U.S. Constitution · Amendment XIII, Section 1 · ratified 1865-12-06

Punishment Clause

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Also known as: Punishment Clause

Section 1 abolishes slavery and involuntary servitude in the United States, except for forced labor imposed as punishment after lawful criminal conviction.

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The text

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.

National Archives transcription (public domain; original spelling and capitalization). archives.gov

SI explainer

What it means

Section 1 bans slavery and involuntary servitude anywhere in the United States or under its control. Involuntary servitude means being forced to work against your will through law, threat, or physical control, beyond ordinary legal duties. The ban applies to the government and to private people. The provision contains one exception. Forced labor is allowed as a punishment for crime, but only when the person has been duly convicted, which means found guilty through a fair legal process with the protections the Constitution requires. That exception is the legal basis for requiring convicted prisoners to work while serving a sentence. It does not allow slavery as a general practice, allow forced labor without a criminal conviction, or allow a state to use criminal law as a trick to force people back into peonage. A later amendment did not change the words of Section 1, but the Fourteenth Amendment added separate protections for due process and equal protection that help courts judge whether a conviction and punishment were lawful.

Original meaning

The words abolished slavery and involuntary servitude throughout the United States and any place subject to their jurisdiction, with a single exception for compulsory labor imposed as a punishment for crime after due conviction. To the generation that wrote and ratified the Amendment in 1865, slavery meant chattel slavery based on race, and involuntary servitude meant other systems of forced labor such as peonage and coerced apprenticeship. The punishment exception carried forward a familiar legal idea that a person convicted of crime through lawful process could be sentenced to hard labor. Abraham Lincoln wrote in his Fourth Annual Message to Congress that the common end was maintenance of the Union and that the election had declared the public will in favor of such constitutional amendment. He also urged Congress to act promptly to send the proposal to the states, asking whether agreement could be reached that the sooner the better.

“In this case the common end is the maintenance of the Union, and among the means to secure that end such will, through the election, is most dearly declared in favor of such constitutional amendment.” Abraham Lincoln, Abraham Lincoln, Fourth Annual Message to Congress, December 6, 1864 (1864-12-06)
“Hence there is only a question of time as to when the proposed amendment will go to the States for their action. And as it is to so go at all events, may we not agree that the sooner the better?” Abraham Lincoln, Abraham Lincoln, Fourth Annual Message to Congress, December 6, 1864 (1864-12-06)

How the Supreme Court has read it

Bailey v. Alabama, 219 U.S. 219 (1911)

The Court held that a state law making failure to perform labor after receiving an advance presumptive evidence of fraud enforced peonage in violation of the Thirteenth Amendment and the federal Peonage Act. A law that in practice compels continued labor to avoid criminal punishment is involuntary servitude even if it is framed as punishment for fraud.
Selective Draft Law Cases, 245 U.S. 366 (1918)

The Court held that compulsory military service under the Selective Service Act of 1917 is an exercise of the power to raise armies and is not involuntary servitude. The duty to serve in the armed forces when required by law is distinct from the slavery and involuntary servitude banned by Section 1.
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)

The Court held that Congress may bar private as well as public racial discrimination in the sale or rental of property under Section 2 of the Thirteenth Amendment. Congress has authority to reach private conduct that perpetuates the badges and incidents associated with the slavery abolished by Section 1.

Two schools of interpretation

Originalist / textualist reading

Originalists and textualists read Section 1 by its original public meaning: neither slavery nor involuntary servitude shall exist except as lawful punishment imposed after criminal conviction with due process. The ban is categorical and self-executing against both government and private coercion that amounts to slavery or involuntary servitude as those terms were understood in 1865. The exception is limited by its own terms: there must be a crime, a party who has been duly convicted, and a punishment tied to that conviction. Later amendments did not change these words, so later values cannot expand involuntary servitude to cover ordinary civic obligations or contract enforcement, nor shrink the exception beyond what conviction and punishment meant at ratification.

Living-constitutionalist reading

Living-constitutionalist and pragmatist readers emphasize that the ban on slavery and involuntary servitude states a broad principle of freedom and equal civic membership that each generation must apply to current forms of coercion. On this view, courts and Congress properly look to the purpose of ending subordination and forced labor, to later understandings of liberty and equality, and to practical consequences when deciding what counts as involuntary servitude and what regulation of the exception is needed to keep the guarantee effective. The punishment exception is therefore read narrowly and in light of evolving standards of due process, fair labor, and human dignity, permitting continued oversight of prison labor, debt-related coercion, and private exploitation.

Open questions

The main unsettled questions concern the scope of the punishment exception: what conditions and types of compelled prison labor satisfy the requirements of crime and due conviction, what due process and proportionality limits apply to prison labor leased to private parties, and how far Congress may go under enforcement authority to regulate private coercion connected to the exception. Courts continue to address where lawful civic duties end and involuntary servitude begins.

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Values for America Constitution Explorer, https://www.valuesforamerica.com/constitution (text: National Archives transcription, public domain), Amendment XIII, Section 1, https://www.valuesforamerica.com/constitution/amendment-13/section-1

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