laws in place to prevent and/or punish any form of coerced labor. 

Some argue that Section One of the Thirteenth Amendment not only abolished slavery, but all of the racially discriminatory practices that accompanied the institution of slavery. Thus, the argument goes, the Amendment also bans discrimination and promises a full measure of freedom. The problem with this argument is that it in many ways it renders the Fourteenth and Fifteenth Amendments redundant. The Fourteenth Amendment makes all born within the United States, including former slaves, citizens of the United States and promises them both “the privileges and immunities of citizens” and “equal protection of the laws.” The Fifteenth Amendment prohibits denials of the right to vote based on a citizen’s “race, color, or previous condition of servitude.” If the Thirteenth Amendment itself had banned discrimination and mandated a full range of civil and political rights, there would have been no need for the Fourteenth and Fifteenth Amendments. Thus, it is quite understandable that the Supreme Court has suggested that Section One of the Thirteenth Amendment is best understood solely as a ban on coerced labor. The Thirteenth Amendment paved the way for subsequent constitutional promises of equality, but it did not itself provide for that equality.

Section Two of the Thirteenth Amendment empowers Congress to “enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” According to the Supreme Court, federal laws passed pursuant to this provision can address a broader range of discriminatory conduct than just coerced labor. To enforce the ban on slavery and involuntary servitude, Congress can address not only slavery, but also its “badges and incidents.” Although the Civil Rights Act of 1866 has been upheld as proper Section Two legislation, the Supreme Court struck down an 1875 civil rights law, holding that race discrimination in privately-operated businesses like hotels, theaters, and transportation was not a badge or incident of slavery. Since that time, Congress’s legislative activity pursuant to Section Two has been relatively restrained, particularly with respect to conduct that is not closely connected to coerced labor.

Some scholars have argued that Section Two of the Thirteenth Amendment provides Congress with an untapped power to pass nationwide civil rights legislation. This argument states that Congress can label a broad range of discriminatory practices as “badges and incidents of slavery” and then address them legislatively. However, Congress has not actively adopted this theory, and an increasing number of judges and scholars are skeptical that it is correct. They argue that the concept of the badges and incidents of slavery has a limited range of meaning and thus constrains the topics on which Section Two permits Congress to legislate. Moreover, they argue that Congress should legislate only where it finds that there is a close connection between current discrimination and present or future conditions of slavery or involuntary servitude. It likely would be difficult for Congress to satisfy this inquiry.

This argument about the scope of Congress’s power under Section Two of the Thirteenth Amendment is starting to play out in challenges to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. That Act, among other things, makes race-based hate crimes punishable under federal law. While racially-motivated violence was certainly part and parcel of the American system of chattel slavery in the past, the question is whether that historical connection is sufficient for Section Two purposes, or whether there must also be a link today between racially-motivated violence and present or future conditions of slavery or involuntary servitude. These questions may ultimately lead the Supreme Court to issue another of its rare opinions on the meaning of the Thirteenth Amendment.

The Thirteenth Amendment is easy to overlook. Section One of the Amendment officially prohibited chattel slavery, but by the end of the Civil War its return was already unthinkable. William Lloyd Garrison, the country’s most famous abolitionist, helped ring in the fighting’s end by attending the flag-raising ceremony at Fort Sumter on the invitation of the Secretary of War: Amendment or not, there was no going back. The Thirteenth Amendment prohibits indentured servitude and peonage but does not extend to other forms of involuntary service such as military or jury duty or work by convicted prisoners. To the extent the Amendment reaches official racial discrimination, it is overshadowed by the Fourteenth and Fifteenth Amendments, which seem to go even further.

But the Thirteenth Amendment is distinctive and its constitutional potential remains untapped. Most significantly, Section Two of the Amendment empowers Congress to enforce Section One “by appropriate legislation.” This language had never before appeared in a constitutional amendment, but it echoed the famous words of  McCulloch v. Maryland , an 1819 decision in which the Supreme Court referred to “appropriate” federal laws in order to signal a broad scope for congressional power. In an unbroken series of cases beginning in 1883, the Supreme Court has understood Section Two to permit Congress “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”

It is beyond question that this language permits Congress to forbid certain private acts and not just the acts of states. Thus, in an early exercise of Section Two power, Congress passed the Civil Rights Act of 1866, which the Supreme Court has construed as prohibiting racial discrimination in the making and enforcing of contracts and in property transactions, even by private parties. More recently, Congress has used this authority to prohibit racially-motivated violence.

These laws are grounded in the view that slavery was not just the holding of black Americans to unpaid service, but an entire system of social relations designed to enforce a racial hierarchy. Refusing to enforce contracts of blacks, barring them from leasing or owning property, and assaulting them with impunity were—among other abuses—widespread in the states of the Confederacy before, during, and immediately after the Civil War. These practices denied the equal citizenship status, and implicitly the humanity, of African Americans.

The badges and incidents of racial hierarchy persist in the United States, and the Thirteenth Amendment authorizes Congress to address them. The Thirteenth Amendment should permit Congress to redress further issues, including: bidding practices that effectively exclude minority contractors from economic life; admissions policies that exclude minorities from selective colleges and universities; and electoral practices such as voter ID laws and abbreviated voting windows that have the effect of limiting minority political participation.

Significantly, though the Thirteenth Amendment singles out slavery and involuntary servitude, it does not single out race. Accordingly, Section Two also empowers Congress to reach social and economic relationships that are akin to slavery and peonage. Marriage laws once abided and facilitated the economic and physical subordination of women and the denial of women’s individual personhood. The Supreme Court should not, therefore, have invalidated Congress’s attempt in the 1994 Violence Against Women Act to provide a federal remedy for women who are the victims of sexual and other forms of gender-based violence. The Thirteenth Amendment provided ample authority to pass that law.

American workers are also protected by the Thirteenth Amendment. Employers who coerce undocumented workers into accepting subsistence wages, who pressure employees not to file worker’s compensation claims, and who rob them of tips and overtime pay, are in direct violation of the Constitution. Congress’s power under the Thirteenth Amendment also should be broadly construed to permit it to require good-faith collective bargaining (which federal labor laws already require) and to mandate that both public and private employees pay union dues (which federal labor laws do not require), thereby permitting such bargaining to survive.

The Thirteenth Amendment has awoken before, inspiring the National Labor Relations Act, anti-peonage laws, fair housing laws, sex trafficking laws, and hate crimes legislation. The Amendment’s true potential is not so much to require judges to invalidate particular practices or even to empower Congress to legislate to protect civil rights. Rather, it is to motivate ordinary Americans to understand the persistence of social caste—whether because of race, gender, or economic situation—as a constitutional injury that should not exist in the United States.

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Thirteenth Amendment :

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. Congress shall have power to enforce this article by appropriate legislation.

Congress shall have power to enforce this article by appropriate legislation.

The Thirteenth Amendment prohibits slavery and involuntary servitude in all places subject to U.S. jurisdiction, except when imposed as punishment for a crime for which a person has been duly convicted. 1 Footnote U.S. Const. amend. XIII, § 1 . Proposed by Congress and ratified by the states in the wake of the Civil War, the Thirteenth Amendment was the first of the three Reconstruction Amendments. 2 Footnote The other two Reconstruction Amendments were the Fourteenth Amendment , which, among other things, requires states to accord due process and equal protection of the laws to all persons, and the Fifteenth Amendment , which prohibits the federal and state governments from denying or abridging the right to vote based on “race, color, or previous condition of servitude.” For more on the Fourteenth Amendment , see infra Amdt14.1 Overview through Amdt14.S5.4 Modern Doctrine. For more on the Fifteenth Amendment , see infra Amdt15.1 Historical Background on the Fifteenth Amendment through . Together, these amendments aimed to safeguard the rights of newly emancipated slaves and ensure that states accorded due process and equal protection of the laws to all persons. 3 Footnote Supra note 2. Congress proposed the Thirteenth Amendment in January 1865, shortly before the end of the Civil War. The states ratified the Amendment in December 1865, seven months after the war ended. See supra Ratification of Amendments to the Constitution , Intro.3.1.1 Overview of Ratification. Unlike the other Reconstruction Amendments—the Fourteenth and Fifteenth Amendment s and, indeed, the rest of the Constitution—the Thirteenth Amendment ’s prohibitions apply directly to private individuals in addition to government actors. 4 Footnote George Rutherglen , State Action, Private Action, and the Thirteenth Amendment , 94 Va. L. Rev. 1367 , 1370 (2008) ( “The Thirteenth Amendment stands out in the Constitution as the only provision currently in effect that directly regulates private action. The Eighteenth Amendment, imposing Prohibition, applied directly to private individuals, but its repeal by the Twenty-First Amendment eliminated that instance of direct constitutional regulation of private conduct.” ).

The states’ ratification of the Thirteenth Amendment abolishing slavery effectively negated two of the Constitution’s original provisions: (1) the so-called “Fugitive Slave Clause,” which granted a slave owner the right to seize and repossess the slave in another state, regardless of that state’s laws; 5 Footnote U.S. Const. art. IV, § 2, cl. 3 . See also supra Fugitive Slave Clause: Doctrine and Practice , . and (2) the Three-Fifths Clause, a compromise among the Founders that counted three-fifths of a state’s slave population for the purposes of apportioning seats in the House of Representatives and levying certain types of taxes. 6 Footnote U.S. Const. art. I, § 2, cl. 3 . See also supra Enumeration Clause , ArtI.S2.C3.1 Enumeration Clause and Apportioning Seats in the House of Representatives. Subsequently, the Fourteenth Amendment explicitly repealed the Three-Fifths Clause. U.S. Const. amend. XIV, § 2 ( “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” ).

Because the Thirteenth Amendment was self-executing, its prohibitions on slavery and involuntary servitude became effective upon ratification without the need for further government action. 7 Footnote The Civil Rights Cases, 109 U.S. 3, 20 (1883) ( “This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” ). Nonetheless, Section 2 of the Thirteenth Amendment grants Congress the power to enforce the prohibitions in Section 1 by enacting “appropriate legislation.” 8 Footnote U.S. Const. amend. XIII, § 2 . The Supreme Court has long held that Congress may use its enforcement power to remove or remedy burdens on individuals that constitute the “badges” or “incidents” of slavery. 9 Footnote The Civil Rights Cases , 109 U.S. at 20.

Questions about the scope of Congress’s Section 2 enforcement power have played a central role in the Supreme Court’s Thirteenth Amendment jurisprudence. After the Civil War, newly freed slaves faced various forms of state-sanctioned and private discrimination. For example, some states enforced Black Codes that denied African-Americans equal rights under the law, including the rights to vote, hold property, and use public facilities. 10 Footnote See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426 – 37 (1968) ; Bell v. Maryland, 378 U.S. 226, 288, 303 (1964) (Goldberg, J., concurring). Some states codified the practice of peonage, enabling individuals to use the threat of force or legal action to compel African-Americans to perform services to satisfy a financial obligation. 11 Footnote See Peonage Cases , 123 F. 671, 673 – 74 (M.D. Ala. 1903) . In addition, some operators of public accommodations, such as hotels and restaurants, sought to prevent African-Americans from patronizing their businesses. 12 Footnote See, e.g. , The Civil Rights Cases , 109 U.S. at 8 – 10, 23 . In response, beginning in 1866, Congress enacted civil rights legislation that sought to ensure that people of all races would have equal rights to make and enforce contracts and hold property, among other fundamental rights. 13 Footnote See, e.g. , Act of April 9, 1866, ch. 31, 14 Stat. 27 . See also 42 U.S.C. §§ 1981 – 1982 .

Despite these legislative efforts, for more than a century after the states ratified the Thirteenth Amendment , the Supreme Court determined that Congress could not use its power to legislate against the “badges” and “incidents” of slavery to protect African-Americans from many forms of private racial discrimination or state-sanctioned segregation. 14 Footnote See infra “Enforcement Clause: Early Doctrine” Amdt13.S2.1.1.2 Enforcement Clause: Early Doctrine. See also Plessy v. Ferguson, 163 U.S. 537, 542 – 43 (1896) (upholding the constitutionality of a Louisiana law mandating racial segregation in railway cars). However, the Court’s view of the scope of Congress’s enforcement power changed significantly with its 1968 decision in Jones v. Alfred H. Mayer Co . 15 Footnote 392 U.S. 409 (1968) . In that case, the Court adopted a more deferential approach toward Congress’s enforcement power, determining that Congress may play a significant role in determining the scope of that power through the enactment of legislation. 16 Footnote Id. at 440 . Although the Court has since upheld Congress’s power to enforce the Thirteenth Amendment by enacting laws to combat some of the harms of private racial discrimination, the precise scope of Congress’s Thirteenth Amendment power remains unclear. 17 Footnote See infra “Enforcement Clause: Current Doctrine.” Amdt13.S2.1.1.2 Enforcement Clause: Early Doctrine.

The following essays examine the Thirteenth Amendment ’s prohibitions on slavery and involuntary servitude beginning with an overview of the Amendment’s historical background. The essays then examine relevant Supreme Court decisions and historical practices related to the scope of the Amendment’s prohibitions and its exception for criminal punishment. The essays conclude by discussing the extent of Congress’s power to enforce the Thirteenth Amendment through the enactment of legislation.

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Primary Sources on Slavery Winter 2004

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The Reconstruction Amendments: Official Documents as Social History

By eric foner.

Like other Radical Republicans, Stevens believed that Reconstruction was a golden opportunity to purge the nation of the legacy of slavery and create a "perfect republic," whose citizens enjoyed equal civil and political rights, secured by a powerful and beneficent national government. In his speech on June 13 he offered an eloquent statement of his political dream—"that the intelligent, pure and just men of this Republic . . . would have so remodeled all our institutions as to have freed them from every vestige of human oppression, of inequality of rights, of the recognized degradation of the poor, and the superior caste of the rich." Stevens went on to say that the proposed amendment did not fully live up to this vision. But he offered his support. Why? "I answer, because I live among men and not among angels." A few moments later, the Fourteenth Amendment was approved by the House. It became part of the Constitution in 1868. The Fourteenth Amendment did not fully satisfy the Radical Republicans. It did not abolish existing state governments in the South and made no mention of the right to vote for blacks. Indeed it allowed a state to deprive black men of the suffrage, so long as it suffered the penalty of a loss of representation in Congress proportionate to the black percentage of its population. (No similar penalty applied, however, when women were denied the right to vote, a provision that led many advocates of women’s rights to oppose ratification of this amendment.) Nonetheless, the Fourteenth Amendment was the most important constitutional change in the nation’s history since the Bill of Rights. Its heart was the first section, which declared all persons born or naturalized in the United States (except Indians) to be both national and state citizens, and which prohibited the states from abridging their "privileges and immunities," depriving any person of life, liberty, or property without due process of law, or denying them "equal protection of the laws." In clothing with constitutional authority the principle of equality before the law regardless of race, enforced by the national government, this amendment permanently transformed the definition of American citizenship as well as relations between the federal government and the states, and between individual Americans and the nation. We live today in a legal and constitutional system shaped by the Fourteenth Amendment. The Fourteenth Amendment was one of three changes that altered the Constitution during the Civil War and Reconstruction. The Thirteenth Amendment, ratified in 1865, irrevocably abolished slavery throughout the United States. The Fifteenth, which became part of the Constitution in 1870, prohibited the states from depriving any person of the right to vote because of race (although leaving open other forms of disenfranchisement, including sex, property ownership, literacy, and payment of a poll tax). In between came the Reconstruction Act of 1867, which gave the vote to black men in the South and launched the short-lived period of Radical Reconstruction, during which, for the first time in American history, a genuine interracial democracy flourished. "Nothing in all history," wrote the abolitionist William Lloyd Garrison, equaled "this . . . transformation of four million human beings from . . . the auction-block to the ballot-box." These laws and amendments reflected the intersection of two products of the Civil War era—a newly empowered national state and the idea of a national citizenry enjoying equality before the law. These legal changes also arose from the militant demands for equal rights from the former slaves themselves. As soon as the Civil War ended, and in some places even before, blacks gathered in mass meetings, held conventions, and drafted petitions to the federal government, demanding the same civil and political rights as white Americans. Their mobilization (given moral authority by the service of 200,000 black men in the Union Army and Navy in the last two years of the war) helped to place the question of black citizenship on the national agenda. The Reconstruction Amendments, and especially the Fourteenth, transformed the Constitution from a document primarily concerned with federal-state relations and the rights of property into a vehicle through which members of vulnerable minorities could stake a claim to substantive freedom and seek protection against misconduct by all levels of government. The rewriting of the Constitution promoted a sense of the document’s malleability, and suggested that the rights of individual citizens were intimately connected to federal power. The Bill of Rights had linked civil liberties and the autonomy of the states. Its language—"Congress shall make no law"—reflected the belief that concentrated power was a threat to freedom. Now, rather than a threat to liberty, the federal government, declared Charles Sumner, the abolitionist US senator from Massachusetts, had become "the custodian of freedom." The Reconstruction Amendments assumed that rights required political power to enforce them. They not only authorized the federal government to override state actions that deprived citizens of equality, but each ended with a clause empowering Congress to "enforce" them with "appropriate legislation." Limiting the privileges of citizenship to white men had long been intrinsic to the practice of American democracy. Only in an unparalleled crisis could these limits have been superseded, even temporarily, by the vision of an egalitarian republic embracing black Americans as well as white and presided over by the federal government. Constitutional amendments are often seen as dry documents, of interest only to specialists in legal history. In fact, as the amendments of the Civil War era reveal, they can open a window onto broad issues of political and social history. The passage of these amendments reflected the immense changes American society experienced during its greatest crisis. The amendments reveal the intersection of political debates at the top of society and the struggles of African Americans to breathe substantive life into the freedom they acquired as a result of the Civil War. Their failings—especially the fact that they failed to extend to women the same rights of citizenship afforded black men—suggest the limits of change even at a time of revolutionary transformation. Moreover, the history of these amendments underscores that rights, even when embedded in the Constitution, are not self-enforcing and cannot be taken for granted. Reconstruction proved fragile and short-lived. Traditional ideas of racism and localism reasserted themselves, Ku Klux Klan violence disrupted the Southern Republican party, and the North retreated from the ideal of equality. Increasingly, the Supreme Court reinterpreted the Fourteenth Amendment to eviscerate its promise of equal citizenship. By the turn of the century, the Fourteenth and Fifteenth Amendments had become dead letters throughout the South. A new racial system had been put in place, resting on the disenfranchisement of black voters, segregation in every area of life, unequal education and job opportunities, and the threat of violent retribution against those who challenged the new order. The blatant violation of the Fourteenth and Fifteenth Amendments occurred with the acquiescence of the entire nation. Not until the 1950s and 1960s did a mass movement of black southerners and white supporters, coupled with a newly activist Supreme Court, reinvigorate the Reconstruction Amendments as pillars of racial justice. Today, in continuing controversies over abortion rights, affirmative action, the rights of homosexuals, and many other issues, the interpretation of these amendments, especially the Fourteenth, remains a focus of judicial decision-making and political debate. We have not yet created the "perfect republic" of which Stevens dreamed. But more Americans enjoy more rights and freedoms than ever before in our history.

Eric Foner , the DeWitt Clinton Professor of History at Columbia University, is the author of numerous books on the Civil War and Reconstruction. His most recent book, The Fiery Trial: Abraham Lincoln and American Slavery (2010), has received the Pulitzer, Bancroft, and Lincoln Prizes.

Suggested Sources

Books and printed materials.

A selection of relevant books by the author of this essay: Foner, Eric. Forever Free: The Story of Emancipation and Reconstruction. New York: Knopf, 2005.

Foner, Eric. Nothing But Freedom: Emancipation and Its Legacy. Baton Rouge: Louisiana State University Press, 2007.

Foner, Eric. Reconstruction: America’s Unfinished Revolution, 1863–1807. New York: Perennial Classics, 2002.

On the adoption of the Reconstruction Amendments: Maltz, Earl M. Civil Rights, the Constitution, and Congress, 1863–1869 . Lawrence: University Press of Kansas, 1990.

The Reconstruction Amendments’ Debates: The Legislative History and Contemporary Debates in Congress on the 13th, 14th, and 15th Amendments . Richmond: Commission on Constitutional Government, 1963.

Richards, David A. Conscience and the Constitution: History, Theory, and Law of the Reconstruction Amendments. Princeton: Princeton University Press, 1993.

On Thaddeus Stevens: Stevens, Thaddeus. The Selected Papers of Thaddeus Stevens. Beverly Wilson Palmer and Holly Byers Ochoa, eds. 2 vols. Pittsburgh: University of Pittsburgh Press, 1997.

Internet Resources

Yale University’s "Avalon Project" for a multitude of documents related to American legal and constitutional history:  http://avalon.law.yale.edu/default.asp

For images of manuscript copies of the amendments, transcripts of their texts, and brief background information, see the National Archives’ "Our Documents" site: http://www.ourdocuments.gov/doc.php?doc=40 [Thirteenth Amendment] http://www.ourdocuments.gov/doc.php?doc=43 [Fourteenth Amendment] http://www.ourdocuments.gov/doc.php?doc=44 [Fifteenth Amendment]

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Documentary '13TH' Argues Mass Incarceration Is An Extension Of Slavery

Filmmaker Ava DuVernay talks about her new documentary, 13TH , which explores the history of race and the criminal justice system in the United States. The film's title refers to the 13th Amendment.

MICHEL MARTIN, HOST:

The awards season is upon us and soon you'll hear all kinds of interviews and talk about films all in search of that elusive Oscar buzz. Well, one film is already generating that buzz and the topic might surprise you. It's called "13TH." It's the latest offering from director Ava DuVernay. You might remember that last year her film "Selma" was nominated for two Academy Awards. Well, "13TH" is different. It is a documentary about the weighty topic of mass incarceration. It was just named to the shortlist for an Oscar in the documentary category. You can see it on Netflix now. And the film makes the case that the American criminal justice system really serves as a strategy to control black and brown people - in essence, slavery by another name.

(SOUNDBITE OF FILM, "13TH")

KEVIN GANNON: The 13th Amendment to the Constitution makes it unconstitutional for someone to be held as a slave. In other words, it grants freedom to all Americans. There are exceptions, including criminals.

UNIDENTIFIED MAN: There's a clause, a loophole.

GANNON: If you have that embedded in the structure in this Constitutional language, then it's there to be used as a tool for whichever purposes one wants to use it.

MARTIN: And Ava DuVernay is with us now from member station KQED in San Francisco. Ava DuVernay, thank you so much for speaking with us.

AVA DUVERNAY: Thank you for speaking with me.

MARTIN: You know, your film makes an argument, which will be familiar to some people, but which will be quite provocative to others, that actually the way we use the criminal justice system in this country, particularly the way we use incarceration, is really an extension of slavery, that it's a form of racialized control. And you can see where a lot of people might think, you know, wait a minute, you know, what do you mean? You commit a crime, you go to prison, it doesn't matter what color you are.

DUVERNAY: Yeah, that's why I made this film to answer people who think that. I mean, it's such a complicated answer. The film really unravels the fact that that kind of thinking is too small. That kind of statement really means that you have no context for what you're thinking. And that's not to make anyone feel bad. It's to say we can do better. You can have a more deeply rooted and nuanced knowledge of the fact that, you know, every person who is in prison is not a criminal, that all crimes are not created equal, that all sentences are not equal. And the idea behind "13TH" is to give people that context so that we don't make uninformed statements, that we can all work from a place of knowledge to try to get to a place where we just do better as Americans.

MARTIN: You know, the film really opens with one big idea, which is that 25 percent of the people in the world who are incarcerated are incarcerated in the United States. Was your basic idea here to make people think about this in a new way, or was it that people really don't know the facts and that you're trying to present the facts in a way that would - they would be able to kind of receive it if the way - in the way that perhaps they don't through just reading the paper every day or watching the evening news?

DUVERNAY: Yeah, the documentary was built for two different kinds of audiences - folks out there that know about this and folks out there that have never heard of it. For folks out there that know about it, the feedback that I've got and what my intention was was to put it all in one place because when you see everything lined up, some of the things that we know from various books and documentaries of great thinkers out there, when everything is lined up back to back, it paints a different picture. There's something that's illuminated when you put it all together as a whole. So that was one way that I constructed the documentary. The other way that my editors Spencer Averick and I went about it was to the person that has not heard nothing about this, that thinks that prison is a place where bad people go and that's that, to give them a just a primer to think more deeply about, become more educated about, just have a broader base of knowledge about the criminal justice system as it stands right now and as it has stood for many decades.

MARTIN: I just wondered if you ever felt intimidated, you know, by the subject.

DUVERNAY: Oh, yeah.

MARTIN: It's such a big subject and so many people have written about it, really, through the centuries from all perspectives. And so I just wondered if you ever felt intimidated.

DUVERNAY: I always felt intimidated - intimidated every single day, you know, up until the moment that we first showed it to anyone and still now, you know. I don't feel like it's an end-all-be-all for this topic at all. It's an entry point for a lot of people who just never have been invited to think more deeply about it. Very intimidating, but sometimes you've got to step into the gap and do it anyway.

MARTIN: But it is interesting that Te-Nehisi Coates, for example, the writer whose book "Between The World And Me" made such a splash last year with, you know, National Book Award winner, and now your film taking on issues that, really, frankly, politicians, activists have been talking about for years. But there just seems to be something about the way you've approached it that has allowed people to say, wait a minute, you know, to take a fresh look. I wonder why do you think that is?

DUVERNAY: I don't know, but I'm excited to be a part of this time with Coates, with, you know, Lin-Manuel Miranda, with just artists from all walks of life all different formats and mediums trying to say something about this current moment. And folks are leaning in and listening and maybe consuming it in a way that feels emotional to them. I think a lot of the time we talk about these things in a very unemotional, clinical way, you know, where it feels like study. And I think what some of this new work is done has kind of peeled back that layer of kind of this is mandatory and this might feel like medicine and made it kind of go down a little more comfortably for some people. The good thing is that I think they're all still saying something. And the great thing is, I think, that this artwork allows people to investigate the academic renderings of these ideas more fully with a good base of knowledge, if that makes any sense.

MARTIN: Sure.

DUVERNAY: They're all just entryways to get people more interested about these things and more passionate about them in their own heart. And that was my goal and, you know, hopefully "13TH" gets people thinking about these issues.

MARTIN: Ava DuVernay is an Oscar-nominated director and screenwriter. Her documentary "13TH," which she also co-wrote is streaming on Netflix now. Ava DuVernay, thank you so much for speaking with us.

DUVERNAY: Thank you for having me, Michel.

Copyright © 2016 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Studies of Black History at the University of San Diego

Remembrances, discussion, and analysis, 13th, a documentary in discussion.

Ava Duvernay’s 13th documentary explores mass incarceration and the presence of racial criminalization from the end of slavery to the present. The documentary features interviews with several leading scholars, pundits, and activists working on the issue, as well as a host of other commentators, including journalists and politicians. The main argument at hand is that mass incarceration is an extension of slavery. 13th demonstrates that criminalization has been a persistent feature of anti-black racism. Much of the story speaks to the attribution of the term “crime” to the black identity that is reinforced during the Nixon and Reagan eras of the New Right. Crime and black communities became intertwined in a national narrative of fear mongering that enabled Congress to expand the criminal code. As a result, the prison systems saw a greater and greater influx of primarily African Americnas over time — eventually generating an industry of private prisons as a byproduct of racial state violence in a capitalist society. 

13th begins with the conclusion of slavery. Slavery was eradicated, yet an entire region’s economy was left in shambles — something had to be done. The prison system was the solution. While the 13th Amendment asserted the illegalization of slavery, one clause left a loophole: “except as a punishment for crime.” This was part of constitutional language, an available tool to be used in whichever way the South wanted. Prison was the answer. And therefore, the black identity became criminal — an animalistic threat to white society. This branding became a staple in racial attitude, conditioned within the nation. Jim Crow was the social norm. It was a part of the fabric that was American culture as it revolved around day to day performances. While institutions were the vehicles, racial ideologies were the pulse. 

Richard M. Nixon’s 1968 campaign “ran on a platform of ‘law an order’” would be the introduction of the New Right. This mantra is what may be called “dog-whistle politics” ( 13th ) which really referred to the movements of  black liberation, antiwar, and gay rights. The wave of protests and sensational trials during the period rendered persuasion of whites easy to think they needed this “war on drugs.” The carceral state established itself as it hid behind the words of “law and order”  and was in direct response to the rebellious social movements. One quote from the movie reveals a shocking admission from a Nixon official:

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did. ( 13th )

This was a quote from John Ehrlichman who was a Nixon advisor. He admits the Nixon administration’s “war on drugs” and it’s true implications. The southern strategy entailed a less overt focus on race while grounded itself in an ethos of “color-blindness.” Incarceration is not merely the prison walls that have been built around these Black Americans. Incarceration has become an “integral [part] to U.S. state process that has rendered Black people … unfree ” ( Sojoyner 98). 

Focus then shifts on the Reagan era that immediately followed. Reagan was the man who really enforced his declaration of a “war on drugs” — centralizing the drug policy in the executive branch, cutting addiction programs, and enforcing unfair minimums for drug-related penalties. Meanwhile, crack cocaine had come to the forefront — a new cocaine of the 1980s. It’s unfamiliarity immediately induced a fear. Congress established mandatory sentencing penalties that were far harsher on crack than for cocaine powder. It is mentioned that the latter is a more suburban issue while crack is more of an urban issue. The national media had shifted its attention on black communities where “joblessness, low-performing schools, deficient health care facilities, and decrepit housing” existed before drug use became a public issue (White et al. 578). Despite this, crack cocaine was a new topic; not many knew that it did not appear in inner-city neighborhoods until 1985. The confusion and unfair concentration on crack only enabled the explosion of mass incarceration. This pattern would not cease: “tough on crime” attitude was necessary to win the presidential election. Democrat Bill Clinton adopted this identity and put severe punishments on violent criminals along with mandatory minimum sentences. Prison life became harder to escape. 

What came to my surprise was the incentive that came with imprisonment. The fact that “punishment is profit” completely subverts my idea of the prison system. Although the private prison system is not the all-encompassing impetus in the criminal system, it does change the concept of prison as a whole — that it is not just for the purpose of reform. These private institutions have contracts with states, shareholders who require bodies behind bars to maintain their assets. And when minimum sentencing is set in stone with these high bails, people like Khalief Browder — poor individuals subject to racial profiling — are fixed two tough choices of plea bargains with longer sentences or jail time awaiting proof of innocence. 

Mass incarceration has been the product of institutionalized racism. Much of the criminalization is based in identification and labels with “crime” and “criminal.” The idea was not personal construction but rather preconceived notions passed down generation after generation. 13th has made me — and maybe you as well — realize how incarceration has introduced a carceral state that has spread beyond the cage. 

Works Cited

Sojoyner, Damien M. “Incarceration.” Keywords for African American Studies , edited by Erica R. Edwards et al., vol. 8, NYU Press, New York, 2018, pp. 97–102. JSTOR , www.jstor.org/stable/j.ctvwrm5v9.24. Accessed 29 May 2020.

White, Deborah Gray, et al. Freedom on My Mind : A History of African Americans with Documents , 2nd ed., Bedford/St. Martin’s, 2017.

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Themes in Ava DuVernay’s “13th” Essay (Movie Review)

Although slavery was abolished in the United States many years ago, the American society has indicators of a modern form of hidden slavery that was legalized according to the Thirteenth Amendment. This controversial topic is discussed in 13th , a documentary that was directed by Ava DuVernay and released by Netflix in 2016 (Netflix, 2016). The other important themes accentuated in the film include mass incarceration, racism, social bias, the gender issue, the impact on the environment, the social impact, the ineffectiveness of a prison system, and education. The purpose of this paper is to analyze 13th in the context of addressing the listed themes and discuss its relevance for being used in educational settings.

In her documentary, DuVernay presents the issue of mass incarceration of black male persons as an American variant of modern slavery. In this context, the following topics should be discussed in their connection to each other: mass imprisoning, racism, the gender issue, and social bias. According to DuVernay’s message, American society is inclined to refer to slavery for profit, and mass incarceration of African American males contributes to this economic goal (Netflix, 2016).

Furthermore, this tradition has its origins in Jim Crow laws and provocative positions of Richard Nixon, Bill Clinton, Hillary Clinton, and Donald Trump discussed in the film. The problem is that racial and social prejudice is reflected in the U.S. Constitution in the form of the Thirteenth Amendment that allows choosing some kind of slavery for punishment.

It seems to be typical of American society to shift the visions used in the 18th-19th centuries regarding African American people that are closely based on racism and social bias to the 20th-21st centuries. In addition, there is also a gender issue as African American males represent a significant portion of the imprisoned population in the United States. Thus, more than 35 percents of the imprisoned population are made up by African Americans (Netflix, 2016).

According to the behaviorism-related theory by John B. Watson, children’s views, reactions, and actions are formed by their environments and parents’ ideas. The similar idea is proposed by Albert Bandura and his concept of social learning (Shaffer & Kipp, 2014). From this perspective, DuVernay’s documentary represents how the ideas about the possibility of slavery and racism are shared between Americans from one generation to another. As a result, there is a question about what can be changed in society and education, as well as public’s perceptions of people of color, in order to alter this tendency.

Other issues that need to be discussed with reference to the film include the impact of mass incarceration on the environment and adverse effects of the environment on this phenomenon, as well as social impacts. The problem is that the number of prisoners tends to increase each year, as it is stated in the documentary. Thus, in the 1970s, almost 200,000 people were in US prisons, and today this number is more than 2 million people (Netflix, 2016).

There can be several causes of this situation, including the environmental factor. According to Urie Bronfenbrenner’s ecological systems theory, an individual develops under the impact of different environmental impacts, including the family, school, friends, neighbors, mass media, and community (Shaffer & Kipp, 2014). As a result, these subjects influence what choices will be made by persons when they are adults. Under the community’s impact, African American males can choose a criminal path, and under the media’s impact, white people can regard black males as potential criminals.

One more important issue to discuss in the context of 13th is the ineffectiveness of a prison system in the United States. Thus, prisons in the country are overcrowded, minorities who represent more than 60% of the overall imprisoned population are discriminated and usually abused, and black males are used as the extremely cheap labor force (Netflix, 2016). As a result, prisoners just work to address the needs of corporations to generate more profits without opportunities to develop their potential and transform to become the part of American society in the future.

From this perspective, prison does not work as a correctional facility, and the problem is that these people used as slaves can become even more traumatized because of their experience in prison. Referring to DuVernay’s message in the documentary, it is possible to state that the overall prison system in the United States is developed to address economic and political needs and interests. Thus, its social correctional effect seems to be limited (Stierman, 2017).

The situation of overcrowding in prisons of the United States cannot contribute to helping prisoners, African American males or representatives of other gender and race, to develop their personal potential and realize an effective social role.

It is also important to discuss the ideas presented in DuVernay’s 13th with the focus on modern education in the United States. Taking into account B. F. Skinner’s ideas regarding reinforcers and punishers to form people’s behavior, it is possible to state that the fear of being imprisoned can work as a punisher for preventing criminal actions. However, the problem is that, according to DuVernay, this aspect does not contribute to reducing the number of prisoners (Lopez-Littleton & Woodley, 2018). There are other sources of mass incarceration, and they are closely associated with racial and economic factors. Therefore, today young persons often do not understand what particular actions can lead to imprisoning, especially for people of color.

For a pre-service teacher, DuVernay’s 13th can provide a range of topics to think over while discussing the role of school and society in forming the personality. From this perspective, it is important to answer the questions about the potential impact of education on decreases in rates of crimes and on social stability in minorities’ communities. African Americans men are often arrested and incarcerated because they not only act like criminals, but they are also assumed to act like criminals. Therefore, a pre-service teacher should think over about the role of a class environment in forming this prejudice.

After watching 13th , it is possible to adapt some of the ideas presented in the film to discussing with high school students. Firstly, it is necessary to discuss this film while explaining the nature of the Thirteenth Amendment, as well as the Sixth Amendment that guarantees criminal defendants’ right to impartial jury among other rights . Secondly, it is important to analyze this film in the context of discussing the problem of racism in modern American society. It is important to demonstrate how hidden racism can become real while speaking about the prison system and criminal justice bias in the United States.

DuVernay’s 13th is the documentary that makes the viewer reconsider his or her vision of American society today in terms of the problem of mass incarceration. This film should be analyzed by educators in order to use some of its parts in their discussions of racism and slavery. Furthermore, the film can be recommended for high school students in order to discuss not only the phenomenon of modern slavery but also the impact of social prejudice and environments on individuals and their life path.

Lopez-Littleton, V., & Woodley, A. (2018). Movie review of 13th by Ava Duvernay: Administrative evil and the prison industrial complex. Public Integrity , 20 (4), 415-418.

Netflix. (2016). 13th . Web.

Shaffer, D. R., & Kipp, K. (2014). Developmental psychology: Childhood and adolescence (9th ed.). New York, NY: Cengage Learning.

Stierman, V. (2017). When the hidden injustices are brought to light: A review of 13th. Tapestries: Interwoven Voices of Local and Global Identities , 6 (1), 1-3.

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IvyPanda. (2023, October 31). Themes in Ava DuVernay’s "13th". https://ivypanda.com/essays/ava-duvernays-13th/

"Themes in Ava DuVernay’s "13th"." IvyPanda , 31 Oct. 2023, ivypanda.com/essays/ava-duvernays-13th/.

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IvyPanda . 2023. "Themes in Ava DuVernay’s "13th"." October 31, 2023. https://ivypanda.com/essays/ava-duvernays-13th/.

1. IvyPanda . "Themes in Ava DuVernay’s "13th"." October 31, 2023. https://ivypanda.com/essays/ava-duvernays-13th/.

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IvyPanda . "Themes in Ava DuVernay’s "13th"." October 31, 2023. https://ivypanda.com/essays/ava-duvernays-13th/.

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"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." –Thirteenth Amendment of the United States Constitution

When the 13 th  amendment was ratified in 1865, its drafters left themselves a large, very exploitable loophole in the guise of an easily missed clause in its definition. That clause, which converts slavery from a legal business model to an equally legal method of punishment for criminals, is the subject of the Netflix documentary “13th.” Premiering tonight at the New York Film Festival, “13th” is the first documentary to open the festival in its 54 year history. Director Ava DuVernay ’s takes an unflinching, well-informed and thoroughly researched look at the American system of incarceration, specifically how the prison industrial complex affects people of color. Her analysis could not be more timely nor more infuriating. The film builds its case piece by shattering piece, inspiring levels of shock and outrage that stun the viewer, leaving one shaken and disturbed before closing out on a visual note of hope designed to keep us on the hook as advocates for change.

“13th” begins with an alarming statistic: One out of four African-American males will serve prison time at one point or another in their lives. Our journey begins from there, with a slew of familiar and occasionally surprising talking heads filling the frame and providing information. DuVernay not only interviews liberal scholars and activists for the cause like Angela Davis , Henry Louis Gates and Van Jones, she also devotes screen time to conservatives such as Newt Gingrich and Grover Norquist. Each interviewee is shot in a location that evokes an industrial setting, which visually supports the theme of prison as a factory churning out the free labor that the 13th Amendment supposedly dismantled when it abolished slavery.

We’re told that, after the Civil War, the economy of the former Confederate States of America was decimated. Their primary source of income, slaves, were no longer obligated to line Southerners’ pockets with their blood, sweat and tears. Unless, of course, they were criminals. “Except as punishment for a crime whereof the party shall have been duly convicted” reads the loophole in the law. In the first iteration of a “Southern strategy,” hundreds of newly emancipated slaves were re-enlisted into free, legal servitude courtesy of minor or trumped-up charges. The duly convicted part may have been questionable, but by no means did it need to be justifiably proven.

So begins a cycle that DuVernay examines in each of its evolving iterations; when one method of subservience-based terror falls out of favor, another takes its place. The list feels endless and includes lynching, Jim Crow, Nixon’s presidential campaign, Reagan’s War on Drugs, Bill Clinton ’s Three Strikes and mandatory sentencing laws and the current cash-for-prisoners model that generates millions for private bail and incarceration firms.

That last item is a major point of discussion in “13th”, with an onscreen graphic keeping tally of the number of prisoners in the system as the years pass. Starting in the 1940’s, the curve of the prisoner count graph begins rising slowly though steeply. A meteoric rise began during the Civil Rights movement and continued into the current day. As this statistic rises, so does the level of decimation of families of color. The stronger the protest for rights, the harder the system fights back against it with means of incarceration. Profit becomes the major by-product of this cycle, with an organization called ALEC providing a scary, sinister influence on building laws that make its corporate members richer.

Several times throughout “13th” there is a shock cut to the word CRIMINAL, which stands alone against a black background and is centered on the huge movie screen. It serves as a reminder that far too often, people of color are seen as simply that, regardless of who they are. Starting with D.W. Griffith’s “The Birth of a Nation”, DuVernay traces the myth of the scary Black felon with supernatural levels of strength and deviant sexual potency, a myth designed to terrify the majority into believing that only White people were truly human and deserving of proper treatment. This dehumanization allowed for the acceptance of laws and ideas that had more than a hint of bias. We see higher sentences given for crack vs. cocaine possession and plea bargains accepted by innocent people too terrified to go to trial. We also learn that a troubling percentage of people remain in jail because they’re too poor to post their own bail. And regardless of your color, if you’re a felon, you can no longer vote to change the laws that may have unfairly prosecuted you. You lose a primary right all Americans have.

“13th” covers a lot of ground as it works its way to the current days of Black Lives Matter and the terrifying videos of the endless list of African-Americans being shot by police or folks who supposedly “stood their ground.” On her journey to this point, DuVernay doesn’t let either political party off the hook, nor does she ignore the fact that many people of color bought into the “law and order” philosophies that led to the current situation. We see Hillary Clinton talking about “super-predators” and Donald Trump ’s full-page ad advocating the death penalty for the Central Park Five (who, as a reminder, were all innocent). We also see people like African-American congressman Charlie Rangel, who originally was on board with the tough on crime laws President Clinton signed into law.

By the time we get to the montage of the deaths of Philando Castile, Tamir Rice, Eric Garner and others (not to mention the huge, screen-covering graphic of names of African-Americans shot by law enforcement), “13th” has already proven its thesis on how such events can not only occur, but can also seem sadly like “business as usual.” It’s a devastating finale to the film, one that follows an onscreen discussion about whether or not the destruction of Black bodies should be run ad nauseum on cable news programs. DuVernay opts to show the footage, with an onscreen disclaimer that it’s being shown with permission by the families of the victims, something she did not need to seek but did so out of respect.

Between the lines, “13th” boldly asks the question if African-Americans were actually ever truly “free” in this country. We are freer, as this generation has it a lot easier than our ancestors who were enslaved, but the question of being as completely “free” as our White compatriots hangs in the air. If not, will the day come when all things will be equal? The final takeaway of “13th” is that change must come not from politicians, but from the hearts and minds of the American people.

Despite the heavy subject matter, DuVernay ends the film with joyful scenes of children and adults of color enjoying themselves in a variety of activities. It reminds us, as she said in her Q&A with NYFF director Kent Jones , that “Black trauma is not our entire lives. There is also Black joy.” That inspiring message, and all the important, educational information provided by this excellent documentary, make “13th” a must-see.

"13th" is currently streaming on Netflix.

Odie Henderson

Odie "Odienator" Henderson has spent over 33 years working in Information Technology. He runs the blogs Big Media Vandalism and Tales of Odienary Madness. Read his answers to our Movie Love Questionnaire  here .

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Film credits.

13th (2016)

100 minutes

• Ava DuVernay

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