Celebrating—and Saving—the Thirteenth Amendment
Though the original states possessed particular interests and concerns, the Framers believed that they were creating, in the words of Madison, “one great, respectable, and flourishing empire,” one that Jefferson termed an “Empire of Liberty.” The Framers’ vision of liberty, however grand, was fundamentally incomplete: the Framers perpetuated slavery, punting the institution for future Americans to handle. Some Framers hoped that slavery would die a natural death, while others anticipated that the United States may split and divide specifically along northern and southern lines.
Decades later, the prospect of North-South separation was altogether real. In his inaugural address, Abraham Lincoln acknowledged that the common ties among the North and South were bending, but urged the people not to “break our bonds of affection.” Just a month later, the Confederates bombarded Fort Sumter. The “one great” nation was at war with itself.
The Union triumphed and President Lincoln emancipated, as a war measure, slaves in parts of the country. The outcome of the war and the President’s declaration were not enough, however, to ensure that a unified nation would be without slavery. Congress therefore enacted the Thirteenth Amendment to the Constitution—ratified 150 years ago this month.
We should celebrate the Amendment and its importance in our national history. But to only commemorate the Amendment would be a mistake. We also should recognize that the meaning of the Amendment and its viability as a modern source of liberty are in serious doubt.
The Thirteenth Amendment contains two sections. The first prohibits “slavery” and “involuntary servitude” throughout the United States. Section Two gives Congress the power “to enforce this article by appropriate legislation.” Section Two authorizes Congress to do something more than prohibit slavery and involuntary servitude, otherwise Section Two would be superfluous. The question becomes, exactly how much more?
The current response, from a 1968 Supreme Court case, is that Section Two bans not only “slavery” and “involuntary servitude,” but also the “badges and incidents” of slavery. (According to Jennifer Mason McAward, “badges” of slavery are “indicators” of “slave or subordinate status,” while “incidents” of slavery are “any legal right or restriction that necessarily accompanied the institution of slavery.”) Moreover, and more controversially, the Court added that it is within Congress’s authority “rationally to determine what are the badges and the incidents of slavery.”
Far from a historical relic, this Section Two power has been used by Congress to pass legislation that establishes racial equality in property rights, prohibits conspiracies to interfere with specified civil rights, and, as recent as 2009, creates a federal hate crimes statute. It is in the federal hate crimes cases that the Supreme Court’s precedent—and the ongoing relevance of the Amendment—are being questioned.
Federal appellate judges hearing constitutional challenges to the federal law crimes law have expressed two overarching concerns with the Thirteenth Amendment. First, the generous bounds of the Amendment enforcement power will enable Congress to pass a host of laws in areas that are traditionally reserved for the states. Reinforcing these federalism considerations are recent Supreme Court cases, including in the Commerce Clause context, in which the Justices took care to protect normal state powers from federal encroachment.
Second, the current Thirteenth Amendment precedent allows Congress “to rationally determine” what constitutes impermissible badges and incidents of slavery, but the Constitution assigns to the courts, not Congress, the responsibility to interpret and give meaning to the law. Moreover, the Thirteenth Amendment’s rationality standard is an outlier among the other two post-Civil War, Reconstruction Amendments. In recent Supreme Court decisions, the Justices closely reviewed Congress’s exercise of the enforcement powers of the Fourteenth and Fifteenth Amendments, asserting its interpretive role and circumscribing the scope of Congress’s power.
Inasmuch as the federal appeals courts were troubled by these federalism and separation of powers concerns, they nonetheless followed binding Supreme Court precedent. In doing so, the courts effectively asked the Court to revisit that precedent and bring it in line with other, more recent cases. We cannot “blaze a new constitutional trail,” one court said, while another lamented the absence of any “clear directive” from the Court.
It may be just a matter of time before the Court answers the call from lower courts and others for an updated approach to the Thirteenth Amendment. The first leading option is to do nothing and leave the precedent as is. Those in this camp suggest that Congress can and should use the Thirteenth Amendment enforcement power to address a wide swath of social ills, including housing discrimination, payday lending, and environmental hazards. Advocates of this position point to the transformative purpose of the Amendment and to the fact that recent Supreme Court cases on the Commerce Clause and Reconstruction Amendments do not directly speak to the Thirteenth Amendment.
The other primary contender draws on the spirit of the recent cases and the text of the Amendment itself to argue that Congress may use the Amendment to address only harms akin to slavery. This would be more consistent with recent Supreme Court cases, avoiding federalism and separation of powers problems in the process. But it would gut the Amendment and would be at odds with the views of at least some of the Framers of the Amendment. For example, Representative James Garfield noted that to limit the Amendment only to freedom from bondage without doing anything more would be “a bitter mockery” and “a cruel delusion.”
Between these extremes lies a principled middle position: that Section Two of the Thirteenth Amendment permits Congress to address sustained limitations, whether direct or functional, on an individual’s physical mobility. This standard would focus the Amendment on the paradigmatic problem with slavery: restraints on mobility. Indeed, Thaddeus Stevens, a leader of Reconstruction in Congress, observed that “there are many degrees in the miseries of slavery,” likening the institution to Danté’s “nine circles” of hell. Nonetheless, he placed mobility at slavery’s core. Stevens highlighted an 1819 Virginia statute that prohibited a slave from “going abroad in the night, or running away and lying out,” and that permitted a slaveowner to redress such acts by way of dismembering the victim or imposing any other punishment short of death.
Moreover, to enlist physical mobility as the guiding principle for the Amendment’s enforcement power would curb possible overreaching into state prerogatives and would give courts an identifiable touchstone to check Congress’s use of Section Two.
In practice, a mobility-centric a standard would authorize Congress to regulate harms that involve indefinite control on mobility, such as human trafficking, but not harms that do not include direct or functional restraints on mobility, such as hate speech, or harms related to mobility that are transient in nature, such as pretextual automobile stops.
As we mark the anniversary of this important addition to the Constitution, we should also consider how the Amendment may retain contemporary meaning in a way that accommodates the serious concerns articulated by federal appeals courts. With such deliberation, we can help ensure that the Amendment is not reduced to a historical footnote and instead endures as a meaningful instrument of liberty.
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Dawinder S. Sidhu is a law professor and former fellow at the Supreme Court of the United States. He is on Twitter: @Prof_Sidhu .