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Excerpted From: William M. Carter, Jr., The Thirteenth Amendment, Interest Convergence, and the Badges and Incidents of Slavery, 71 Maryland Law Review 21 (2011) (89 Footnotes) (Full Document)

The Thirteenth Amendment was intended to eliminate the institution and legacy of slavery. Having accomplished williamcarterjrthe former, the Amendment has rarely been extended to the latter. The Thirteenth Amendment's full scope, therefore, remains unrealized.

This Article explores the gap between the Thirteenth Amendment's promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment's framers called the "badges and incidents of slavery." The theory of interest convergence, in its strongest form, suggests that civil rights gains seldom happen unless they are perceived as advancing, or at least not hindering, the material interests of dominant groups.

Part II of this article will explain the theory of interest convergence and analyze major Thirteenth Amendment cases through an interest convergence prism. This Part contends that the cases in which courts have been receptive to badges and incidents of slavery claims have been those containing a strong component of actual or perceived interest convergence. Conversely, similar claims have failed in cases where interest convergence was lacking.

Part III will argue that the perceived lack of interest convergence regarding the badges and incidents of slavery is due to the misconception that such a remedy would only apply to African-Americans. I will argue, however, that the Amendment's framers intended to dismantle the lingering vestiges of the slave system and that those vestiges extend beyond African-Americans. For example, the Amendment's framers specifically intended to protect abolitionists and other anti-racist whites whose actions and deeds were severely punished under the Black Codes and by less formal sanctions. Part III, therefore, will briefly discuss a contemporary example where interest convergence would exist with regard to the badges or incidents of slavery: when anti-racist speech or action leads to retaliation against whites who object to racial discrimination.

To be clear from the outset, this Article does not argue that we should shift the focus of Thirteenth Amendment scholarship and advocacy from the subordinated to the privileged in search of areas of interest convergence. Indeed, such a shift in focus would likely prove futile because, as interest convergence theory recognizes, civil rights gains made through interest convergence can quickly slip away when the moment of convergence passes. Moreover, shifting focus would dishonor the legacies of those who endured centuries of bondage and subjugation and those who worked to secure slavery's end. Rather, I will contend that the Thirteenth Amendment's under-enforcement is partially explained by interest convergence theory, but further argue that viewing the Thirteenth Amendment as solely the province of African-Americans oversimplifies constitutional history. The Thirteenth Amendment's history and context reveal that its framers intended to abolish the entire system of slavery. Much like a flood, the system of slavery claimed immediate victims and left lasting effects upon the American landscape in its wake. While the Thirteenth Amendment provides a remedy where those effects remain in contemporary society, interest convergence theory suggests the limits of such a remedy in a judicial forum.

[. . .]

Interest convergence theory suggests that the Thirteenth Amendment's promise is unlikely to be fully realized as long as the badges and incidents of slavery theory is perceived as solely protecting African-Americans. I do not believe that the lack of perceived interest convergence provides a complete explanation for the Thirteenth Amendment's under-enforcement. Nor do I argue that scholars and advocates should focus their civil rights efforts on the interests of white elites to the detriment of focusing on those most disadvantaged by the legacy of slavery.  I do suggest, however, that it is worth considering whether Thirteenth Amendment scholarship and advocacy could benefit from a dose of legal realism regarding its opportunities for success.

Professor of Law, Temple University Beasley School of Law.

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