[*PG307]FURTHERING AMERICAN FREEDOM: CIVIL RIGHTS & THE THIRTEENTH AMENDMENT

Alexander Tsesis*

Abstract:  This Article discusses why the Thirteenth Amendment’s reach extends beyond the institution of slavery and has important implications for civil liberties. The Amendment—in providing a mechanism to protect fundamental rights articulated in the Declaration of Independence and Preamble to the Constitution—not only ended slavery, but also created a substantive assurance of freedom. This Article reviews Thirteenth Amendment jurisprudence and shows that, despite substantial narrowing after its adoption, the Amendment is a source of sweeping constitutional power for enacting federal civil rights legislation. The Article also distinguishes congressional power under the Thirteenth Amendment from that under the Fourteenth Amendment and the Commerce Clause, demonstrating that the Thirteenth Amendment is a viable, and at times preferable, alternative for civil rights reforms. Finally, the Article suggests that recent U.S. Supreme Court jurisprudence limiting congressional Commerce Clause and Fourteenth Amendment Section 5 powers has increased the importance of the Thirteenth Amendment as an alternative strategy for civil rights legislation and litigation.

[*PG308] Introduction 308

I.Constitution Before the Thirteenth Amendment 313

II.Abolition and Natural Rights 323

III.Judicial Interpretation 328

A.Judicial Overview 329

B.Section One Authority 344

C.Summing up 349

IV.The Commerce Clause and Thirteenth Amendment 350

V.The Thirteenth and Fourteenth Amendments 361

A.Thirteenth and Fourteenth Amendment Freedoms 362

B.Pertinent Rights 368

Conclusion 386

Introduction

The Thirteenth Amendment’s significance extends beyond the abolition of slavery.1 It grants the federal government the authority to prevent any contemporary civil rights abuses associated with involuntary servitude. The South’s peculiar institution interfered with far more than slaves’ economic welfare. At a more specific level, owners prevented slaves from making independent parental decisions, choosing spouses, or freely traveling off plantations. The scope of the Thirteenth Amendment concerns these and other interferences against autonomy, and in many cases provides Congress with authority to prevent them. My contention is that the Thirteenth Amendment ended all aspects of slavery, which spread far outside the boundaries of plantation husbandry into interstate commerce, government fiscal policy, and private sales transactions.2

[*PG309] Radical Republicans, who were the driving force behind the Thirteenth Amendment, expected it to end all injustices related to involuntary servitude.3 They planted the Amendment’s roots in the Declaration of Independence and Preamble to the Constitution, which left the task of fleshing out the ideal of universal freedom to later generations. The Thirteenth Amendment’s first section guarantees the freedom from arbitrary domination, and its second section empowers Congress to enact legislation protecting people’s coequal liberty to establish meaningful lives. In this regard, the Thirteenth Amendment was both a new beginning for the nation and a constructive means for enforcing its foundational principles of liberty and general wellbeing. The Amendment made the United States’ founding aspiration of equal liberty an enforceable right.4

The historical context of the Thirteenth Amendment is the abolitionist movement and the nation’s decision to throw off its racist past. In the aftermath of the Civil War, both the federal government’s recalcitrance to use the Amendment and Southern evasion of it necessitated the ratification of two additional Reconstruction Amendments.5 Even then, reform was slow in coming.

[*PG310] After years of narrow judicial construction, which made the Thirteenth Amendment a dead letter in all but peonage cases, the United States Supreme Court revisited the Amendment’s meaning during the heyday of the civil rights movement.6 The landmark Jones v. Alfred H. Mayer Co. decision determined that the Thirteenth Amendment extends beyond uncompensated, forced labor. In fact, the Amendment’s second section enables Congress to pass federal legislation that is rationally related to ending any remaining badges and incidents of servitude, such as present-day trafficking of foreign workers as sex slaves and coerced domestic servants.7 The judiciary’s role in evaluating such legislation is to determine whether Congress has overstepped its Section 2 enforcement authority. The judiciary’s interpretation must be partially historical, because it cannot be made without reference to the United States’ experience with slavery, and partially theoretical, because it must chart the course for civil liberties.

Even though the Thirteenth Amendment was ratified in 1865, its jurisprudence is relatively nascent. Rules should develop in this field as in other areas of common law. Issues will appear before judges whose holdings will be based on the extant precedents and on constitutional integrity. Further developments will test the reasoning of lower court decisions. The role of theory in this process is to scrutinize the current topography and articulate a sense of direction in this relatively uncharted territory.

Contemporary civil rights initiatives have predominantly relied on the Fourteenth Amendment and the Commerce Clause. Meanwhile, the Thirteenth Amendment has fallen into virtual disuse. Recent Supreme Court decisions, however, such as United States v. Morrison and United States v. Lopez, have eroded Fourteenth Amendment [*PG311]and Commerce Clause precedents and spurred interest in Thirteenth Amendment jurisprudence.8

This Article examines what fundamental rights are protected by the Thirteenth Amendment. The Amendment is a potent constitutional provision that the Supreme Court has interpreted as a means for protecting fundamental rights. The Thirteenth Amendment is uniquely suited to confront civil rights violations that neither the Fourteenth Amendment nor the Commerce Clause can prevent. Unlike the Fourteenth Amendment, which only protects against state-sponsored discrimination, the Thirteenth Amendment prohibits private and public acts resulting in arbitrary deprivations of freedom.9 This dual capacity makes the Thirteenth Amendment an essential complement for civil rights initiatives, even in circumstances not involving economic harms.10

In that respect, the Thirteenth Amendment also provides a more direct approach to preventing discrimination than does the Commerce Clause. It is directed against human rights abuses, whereas the Commerce Clause is primarily an economic provision that has been grafted ingeniously into the civil rights arena.11 As a pragmatic matter, [*PG312]the Supreme Court’s recently increased oversight of congressional Commerce Clause authority has made the Thirteenth Amendment even more important.12

This Article begins with a retrospective look at why the Thirteenth Amendment so drastically altered the Constitution by showing that before its ratification, civil liberty was limited by the basic right of possession.13 As a result, even human lives were conceptualized in commodification terms. Protecting slave owners’ interest in human chattel was even more important to the delegates of the Philadelphia Constitutional Convention than adopting the Bill of Rights. The Three-Fifths Clause, the Fugitive Slave Clause, and the twenty-year protection on slave importation held more practical importance in drafting an acceptable constitution than protecting speech, liberty, or life. In fact, the Thirteenth Amendment went even further than the Bill of Rights in securing the privileges and immunities of citizenship. The Article then explores the extent to which the Thirty-Eighth Congress, in 1864 and 1865, planned for the proposed Amendment to create protections for universal liberty.14

Next, the Article explains the Supreme Court’s interpretation of the Thirteenth Amendment, beginning with its restrictive decisions issued in the aftermath of Reconstruction and continuing through the Court’s most recent pronouncements involving the Amendment.15 The Article then analyzes Court decisions limiting congressional Commerce Clause authority in passing civil rights reforms and explains why those limitations are inapplicable to the Thirteenth Amendment.16 Correspondingly, the Article discusses holdings relying on federalism to limit the scope of Congress’s power under Section 5 of the Fourteenth Amendment and distinguishes the statutory spheres [*PG313]of the Fourteenth and Thirteenth Amendments.17 The Article concludes with a historical and theoretical analysis of how the Thirteenth Amendment fits with existing privacy and liberty rights case law.18

I.  Constitution Before the Thirteenth Amendment

Understanding how antithetical slavery was to United States ideals is a staring point to comprehending slavery’s full effect on the Constitution. The revolutionary generation was engrossed with creating a free republic. The Sons of Liberty rallied colonists against taxation without representation; Liberty Polls were assembly places; Patrick Henry embodied the revolutionary project in his pithy statement “Give me liberty or give me death”; and Thomas Paine believed America to be “the place where the principle of universal freedom could take root.”19 Slavery was so incompatible with colonial aspirations that revolutionaries often declared they were under the British yoke of slavery.20 Yet, revolutionaries turned a blind eye to the widespread enslavement of Africans and Native Americans.21 The first U.S. Supreme Court Chief Justice, John Jay, later recalled that even among Northerners, “very few . . . doubted the propriety and rectitude of” slavery.22

[*PG314] The independence movement, particularly its New England contingent, began to recognize that the implication of its vision extended to blacks as well. Among its ranks were those who sought gradual emancipation, such as John Adams, the nation’s second president, and those who demanded immediate liberation, such as Nathaniel Appleton, a member of the first Committee on Correspondence.23 The 1774 Rhode Island law prohibiting slave importation proclaimed that, among rights and liberties, “personal freedom must be considered as the greatest.”24 Black leaders and some of their white counterparts, such as James Otis, recognized the opportunity to end slavery offered by the Revolution.25 A group of black New Hampshire petitioners used natural rights terminology to make the point “[t]hat freedom is an inherent right of the human species . . . [and t]hat private or public tyranny and slavery are alike detestable.”26 Similarly, on April 20, 1773, black petitioners from Massachusetts expressed their expectation of “great things from men who have made such a noble stand against the designs of their fellow-men to enslave them.”27 That same year, blacks from Boston and other Massachusetts provinces petitioned for relief from the manifold burdens placed on them by New England slavery, decrying their lack of property, wives, children, city, and country.28 Individuals of African descent helped shape such revolutionary rhetoric. Lemuel Haynes, a racially mixed minister, wrote [*PG315]that “an African, or, in other terms, . . . a Negro, . . . has an undeniable right to his Liberty.29

The ideal of universal freedom that many activists embraced relied on the philosophy of John Locke. Locke’s natural rights theory made its way into the Declaration of Independence, but it did not end slavery.30 The Declaration adopted Locke’s statement of inalienable human rights, unbeholden to positive laws.31 But the founding generation of American revolutionaries lived with the contradictory promises of civil freedom and property rights in human chattel. In Thomas Jefferson’s original draft of the Declaration, his accusations against King George included a clause condemning the British monarch for acting “against human nature itself” by keeping open an international slave trade that violated the “rights of life and liberty in the persons of a distant people.”32 South Carolina, which repeatedly appeared as a leader in the antebellum proslavery camp, opposed the clause, and the language was not retained in the Declaration’s final draft.33

In the decades between the ratification of the country’s founding documents and the Thirteenth Amendment, the Declaration’s universal guarantee of freedom posed a moral dilemma for politicians and citizens who tolerated and participated in an institution contrary to core national commitments. Even without Jefferson’s proposed anti-importation passage, the Declaration of Independence established liberty as a primary national aspiration.34 Its terms created the rhetorical [*PG316]dilemma of denying the otherwise universal right of freedom to persons of African descent.35

The wording of the Declaration was so general, without any accompanying philosophical or policy explanation, that it only gained a definitively antislavery significance during the Thirteenth Amendment’s ratification process. Until then, there were two differing camps of thought. Shortly after the passage of the Thirteenth Amendment, Congressman Thaddeus Stevens, one of its leading protagonists, embraced a perspective claiming that the Founding Fathers postponed fully instituting the Declaration’s principles until “a more propitious time.”36 Stevens echoed the view adopted by a variety of antislavery parties before the Civil War. For instance, the Liberty Party’s 1844 platform asserted that the Declaration’s principle that all men are endowed with inalienable rights, including liberty, was embodied in the Fifth Amendment’s national protections of life, liberty, and property.37 Because slavery deprived persons of all three without any due process of law, the Liberty Party’s platform declared that the institution was “against natural rights.”38

The Republican Party, of which Stevens was a leader, likewise understood the Fifth Amendment’s commitment to natural rights as a guaranty for speaking out against the spread of slavery. The 1860 Republican platform asserted that freedom was the normal state of United States’ territory.39 Despite the Republican Party’s 1856 platform that “all men are endowed with inalienable right[s],” it only committed itself to preventing the spread of slavery into the Western territories.40 This stance fell short of the full implications of its political philosophy. Only in the midst of the Civil War did the Republican Party adopt the position that slavery must be eradicated throughout the nation.

Before ratification of the Thirteenth Amendment, however, proslavery forces manipulated the Fifth Amendment. Nineteenth cen[*PG317]tury apologists for the expansion of slavery developed a political philosophy that placed property at the pinnacle of personal interests and regarded its protection as government’s chief purpose. The Fifth Amendment’s Just Compensation Clause provided an artificial bastion fortifying slavery against congressional action to limit its extension. Based on this property rights centered ideology, the U.S. Supreme Court in Dred Scott v. Sandford found that the Missouri Compromise unconstitutionally violated substantive due process.41 Chief Justice Roger B. Taney wrote that

an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.42

Taney further equated slaves with chattel, holding that nothing in the Constitution enabled Congress to give less protection to slave property than to any other form of property.43

It seems that Taney’s decision was intended to undermine the universal applicability of the Declaration of Independence and Congress’s power to prevent the spread of slavery into the West. He did not stand alone in his apparent wish to limit Congress’s power to prevent the spread of slavery, and he sided with the prejudices of other prominent government officials. For example, during debates on the Kansas-Nebraska Bill, Senator Albert G. Brown declared, “negroes are not men, within the meaning of the Declaration. If they were, Madison, and Jefferson, and Washington, all of whom lived and died slaveholders, never could have made it, for they never regarded negroes as their equals, in any respect.”44

The ability of both camps to harness the Fifth Amendment for opposite ends signals the importance of constitutional interpretation in the historic struggle over slavery.45 Jacobus tenBroek, a historian of the Reconstruction period, wrote that “[o]nce the constitutional starting point on either side was accepted, almost all else followed auto[*PG318]matically.”46 If slaves were merely property, then the Fifth Amendment protected owners’ property rights. Proslavery rhetoric, which the Taney Court accepted, relied on the natural or vested property rights view that the federal government could not trump state control over private economic interests.47 If slaves were humans, and the proslavery argument a self-interested excuse for tyrannical exploitation, then the Just Compensation Clause was inapplicable and the Due Process Clause protected African American liberty.48 The antislavery position relied on the Fifth Amendment to expound a natural rights theory against exploitation of persons and the misappropriation of fundamental interests in life and liberty.49

Ironically, the Framers’ compromise on slavery, which they had made to secure the Union, was almost its undoing. A number of outspoken supporters of abolition were among the men who drafted the Constitution in Philadelphia. Benjamin Franklin was well known for his antislavery views and was elected in 1787 as the president of the Pennsylvania Society for Promoting the Abolition of Slavery, the Relief of Negroes Unlawfully Held in Bondage.50 At the Constitutional Convention the same year, George Mason and Gouverneur Morris argued against continuing the slave trade.51 Some powerful Southerners sided with Thomas Jefferson who wanted compensated, gradual manumission.52

[*PG319] Economic interests, however, proved more powerful than ethical ones. By the mid-eighteenth century, slavery was entrenched in both the North and South. Northern shippers and merchants participated in slave importation from the years preceding the Constitutional Convention until 1808, when the slave trade legally ended.53 Northern industrialists shipped Africans into the colonies and assured Southern return on human capital by purchasing Southern goods. The North’s willingness to ship Africans provided the South with enough laborers to turn a profit on what otherwise would have been fallow farmland.

The proslavery camp used its leverage at the 1787 Constitutional Convention by demanding protections for slavery in exchange for ratifying the Constitution. The willingness to sacrifice human lives for the sake of gaining the consent of South Carolinian and Georgian representatives led the country away from the universal values of the Declaration of Independence toward factional dogma, which often split on the question of slavery.54 Those Northern and Upper Southern delegates who had sought an immediate cessation of the trade gave in to the Deep South’s demands.

To their credit, the Founders provided avenues for formal political change, including a method for proposing and amending the Constitution with Article V, which Radical Republicans later used to nullify the proslavery sections. However, the Founders did little to alter oligarchical social relations that existed in their own time. They granted a disproportionate amount of power to slave owners, rather than immediately producing the representative democracy that the Declaration heralded.55

The Framers’ lack of concern for the human rights of slaves was reflected in numerous constitutional clauses. The constitutional concessions to slavocracy were so extensive that the Thirteenth Amendment profoundly altered United States laws and society.56 The original [*PG320]Constitution was marked by a glaring contradiction with its protection of both liberty and slavery. In an article first published in 1850, Frederick Douglass, who escaped from slavery in his youth and became a renowned civil rights leader, brought out this contradiction:

If we adopt the preamble, with Liberty and Justice, we must repudiate the enacting clauses, with Kidnapping and Slaveholding. . . . Every slaveholder in the land stands perjured in the sight of Heaven, when he swears his purpose to be, the establishment of justice—the providing for the general welfare, and the preservation of liberty to the people of this country; for every such slaveholder knows that his whole life gives an emphatic lie to his solemn vow.57

Even though the Constitution did not use the terms “slave” or “slavery,” it contained numerous protections for the South’s peculiar institution. Instead, the clauses that legalized slavery used euphemisms to refer to bondsmen—“person held to Service or Labour,” “such persons,” and “other persons”—which made constitutional passage less contentious and alteration easier. Douglass, writing in his The North Star newspaper, listed the Importation Clause among those constitutional provisions that furthered slaveholding.58 The Importation Clause prohibited Congress from abolishing the international slave trade for twenty years after state ratification of the Constitution.59 During that period, the Importation Clause limited Congress’s authority to levying a ten-dollar head tax for each imported slave. Even though Congress passed laws in 1818 and 1820 that severely punished participants of the slave trade, calls for reopening the trade continued until the Civil War. Supporters of the slave trade, particularly those from South Carolina and Louisiana, sought to depress the prices of slaves by flooding the market with them, thereby decreasing labor costs.60

[*PG321] Further, the Three-Fifths Clause61 enabled the South to obtain a “domineering representation” in the House of Representatives.62 This provided Southern congressmen with the power to proffer proslavery laws and the numbers to pass them. Another author recently pointed out that the Three-Fifths Clause also had a direct effect on presidential elections.63 Article II, Section 1, Clause 2 granted each state presidential electors whose number was equal to the state’s combined number of senators and representatives.64 The electors, who comprise the body that votes for the president, played a consequential role in placing slaveholders into the executive office instead of principled antislavery advocates, as occurred in 1800 when Thomas Jefferson defeated John Adams for the presidency and in seating Northerners willing to placate the slave South, as was the case with James Buchanan’s victory in 1856.

Other constitutional provisions guarded slave owners against recalcitrant slaves and required federal involvement in maintaining the peculiar institution. The Insurrection Clause gave Congress power to call up the militia to suppress revolts, including slave rebellions such as the Nat Turner Rebellion.65 The Fugitive Slave Clause, which passed without any dissenting votes at the Constitutional Convention, required fugitives to be returned “on demand” and prohibited free states from [*PG322]liberating them.66 Frederick Douglass denounced the provision for making “the whole land one vast hunting ground for men,” making felons out of persons who broke the fetters of slavery.67

This superabundance of slaveholding compromises made the Thirteenth Amendment critical, not only to ending the physical bondage of slaves, but also to liberating the entire Constitution. The amendment provision in Article V requires two-thirds of both congressional houses to propose an amendment and three-fourths of state legislatures or conventions to ratify it. This made the passage of an antislavery amendment wholly impossible in the United States before the Civil War, because, in 1860, slavery was legal in fifteen of the thirty-three states then in the Union.68 The Thirteenth Amendment rendered all clauses directly dealing with slavery null and altered the meaning of other clauses that originally had been designed to protect the institution of slavery, such as the Insurrection Clause, to exclude their original design.

The Thirteenth Amendment further reinterpreted the Declaration of Independence to apply the universal declaration of human rights to blacks, whites, and any other citizens. Until its ratification, abolitionists like Charles Sumner, who argued that Fifth Amendment [*PG323]guarantees applied to blacks and whites, held this view in the face of explicit constitutional provisions to the contrary.69 Antebellum efforts to restrict slavery were ingenious but limited in scope. In 1850, Congress used its Article I, Section 8, Clause 17 authority over the nation’s capital to prohibit slave trading, but not slavery, in Washington, D.C.;70 legislators, however, could not do the same in the bordering states.

Antislavery advocates faced the dogma that states had the exclusive right to determine matters about slavery. The proslavery camp typically grounded its assertion on the Tenth Amendment’s reservation of powers to the state or Article IV’s guarantee of a republican form of government. Senator John Calhoun, the leading nineteenth-century states’ rights advocate, refined this proslavery concept into the doctrine of concurrent majorities. He argued that the national government lacked the authority to regulate slavery because it was unable to gain support from each state to do so.71

The abolitionist movement responded to this proslavery ideology with a natural rights perspective that was grounded in the Declaration of Independence and the Preamble to the Constitution. Abolitionists aimed to dismantle the Constitution’s tolerance for slavery, and their political agenda gradually led to ratification of the Thirteenth Amendment.

II.  Abolition and Natural Rights

Before turning to judicial interpretation of the Thirteenth Amendment, I begin with a retrospective look at the Amendment’s foundational aims. This background is necessary for my later dichotomization between the Thirteenth and Fourteenth Amendments and between the Thirteenth Amendment and Commerce Clause.

Radical Republicans based the Thirteenth Amendment on the natural rights principles that guided the abolitionist movement from its founding in 1833.72 The movement was founded upon ideology opposing both the proslavery and gradualist antislavery camps. Uni[*PG324]tarian leader William Ellery Channing explained, in 1835, that the abolitionists’ argument rested on the Declaration of Independence’s assertion of “the indestructible rights of every human being.”73 Each person was “born to be free,” and the desire for wealth, especially in human capital, could never trump individual rights.74 Slavery was inimical because it stripped “man of the fundamental right to inquire into, consult, and seek his own happiness.”75

The oratory and research skill of Theodore D. Weld likewise promoted the movement’s broad-ranging aspirations for national liberation. Through his influential book, American Slavery As It Is, Weld passed on to Radical Republicans the view that slaveholders plundered slaves of their “bodies and minds, their time and liberty and earnings, their free speech and rights of conscience, their right to acquire knowledge, and property, and reputation.”76 The National Anti-Slavery Convention relied on the “self-evident truths of the Declaration of Independence . . . and in the Golden Rule of the Gospel—nothing more, nothing less.”77 The abolitionists in Congress echoed the same sentiments.

Senator Charles Sumner’s arguments during the debates on the Kansas-Nebraska Bill were representative of the ideas he also espoused during the Senate debates on the Thirteenth Amendment. “Slavery,” he stated in one speech, “is an infraction of the immutable law of nature, and, as such, cannot be considered a natural incident to any sovereignty, especially in a country which has solemnly declared, in its Declaration of Independence, the inalienable right of all men to life, liberty, and the pursuit of happiness.”78

The Thirteenth Amendment’s grant of power to Congress over matters resembling the incidents of servitude signaled a break from moderate antislavery leanings and a preference for radical abolitionist principles.79 Moderates wanted states gradually and separately to end slavery. With the outbreak of the Civil War, however, a radical form of [*PG325]abolitionism came to dominate Congress.80 Even Abraham Lincoln, who also thought slavery was “a total violation” of the Declaration of Independence, initially maintained a gradualist, state-by-state approach. His views changed only during the War when he realized that Southern states would not be appeased into abandoning their expansionist ambitions.81

The Declaration takes for granted that the possession of natural rights is “self-evident.”82 Implicitly, this means people are intuitively empathetic and can recognize that others are endowed with the same rights. An advocate of the Thirteenth Amendment detailed a similar view during the House debate on the proposed Amendment:

What vested rights so high or so sacred as a man’s right to himself, to his wife and children, to his liberty, and to the fruits of his own industry? Did not our fathers declare that those rights were inalienable? And if a man cannot himself alienate those rights, how can another man alienate them without being himself a robber of the vested rights of his brother-man?83

Slavery was an anomaly in a country formed in opposition to British violation of American civil liberties. Within this national context, the Thirteenth Amendment brought the Constitution, which originally protected the institution of slavery, into harmony with the Declaration [*PG326]of Independence.84 Charles Black has pointed out that Thirteenth Amendment principles were dormant in the Declaration of Independence.85 Abolitionists changed legal culture to accord with ideals that existed since 1776.

Radical congressmen used the amendment process under Article V of the Constitution to alter the Constitution’s initially inimical provisions. The Thirteenth Amendment provides an enforceable right for the protection of those civil liberties that were valued in the Declaration of Independence but not implemented by the Constitution. The Amendment allows Congress to secure liberty, life, and the pursuit of happiness through positive laws.86

Behind its enforceable provisions lies the national commitment to secure personal liberties integral to civil welfare. Progressive advocates of the first reconstruction amendment made an earnest effort to remove impediments standing in the way of civil rights. They regarded the Thirteenth Amendment as a means of restoring the natural rights long denied to both blacks and wage earners. According to Radical Republicans, former slaves were not only freed from bondage; they also had gained the right to make fundamental choices about their jobs and families. Congressman M. Russell Thayer of Pennsylvania expressed the same point in general, rhetorical terms:

[W]hat kind of freedom is that which is given by the amendment of the Constitution, if it is confined simply to the exemption of the freedom from sale and barter? Do you give freedom to a man when you allow him to be deprived of those great natural rights to which every man is entitled by nature?87

The Thirty-Ninth Congress opened in 1865 with a statement by Schuyler Colfax, the incoming Speaker of the House of Representatives. Given shortly after Congress passed the proposed Thirteenth Amendment and before the introduction of the proposed Fourteenth Amendment, the statement was indicative of how Congress planned to use the Thirteenth Amendment for Reconstruction. Colfax told the House:

[*PG327][I]t is yours to mature and enact legislation which, . . . shall establish [state governments] anew on such a basis of enduring justice as will guarantee all necessary safeguards to the people, and afford what our Magna Charta, the Declaration of Independence, proclaims is the chief object of government—protection of all men in their inalienable rights.88

Radical Republicans relied on the Declaration of Independence to elucidate the proposed amendment. Representative Godlove S. Orth from Indiana expected the Amendment to “be a practical application of that self-evident truth,” of the Declaration “‘that [all men] are endowed by their creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.’”89 Its more progressive advocates made an earnest effort to remove impediments standing in the way of human rights.90 Representative Francis W. Kellogg of Michigan traced the sources of the proposed amendment to the Declaration and to the Preamble of the Constitution’s requirement that government promote the general welfare and secure liberty.91

Illinois Representative Ebon C. Ingersoll, who was elected to the Thirty-Eighth Congress to fill the vacancy created by the death of legendary abolitionist Owen Lovejoy, voiced the desire to secure slaves natural and inalienable rights because blacks have a right to “live in a state of freedom.”92 He asserted that they have a right to profit from their labors and to enjoy conjugal happiness without fear of forced separations at the behest of uncompassionate masters.93 Moreover, Ingersoll viewed the proposed amendment to apply to “the seven millions of poor white people who live in the slave States but who have ever been deprived of the blessings of manhood by reason of . . . slavery. Slavery has kept them in ignorance, in poverty and in degradation.”94 Senator Henry Wilson likewise said the Thirteenth Amendment would provide “sacred rights” to whites and blacks.95

Representative Thomas T. Davis of New York expounded on civil liberty on January 7, 1865: “Liberty, that civil and religious liberty which was so clearly beautifully defined in the Declaration of Inde[*PG328]pendence . . . . African slavery, was regarded as temporary in its character . . . . Our fathers predicted that the time would soon come when the interests of the country would demand that slavery should pass away.”96 Representative John F. Farnsworth of Illinois thought the “old fathers who made the Constitution . . . believed that slavery was at war with the rights of human nature.97

Republicans like Representative Ignatius Donnelly of Minnesota recognized that

slavery is not confined to any precise condition. . . . Slavery consists in a deprivation of natural rights. A man may be a slave for a term of years as fully as though he were held for life; he may be a slave when deprived of a portion of the wages of his labor as fully as if deprived of all.98

Senator John Sherman of Ohio regarded the Amendment’s second clause to be the grant of congressional power to actively secure freedpeople their liberty rights “to sue and be sued . . . [and] to testify in a court of justice.”99

The Thirty-Eighth Congress wanted the Thirteenth Amendment to help achieve the liberty they extolled during the debates of 1864 and 1865. The Amendment’s second section made enforceable the right to liberty. It placed the power to protect civil rights in the hands of federal legislators, shifting the balance of power from the states. Yet Supreme Court decisions that followed Reconstruction made the Amendment virtually ineffectual, and it was only at the end of the twentieth century that the Court corrected itself.

III.  Judicial Interpretation

The Framers of the Thirteenth Amendment were driven by the conviction that slavery was an evil requiring permanent eradication.100 [*PG329]In the years following Reconstruction, the U.S. Supreme Court undermined the Radical ideals of universal freedom and, eventually, interpreted the Amendment so narrowly that its holdings came to resemble the reasoning of congressmen who had voted against the Amendment.101 In the years following the Compromise of 1877, the Supreme Court stripped the Amendment of its countermajoritarian potential.102 Only during the 1960s’ civil rights movement did the Court recognize its mistake.

A.  Judicial Overview

A Kentucky federal court’s 1866 decision in United States v. Rhodes was the first federal decision on the constitutionality of the Civil Rights Act of 1866, which Congress passed pursuant to its Thirteenth Amendment enforcement authority.103 Congress passed the Civil Rights [*PG330]Act over President Andrew Johnson’s veto.104 The provisions of the Civil Rights Act were indicative of the Radical Republican Reconstruction plans. Senator Lyman Trumbull reported the Bill, on January 12, 1866.105 In its initial form, the Bill conferred citizenship on all persons, except untaxed Indians, who inhabited the states or territories and made it a crime to discriminate against their civil rights and immunities.106 The initial Bill essentially guaranteed equal enjoyment of the privileges and immunities of citizenship, but this language was removed from the Bill’s final draft. Nevertheless, in its enacted form the Act recognized the civil rights to

make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.107

The Act granted federal courts jurisdiction to hear cases of any alleged violations.108 Moreover, anyone who was denied the right to enforce his or her rights under the Act in a state court was permitted to transfer the case to a federal court. State officials who violated the Act under color of law or pursuant to custom were also subject to criminal [*PG331]prosecution.109 Violators were subject to imprisonment for up to one year and a fine of no more than $1000.110

Supreme Court Justice Noah Swayne, sitting as a designated circuit court justice in 1866, rendered the opinion in Rhodes.111 The case arose after white defendants were charged with committing burglary against Nancy Talbot, an African American.112 Justice Swayne found that the Thirteenth Amendment granted Congress the power to pass the Civil Rights Act and federal courts the power to hear civil rights matters.113 This was necessary to secure equal access to judicial redress for newly freed blacks in both criminal and civil cases.114 Justice Swayne’s decision was seeped with “the spirit in which the Amendment is to be interpreted.”115 Without congressional enforcement power, Justice Swayne wrote in dictum, “simple abolition . . . would have been a phantom of delusion.”116

In 1872, while Justice Swayne was still an associate justice, the U.S. Supreme Court ruled very differently on a procedural matter in Blyew v. United States.117 Just as Rhodes, Blyew was a federal removal case. Kentucky law, in 1868, when the Blyew defendants were indicted, still forbade black witnesses from testifying against white defendants.118 Blyew was the first blow to the use of the Thirteenth Amendment for ending centuries of racial intolerance. There was both oral and physical evidence at trial showing that on one night John Blyew and George [*PG332]Kennard had murdered three generations of a black family.119 The only witnesses to the crime were black. The United States Solicitor General argued that the right to testify protected persons and property, and was part and parcel of the freedom Congress assured all citizens regardless of race.120 The Supreme Court, however, was convinced by the defendants’ procedural argument against federal court jurisdiction and reversed the convictions.121 The Court held that only living persons could request removal, making conviction impossible.122 No one had standing to remove the case because the victims were dead and the defendants had not affected any of the black witnesses.123

The dissenting opinion, written by Justice Joseph Bradley, criticized both the majority’s narrow reading of the Civil Rights Act and its disregard for the liberal ideals surrounding the statute’s passage.124 Bradley concluded that Congress broadly intended to prevent wanton, racist conduct from being committed against the black community.125 The Amendment attempted to “do away with the incidents and consequences of slavery” and to replace them with civil liberty and equality.126 Justice Bradley further wrote that the chief aim of the Abolition Amendment was to instate blacks to the full enjoyment of civil rights.127 He also recognized that the majority opinion legitimized Kentucky’s practice of prohibiting blacks from testifying against whites and thereby branded all blacks “with a badge of slavery.”128

Southern government officials and hoodlums alike used Blyew to circumvent civil rights legislation. The case significantly diminished the potential for a successful reconstruction. It branded blacks as easy prey for individuals and groups who continued extolling the Confederacy and sought to reinvigorate its institutions. If the Ku Klux Klan (the “KKK”) and other violent supremacist groups had been at all leery of being tried in federal courts, Blyew relieved them of that worry. The federal government could no longer provide a judicial fo[*PG333]rum in cases where state laws prohibited blacks from testifying against whites and the black victims of a crime were unavailable.

The period of substantive decline for Thirteenth Amendment jurisprudence began in 1883 with the Civil Rights Cases.129 Bradley, who was by then Chief Justice of the Supreme Court, drafted the majority opinion. He qualified his earlier dissent in Blyew and significantly contributed to the reversal of Radical Reconstruction. His ruling has implications for the contemporary distinction between the Thirteenth and Fourteenth Amendments.130

The constitutionality of the first two sections of the Civil Rights Act of 1875 was the subject of litigation in the Civil Rights Cases.131 The Act was the last legislation passed by the Reconstruction Congress.132 By the time the case came before the Supreme Court, Reconstruction had come to a grinding halt, even though many racialist institutions resembling slavery remained. These institutions included adhesion contracts for sharecropping, segregation, peonage, and the convict lease system.133

[*PG334] The Civil Rights Cases involved five joint cases from various parts of the country.134 The first four cases were reviews of criminal prosecutions.135 Two of the defendants were charged for denying blacks access to an inn or hotel, a third for prohibiting a black individual from access to the dress circle of a theater in San Francisco, and a fourth for refusing access to a New York opera house.136 The fifth case was a civil action from Tennessee against a railroad company whose conductor prevented a black woman from riding in the ladies’ car.137 Attorneys for four of the five defendants did not even bother appearing to argue the cases before the Court.138 The favorable ruling the defendants received was a clear signal for the national consensus to draw away from abolitionist principles.

The limits on Congress’s Fourteenth Amendment powers announced in the Civil Rights Cases continue to be binding, and the Rehnquist Court recently further extended Chief Justice Bradley’s ruling.139 The Civil Rights Cases held that the Fourteenth Amendment protects citizens against state interference with individual rights, but not against individual invasion of individual rights.140 Thus, Bradley decided that the Fourteenth Amendment did not give Congress authority to prevent social discrimination, such as exclusion from public places of amusement and segregation on public carriers. The Court, therefore, found that the first two sections of the Civil Rights Act of 1875 were unconstitutional under the Fourteenth Amendment.141

Justice John Marshall Harlan, the lone dissenter in the Civil Rights Cases, argued that congressional enforcement power, under Section 5 of the Fourteenth Amendment, was more realistic and analogous to Radical Republican ideals of Reconstruction. The fifth section of the Amendment, Justice Harlan wrote, enabled Congress to enact [*PG335]“appropriate legislation . . . and such legislation may be of a direct and primary character, operating upon states, their officers and agents, and also upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the state.”142

I critique the Fourteenth Amendment’s state interference requirement in relationship to the Thirteenth Amendment in Part V.143 Suffice it to say here that, in the unreconstructed South, the idea that states would regulate private discriminations was farfetched. Chief Justice Bradley made an artificial dichotomy, although one that was common in post-Reconstruction United States, between civil rights and social rights. In the Civil Rights Cases, he held that the Fourteenth Amendment covered civil rights, which included making contracts and leasing land, but not social rights, which pertained to using public accommodations.144 Thus, as Angela P. Harris pointed out in a recent article, the Court limited Congress’s ability to protect citizens pursuant to its federalist vision.145 The Court continues to follow the Civil Rights Cases ruling on the state action requirement of the Fourteenth Amendment.146 The ruling has so crippled the legislative branch’s enforcement power under the Fourteenth Amendment that Congress was forced to rely on the Commerce Clause to pass major civil rights legislation, like the 1964 Civil Rights Act, in the twentieth century.147

The Court in the Civil Rights Cases also considered whether the Civil Rights Act of 1875 was constitutional under the Thirteenth Amendment. Indeed, the Civil Rights Cases provided the Supreme Court with its first opportunity to directly interpret the Thirteenth Amendment’s substance. The Court recognized that the Amendment went further than simply releasing slaves from their masters’ control.148 In fact, Chief Justice Bradley reiterated his conviction that the [*PG336]Thirteenth Amendment granted Congress the power to pass all laws “necessary and proper for the obliteration and prevention of slavery, with all its badges and incidents.”149 He even conceded that the Thirteenth Amendment prohibited state and private violations.150

Nevertheless, the Court held that denying admission to public accommodations was not a vestige of slavery.151 The Court reasoned that “the social rights of men and races in the community” differ from “fundamental rights which appertain to the essence of citizenship.”152 Just as with the Fourteenth Amendment, the Court determined that the Thirteenth Amendment only applies to civil and political rights. The Civil Rights Cases limited the term “necessary incidents” of slavery to a set of legal institutions, such as prohibitions against blacks testifying in court and owning property.153 Thus, the Court determined that Congress overreached when it sought to extend legislative authority against social discriminations.154

Chief Justice Bradley’s conclusion was in no way obvious. He stuck to an artificial dichotomy rather than recognizing that social discriminations perpetrated in public detrimentally affect both the victim and his or her group. In these cases, social discriminations limited the plaintiffs’ ability to travel by rail, attend an opera, reserve a room at an inn, or see a play with friends. Such infringements on the plaintiffs’ basic rights branded them unworthy of the same privilege to make personal choices enjoyed by whites and perpetuated the supremacist mentality of Southern slavocracy. The Court’s holding showed callousness to the way public accommodation discrimination hindered blacks from enjoying their freedom. Chief Justice Bradley’s dismissive opinion in [*PG337]the Civil Rights Cases furthered the social tensions and misery that the Radical Republicans hoped to eliminate with the Thirteenth Amendment. Homegrown militias, such as the KKK, and private business owners who refused to provide blacks with goods and services were now protected by state indifference or outright support for discriminatory practices.155

Justice Harlan, in his dissent in the Civil Rights Cases, understood that the majority’s decision precluded the national government from ending state-sponsored or -countenanced abridgements of freedoms.156 He found the majority’s opinion to be “narrow and artificial” and inimical to the “substance and spirit” of the Thirteenth Amendment.157 Harlan understood that because the dogma of black inferiority was integral to maintaining slavery, the Thirteenth Amendment’s guarantee of “freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races.”158 For Justice Harlan, this principle carried a practical implication:

Congress, therefore, under its express power to enforce that amendment, by appropriate legislation, may enact laws to protect that people against the deprivation, on account of their race, of any civil rights enjoyed by other freemen in the same state; and such legislation may be of a direct and primary character, operating upon states, their officers and agents, and also upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the state.159

Although Justice Harlan agreed with Chief Justice Bradley that Congress lacked the power to regulate social interaction, he proclaimed that the Civil Rights Act of 1875 in fact did protect civil [*PG338]rights.160 He argued that state laws and private practices denying blacks the use of public accommodations excluded them from participation in an essential aspect of civic life.161

After the Civil Rights Cases, the Thirteenth Amendment was relegated to virtual disuse. The Court continued to chip away at federalism and Congress’s ability to prevent private or state discrimination. The Court maintained the distinction between social and civil rights in Plessy v. Ferguson, where the Court did not regard the facilitation of social equality to be part of judicial function.162 In concluding that separate accommodations on railcars did not violate the Thirteenth Amendment, the Court quoted the Civil Rights Cases for the proposition that the end of slavery did not require anyone to deal with other races in matters of intercourse or business.163 Justice Henry Brown, writing for the Plessy majority, took a literalist approach to slavery, attacking the assumption that the enforced separation of the two races stamped African Americans with a badge of inferiority.164

Just as he had in the Civil Rights Cases, Justice Harlan wrote the dissenting opinion in Plessy. He regarded the right of persons to share railroad cars as inherent in the concept of freedom.165 Harlan was prescient in foreseeing that the separate but equal doctrine would not be limited to rail travel, but would continue to infect many other aspects of civil society.166

[*PG339] The escape from the morass into which the Court had helped drag this country came in 1968, in Jones v. Alfred H. Mayer Co.167 That case overruled the Civil Rights Cases limited construction of the Thirteenth Amendment’s second section.168 The Jones Court ruled that Congress passed the Civil Rights Act of 1866 as a “necessary and proper” means of prohibiting private and public discrimination in real estate transactions.169 However, Justice Potter Stewart, writing for the Court, expressly avoided reaching the issue of whether the Thirteenth Amendment granted Congress authority to prevent discrimination in places of public accommodation, concluding that the Civil Rights Act of 1964 had made that issue moot.170 Nevertheless, Jones gave Congress wide latitude to pass legislation against civil rights violations. The majority wrote that “[s]urely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”171

A logical extension of Jones is that Congress has the power to legislate against state or private infringements that arbitrarily interfere with individuals’ right to live freely. Although Congress’s determination of arbitrariness is subject to a rationality requirement, the standard is a low one that the federal legislature can meet by examining [*PG340]the historical landmarks of slavery, evaluating what existing practices perpetuate the incidents of involuntary servitude, and promulgating laws to end them. Congress, then, has the power to end any existing coercive and arbitrary injustices analogous to involuntary servitude.

Jones also recognized that the United States is responsible for protecting its citizens against arbitrary infringement of fundamental rights.172 National civil rights laws, therefore, can confront civil rights violations directly and need not operate behind a veil of congressional power over interstate commerce.173 Moreover, Jones required courts to analyze human rights violations in a way significantly different from the state action analysis under the Fourteenth Amendment. Finally, the decision raised intriguing questions about whether, even without congressional action, persons can bring suit both against states and individuals for violating the first section of the Thirteenth Amendment.174 This is because, whereas the second section authorizes Congress to pass federal laws rationally tailored to end the badges and incidents of servitude, the first section is a self-executing, judicially enforceable prohibition against any remaining incidents of involuntary servitude, and that institution’s injustices far exceeded forced labor.

In the Supreme Court cases that followed Jones, the Court continued holding that Congress could prohibit private racial discrimination pursuant to its Section 2 Thirteenth Amendment power. In Runyon v. McCrary the Court addressed the narrow issue of whether  1981 prohibited private schools from refusing to enroll students based on their race.175 Its holding had broad social ramifications on the integration of private schools. The relevant part of the statute provided that, “[a]ll persons within the jurisdiction of the United States shall have the same right in every State . . . to make and enforce contracts . . . as is enjoyed by white citizens.”176 Justice Stewart based [*PG341]his decision on  1981’s prohibition against contract discrimination.177 The school violated the law because it refused to enter into a contract with the parents of potential students who happened to be black.178 The Court found that the free association and privacy rights of parents wanting to keep the school segregated did not trump the rights of parents wanting to enroll their children.179 Parental desire to send their children to a private, segregated school also did not override the government’s reasonable prohibition against the school’s discriminatory contracting practices.180

The Court could have sent an even stronger message about the nation’s commitment to freedom had it used a more historical, rather than contractual, analysis. The Court’s holding could have been based on the right to parental autonomy, which had been denied both through Slave Codes and by individual slave masters.181 Schools that refuse to admit students because of their race violate the parents’ [*PG342]Thirteenth Amendment right to make rational decisions about where to educate their children, not merely the parents’ contractual right.

The Court’s 1973 decision in Tillman v. Wheaton-Haven Recreation Ass’n provided even stronger ammunition in the civil rights arsenal.182 The litigation involved a private swimming club that discriminated against blacks in its membership and guest policies.183 Three African Americans, to whom the Association denied access, sought damages and an injunction against the practice pursuant to the racist leasing and rental practice prohibitions under  1981 and 1982.184 Justice Harry Blackmun, for the majority, reasoned that because the Association’s membership was tied to a narrow geographic location, persons who lived and purchased property valuated their real estate partly on the expectation that they could join the recreation center.185 The decision was thus again rooted in contract law rather than in a fundamental right to enjoy public accommodations. The Court limited itself to examining the discrimination on the basis of the existing statutes instead of the Thirteenth Amendment’s underlying principles.

In a 1975 case, Johnson v. Railway Express Agency, Inc., the Court further extended the applicability of  1981, finding that it allowed recovery for the discriminatory conduct of a private employer.186 The case provides a rich distinction between employment discrimination claims under  1981 and Title VII, the latter being the traditional avenue for relief in employment discrimination cases.187 The Court’s holding makes clear why plaintiffs often fair better in employment discrimination claims filed under  1981 instead of Title VII. For instance, Title VII’s relatively short statute of limitations is not applicable to  1981 claims.188 Instead,  1981 claims, la Johnson, apply the pertinent personal injury statute of limitations from the plaintiff’s state. [*PG343]In Johnson, the Court applied Tennessee’s one-year limitation period,189 which was significantly longer than Title VII’s 180-day requirement to file the employment claim with the EEOC or 300 days to file with a state office. Other courts commonly apply two- or three-year state personal injury statutes of limitations to  1981 cases.190 Further advantages to the Thirteenth Amendment-based employment discrimination claims are that  1981 does not exempt employers who are improper parties under Title VII and  1981 does not require the exhaustion of administrative remedies.191 Johnson offers a meaningful alternative to persons seeking creative litigation strategies to obtain equitable and pecuniary relief for employment discrimination.192

In a 1989 case, Patterson v. McLean Credit Union, the Supreme Court ruled that  1981 applies to racial discrimination perpetrated during the contract formation process, but not to post-formation discrimination.193 Congress superceded the Court’s ruling by passing the Civil Rights Act of 1991, codified as 42 U.S.C.  1981(b).194 The section provides that “the term ‘make and enforce contracts’ includes the making, [*PG344]performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”195 Furthermore, the amended version of 1981 explicitly covers private and state violators.196

The cases decided since the 1968 landmark decision in Jones show just how broadly the Thirteenth Amendment reaches, even when litigants rely on civil rights statutes like  1981 and 1982.197 Congress can go much farther and pass new statutes pursuant to its Section 2 authority, particularly in light of the sensibility against discrimination that has burgeoned in the United States since the 1960s. Certainly discrimination in real estate transactions and private schools is not literally slavery or involuntary servitude. The Court, however, interpreted the Thirteenth Amendment as granting Congress discretionary power to determine what forms of discrimination are rationally related to the incidents and badges of servitude. The Court’s analyses in Jones, Runyon, and Johnson indicate that Congress can pass effective laws rationally designed to end any remaining incidents and badges of servitude. I return to the subject of how to differentiate which liberties the Thirteenth Amendment covers below, where I show how the Amendment fits into traditional civil rights law.198

B.  Section One Authority

The Supreme Court has never determined whether a private party can bring a cause of action under the first section of the Thirteenth Amendment. The Court’s current stance on this issue is somewhat ambiguous. Generally, lower court decisions proscribe independent judicial use of Section 1 to determine which discriminations are rationally related to the incidents and badges of servitude.199 [*PG345]There is, however, a faint glimmer of hope in Supreme Court dicta that suggests a more progressive position.

Palmer v. Thompson, decided in 1971, addressed the Section 1 issue but left it unresolved.200 In 1962, Jackson, Mississippi closed four segregated swimming pools and surrendered the lease of a fifth segregated pool.201 Whites had exclusively used four pools and only blacks used the fifth.202 The city council claimed that its decision was based on findings that continuing to operate the pools would be too costly and that closing them was necessary for preserving public order.203 The petitioners sought an injunction to reopen the pools on a desegregated basis. They claimed that Jackson closed the facilities “because of ideological opposition to racial integration in swimming pools” and that the city thereby violated the Thirteenth and Fourteenth Amendments.204 Justice Hugo Black, writing for the majority, refused to second-guess the legislators’ motives.205 The Court determined that the [*PG346]stated legislative purposes were beyond the scope of judicial review and affirmed the district court’s denial of injunctive relief.206

The petitioners had argued that “the city’s closing of the pools to keep the two races from swimming together violates the Thirteenth Amendment.”207 Justice Black determined that, absent a federal law requiring the Court to open swimming pools, the Court could not “legislate new laws to control the operation of swimming pools throughout the length and breadth of this Nation.”208 The Court implicitly recognized Congress’s second section authority to pass a law prohibiting governmental entities from purposefully refusing to desegregate.209 The Court, however, refused to use any “authority under the Thirteenth Amendment to declare new laws to govern the thousands of towns and cities of the country” because that “would grant it a law-making power far beyond the imagination of the amendment’s authors.”210 Instead, the Court declared that, “[t]he last sentence of the Amendment reads: ‘Congress shall have power to enforce this article by appropriate legislation.’ But Congress has passed no law under this power to regulate a city’s opening or closing of swimming pools or other recreational facilities.”211

Even though the Court decided not to require that the city reopen the pools, the dictum in Palmer was the closest the Court has come to recognizing that it might sua sponte use Section 1 authority to find a discriminatory law unconstitutional. The Court stated that “[s]hould citizens of Jackson or any other city be able to establish in court that public, tax-supported swimming pools are being denied to one group [*PG347]because of color and supplied to another, they will be entitled to relief.”212 This statement leaves open the possibility that litigants can obtain an injunction, absent statutory authority, if they petition to desegregate an open public facility rather than praying to reopen closed ones. The dictum is particularly intriguing because it comes at the very end of the opinion, almost inviting a citizen lawsuit to rely on Section 1 to petition for an injunction. The likelihood that the Court would issue such an injunction, however, is small given the absence of any decisive precedent on the matter.213

One of Palmer’s greatest weaknesses lies in the Court’s failure to analyze the extent to which the category “badges and incidents of servitude” extends to social discrimination, such as swimming pool segregation. Nowhere in the decision did the Court analyze whether racism and its coercive practices developed through forced, public racial segregation. If the Court concluded that segregation in public places stamped blacks with a badge of inferiority that limited autonomy rights and helped maintain a divisive society, granting an injunction would not have amounted to making new law. Instead, the Court would have acknowledged that slavery extends beyond the plantation system and continues to plague the United States. Such a finding also would not have required the Court to micromanage “thousands of towns and cities.”214 Instead, it would have granted victims standing to file claims pursuant to Section 1. Litigation, then, would have focused on ripe issues.

The Court’s decided avoidance of a timely issue was question-begging. The Court in Palmer could have relied on Justice Harlan’s dissent in Hodges, where he asserted that Section 1 did much more than free slaves: “by its own force, that Amendment destroyed slavery and all its incidents and badges, and established freedom.”215

Ten years after Palmer, the Court again considered whether the first section of the Thirteenth Amendment went any farther than simply abolishing slavery.216 In City of Memphis v. Greene, black citizens ob[*PG348]jected to the closing of a street running between a predominantly black area and a white residential community. The plaintiffs claimed that the closing constituted a badge of servitude because it affected black citizens’ ability to enjoy their property.217 The Court held that the City’s motives were to protect children’s safety and preserve residential quietude, not to discriminate.218 The street closing constituted a “routine burden of citizenship” and was not, therefore, a badge of servitude.219

The Court in Greene did, however, emphasize the Thirteenth Amendment’s self-executing first section.220 The decision further indicated that, under the right circumstances, the Court might allow a claim directly under Section 1, even absent congressional action.221 Memphis had based its argument on Palmer, claiming that absent direct congressional enabling legislation the Court could not hold for the plaintiffs.222 The Court rejected Memphis’s argument and stated that “[p]ursuant to the authority created by  2 of the Thirteenth Amendment, Congress has enacted legislation to abolish both the conditions of involuntary servitude and the ‘badges and incidents of slavery.’”223 This “exercise of that authority” the Court went on “is not inconsistent with the view that the Amendment has self-executing force.”224

Interestingly, the majority emphasized the possibility that courts have the power to find that Section 1 extends beyond the abolition of slavery:

In Jones, the Court left open the question whether  1 of the Amendment by its own terms did anything more than abolish slavery. It is also appropriate today to leave that question open because a review of the justification for the official action challenged in this case demonstrates that its disparate impact on black citizens could not, in any event, be fairly characterized as a badge or incident of slavery.225

Presumably, if the Court did decide that Section 1 extended beyond mere abolition, it could enable the judiciary to use a methodological analysis of discriminatory actions similar to the one Jones established [*PG349]for the legislature.226 This dictum in Greene indicates that, given a justiciable controversy, the judiciary could decide whether a cause of action amounts to a badge or incident of servitude.

The Supreme Court has not subsequently returned to clarify this important point. This leaves open the question of whether a private claim is available under Section 1 absent an ancillary statute and, if such a cause of action is available, whether it may be filed against public and private actors.

C.  Summing up

Thirteenth Amendment jurisprudence has emerged from the narrow Court holding in the Civil Rights Cases. This case precluded petitioners from seeking to end discriminatory practices in public accommodations. Had the Court come to the opposite conclusion, a civil rights movement could have bourgeoned immediately after the Civil War, and the Thirteenth Amendment could have helped end many stigmatizing practices, such as racial segregation, which continued into the 1960s. By the 1896 Plessy decision, the Supreme Court virtually nullified the Amendment’s effectiveness, having become complicit in legitimizing separate but equal practices. Finally, with the 1906 Hodges decision, the Supreme Court undermined Congress’s ability to prevent the perpetuation of any badges and incidents of servitude, except those directly associated with peonage and chattel slavery. Only in 1968, with the ruling in Jones, did the Court recognize its earlier mistake. Jones returned the Thirteenth Amendment to its bastion among other cornerstones of federal civil rights.

Even today, the Thirteenth Amendment remains a sparsely used and little-defined part of the Constitution. The Amendment has recently become ever more relevant because the Supreme Court has narrowly construed legislative power under the Commerce Clause and Section 5 of the Fourteenth Amendment.227 Supreme Court deci[*PG350]sions, such as Kimel v. Florida Board of Regents, United States v. Morrison, and City of Boerne v. Flores, have restricted Congress’s ability to enact antidiscrimination laws.228 At the same time, the Supreme Court has not similarly limited Jones and the subsequent cases addressing Congress’s Thirteenth Amendment power. Federalism developments in the areas of Commerce Clause and Fourteenth Amendment common law demand a creative approach, which can be found in a new commitment to Thirteenth Amendment civil rights activism.

IV.  The Commerce Clause and Thirteenth Amendment

The next issue to analyze is whether the Thirteenth Amendment alternative can bolster civil rights cases that have traditionally relied on the Commerce Clause for their authority. This analysis requires a preliminary explanation of the case law regarding the regulation of interstate commerce and then a critical comparison to Thirteenth Amendment authority and its potentials. The Thirteenth Amendment is not susceptible to the economic interpretation that the Court has recently given the Commerce Clause.

Commerce Clause jurisprudence developed during the New Deal and established the federal government’s authority to regulate activities integral to the national economy.229 The U.S. Supreme Court even extended the national government’s power over interstate commerce to the regulation of private farms growing crops for the farmer’s consumption.230 The New Deal Court learned from Lochner v. New York what [*PG351]seemed, for many years, to be a sustained lesson not to meddle in rational federal laws regulating interstate commerce.231 The Court’s deference on matters of commerce carried over into the civil rights arena.

By the 1960s, constitutional lawyers regularly resorted to the Commerce Clause in litigation. Part of their aim was to adopt strategies to circumvent the eighty-year-old state action restrictions in United States v. Harris and the Civil Rights Cases.232 Civil rights leaders, too, recognized that private acts of discrimination violated the individual right of self-determination and wanted the federal government to provide a remedy against private actors.233

To that end, Congress passed numerous 1960s civil rights statutes relying, in large part, on its Commerce Clause authority. The success of presidents John F. Kennedy and Lyndon B. Johnson in spurring a civil rights agenda culminated in the Civil Rights Act of 1964.234 That statute continues today to provide remedies against a variety of discriminations, including those perpetrated in public accommodations, employment, and housing. The Supreme Court, under the leadership of Chief Justice Earl Warren, used the Commerce Clause instead of post-Reconstruction jurisprudence on Congress’s Fourteenth Amendment powers to justify Congress’s enactment of laws against private discrimination.235

[*PG352] In a 1964 watershed case, Heart of Atlanta Motel Inc. v. United States, the Supreme Court determined that Congress could use its power to regulate interstate commerce to prevent a private motel from discriminating on the basis of race, color, religion, or national origin. The Motel refused to rent rooms to African Americans while advertising nationally and serving clientele from interstate highways.236 The Court held that the Motel’s refusals caused blacks to be “subject of discrimination in transient accommodations,” forcing them to travel greater distances to find another motel or stay with friends.237 Oddly, it was the Motel that raised the Thirteenth Amendment claim, arguing that requiring it to provide accommodations to unwanted customers would subject the business to involuntary servitude.238 The Court rejected the Motel’s reasoning and held that the Thirteenth Amendment granted Congress authority to pass rationally designed antidiscrimination laws for bettering the general welfare. Nevertheless, the Court refused to reverse the Civil Rights Cases Fourteenth Amendment bar against federal laws prohibiting public accommodation discrimination.239

That same year, the Court decided, in Katzenbach v. McClung, that the Civil Rights Act of 1964 constitutionally prohibits a family-owned restaurant from discriminating against potential patrons.240 In the district court, the plaintiffs relied on a Thirteenth Amendment argument. The trial court found the Amendment irrelevant to the issue because it neither permitted nor denied Congress power to pass laws against discrimination.241 The trial court also found there was no “close and substantial relation” between the restaurant and interstate commerce.242 The Supreme Court did not follow the “close and substantial relation” test. Instead, it determined that Congress had a “rational basis” for adopting the Act’s regulatory scheme based on evidence that segregated restaurants hindered business, inhibited travel, [*PG353]and therefore detrimentally affected interstate commerce.243 The Court refused, however, to reach the Thirteenth Amendment issue.

For decades, Heart of Atlanta Motel and McClung stood for the deferential principle that Congress could pass any necessary laws rationally connected to interstate commerce. The Court did not second-guess congressional factfinding when it met this minimum threshold.244 So long as the legislature did not pass a law based on arbitrary and concocted findings, the Court time and again found statutes constitutional. Prior to 1997, as Harold J. Krent pointed out, the Court also did not categorically require that all legislation with constitutional implications be supported by legislative findings.245 Such a requirement “unquestionably would fundamentally alter the relationship between the judiciary and the legislature.”246

Although use of Commerce Clause authority was a well-established civil rights strategy by the 1990s, recent Court decisions put the continued viability of this strategy into doubt. For example, the Rehnquist majority reduced Congress’s effectiveness in enacting legislation pursuant to its Commerce Clause power in United States v. Morrison, where the Court struck down a national law prohibiting gender-motivated violence, and United States v. Lopez, where it found unconstitutional a federal statute against the possession of firearms near a school.247 In the name of federalism, the Court’s rulings both diminished Congress’s power to act on rational findings that something affects interstate commerce and increased judicial oversight [*PG354]authority.248 These decisions make the Thirteenth Amendment ever more relevant.

The Court first narrowly construed congressional Commerce Clause power in Lopez.249 The case dealt with the Gun-Free School Zones Act of 1990, which provided criminal penalties for persons who knowingly possessed firearms in a school zone.250 Chief Justice William Rehnquist, writing for the majority, found the Act unconstitutional.251 The ruling in Lopez was the first time in sixty years the Court found a federal statute exceeded Congress’s power to regulate interstate commerce.252 Chief Justice Rehnquist’s opinion weakened Congress’s Commerce Clause power by forgoing the rational basis test inquiry and, instead, examining whether the law had a “substantial effect” on interstate commerce.253 The Court then found no congressional showing that guns carried in a school zone had a substantial effect on interstate commerce.254 Rehnquist’s language also indicated that the Commerce Clause would henceforth only apply to cases involving “economic enterprise.”255

Justice Stephen Breyer, writing in dissent, found no basis for deviating from the rational basis test. He argued that Congress can regulate any activity “significantly (or substantially)” affecting national commerce.256 Justice Breyer pointed out that, contrary to the majority’s holding, Commerce Clause cases have not consistently used the “substantial effects” label: “I use the word ‘significant’ because the word ‘substantial’ implies a somewhat narrower power than recent precedent suggests. But to speak of ‘substantial effect’ rather than ‘significant effect’ would make no difference in this case.”257

[*PG355] If the Court had relied on Justice Breyer’s reasoning, it likely would have determined Congress did not exceed its authority. Guns in schools significantly undermine national education and thus adversely affect interstate and foreign commerce. In addition, Congress could have legitimately found that, on a national level, guns have a substantial effect on children’s education. The majority’s reliance on the substantial effect test allowed it to second-guess the adequacy of the congressional record and conclude that possessing guns close to schools was not a commercial activity.258 The Court, ultimately, refused to rely on the government’s claim of expertise.

The decision in Lopez apparently also was based on an unreflective concern about congressional overreaching. One of “the implications of the Government’s arguments” is that “under the Government’s ‘national productivity’ reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example.”259 These same concerns equally apply to other federal statutes directly impacting family life such as the Uniform Interstate Family Support Act and the Parental Kidnapping Prevention Act.260 Similarly, traditional federal civil rights claims, such as those under 42 U.S.C.  1983 and 1985(3), often function concurrently with state remedies for racial or gender discrimination.261 In Lopez, the Court usurped congressional Commerce Clause powers by granting itself oversight in an area of decision making that the Constitution granted to the people’s representatives.262

Five years later, the Court in Morrison relied on Lopez to find unconstitutional the Violence Against Women Act (“VAWA”), a federal statute that provided a private remedy for gender-motivated violence.263 The Chief Justice again wrote for the majority, further embedding into [*PG356]jurisprudence his views on the centrality of economics to Congress’s Commerce Clause power.264 Unlike the congressional record on the Gun-Free School Zones Act, Congress had provided abundant information about the interstate effects of gender violence. Nevertheless, the Court did not find sufficient evidence to prove that violence against women substantially affected interstate commerce. Even on its face, without any fact gathering, the connection between the inability of women to reach their potential when confronted by gender bias appears obvious. But, instead of relying on presupposition, Congress bolstered the factual record with a “mountain of data,” including information from no less than nine congressional hearings and from gender bias task forces in twenty-one states, which was amassed over four years.265 The Court’s rejection of Congress’s inductions from the evidence went beyond Lopez and granted the judiciary even more control in determining whether congressional findings adequately justify civil rights laws passed pursuant to the Commerce Clause.

The Court disregarded the compiled data on the grounds that violent gender-motivated crimes “are not, in any sense of the phrase, economic activity.”266 This reasoning seems to be a return to judicial scrutiny reminiscent of Lochner-era due process review.267 To further curtail congressional overreaching, the Court concluded that Congress could not enact law “based solely on that conduct’s aggregate effect on interstate commerce.”268 The aggregation doctrine, the Court held, was inapplicable in cases of gender-motivated violence that is “not directed at the instrumentalities, channels, or goods involved in interstate commerce.”269

[*PG357] The dissents in Morrison, written by Justices David Souter and Stephen Breyer, sought to restore the rational basis test.270 Justice Souter regarded the congressional record on the VAWA as more convincing than those in Heart of Atlanta Motel and McClung.271 Although the majority did not overrule those two earlier cases, it cast doubt on their vitality because Heart of Atlanta Motel and McClung, just as Morrison, involved civil rights protections created on the basis of Congress’s Commerce Clause authority. The Court in Heart of Atlanta Motel determined that racial discrimination had a “disruptive effect . . . on commercial intercourse.”272 The Court in McClung found there was replete testimony that discrimination at restaurants had a “highly restrictive effect upon interstate travel by Negroes.”273 Similarly, Congress documented that gender-based violence often forced victims to quit jobs and reduced “the mobility of employees and their production and consumption of goods shipped in interstate commerce.”274

Given the Court’s recent propensity to bevel away at Congress’s Commerce Clause authority, the Thirteenth Amendment remains an important alternative for civil rights litigation. A Commerce Clause approach is unduly susceptible to economic arguments that an intolerant act is not substantially connected to interstate commerce. Although the Court found that violence against women is not an economically directed activity, that finding is irrelevant in deciding whether the Thirteenth Amendment grants Congress the power to prevent violence against women. The Thirteenth Amendment perspective allows congressmen to review the connection of gender-motivated violence to slavery. Such violence was regularly perpetrated against slaves on plantations, and women, as Andrew Koppelman has pointed out, were particularly vulnerable to sexual brutality by masters and others who exploited their strengths and positions of power.275

Federal laws relying on the Thirteenth Amendment need only be rationally related to the vestiges of slavocracy. The Court has never [*PG358]overturned the Jones rational basis test. Had Congress at least partly relied on it, the Court might have deferred to Congress, given legislative findings that gender-motivated violence is rationally related to the incidents of servitude and that the VAWA was a necessary and proper means of dealing with such acts. The only question left for the Court would then have been whether the VAWA was “reasonably adapted to the end permitted by the Constitution.”276

The Commerce Clause does little, if anything, to invoke the legacy of slavery or to look at its remaining manifestations, making it susceptible to a purely economic interpretation like the one the Rehnquist majority has adopted. Instead, the Commerce Clause bodes back to what we may call Lockean social religion, which elevates property above the Preamble’s guarantee to safeguard citizens’ life and liberty for the general welfare.277 After all, Congress has had the power to regulate all manner of commerce between states at least since 1824, pursuant to Gibbons v. Ogden, when slavery flourished in the United States.278 In fact, one author has argued that the Commerce Clause was an important part of the Founders’ compromise with slavocracy at the Constitutional Convention.279 Even though the Clause granted Congress the power to regulate the slave trade between states, the national government tolerated the practice, and some antebellum congressmen even owned slaves.280

By its very terms, the Thirteenth Amendment is not given to a neutral reading; indeed, it gives the federal legislature the power to enforce the liberty guarantees of the Declaration of Independence and Preamble to the Constitution in the context of both private and state-sponsored discrimination. Further, the Thirteenth Amendment extends to interstate and intrastate activities, regardless of the impact [*PG359]on commerce. The Amendment thereby recognizes that the arbitrary restriction of freedom is not merely an economic harm, but one that affects society in a more profound way. This does not mean that a Thirteenth Amendment civil rights approach should displace Commerce Clause efforts under the Civil Rights Act of 1964. Rather, I mean to stress the continued vitality of Jones in establishing Congress’s broad interpretive power at a time when the Court in Lopez and Morrison has made the passage of new civil rights legislation increasingly difficult to justify on Commerce Clause grounds.

The role of the Thirteenth Amendment in employment discrimination cases is illustrative of its importance. The link between employment discrimination and slavery is obvious, as slavery directly restricted blacks from choosing professions. Nationally, discriminatory practices barred blacks from competitive jobs. Congress can, therefore, rationally determine that exclusion of a group from equal participation in the workplace is related to forced subservience and an impediment to commerce. Based on this finding, Congress can pass legislation prohibiting employment discrimination currently not covered under the scope of federal laws. For instance, Title VII of the Civil Rights Act of 1964, which Congress passed on the basis of its Commerce Clause powers, is more restrictive than the Thirteenth Amendment. Title VII permits the federal government to regulate employers with at least fifteen employees.281 Employment claims based on the Thirteenth Amendment need not be so restrictive.

The limited congressional action taken in the employment arena is promising. Modern day peonage cases were successfully prosecuted under the Anti-Peonage Act, which Congress passed pursuant to its Thirteenth Amendment Section 2 authority.282 Even absent new legislation, the Supreme Court has already found that  1981, a Reconstruction-era statute based on Congress’s Thirteenth Amendment authority, provides a private remedy to persons working for employers with fewer than fifteen people.283 In dictum the Court stated in 1994 [*PG360]that “[e]ven in the employment context,  1981’s coverage is broader than Title VII’s, for Title VII applies only to employers with 15 or more employees, whereas  1981 has no such limitation.”284

At times, the Thirteenth Amendment strategy is also preferable to the Commerce Clause alternative because of the Amendment’s unique communicative value.285 Tying discrimination to the economy is not enough to alter racist views that have, in some circles, been culturally condoned since the country’s founding. A legal framework designed to protect liberty and improve the general welfare conveys a powerful message about this country’s underlying commitments. Legal norms can influence a people’s desires and interests. They create entitlements society must honor.286 Laws protecting human rights on the basis of the Thirteenth Amendment effectively communicate a federal commitment to prosecuting demagogic conduct resembling the badges of involuntary servitude. Such legal remedies “express recognition of injury and reaffirmation of the underlying normative principles for how the relevant [social] relationships are to be constituted.”287

The Thirteenth Amendment is a more obvious source for civil rights protections than the Commerce Clause. The former protects individual autonomy against state and private interference, and recent Supreme Court decisions indicate the latter principally concerns regulation of interstate economic transactions. The Thirteenth Amendment was ratified to increase the federal government’s ability to assure universal freedom and general welfare, and the Commerce Clause was included to provide a central authority for regulating commercial interactions across state borders. There is no doubt after McClung and Heart of Atlanta Motel that the Commerce Clause is also relevant to ending racist practices—even Lopez and Morrison did not overrule those cases. With the Court’s trend away from its earlier deference to congressional [*PG361]Commerce Clause authority, however, the Thirteenth Amendment’s centrality has become manifest.

V.  The Thirteenth and Fourteenth Amendments

The substantive provisions of the Thirteenth and Fourteenth Amendments emerged from the United States’ historic commitment to freedom. The country’s primary statements of national purpose, the Declaration of Independence and the Preamble to the Constitution, made liberty a foremost guarantee of federal government, but neither manifesto had an explicit enforcement provision. The makers of the Constitution, as Justice Louis Brandeis explained in a dissenting opinion, set out “to secure conditions favorable to the pursuit of happiness. . . . They conferred, as against the Government, the right to be let alone.”288

The Thirteenth Amendment disengages the principle of freedom from the original Constitution’s favoritism for property-owning whites. The Amendment makes the liberty to live an uncoerced, self-directed life a universal right. Adopted in the immediate aftermath of the Civil War, the Amendment was designed both to abolished slavery and to protect people’s right to act independent of arbitrary coercion. Its grant of enforcement authority bestows Congress with the power to protect the right of individuals to make and pursue meaningful life decisions.

The Fourteenth Amendment too secures normative values essential to living a good life, although the state action requirement sets a limit on its effectiveness that the Thirteenth Amendment does not impose.289 The U.S. Supreme Court has only recently limited the civil rights potential of the Commerce Clause; on the other hand, Fourteenth Amendment jurisprudence was narrowly interpreted at least as early as the holdings in the Slaughter-House Cases and the Civil Rights Cases.290 The Court’s current state-oriented federalism has brought [*PG362]into sharper relief a comparison between the Thirteenth and Fourteenth Amendments.

A.  Thirteenth and Fourteenth Amendment Freedoms

Both the Thirteenth and Fourteenth Amendments protect pluralistic freedom; nonetheless, each has a unique role in the constitutional scheme. Although this Article is not the appropriate place for a detailed analysis of the Fourteenth Amendment, some examination about its relative place to the Thirteenth Amendment will help demonstrate better how these amendments can be integrated. The normative principles on which they are both established require the federal government to use its limited power to improve the common good by protecting individual liberties.291

To begin, I regard the Thirteenth Amendment to be a more specific and unequivocal guarantee of civil liberties than the Fourteenth Amendment. This Part demonstrates that the Thirteenth Amendment remains the principal constitutional source requiring the federal government to protect individual liberties against arbitrary private and public infringements that resemble the incidents of involuntary servitude. I believe the Thirteenth Amendment’s two sections take a three-part approach to freedom: its first section guarantees freedom from arbitrary domination; and its second section authorizes Congress to enact federal laws protecting people’s coequal liberties to establish meaning for their lives.

The Thirteenth Amendment is an even more unambiguous federal mandate than the Fourteenth Amendment. The prohibition against involuntary servitude is absolute, thus any incidents or badges of it are ineluctably proscribed. The Thirteenth Amendment vests Congress with the power to protect the unobtrusive exercise of freedom against arbitrary infringement. In at least some cases, such as those involving specific instances of slavery, not even a compelling state interest can justify a state or private infringement of autonomy.

In contrast, the state may infringe on the personal liberties otherwise secured under the Fourteenth Amendment where there is an overriding public interest. The U.S. Supreme Court, in City of Cleburne v. [*PG363]Cleburne Living Center, carved out this exception to the Fourteenth Amendment’s proscription of race, alienage, and national origin classifications.292 Such laws “are subjected to strict scrutiny” analysis and will only be found constitutional if they “serve a compelling state interest.”293 The Court later clarified that governmental restraints on fundamental freedoms must be “specifically and narrowly framed to accomplish” the compelling purpose.294 Such a restrictive law cannot be “merely rationally related, to the accomplishment of a permissible state policy.”295 In the context of the Fourteenth Amendment, a legislature can abridge fundamental liberty interests for compelling public reasons.296

The Court’s most recent decisions on the Fourteenth Amendment adopt a “responsive,” rather than a proactive, reading of Congress’s Section 5 powers. In City of Boerne v. Flores, the Court invalidated the Religious Freedom Restoration Act, in part because the statute was “so out of proportion to a supposed remedial or preventative object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.”297 The case limited Congress’s Section 5 powers to passing congruent laws for remedying state violations of Fourteenth Amendment guarantees:298 “The Fourteenth Amendment’s history confirms the remedial, rather than substantive, nature of the Enforcement Clause.” The Court’s rationale was based on statements made during congressional debates over the proposed Fourteenth Amendment to the effect that “[t]he proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure.”299 In a recent article, Ruth Colker maintained that the Court misleadingly resorted to the record of the debates that preceded passage of the proposed Fourteenth Amendment.300 The Court relied on the statements of four congressmen to bolster the Boerne rationale without ever mentioning that only one of them voted for the proposed [*PG364]Fourteenth Amendment.301 Relying on the understanding of the ratification opponents is a dubious method of judicial interpretation.

The Court maintained the remedial interpretation of Congress’s Section 5 power in Kimel v. Florida Board of Regents, finding that Congress overstepped its enforcement authority when it extended the Age Discrimination in Employment Act’s (“ADEA”) applicability to states and local governments.302 The Court in Kimel held that Congress’s decision to apply the ADEA to states was “out of proportion to its supposed remedial or preventive objectives.”303 Other recent cases dealing with Section 5 have applied the responsive “proportionality and congruency” test to the Patent Remedy Act,304 the VAWA,305 the Americans with Disabilities Act,306 and the Family and Medical Leave Act (the “FMLA”).307

In addition to authorizing laws that responsively remedy specific acts of past discrimination, the Thirteenth Amendment also grants Congress the power to pass laws that are substantive guarantees.308 Pursuant to the Amendment, the standard for passing “effective legislation” is that it be “rationally” related to “the badges and the incidents of servitude.” Under the Thirteenth Amendment, the federal legislature may, and indeed should, pass laws that help liberty thrive. Congress may use its Section 2 power to pass laws that protect the non-intrusive use of personal freedom and punish its abridgment. [*PG365]Moreover, Congress may pass civil legislation, more sensitive to human rights concerns than  1981 and 1982, allowing for private compensation. Congress’s enforcement power under the Thirteenth Amendment not only aims proportionately and congruently to prevent interference with fundamental rights, which is the extent of Congress’s authority under the Fourteenth Amendment, but also enables the federal government to substantiate the promises of freedom found in the Declaration of Independence and the Preamble.309

The Thirteenth Amendment’s lack of a state action requirement is another reason for sometimes preferring the Thirteenth to the Fourteenth Amendment. The Supreme Court created this dichotomy as early as 1883, in the Civil Rights Cases, and has never strayed from it. The Court then found that the Fourteenth Amendment enforcement power is limited to state actions:

It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of state officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect: and such legislation must necessarily be predicated upon [*PG366]such supposed State laws or State proceedings, and be directed to the correction of their operation and effect.310

The Civil Rights Cases accorded with post-Reconstruction political decisions, such as the Compromise of 1877, which favored Northern and Southern reconciliation at the expense of meaningful improvements for blacks.311

Boerne took the state action requirement for granted, and further straight-jacketed Congress by finding that Section 5 allows it “to enforce” but not “to determine what constitutes a constitutional violation.”312 The Supreme Court also embraced the state action requirement in United States v. Morrison.313 Chief Justice Rehnquist, writing for the majority, explained that the Court would not deviate from “the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action.”314 Morrison asserted that it was based on the doctrine of stare decisis and the “insight attributable to the Members of the Court at that time,” because they had “intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment.”315 The Court’s historical analysis again failed to account for the events immediately preceding the Civil Rights Cases. Chief Justice Bradley wrote the decision in the Civil Rights Cases shortly after he cast the deciding vote on the electoral commission that gave Rutherford B. Hayes the presidency and secured the Compromise of 1877.316 Bradley and the other members of the electoral commission abandoned blacks to the injustices of segregation.

The Rehnquist majority drew on precedent filled with racist undertones instead of advancing progressive arguments born from the abolitionist movement. The Court, in Morrison, also quoted from another 1883 case, United States v. Harris, for the principle that Section 5 refers to “[s]tate action exclusively, and not to any action of private [*PG367]individuals.”317 Harris struck section 2 of the Ku Klux Klan Act, which had made it criminal for two or more people to conspire to deprive anyone from enjoying the equal protection of the law or the privileges and immunities of national citizenship.318 The Court’s continued reliance on these two decisions, both of which moved the country in the direction of Plessy v. Ferguson (1896), indicates the present-day difficulty of using a Fourteenth Amendment strategy to end injustices like violence against women or hate crimes generally.

Ever since it decided the Slaughter-House Cases, Civil Rights Cases, and Harris, the Court has severely handicapped national power in the area of the Fourteenth Amendment. But beginning with Jones, the Court expanded federal authority to prevent interference with civil liberties.

The schema proposed herein authorizes Congress to pass laws preserving the right to freely pursue goals that do not arbitrarily interfere with others’ legitimate interests. This schema provides both a positive grant of power, in so far as it recognizes that the Thirteenth Amendment provides Congress the power to expand opportunities, and a negative grant of freedom, because it prohibits the government and individuals from intrusively abusing others’ autonomy. Such a perspective makes more evident Congress’s authority to decide rationally that a law, such as the VAWA, is necessary for protecting women’s freedom of movement against misogynistic intrusions into their lives. A law against other hate crimes would likewise use federal power to punish and prevent the types of interference with liberty that the Reconstruction Congress sought to end.

Thus, the Thirteenth Amendment provides a substantive alternative for passing civil rights laws. This interpretation of the Amendment is based on Supreme Court precedent. The Supreme Court has consistently found that the Thirteenth Amendment does not contain any equivalent to the Fourteenth Amendment’s state action requirement. Congress has great latitude, pursuant to its Thirteenth Amendment Section 2 power, to end any remaining vestiges of servitude and their concomitant forms of subordination. The judiciary, I argued above, should use Section 1 even absent congressional action.319 The practices to which both sections of the Thirteenth Amendment apply are usually not overtly tied to forced labor; they [*PG368]may be masked in institutional discrimination and private behavior that arbitrarily denies victims the opportunity to live meaningful lives.

B.  Pertinent Rights

The Supreme Court has done little to examine what civil liberties Congress may protect pursuant to the Thirteenth Amendment. Instead, the Court has used various constitutional provisions to establish its decisions concerning privacy and liberty rights. For example, the Court has held repeatedly that liberty rights are imbedded in the Due Process Clause of the Fourteenth Amendment, which gives the Court little guidance about which liberties it protects.320 Typically, the Court simply asserts that a human decision, such as choosing whether to travel, is a historically fundamental liberty that is immune from state infringement absent a compelling state interest.321 This kind of unspecific historical reasoning exposes holdings to the originalist detraction that courts are engaging in judicial lawmaking.322 Critics of opinions such as Roe v. Wade have called the Court’s reflective method “unprincipled,” “illegitimate,” and lacking “connection with any value [*PG369]of the Constitution.”323 A Thirteenth Amendment approach sidesteps these criticisms because, instead of an intuitive assertion, it requires a finding that an abridgement of liberty is significantly connected to the incidents or badges of servitude.324

The legality of protecting liberties through the Thirteenth Amendment is difficult to gainsay because interpreting the Amendment begins with the historical injustice it ended. My approach is analogous to the Supreme Court’s two-tiered analytic method in substantive due process cases:

First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty” . . . . Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking” . . . . This approach tends to rein in the subjective elements that are necessarily present in due process judicial review.325

Similarly, courts adjudicating matters under the Thirteenth Amendment must compare contemporary harms to past practices. Once the plaintiff establishes a prima facie case of involuntary servitude, the burden shifts to the defendant to prove that the limitation on individual liberty is no more restrictive than is necessary to protect the public’s ability to live freely.

Protecting essential freedoms means ending coercive practices and enabling people to make reasonable choices. Using the Thirteenth Amendment for that end would be a legitimate use of governmental power to provide for the common good. Only civic requirements, such as jury duty, public highway work, or military service [*PG370]during just war, are legitimate reasons for requiring people to act against their will.326

Every generation must develop an understanding of fundamental freedoms by critically examining the nation’s past, its core documents, and its moral standing as a constitutional democracy. This mode of collective self-reflection aims at achieving empathic decision making that avoids past injustices. Freedom is a progressive civic condition that best expands through an affective comprehension of moral obligations and social limitations. I take it as a given that persons are relational animals who innately empathize and therefore can understand fellow citizens’ desire to achieve goals without coercion or arbitrary domination. Constitutional development should never come at the cost of human autonomy and social welfare; otherwise, it would interfere with the reasonable goals of individuals’ living in a community of equals. Nevertheless, some limits on freedom are necessary in organized societies where people often have conflicting goals. Normative principles are critical to constructing laws for a pluralistic society. To avoid religious or philosophical absolutism, the Thirteenth Amendment requires a historical basis for asserting that an interest falls under the Amendment’s purview.

Legislation against acts of domination, whether they are perpetrated during employment or in other settings, is essential in a country devoted to civil liberties. Laurence H. Tribe has pointed out that based on existing case law

Congress possesses an almost unlimited power to protect individual rights under the Thirteenth Amendment. Seemingly, Congress is free within the broad limits of reason, to recognize whatever rights it wishes, define the infringement of those rights as a form of domination or subordination and thus an aspect of slavery, and proscribe such infringement as a violation of the Thirteenth Amendment.327

Likewise, the Supreme Court should adjudicate cases implicating personal liberties through the lens of the Thirteenth Amendment. In order to provide consistency and predictability to citizens and litigants, [*PG371]both the legislature and judiciary should use a normative historical analysis.

The Thirteenth Amendment approach can sharpen judicial decisions concerning the extent to which persons may enjoy fundamental rights, particularly when the exercise of those rights conflicts with the interests of other members of a pluralistic community. The basis of such an analysis need not be ad hoc; instead, it should be based on the recognition that slavery and involuntary servitude were inimical to fundamental, human liberties. The woefully incomplete post-Civil War American project involves ending racist practices. Twentieth-century Court decisions on constitutionally protected liberty and privacy rights reflect this trend. Those rights, however, are not absolute. To the contrary, the Thirteenth Amendment bars certain uses of freedom, particularly those used for domination. After all, in 1857, the Court favored Dred Scott’s master’s interest in free interstate travel with slave property to Dred Scott’s interest in freedom from slavery.328 The Thirteenth Amendment made the exploitative use of power an unconstitutional abuse of freedom.

Liberty rights are well established in United States jurisprudence. The Court has often invoked the Due Process Clause and Equal Protection Clause in privacy rights cases; the Court, however, has not always provided even this degree of specificity.329 Its frequent resort to tradition provides little explanation for the protection of fundamental rights.330 The Thirteenth Amendment is a more explicit guarantee of freedom than other constitutional provisions on which the Court has relied. For instance, Roe, upholding a woman’s right to choose an abortion, relied on the Fourteenth Amendment’s liberty provision and endorsed the district court’s view that the source of that right is the Ninth Amendment.331 Although the Court in Roe did provide an expansive historical analysis to justify its conclusion, its reliance on tradition was a two-edged sword because the dissent also resorted to tradition to derive the opposite point of view on the right to abortion.332

[*PG372] Without a specific nexus on which a court must ground references to tradition, privacy rights cases rely on the predispositions of judges, and when racists like Chief Justice Taney sit on the Supreme Court, decisions like Dred Scott are the product. To prevent the hijacking of tradition, the Thirteenth Amendment requires a very clear judicial analysis: Is the act an incident or badge of servitude? Or, in the case of legislation, did Congress rationally determine that the statute was a necessary and proper means to end an incident of servitude? The rather obvious shortcoming of this method is that the antagonist of a particular law or judgment can argue that it is unrelated to involuntary servitude. Such criticism does little, however, to limit the virtually plenary power that the Supreme Court found Section 2 of the Thirteenth Amendment grants to Congress.333 Moreover, in spite of the Amendment’s specific focus, it allows for a broad reading.

Familial liberties are principal examples of how Thirteenth Amendment analysis works outside the context of contract and property rights cases, where the Amendment has most commonly been applied.334 Indeed, the first use of the term “incidents of servitude,” which Senator James Harlan of Iowa coined during the 1864 Senate debate on the Amendment, came within the context of slavery’s detriments to marriage: “[T]he prohibition of the conjugal relation is a necessary incident of servitude.”335 If Harlan was correct, then the federal guarantee to marry the partner of one’s choice is linked to the rights of free people. Traditionally, however, the Court has located the right “to marry, establish a home and bring up children” in the Due Process Clause.336

[*PG373] Choice of a marriage partner is fundamental because it reflects so many aspects of an individual’s character traits. Family rights issues provide further insight into why the Thirteenth Amendment is as relevant to protecting civil liberties as the Due Process Clause. Both involve a continuum of interests not subject to any “substantial arbitrary impositions and purposeless restraints.”337 Denying adults the right to family autonomy signifies a lack of respect for the individuals’ decisions, passions, hopes, and sense of self. Moreover, in this country arbitrary deprivation of family freedoms is linked to slavery.

In both the antebellum and postbellum South, slaves were degraded to a social rung below whites. Intermarriage was forbidden to them, and even marriages between free blacks and slaves were only permitted at the slave owners’ behests.338 A typical argument against abolition was that it would lead to miscegenation.339 A back-country farmer’s attitude was typical:

[H]ow’d you like to hev a nigger steppin’ up to your darter? Of course you wouldn’t; and that’s the reason I wouldn’t like to hev ’em free; but I tell you, I don’t think it’s right to hev ’em slaves so; that’s the fac—taant right to keep ’em as they is.340

The Supreme Court held that antimiscegenation laws violated the Due Process and Equal Protection Clauses in the 1967 case of Loving v. Virginia.341 The Court recognized the right to marry “as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”342 Prohibitions against intermarriage are also related to slavery and subservience. Any arbitrary burdens placed on marriage formation implicate the Thirteenth Amendment.

The abolition of slavery further rejected the racist stereotype that made black families subject to personal and legislative whims. Any [*PG374]contemporary burdens on familial living arrangements that resemble the hardships faced by slave families are unconstitutional. Black families in the antebellum South faced great obstacles to maintaining stable family relationships. Limits on slave families severely hampered personal choices and caused enormous misery.343 Many masters considered slave marriages only temporary and subject to forced termination.344 Because all southern states forbade blacks from entering into formal marriage contracts, masters had an absolute right to sell one or both spouses. When slaves married persons on other plantations or free blacks, they were limited in how often they could visit their spouses. Spouses who lived on different plantations were even more likely to be sold apart than those with a common owner, and even when they remained on nearby plantations, their new masters sometimes prevented them from contacting spouses.345

The dominant stereotype claiming that blacks were indifferent to family life proved groundless.346 During and after the Civil War, many freedpersons wandered far off plantations in search of loved ones. Ben Dodson, a sixty-five-year-old plantation preacher, cried out in joy when he was reunited with his wife after years of estrangement resulting from their master’s decision to sell them separately: “Glory! glory! hallalujah! Dis is my Betty, shuah,” he said, glancing again at her face to reassure himself. “I foun’ you at las’. I’s hunted an’ hunted till I track you up here. I’s boun’ to hunt till I fin’ you if you’s alive.”347 After emancipation, parents were reunited with children, often not rec[*PG375]ognizing each other but for a scar or some other unusual feature.348 Sometimes they discovered their newly found loved ones had been brutalized during the years of slavery that separated them. One woman located her eighteen-year-old daughter, who had been sold from her, to have been cut “[f]rom her head to her feet . . . just as . . . her face.”349

The variety of chores on big plantations also often resulted in family separation, especially among extended family members. If one family member worked in the plantation house, he could not live with those members of his family who worked in the fields. The most devastating form of family disruption came from sales, which had even less regard for extended family relationships than for parental or spousal relationships.350

The Thirteenth Amendment prohibits such disruptions to family structure. The Amendment complements due process jurisprudence and expands the scope of prohibited conduct. In Moore v. City of East Cleveland, the Supreme Court found the Due Process Clause grants extended families the right to live together.351 The Court recognized that “the institution of family is deeply rooted in this Nation’s history and tradition.”352 The Thirteenth Amendment yields added protection of this fundamental right. Pursuant to Section 2 of the Thirteenth Amendment, Congress can prohibit private and state interference with family living arrangements.353

In another relevant context, the Court in Griswold v. Connecticut further guaranteed the protection of family rights.354 Marriage, the Court observed, “promotes a way of life . . . a harmony of living . . . bilateral loyalty.”355 The Court based its decision on “several constitutional guarantees” of liberties that contain “penumbras, formed by emanations from those guarantees that help give them life and sub[*PG376]stance.”356 In particular, the Court found a right to marital liberty in the Due Process Clause.357 The Connecticut anti-contraception law was an affront to the marital relationship because it enabled the state to interfere with the intimate rights of spouses.358

Justice William Douglas’s majority opinion in Griswold has been the subject of a variety of criticisms that would not apply to a Thirteenth Amendment approach. One critic of the decision was Justice Hugo Black, who wrote in a dissenting opinion that the majority based its decision on the ambiguities of procedural due process. Justice Black rejected the decision because he could “find in the Constitution no language which either specifically or implicitly grants to all individuals a constitutional ‘right to privacy.’”359 Similarly, Robert H. Bork criticized the Griswold reasoning for failing “every test of neutrality . . . . Griswold . . . is an unprincipled decision, both in the way in which it derives a new constitutional right and the way it defines that right, or rather fails to define it.”360

Griswold’s critics, however, fail to realize that finding substantive guarantees to family privacy does not require novel legal reasoning. Substantive guarantees, like the First Amendment’s guarantee of religious liberty and the Fifth Amendment Just Compensation Clause’s guarantee of property rights, are strewn about the Bill of Rights.361 The Thirteenth Amendment’s substantive guarantee of marital freedom is another reason critics are mistaken. The liberty to choose a spouse is grounded in its historic setting and the organic nature of constitutional interpretation. The Thirteenth Amendment facilitates Justice Felix Frankfurter’s vision of the Constitution as a “stream of history,” which the Supreme Court directs within “a living framework” for growth.362 Likewise, the Amendment is compatible with Justice Ruth Bader Ginsburg’s view that “[a] prime part of the history of our [*PG377]Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored and excluded.”363

The Thirteenth Amendment could have further bolstered Justice Arthur Goldberg’s concurring opinion in Griswold, which convincingly argued that the Ninth Amendment’s sweeping protection of unenumerated rights includes marital privacy rights.364 The Amendment unequivocally condemns laws and practices that intrude on marital autonomy because such restrictions resemble the coercion of involuntary servitude. The Thirteenth Amendment’s first section provides the judiciary with the power to hear cases against individuals, officials, or governmental entities who use arbitrary characteristics, such as race, to intrude on conjugal rights.365

The Thirteenth Amendment is relevant in other family autonomy contexts as well. Its applicability is clear, for example, in the area of parental autonomy over children’s education. Theodore Weld, in 1839, exclaimed that enslaved parents had “as little control over [their children] as have domestic animals over the disposal of their young.”366 Slave parents were particularly restrained from educating their children. Indeed, many states forbade slaves from receiving any form of education.367 Parents held in bondage were altogether prohibited from teaching their children to read and write. Such a practice prohibited parents from helping offspring achieve their potential for private and public accomplishments.

As we saw earlier, the Supreme Court in Runyon v. McCrary recognized the Thirteenth Amendment’s applicability to parental deci[*PG378]sions over their children’s education.368 The plaintiffs were parents who wanted to contract for education with a private school. The Court held that the Civil Rights Act of 1866 prohibited the school from refusing to enroll the children on racial grounds.369 The Court concluded that parents have the liberty right to enter contractual agreements with the school of their choosing.

The Court could have refined its reasoning with a discussion of the disadvantages that slaves faced and the Act’s liberating purposes. Rather than basing its decision on contract rights, the Court should have defined the universal human right to educate one’s children. After all, parents’ rights go well beyond the right to contract for their children’s education and include a privacy interest in improving their children’s lives.

Indeed, a whole series of parental autonomy cases fit the Thirteenth Amendment’s criteria so well as to make it plausible that courts could find unconstitutional arbitrary restrictions on parental autonomy, even absent congressional action. This would require the Court to recognize that Section 1 grants the judiciary deliberative powers, which, in turn, could have significant ramifications on litigants’ ability to sue under the Amendment, especially in those circumstances where Congress has failed to address educational discrimination.

Other parental autonomy cases regarding educational issues do rely on broad historical reasoning that the Thirteenth Amendment can buttress. In Meyer v. Nebraska, the Court struck down a state law that forbade teaching students a language other than English before they finished the eighth grade.370 The Court relied on the liberty protection of the Due Process Clause and decided the law violated the parents’ right to decide how to educate their children.371 The decision is somewhat ambiguous because the majority did not attempt “to define with exactness the liberty thus guaranteed.”372 The Court provided a more useful criterion in Wisconsin v. Yoder, where the Court invalidated a state law requiring children to attend school until the age of sixteen.373 The Court held that the law violated Amish parents’ [*PG379]rights to exercise parental control and religious authority.374 The Court stated that “[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children.”375 Using similar reasoning in Santosky v. Kramer, the Court noted “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child.”376 And it reiterated the “historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.”377

The Court clothed these cases in the historical recognition that the government must not interfere with parental decisions absent a compelling state interest. Thirteenth Amendment analysis could better link that aspect of American legal history to specific constitutional landmarks. Such an analysis would reflect on the institutional denial of parental autonomy in the antebellum United States and consider critically whether barring parents from particular educational or custody decisions resembles the conditions of involuntary servitude. The liberation from slavery extended to all parents the freedom to make critical decisions about their children’s education. The Thirteenth Amendment approach, then, may be even better grounded in U.S. history than the one based on the Fourteenth Amendment. The Thirteenth Amendment sifts through specifics rather than generalities and has the further advantage of providing a cause of action against public and private schools.

I am not advocating abandoning the generalities of the Fourteenth Amendment where they are applicable. The point, rather, is that many parental autonomy cases that typically are analyzed under the Fourteenth Amendment could be made less vulnerable to criticism by bringing the Thirteenth Amendment’s self-executing first section into the judgment or, preferably, by enacting federal family protections pursuant to the second section.378

[*PG380] Although greater methodological certainty makes the Thirteenth Amendment an attractive alternative for civil rights strategists, it is not the best alternative for all cases related to family life and reproduction. Some cases do not fall under the Amendment’s ambit, even though at first they seem to fit it. For example, in Skinner v. Oklahoma, the Court appropriately resorted to the Equal Protection Clause of the Fourteenth Amendment to find an Oklahoma law requiring “habitual criminals” to undergo sterilization violated their fundamental right to procreate.379 “We are dealing here” the majority wrote, “with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”380 The decision remains open to critics like Bork, who criticized the Court for failing adequately to ground the right to procreate, thereby enabling judges to exploit “substantive equal protection” to “embed their notions of public policy in the Constitution.”381 Bork’s criticism would be entirely inapplicable to a Thirteenth Amendment prohibition against the arbitrary infringement of liberty rights. His textualist argument, which rests on the premise that there is no constitutional guarantee to procreate, comes undone at the infusion of Thirteenth Amendment analysis. Masters interfered with many aspects of their slaves’ procreation. They castrated slaves with relative equanimity because it was generally considered a medical procedure that masters could perform on chattel.382 Further, some states permitted castration [*PG381]as part of the punishment for black rape of white women.383 Thus, impediments to procreation interfere with a free life.

In spite of this seeming fit, the problem of using the Thirteenth Amendment in cases like Skinner or Turner v. Safley, which found that prisoners retain the right to marry under the Fourteenth Amendment, is that they both dealt with prisoners’ rights.384 Even where limiting marriage and procreation rights has some resemblance to the incidents of servitude, the first section of the Thirteenth Amendment does not protect persons who have been duly convicted of crimes.385 This is a disturbing conclusion for human rights activism, making the Fourteenth Amendment the best means for convicted criminals to proclaim their limited right to exercise fundamental freedoms. Further, it presents a dilemma that can be rectified only by amending the Thirteenth Amendment’s exception for the use of involuntary servitude “as a punishment for crime whereof the party shall have been duly convicted.”386

A historically based interpretation of the Thirteenth Amendment also protects liberty rights other than those linked to family relations. Right-to-travel cases further indicate that the Thirteenth Amendment is a substantive guarantee of freedom. Justice William Douglas found the right to travel abroad and within the United States was “a part of our heritage” that the Due Process Clause of the Fifth Amendment protects.387 In Kent v. Dulles, he explained the subtle nature of that right: “Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”388 Justice Douglas did not, however, provide a reason for finding that right in the Bill of Rights.389 Indeed, slaves’ in[*PG382]ability to freely travel without their masters’ permission indicates that the Fifth Amendment did not adequately protect that right.

Slaves were restricted from relocating. Even those slaves who worked for their masters outside the homestead or plantation only traveled at the masters’ sufferance.390 After liberation, many blacks wandered in the country and settled in cities away from their plantations. The newly freed people desired freedom from manacles and the ability to live and work where they wished. Often they were financially strapped, but preferred freedom to the security of their old homes.

This was the situation Sidney Andrews found during his travels in 1866, while reporting on the defeated South.391 Throughout Georgia he found many freedpeople who were living in destitution after leaving their former homes.392 “Who shall have the heart to blame them?” Andrews asked rhetorically.393 “For they were in search of nothing less noble and glorious than freedom. They were in rags and wretchedness, but the unquenchable longing of the soul for liberty was being satisfied.”394 Andrews asked one elderly woman why she had left a mistress who “would have given you a good home as long as you live.”395 To the freewoman the response seemed obvious, “What fur? ’Joy my freedom.”396 In another place, he found eleven people living in a hut with rags for bedding.397 To Andrews’s inquiry about whether he had a kind master, an elderly inhabitant responded, “I’s had a berry good master, mass’r, but ye see I’s wanted to be free man.”398

Another narrative tells of an elderly slave, named Si, who left a plantation one night with his wife.399 In the morning, the master came across Si bending down in a nearby forest by his deceased wife, who [*PG383]had died of exposure.400 “‘Uncle Si, why on earth did you so cruelly bring Aunt Cindy here for, through all of such hardship, thereby causing her death?’ Lifting up his eyes and looking his master full in the face, he answered, ‘I couldn’t help it, marster; but then, you see, she died free.’”401

After the ratification of the Thirteenth Amendment in 1865, states could no longer arbitrarily deny citizenship or access into their borders. Senator Trumbull explained during an 1866 congressional debate that the Thirteenth Amendment’s enforcement power allowed Congress to pass laws that would, in effect, prevent racist isolationism in both the North and South:

It is idle to say that a man is free who cannot go and come at pleasure, who cannot buy and sell, who cannot enforce his rights. These are rights which the first clause of the constitutional amendment meant to secure to all; and to prevent the very cavil which the Senator from Delaware suggests today, that Congress would not have the power to secure them, the second section of the amendment was added.402

Even after the Thirteenth Amendment’s ratification, states clandestinely evaded the Amendment’s grant of freedom and placed legal barriers limiting freedpeople’s movement.403

In 1865 and 1866, all former Confederate States, except Tennessee and Arkansas, passed sweeping vagrancy laws.404 These made any poor man who did not have a labor contract subject to discretionary arrest.405 Vagrancy laws disproportionately targeted unemployed blacks and were designed to keep them from leaving their former masters’ plantations.406 Some Southern cities enacted similar ordinances designed to thwart black movement. The mayor of Mobile, Alabama warned vagrants that if they did not find employment or leave that city, they would be arrested and forced to work on public streets.407 Other towns had similar punishments to prevent blacks from staying in urban areas. Nashville, Tennessee and New Orleans, Louisiana sent black “va[*PG384]grants” to workhouses.408 San Antonio, Texas and Montgomery, Alabama required that they work on the streets to pay for the expense of keeping them in jails.409 In a move reminiscent of the antebellum system of passes, without which slaves could not leave their masters’ property, some cities arrested any blacks who stayed out on the streets after curfew without their employer’s permission.410 This scheme was meant as much to inhibit blacks from intrastate and interstate travel as it was to perpetuate a system of involuntary servitude.411

The Court has recognized that the right to travel is “firmly established and repeatedly recognized.”412 Similar to the family privacy cases, the Court has found support for protecting the right to travel in a variety of constitutional provisions, including the Privileges and Immunities Clause, the Due Process Clause, the Equal Protection Clause, and the Commerce Clause.413

Shapiro v. Thompson involved a state welfare-eligibility provision that imposed a one-year residency requirement.414 The Court ruled that absent a compelling interest, state interference with the fundamental right to travel violated the Equal Protection Clause.415 In another case, Saenz v. Roe, dealing with the availability of welfare benefits to persons who recently moved to a new state, the Court ruled that prohibitions on the right to travel violated the constitutionally guaranteed privileges and immunities of newly arrived citizens.416 The Court majority in United States v. Guest found that the constitutional right to travel “and necessarily to use the highways and other instrumentalities of interstate [*PG385]commerce in doing so, occupies a position fundamental to the concept of our Federal Union.”417 The majority linked the right to travel to the Commerce Clause because it regarded “the constitutional right of interstate travel [as] a right secured against interference from any source whatever, whether governmental or private. . . . that is quite independent of the Fourteenth Amendment.”418 The Court’s preference for the Commerce Clause as the source of the right to travel again artificially linked a fundamental right to an economic power rather than to a human interest existing independently of governmental powers.

Of course, it is accurate that limits on travel can be both detrimental to commerce and violate citizens’ privileges and immunities, but, to date, the Supreme Court has inadequately examined the connection between slavery and restraints on movement. A Thirteenth Amendment approach on the right to free travel adds a needed reflection on whether impediments to free movement resemble the burdens of involuntary servitude. This approach recognizes that some extreme burdens on the right to move about freely can resemble the constraints of enslavement.

In Griffin v. Breckenridge, the Court nearly acknowledged the connection between the Thirteenth Amendment and right to travel, but failed to make the logical connection between them.419 The case dealt with a racially motivated assault perpetrated on a public highway.420 In his opinion, Justice Potter Stewart referred to several right-to-travel cases, including Shapiro, and found that “[o]ur cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference.”421 Furthermore, Justice Stewart determined that Congress had the power to create a cause of action against private, racially motivated conspiracies under  1985(3), the Ku Klux Klan Act.422

[*PG386] In later years, the Court explained that “the conspiracy at issue [in Griffin] was actionable because it was aimed at depriving the plaintiffs of rights protected by the Thirteenth Amendment and the right to travel guaranteed by the Federal Constitution.”423 The clear indication in Griffin is that the right to travel and the Thirteenth Amendment granted Congress the authority to pass the Ku Klux Klan Act, thereby providing redress against individual conspiracies that interfere with movement—even absent a state action, negative effects on commerce, or interference with the privileges and immunities of national citizenship. The case is unclear, however, as to why the right to travel should be separated from core Thirteenth Amendment interests. This dichotomy is particularly obscure because Congress passed the Ku Klux Klan Act, in part, pursuant to the Thirteenth Amendment.424 The Amendment, therefore, was a logical place for the Court to find congressional power to prohibit conspirators from interfering with citizens’ right to travel.

The Court has located the right to travel in so many constitutional provisions because, like family autonomy, it is a fundamental interest that the state must protect. The right to live free of arbitrary impediments that prevent the enjoyment of such interests sometimes implicates the protection of the Thirteenth Amendment. Securing “the blessings of liberty” is a national aspiration to which the Preamble to the Constitution commits the federal government. The Amendment made that national aspiration enforceable against state and private infringements. The Amendment enhances, clarifies, and enforces contemporary civil rights decisions.

Conclusion

The Thirteenth Amendment continues to be a source of sweeping constitutional power for enacting federal civil rights legislation. This Article suggests a progressive Thirteenth Amendment theory that relies on existing precedents and abolitionist aspirations. The Amendment drastically altered the Constitution and became the legal causeway from slavery to freedom.425 Its first section eliminated, or [*PG387]more euphemistically amended, all the federalist provisions of the 1787 Constitution that protected slavery. The Amendment’s second section provided the U.S. Congress with the power to protect individual rights and thereby better the nation. Accordingly, the Thirteenth Amendment secured two fundamental principles, which both emanated from the Preamble. The first principle protects the right to unobtrusive autonomy in carrying out deliberative decisions. The second principle limits autonomy whenever it arbitrarily interferes with other citizens’ sense of purpose. The guarantee of freedom protects individual choices as long as they do not infringe on the coequal liberty rights of others. This approach balances autonomy with welfare to achieve a liberating sense of mutual purpose for civil society.

The Thirteenth Amendment, thus, not only ended slavery but also created a substantive assurance of freedom. It prohibits all the vestiges of involuntary slavery, whether imposed by public or private actors, and grants Congress the right to enact laws, making “universal liberty” a matter of national concern, not merely of state prerogative. The Thirteenth Amendment not only secures delineated civil freedoms, such as those specifically enumerated in the Bill of Rights, but also secures freedom from all forms of arbitrary domination. In this regard, legislative initiatives must balance individual liberties against the national interests of a diverse but equally free people. The Enforcement Clause of the Thirteenth Amendment provides lawmakers with the power to craft laws tied to the Declaration of Independence’s ideal of a free and equal citizenry. The Framers of the Thirteenth Amendment refined that idea to include persons of all races.426

The Thirteenth Amendment’s liberty guarantee is expansive enough for each generation to abolish continued coercive practices, not just those the Thirty-Eighth Congress recognized when it debated the Thirteenth Amendment. Indeed, the range of liberty rights the Thirteenth Amendment secures is just as broad as those the Due Process Clause guarantees. Accordingly, Justice Harlan’s description of a broad concept of freedom in the context of the Due Process Clause bears striking resemblance to the description of freedom his grandfa[*PG388]ther expounded in the dissents to the Civil Rights Cases, Plessy v. Ferguson, and Hodges v. United States. Our nation, Harlan wrote in dissent to Poe v. Ullman, balances

respect for the liberty of the individual . . . and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. . . . [T]he imperative character of Constitutional provisions . . . must be discerned from a particular provision’s larger context. . . . ‘[L]iberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . .427

[*PG389]The constitutional right to freedom, then, is linked to this country’s struggle to break with racial enslavement and to its moral growth through the Reconstruction Amendments.

The Thirteenth Amendment prohibits all repressive conduct rationally related to the impediments of freedom, not simply racist labor practices.428 The Amendment’s protections apply to anyone who is subject to arbitrary restraints against the enjoyment of freedom. Congress must only find that those restraints resemble the badges and incidents of involuntary servitude. Laws passed pursuant to the Thirteenth Amendment should protect free and equal persons’ conceptions of, and quests for, qualitatively good lives. Masters had suppressed slaves’ life aspirations, prohibiting them from entering into marital contracts, from choosing professions, and from making a host of other important life decisions. Slavery devalued the commitment of our pluralistic society to respect the individual and collective right to live free of arbitrary intrusion on freedom. Consequently, laws passed under Section 2 against any badges of involuntary servitude must make it easier for people to express their individuality and prevent arbitrarily domineering private and state actions.

The Thirteenth Amendment’s legislative process must reflect on the nation’s history to evaluate whether the U.S. has cleansed itself of all vestiges of involuntary servitude. With those vestiges that remain, [*PG390]expiation must come from enacting, and then enforcing, laws rationally designed to end the oppressions.

An evolving understanding of how best to protect fundamental rights and improve social harmony should inform congressional and judicial interpretation of the Thirteenth Amendment. Such an aim comports with the Preamble’s assertion that the national government’s purpose is to secure the blessing of liberty and to promote the general welfare. Civil rights laws should be passed and judged pursuant to this dual purpose of national government.

Congress thus far has done little to fulfill its role under the Thirteenth Amendment, and only a handful of cases interpret it. With only a smattering of meaningful laws passed to effectuate the Amendment, its potency remains minimal but its potential is great. In spite of more than a century of virtual neglect, the Amendment has a deep-reaching effect on the constitutional significance of liberty.

At a time of judicial activism, which has resulted in narrowly construed congressional Commerce Clause and Fourteenth Amendment Section 5 powers, Jones v. Alfred H. Mayer Co. and the handful of cases it engendered remain wholly intact. Jones’s ruling that the Thirteenth Amendment grants Congress broad power to pass necessary and proper laws rationally related to the incidents of servitude is still virtually untapped. The Thirteenth Amendment is uniquely suited for combating contemporary infringements against civil liberties, some of which I discuss elsewhere.429 It reaches private acts of discrimination, which the Rehnquist Court asserted Congress cannot regulate under Section 5 of the Fourteenth Amendment, and it is not subject to the “economic enterprise” interpretation that the U.S. Supreme Court has recently associated with the Commerce Clause.

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