The Understanding of 'Neither Slavery Nor Involuntary Servitude Shall Exist' Before the Thirteenth Amendment

Abstract

In this article, I aim to investigate the meaning of the slavery and involuntary servitude’s non-existence, as mandated in American law before the Thirteenth Amendment. The focus will be on the text and judicial interpretation of the antislavery provision of the Northwest Ordinance of 1787, and the variants thereof incorporated into the subsequent organic laws of many American territories and states. It is my hope that this study will substantially illuminate the original understanding of that Amendment.

It seems, according to a preponderance of the pre-Amendment evidence,

(1) that the Ordinance’s antislavery stipulation was derivative of the natural-law principles set forth in both the Declaration of Independence and many state constitutions;

(2) that consistent with these Declaration’s principles, “slavery” and “involuntary servitude” were deemed distinct but partly overlapping evils, for unlike involuntary servitude, “slavery” (a) could be either voluntary or involuntary and (b) encompassed not only servitude but most other incidents of chattel property in human beings;

(3) that consistent with these Declaration principles, the non-existence of slavery and involuntary servitude did not abridge the traditional duties arising from the relations between (a) parent and offspring, (b) citizen and republic, and (c) innkeeper (or carrier) and the public, and may have partly affected the duties in the relations between (d) obligor and obligee;

(4) that the prohibited existence was self-executing and immediate, encompassing chiefly the “legal existence” of slavery and involuntary servitude but perhaps also the nonlegal, actual existence of these evils, so their stipulated non-existence imposed on government not only a duty to refrain from recognizing slavery but also a duty to act to eradicate actual slavery by providing effective remedies, and

(5) even if the stipulated non-existence of slavery mandated affirmative governmental relief, it did not mandate governmental remedies again racially discriminatory action or other purported “badges of slavery,” whether by state or non-state actors.

Keywords: Thirteenth Amendment, slavery, involuntary servitude