Hodges v. United States, 203 U.S. 1 (1906), was a decision by the United States Supreme Court limiting the power of Congress to make laws under the Thirteenth Amendment. Three white men had been convicted in the Eastern Arkansas District Court for conspiring against black sawmill workers.
The statute that was used to convict the men prohibits conspiracy to deprive American citizens of their constitutional liberties, including the right to make contracts. The Supreme Court overturned the conviction, holding that Congress did not have the right to intervene against racially motivated interference with labor contracts.
District Courts
On 8 May 1903, Arkansas Attorney General William G. Whipple wrote to U.S. Attorney General Philander C. Knox to announce (and request funding for) investigation of a “white-capping” case. Whipple wrote that an “inferior class of white men feeling themselves unable to compete with colored tenants combined to drive them out of the country.” Knox approved the investigation, responding that the Department of Justice was “alive to the aggressive attitude of such organized bands as those to which you refer, and determined to meet such emergencies with proper and decisive action”.Karlan, “Contracting the Thirteenth Amendment” (2005), p. 785.
By October 1903, a grand jury had indicted two groups of White men accused of white-capping. The first case, filed as United States v. Morris, involved a group of 11 men accused of targeting sharecroppers. The second, United States v. Maples, accused 15 men of intimidating Black workers at a lumber mill in Whitehall, Arkansas. The case against them was made primarily under two statutes of the U.S. Code.Karlan, “Contracting the Thirteenth Amendment” (2005), p. 786.
§1977 gives “all persons” in the U.S. the same right to make contracts “as is enjoyed by white citizens” :
All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
§5508, originating with the Civil Rights Act of 1866 and modified by the Enforcement Act of 1870, outlaws conspiracy to deprive citizens of their Constitutional freedoms:
SEC. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office or place of honor, profit or trust created by the Constitution or laws of the United States.
The defendants filed demurrers arguing that these laws infringed on states' rights. These were overruled by Judge Jacob Trieber in federal district court. Trieber acknowledged that, particularly in light of the Civil Rights Cases (1883), the Fourteenth Amendment could only be invoked to redress inequality of state actors. Citing the decision of Judge Noah Swayne in U. S. v. Rhodes (1866), Trieber invoked the Thirteenth Amendment and held that the right to make contracts was a “fundamental” right.Karlan, “Contracting the Thirteenth Amendment” (2005), pp. 787–789.
The state could obtain no conviction in Morris, unable to produce solid evidence even though, in Whipple's words, “the jurors, as well as the Court, were convinced we had indicted the right men”. Of the 15 accused in Maples, the jury convicted 3: William Clampit, Wash McKinney, and Reuben Hodges.Karlan, “Contracting the Thirteenth Amendment” (2005), pp. 789–790. The three men convicted in Morris appealed their case (now Hodges v. United States), which the Supreme Court accepted in March 1904.
Supreme Court
Lawyers for Clampit, McKinney, and Hodges argued that the intended effect of the Thirteenth Amendment had been completed with emancipation and furthermore that no federally recognized right to make contracts existed at the time of its adoption. The Department of Justice, now led by Attorney General William Henry Moody (a future Supreme Court justice), defended the statutes.Fiss, “History of the Supreme Court” (2006), p. 379. Moody acknowledged the “state actor” limitation to the Fourteenth Amendment and focused, like Trieber, on the Thirteenth Amendment.Fiss, “History of the Supreme Court” (2006), p. 380. Moody argued that the Thirteenth Amendment guarantees “practical freedom”—including the right to make a contract, work, and be compensated.Karlan,“Contracting the Thirteenth Amendment” (2005), pp. 790–792
Oral arguments In oral arguments, Justice David Josiah Brewer asked whether all Black workers enjoyed special protections because of the Thirteenth Amendment. Moody responded that Black and White workers enjoyed the same rights and that the Thirteenth Amendment only applied if workers were targeted because they were Black. In fact, Moody argued that any type of racial hatred might be included. Justice William R. Day replied: “This amendment everybody supposed was intended to protect the colored race. Other races were never thought of at all.” To which said Moody:Bernstein, “Thoughts on Hodges” (2005), p. 813–814.
I can easily rest this case upon the fact that the persons injured were of the colored race, and therefore peculiarly within the protection of the thirteenth amendment. But I have not been able to satisfy my mind that this amendment makes a permanent distinction between negroes and persons of other races. Its benefits extend to all persons of all races.
Moody stated later in the arguments: “Concerted action against another person, on account of his race, to deprive them of one of the essential rights to freedom, the right to labor, is a violation of the thirteenth amendment.”Bernstein, “Thoughts on Hodges” (2005), p. 816.
Brewer raised questions about this position based on the precedent it might set for labor law. He asked:
One of another race – against any person of another race – wouldn’t the action of labor organizations in forbidding any person to labor unless he was a member of their organizations be depriving him of liberty? […] Take the case of an Irishman who strikes an Italian working on the railroad. A body of Irish say, We do not like ‘Dagos’ and will not work with them, and they drive them off; they wouldn’t do that if they were Irish. [...] The Irishman goes into a bar room and he sees an Italian there and knocks him down. Would that be a violation under your theory?
Moody replied, “I wouldn't go that far.”
Moody argued finally that the “war of races” now encompassed the whole nation, and that:Karlan, “Contracting the Thirteenth Amendment” (2005), pp. 792–794
if the Negro who is in our midst can be denied the right to work and must live on the outskirts of civilization, he will become more dangerous than the wild beasts, because he has a higher intelligence than the most intelligent beast. He will become an outcast lurking about the borders and living by depredation.
The Court ruled 7–2 for Hodges, holding the federal statutes unconstitutional and overruling the Arkansas convictions.
Majority opinion The majority opinion, authored by Brewer, maintained that the original constitution had intended for state governments to make contract law. According to the Tenth Amendment, those powers not explicitly assigned to the federal government belong to the states. Brewer quoted the Thirteenth Amendment in full and wrote: “The meaning of this is as clear as language can make it.” Brewer proceeded to give a definition of “slavery” from Webster's Dictionary.203 U.S. 16–17 (1906)Karlan, “Contracting the Thirteenth Amendment” (2005), p. 808Tsesis, The Thirteenth Amendment and American Freedom (2004), p. 80.
Brewer interpreted the Thirteenth Amendment narrowly, in terms of legal rights, arguing that broad application led down a slippery slope to complete federal power. Responding to certain statements from the Department of Justice's brief, Brewer wrote:203 U.S. 18 (1906)Karlan, “Contracting the Thirteenth Amendment” (2005), p. 800
The logic of this concession points irresistibly to the contention that the Thirteenth Amendment operates only to protect the African race. This is evident from the fact that nowhere in the record does it appear that the parties charged to have been wronged by the defendants had ever been themselves slaves, or were the descendants of slaves. They took no more from the Amendment than any other citizens of the United States. But if, as we have seen, that denounces a condition possible for all races and all individuals, then a like wrong perpetrated by white men upon a Chinese, or by black men upon a white man, or by any men upon any man on account of his race, would come within the jurisdiction of Congress, and that protection of individual rights which, prior to the Thirteenth Amendment, was unquestionably within the jurisdiction solely of the states, would, by virtue of that Amendment, be transferred to the nation, and subject to the legislation of Congress.
Brewer affirmed a contrary interpretation, that the Amendment “is the denunciation of a condition, and not a declaration in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the nation, it commits every race and every individual thereof.”203 U.S. 16 (1906)Karlan, “Contracting the Thirteenth Amendment” (2005), p. 796 Brewer also argued that not every “badge of slavery” qualified for federal intervention. Brewer cited an enforcement regime for the deportation of Chinese workers, arguing that because Chinese people were not a slave class in the U.S., requiring them to carry authorization certificates did not violate the Thirteenth Amendment:203 U.S. 19 (1906)
But that it was not the intent of the Amendment to denounce every act done to an individual which was wrong if done to a free man, and yet justified in a condition of slavery, and to give authority to Congress to enforce such denunciation, consider the legislation in respect to the Chinese. In slave times, in the slave states, not infrequently every free negro was required to carry with him a copy of a judicial decree or other evidence of his right to freedom or be subject to arrest. That was one of the incidents or badges of slavery. By the Act of May 5, 1892, Congress required all Chinese laborers within the limits of the United States to apply for a certificate, and anyone who, after one year from the passage of the act, should be found within the jurisdiction of the United States without such certificate might be arrested and deported. In Fong Yue Ting v. United States, 149 U. S. 698, the validity of the Chinese deportation act was presented, elaborately argued, and fully considered by this Court. While there was a division of opinion, yet at no time during the progress of the litigation, and by no individual, counsel, or court connected with it was it suggested that the requiring of such a certificate was evidence of a condition of slavery, or prohibited by the Thirteenth Amendment.
Finally, Brewer wrote that Blacks deserved no special privileges because they enjoyed greater freedom as citizens:203 U.S. 19–20 (1906)Karlan, “Contracting the Thirteenth Amendment” (2005), pp. 794–795.