71 Md. L. Rev. 12 (2011-2012)
Plus or Minus One: The Thirteenth and Fourteenth Amendments

handle is hein.journals/mllr71 and id is 14 raw text is: Symposium
The Maryland Constitutional Law Schmooze
Conventional wisdom maintains that ratification of the Four-
teenth Amendment mooted a heated controversy over the scope of
the Thirteenth Amendment. That controversy broke out during the
debates over the Freedmen's Bureau Bill of 1866 and the Civil Rights
Act of 1866. Most Republicans insisted those laws were appropriate
means for enforcing the Thirteenth Amendment.' President Andrew
Johnson, the Democrats in Congress, and a few Republicans insisted
that the Congressional power under the Thirteenth Amendment was
limited to legislation abolishing slavery and did not authorize the na-
tional legislature to pass laws protecting freed persons of color from
discrimination short of enslavement.' Although the Civil Rights Act
of 1866 passed over President Johnson's veto, Republicans recognized
that the substantive rights of freed blacks needed firmer constitution-
al foundations. Hence, they framed and ratified the Fourteenth
The ratification of the Fourteenth Amendment transformed con-
stitutional debate in the United States. Subsequent controversies over
the constitutional rights of African-Americans focused on the proper
interpretation of Sections 1 and 5 of that Amendment. The Thir-
teenth Amendment was confined to a few isolated practices that could
be analogized with slavery as it existed in the United States before the
Civil War.3 Legal historians continue to debate the proper interpreta-
Copyright @ 2011 by Mark A. Graber.
Professor of Law and Government, University of Maryland Francis King Carey
School of Law and University of Maryland, College Park.
1. Jacobus tenBroek, Thirteenth Amendment to the Constitution of the United States: Con-
summation to Abolition and Key to the Fourteenth Amendment, 39 CALIF. L. REv. 171, 189-94
2. Id. at 189.
3. See Bailey v. Alabama, 219 U.S. 219, 241-42 (1911) (defining involuntary servitude
and the practice of peonage).


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