The applicability of the Fifth and Fourteenth Amendments to government sponsorship of residential segregation will make sense to most readers. Clearly, denying African Americans access to housing subsidies that were extended to whites constitutes unfair treatment and, if consistent, rises to the level of a serious constitutional violation. But it may be surprising that residential segregation also violates the Thirteenth Amendment. We typically think of the Thirteenth as only abolishing slavery. Section 1 of the Thirteenth Amendment does so, and Section 2 empowers Congress to enforce Section 1. In 1866, Congress enforced the abolition of slavery by passing a Civil Rights Act, prohibiting actions that it deemed perpetuated the characteristics of slavery. Actions that made African Americans second-class citizens, such as racial discrimination in housing, were included in the ban. In 1883, though, the Supreme Court rejected this congressional interpretation of its powers to enforce the Thirteenth Amendment. The Court agreed that Section 2 authorized Congress to “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States,” but it did not agree that exclusions from housing markets could be a “badge or incident” of slavery. In consequence, these Civil Rights Act protections were ignored for the next century.

Richard Rothstein, The Color of Law