World War 11 brought concerns about civil rights to the forefront of popular and legal consciousness. How to define these rights, however, was an open question, as the late New Deal repudiation of Lochner Era substantive due process had dethroned freedom of contract as a secure basis for individual rights, and nothing had yet filled this void. The meaning of civil rights was up for grabs, and how those rights were configured during the war would greatly affect their contours, and American society, long after the war had ended. Legal scholars have overlooked the Thirteenth Amendment as one possible redefinition of the relationship between individual rights and government power. During the war,. however, it played a major role in burgeoning conceptions of civil rights.

This paper exhumes the prominent role of the Thirteenth Amendment in the agenda of the Department of Justice's newly created Civil Rights Section during and immediately after the war. In particular, it argues that DOJ's resurgent interest in prosecuting involuntary servitude cases provided the basis for a substantive, antisubordination vision of civil rights. Despite contemporary fears about totalitarian government, the Civil Rights Section used the Thirteenth Amendment as a basis for aggressive federal intervention that reached individual harms, intruded into the private sector, and unsettled the pre-war federalist balance.

Why, by the 1950s and 1960s, had involuntary servitude dropped out of the lexicon of civil rights when only a few years earlier it had been a mainstay of CRS prosecutions? One answer stems from the success of an alternative wartime vision of civil rights: the NAACP's strategy of private civil litigation under the Fourteenth Amendment. A second answer links the formative years of civil rights to larger political trends in American history, specifically the anti-Communism that led to a narrowing of the goals of both civil rights groups and labor unions. In short, the Thirteenth Amendment lacked a constituency able and willing to utilize its unique potential of addressing the interrelated harms of racial discrimination and labor exploitation.

Reviving the centrality of the Thirteenth Amendment to civil rights provides an alternative basis for civil rights jurisprudence, one that could have attacked directly problems of subordination and power. This paper aims to make visible the disappearance of that alternative and to identify the crucial importance of involuntary servitude and the Thirteenth Amendment during the formative years of civil rights jurisprudence.