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Abstract

The Thirteenth Amendment—the commandment that “neither slavery nor involuntary servitude . . . shall exist within the United States”— did not truly eradicate incidents of slavery. This is hardly a controversial point. The postwar emergence of the Black Codes—laws meant to confine African Americans’ ability to rent, travel, and live as free humans would expect to—ensured that slavery’s conditions continued unabated. The Amendment itself permits slavery to exist “as a punishment for crime whereof the party shall have been duly convicted.” Still, did the Thirteenth Amendment not abolish the most fundamental characteristic of chattel slavery—the ability to trade in and profit from the bodies of other humans? Surprisingly, the answer is no. Even after emancipation, slavery remained lucrative business in the form of antebellum contracts for slaves. More surprisingly, most courts, and ultimately the U.S. Supreme Court, permitted sellers of slaves on contract to recover the debts owed to them. The Thirteenth Amendment no longer permitted commerce in flesh, but humans continued to have monetary value. In short, this Article aims to fill in a missing chapter in Thirteenth Amendment history, one that contributes to our understanding of why the Amendment has not played more of a role in our constitutional law. In the slave-contract cases, a provision that positively enacted a great natural-law principle—the freedom of man—succumbed to the sacredness of personal property rights. An Amendment that promised a revolution in federal-state relations could not overcome the entrenched principles of local commercial law. This outcome was not inevitable, though, as the opinion of one iconoclastic judge, Henry Clay Caldwell, shows. We do well to examine this history—actual and alternative—as we consider the Amendment’s position in today’s legal landscape and the possibilities it contains.

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