Link to the full Jan-April 2026 Poverty & Race Journal pdf
by Brence Pernell and Kelley Akhiemokhali
I. Introduction: Pauli Murray’s Expansive Vision of the Reconstruction Amendments
The article traces the intellectual, legal, and biographical foundations for Reverend Dr. Pauli Murray’s pioneering view of the Thirteenth Amendment as a broad tool against racial discrimination. Murray was a Black American civil rights lawyer, activist, professor, and priest whose harrowing experiences with race, gender, and class oppression informed her earliest theorizing about the Reconstruction Amendments. As a law student, Murray understood and argued that those Amendments’ overarching goal in ending slavery was to mandate that all individuals be equally afforded the rights that inhere to free citizenship. She spent her earliest legal training making the case for why any discrimination that frustrated the Amendments’ purpose in that regard was unconstitutional.
Murray’s legal imagination predated and inspired major developments in American constitutional law. While Murray is now being increasingly celebrated for her impact on Fourteenth Amendment jurisprudence, less appreciate the fact that Murray also developed an early, remarkably forwardlooking argument: that the Thirteenth Amendment not only abolished slavery but also prohibited the institution of slavery’s lingering “badges and incidents.” Such badges included Jim Crow segregation and any other form of racial discrimination on which the institution of slavery had long rested. Mining legislative history and Supreme Court opinions as a young law student, Murray advanced the Thirteenth Amendment as a tool that both abolished forced physical servitude and affirmatively granted full freedom and equality for all citizens, including Black Americans.
Murray’s argument emerged at a time when few legal scholars understood the Thirteenth Amendment beyond its abolition of slavery. It was only after several decades that the Supreme Court would plainly acknowledge that certain discrimination in a modern context beyond chattel bondage could constitute a remnant of slavery that the Thirteenth Amendment also prohibits. Scholars have built on Murray’s intellectual work by emphasizing the Thirteenth Amendment’s full purpose of eradicating the kinds of discriminatory laws and policies that reiterate slavery’s social dynamics.
II. Murray’s Life Experiences and Development as a Legal Thinker
Murray’s early exposure to racial violence growing up in Jim Crow North Carolina shaped her belief that the law must uproot the structures enabling racial hierarchy. When Murray was 12 years old, for example, a white mental hospital guard murdered her father while he was a patient in the hospital’s racially segregated unit. Murray would continue to suffer humiliations as part of her young everyday life and across a variety of settings, such as at school and in public modes of transit. Lived experience made clear for Murray that segregation was more than a social inconvenience; it was psychologically destructive and structurally oppressive. Reflecting on her segregated schooling through high school, for example, Murray knew well the differences between “what we had and [what] white children [had].” She remarked, “You sense those things, you feel them.” She considered her refusal to accept a scholarship to one segregated university as her “first overt stand against racial segregation.”
Due to these experiences, Murray said that she entered law school with “the single-minded intention of destroying Jim Crow.” Even before she had started law school, Murray was devising ways to challenge discriminatory poll taxes and bus segregation laws.
Murray would eventually be put in jail for refusing to give up a bus seat in Petersburg, Virginia, in accordance with local segregation laws. Murray and Adelene “Mac” McBean, her friend had refused the bus driver’s demand that they move to broken seats. The conflict escalated, and the bus driver called the police, who charged the women with disorderly conduct and causing a public disturbance. Murray and McBean were imprisoned for three nights. It was that arrest that introduced Murray to civil rights litigation.
The NAACP represented the women, exposing Murray to the intellectual work of building legal arguments. The experience ignited her interest in using the law to change society. Murray stated about the case: “I began to sense that our case was a small part of a team effort that envisioned the ultimate overthrow of all segregation laws. The thought was stupefying.”
Murray was accepted into Howard University School of Law, with Thurgood Marshall of the NAACP writing one of her reference letters. By that time, Howard Law had become the intellectual center of civil-rights legal strategy. And it was at Howard Law that Murray says she set out to destroy the Jim Crow legal system “root and branch.”
III. Murray’s Fourteenth Amendment Foundations: The Road to Brown and Gender Equality
In a law school research paper, Should the Civil Rights Cases and Plessy v. Ferguson Be Overruled?, Murray argued that statemandated racial segregation was unconstitutional under both the Thirteenth and Fourteenth Amendments.
But legal precedent was not on Murray’s side. The Supreme Court’s decision in Plessy v. Ferguson (1896)—that racial segregation could be upheld under the “separate but equal” doctrine—had been the governing law since 1896. Plessy specifically concerned segregation in public transportation, which was one of the most obvious ways Murray and other Black Americans could feel Jim Crow’s effect.
Many civil-rights lawyers focused thereafter on incremental challenges to Plessy by showing inequality in segregated facilities. But Murray believed the entire doctrine was inherently unconstitutional under the Thirteenth and Fourteenth Amendments. She drew heavily on Justice John Marshall Harlan’s dissents in the Supreme Court’s earliest Reconstruction Amendment cases; Gunnar Myrdal’s An American Dilemma, a groundbreaking social-science study documenting systemic anti-Black discrimination; and her own extensive experiences navigating segregated public life.
Murray’s arguments served as the conceptual foundations for positions that the Supreme Court would later adopt in Brown v. Board of Education (1954). Murray’s former Howard professor Spottswood Robinson, one of the architects of Brown’s legal strategy, had even circulated her senior paper among the NAACP Legal Defense and Educational Fund counsel, which included its lead civil rights attorney, Thurgood Marshall. The Supreme Court’s declaration in Brown that “separate is inherently unequal” under the Fourteenth Amendment mirrored Murray’s central claim from the 1940s.
Murray also extended her Fourteenth Amendment reasoning to sex discrimination well before the modern women’s rights movement. Her writings and advocacy, including “Jane Crow and the Law,” profoundly influenced the litigation that established gender equality as a constitutional mandate. Years later, Supreme Court Justice Ruth Bader Ginsburg would argue before the Supreme Court that sex-based discrimination violates the Fourteenth Amendment. When the Supreme Court finally agreed, Ginsburg emphasized that the successful legal reasoning she employed was attributable to Murray: “We knew when we were writing that brief that we were standing on her shoulders . . . [w]e owe so much to her courage, to her willingness to speak out when society was not prepared to listen.”
IV. Murray’s Thirteenth Amendment Theory: Freedom Beyond the Abolition of Slavery
While Murray’s intellectual contributions to the Fourteenth Amendment are becoming increasingly appreciated, less attention has been paid to her thought leadership with respect to the Thirteenth Amendment. As the Supreme Court continues to weaken the Fourteenth Amendment’s anti-discriminatory power, scholars, practitioners, and even courts have turned attention to the Thirteenth Amendment. As with her bold vision for expanding civil rights under the Fourteenth Amendment, Murray was one of the first to understand the Thirteenth Amendment’s utility as an alternative legal ground for challenging discrimination in the contemporary era.
A. Exploring the Thirteenth Amendment at Howard Law School
The Thirteenth Amendment states:
Section 1
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.
Section 2
Congress shall have power to enforce this article by appropriate legislation
One of the reasons for Murray’s Thirteenth Amendment focus was her recognition that, unlike the Fourteenth Amendment, the Thirteenth Amendment applied to not only government conduct but also private conduct. As important, Murray rejected the view that the Amendment merely ended physical enslavement. She instead argued that slavery consisted of a larger system of legal, social, political, and economic domination, not solely forced physical labor. The Amendment’s abolition of slavery thus also abolished the full apparatus of racial hierarchy that the institution of slavery had required. And Congress, under Section 2, possessed broad authority to legislate against any practice reproducing those oppressive conditions.
Murray termed these conditions “vestiges” and considered them to be the deprival of “personal rights,” those that Murray explained would “secure” Black Americans’ free status “in the larger community on the basis of equality of opportunity with all other persons.”
Murray articulated nine such personal rights she thought were essential to full freedom, including:
1. Freedom of movement
2. Freedom of association
3. Equal status without stigma
4. Freedom from badges of inferiority
5. Equal access to public privileges
6. Capacity to live in peace
7. Right to work productively
8. Freedom of thought and worship
9. Right to ensure equal opportunity for future generations
Murray explained the denial of any of these rights perpetuated the same subordinate status imposed on enslaved people. She described how an apparatus of “many patterns and regulations of conduct” and “stringent laws” to manage “in detail the behavior of the slaves” systematically maintained slavery. It was because of such segregation laws that enslaved Black Americans were deprived of the “personal rights” that Murray outlined. Murray also knew that Black Americans had still not been able to enjoy these rights.
After Plessy, few had dared to make such an argument under the Thirteenth Amendment. But Murray’s grasp of the Thirteenth Amendment aligned with what the legislative architects of the Thirteenth Amendment sought to accomplish with the Amendment’s enactment. The legislative debates for the Thirteenth Amendment’s enactment illustrate how Congressmen like James Ashley, Lyman Trumbull, and Charles Sumner understood the freedom the Amendment would be conferring. Underscoring Murray’s articulation of fundamental “personal rights” that inhere to a free citizen was Congressmen’s understanding of freedom under the Thirteenth Amendment as inclusive of rights to travel, education, public accommodations, and bodily autonomy, for example. As the House floor leader Representative James Ashley expressed, the Amendment was to provide “a constitutional guarantee of the government to protect the rights of all and secure the liberty and equality of its people.”
Black Americans of the time similarly understood the Thirteenth Amendment’s purpose. Like Republican legislators, Black American political leaders intuited that slavery’s abolition under the Thirteenth Amendment would include the eradication of all the slavery system’s elements. Even before the Civil War, Black Americans had long lived in ways that revealed how they long understood freedom as a legal and constitutional status that represented more than just a right to not be subjugated to physical slavery.
Two Supreme Court decisions had already sharply limited the Thirteenth Amendment’s constitutional power by the time Murray had gotten to law school. The Civil Rights Cases (1883) invalidated the Civil Rights Act of 1875 and restricted “badges and incidents” to a very narrow category of rights to which the Thirteenth Amendment apparently didn’t apply. The Supreme Court went on to find in Plessy v. Ferguson (1896) that segregation in public transportation imposed no badge of slavery under the Thirteenth Amendment because the exclusion of people of color in the public transportation context imposed no “badge of slavery or servitude” that the Thirteenth Amendment contemplated.
Murray thought that both the Civil Rights Cases and the Plessy decisions “distorted and defeated the major purposes for which [the Thirteenth Amendment] [was] adopted.” Murray relied heavily on Justice Harlan’s Plessy dissent to support her Thirteenth Amendment position. Justice Harlan had contended, for example, that because the Thirteenth Amendment “decreed universal civil freedom,” it should be read broadly enough to encompass discrimination beyond chattel slavery. Justice Harlan asked outright in his Civil Rights Cases dissent: “[D]id the freedom . . . established [by the Thirteenth Amendment] involve nothing more than exemption from actual slavery?”
Murray thought the majority decision was historically unsound, contravened Congress’s intent, and ignored the social-science evidence showing segregation’s destructive effects. Murray pointed for example, to Gunnar Myrdal’s compilation of social science research, An American Dilemma, which had recently outlined in detail how abuse and discrimination from whites, and other invisible systems, had contributed to Black Americans’ consistent deprival of rights. To do so, Myrdal compiled academic studies from various sectors, including education, employment, and housing, for example. For her argument as to why Plessy, in particular, should be overturned on Thirteenth Amendment grounds, Myrdal provided Murray with strong evidence of slavery’s lingering and cumulative harms that the system of segregation continued to perpetuate.
B. Murray’s Continued Focus on the Thirteenth Amendment at Berkeley
Murray described that her work at Howard Law School reflected an “intense desire” to “find a legal basis for overruling” the Supreme Court’s segregation rulings. But she also named her activism throughout the semester, including sit-in protests against racial discrimination in Washington, D.C., as one of the reasons she did not believe that she could sufficiently complete her goal.
Undeterred, Murray continued her Thirteenth Amendment project a year after graduating at the top of her Howard Law class. She pursued her Master of Laws degree at Berkeley, determined to “once and for all . . . lay the ghost of [the] Harlan dissents in Civil Rights Cases and the Plessy v. Ferguson decision” and resurrect the Thirteenth Amendment’s power for antidiscrimination claims. Murray expanded her research at Berkeley to focus especially on the legislative debates of the Civil Rights Act of 1866 and the 1875 Civil Rights Act to bolster her argument that Congress envisioned securing broad civil rights for Black Americans when it passed the Thirteenth Amendment.
Both the 1866 Civil Rights Acts and the 1875 Civil Rights Act passed under Congress’s Thirteenth Amendment power. Congress passed the Civil Rights Act of 1866 exclusively under the Thirteenth Amendment in order to identify explicit rights to which formerly enslaved citizens were now entitled—e.g., the right to enter contracts and access courts. The 1875 Civil Rights Act supplemented the Civil Rights Act of 1866 and guaranteed equal access to public accommodations like inns, railroads, and theaters.
Murray focused on the legislative debates for both statutes to demonstrate the goals that the architects of the Thirteenth Amendment and its associated legislation intended to accomplish. Senator Charles Sumner of Massachusetts, author of the 1875 Civil Rights Act, for example, explained during that Act’s legislative debates that emancipation and the Civil Rights Act of 1866 had codified some important rights, but that this was “not enough.” Sumner clarified that the 1875 Civil Rights Act, which was passed under both the Thirteenth and Fourteenth Amendments, was because the “[t]he new-made citizen is called to travel for business, for health, or for pleasure” and “longs . . . for respite.” Such legislative history underscored Congress’s conceptual understanding of the Thirteenth Amendment as abolishing all aspects of slavery by granting all rights necessary for citizens’ freedom.
The legislative histories of the Civil Rights Act of 1866 and the 1875 Civil Rights Act aligned with Murray’s chief argument: to the extent that discriminatory practices constitute a legacy of slavery, those practices run afoul of the Thirteenth Amendment. Murray’s Berkeley mentor was dubious about her argument, but Murray would continue to insist on the Thirteenth Amendment’s transformative power.
V. Validation: Jones v. Mayer and the Resurgence of the Thirteenth Amendment
More than twenty years after Murray first articulated her theory, the Supreme Court effectively endorsed Murray’s Thirteenth Amendment theory in its Jones v. Alfred H. Mayer Company (1968) decision. In Jones, a real estate firm had refused to sell a property to an interracial couple, one of whom was a Black American. The case concerned whether a law that prohibited racial discrimination in the sale or rental of property was appropriate under Congress’s Thirteenth Amendment power. The Jones Court thought such Congressional power was more than appropriate, as the refusal to sell property to Black Americans is precisely the kind of legacy of slavery that the Thirteenth precluded. “[W]hen racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery,” the Supreme Court found.
The Court’s rationale reinforced Murray’s central claims from decades ago that the freedom conferred by the Thirteenth Amendment meant a freedom not just from physical enslavement, but from all slavery’s social vestiges as well. The Court stated unequivocally that Congress had authority to abolish any “badge and incident of slavery,” which in the Jones case necessarily included the power to prohibit racial discrimination in housing.
Jones revived the Thirteenth Amendment as a contemporary civil rights tool after the Amendment experienced nearly a century of dormancy. The decision also validated the arguments Murray had already been boldly advancing as a law student. Murray expressed surprise years later that “in anonymous form [her] little argument was going up to the Supreme Court [in Jones]” and noted that the Jones Court had finally formalized her “thesis that [she] had in mind originally.”
VI. Conclusion: Murray’s Lost Causes, Found
Though Jones remains sound legal precedent, the Thirteenth Amendment remains underutilized as a basis for antidiscrimination claims compared to the Fourteenth Amendment. Meaningful jurisprudence on the full scope of the Thirteenth Amendment’s power has been relatively absent since the Supreme Court’s 1968 Jones decision.
More contemporary scholars are calling for the Thirteenth Amendment’s expansion to address other lingering vestiges of slavery, including, for example, education inequality, mass incarceration, and lack of reproductive autonomy. Such calls owe their academic roots to the argument Murray dared to make more than half a century ago: the Thirteenth Amendment was to eradicate all structural conditions that facilitated the institution of slavery.
As Murray’s research recognized, Congressional leaders had as their chief goal to recognize the citizenship rights of all people when they enacted the Reconstruction Amendments. The Civil War remains the most violent and catastrophic political event in this nation’s history. One might imagine how important a goal of full equality for all people would have been for Congress to clearly execute on as part of rebuilding the political and social fabric of this country. Tragically, the Supreme Court continues to erode the full power Congress imagined for the Fourteenth Amendment when it enacted that Reconstruction Amendment. Reconstruction’s promises for a new nation of equal citizens with full rights have fallen woefully short.
But Murray’s life and writing reveal a constitutional vision that was intersectional, historically grounded, and structurally transformative. When few others did, Murray insisted that the clear purpose of the Reconstruction Amendments was to uproot every vestige of slavery in American life. She rightly understood that to stunt the Reconstruction Amendments’ antidiscriminatory power is to stunt Congress’s goal of ushering in a new democracy of equally free citizens after chattel slavery’s end. Murray’s intellectual legacy should be expanded to include her pioneering thinking on not only the Fourteenth Amendment in this regard, but also the Thirteenth Amendment.
After the Jones ruling, Murray observed that she lived to see her “lost causes found.” Her Thirteenth Amendment theory had been ignored, dismissed, and considered radical in the 1940s. But as with the Fourteenth Amendment, she’d be vindicated.
Slavery’s vestiges undoubtedly persist as legacy—in prisons, courtrooms, schools, family planning, and places of public accommodation. Now more than ever, we need bold legal thinking that helps advance the post-Civil War vision Congress had of a nation where all such remnants of slavery are eradicated. May Murray’s vision from close to a century ago continue to guide the way. n
Kelley Akhiemokhali is a former K-12 educator with M.A. degrees in English Education and Sociology. Her research focus areas are inequality and maternal health. She can be reached at kakhiemokhali@gradcenter.cuny.edu.
Brence Pernell practices and teaches law in New York City. He regularly writes about issues at the intersection of race, education, and the law. He can be reached at bpernell@law.columbia.edu.
