13th Amendment: The Punishment for Crime Clause and Jones v. Mayer 1968

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In 1968 Joseph and Barbara Jones were refused a home in St. Louis County by the Alfred H. Mayer Company because they were Black, and since the 14th Amendment binds only governments, their case rested on the 13th Amendment. This episode traces how that amendment came to be. The Emancipation Proclamation was a war measure that left slavery in loyal border states, and Dred Scott's reading of the Fifth Amendment meant an ordinary statute could be struck down, so supporters turned to the Constitution. Charles Sumner proposed that all persons are equal before the law, but Lyman Trumbull's Judiciary Committee borrowed the Northwest Ordinance of 1787 and its exception for punishment for crime.

The Senate passed the amendment in April 1864, the House fell 13 votes short in June, and Lincoln pushed it through the lame duck session to passage on January 31, 1865, signing it the next day though no signature was required. Southern legislatures used the crime exception through Black Codes, peonage and convict leasing. Hodges v. United States in 1906 narrowed the amendment to physical bondage, until Jones v. Alfred H. Mayer Co. held that Congress could remove the badges and incidents of slavery, a basis later used against human trafficking.

• The punishment for crime clause traces to Cesare Beccaria, who proposed forced labor as a humane alternative to execution.
• Black Codes made it a crime to be without a labor contract, walk beside a railroad track or sell farm products after dark.
• Convict leasing supplied prisoners to coal mines, railroads and logging camps, where companies treated workers as replaceable.
• Abolishing the three-fifths clause stood to increase Southern representation in Congress, which helped drive the 14th and 15th Amendments.
• Courts have held that jury duty and the military draft are civic obligations, not involuntary servitude.