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Excerpted From: William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis Law Review 1311 (April, 2007) (241 Footnotes) (Full Document)


williamcarterjrDespite its seemingly simple command that "[n]either slavery nor involuntary servitude . . . shall exist within the United States,"  the Thirteenth Amendment's scope remains ambiguous. In Jones v. Alfred H. Mayer Co.,  the Supreme Court construed the Amendment as not only abolishing African slavery, but also empowering Congress to "pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States."  In so holding, the Court resurrected the Thirteenth Amendment as a potentially significant source of civil rights protections after more than one hundred years during which the Amendment had largely been treated as obsolete. The Court, however, has never articulated or even suggested a consistent exegesis of the Amendment's meaning. Rather, the current jurisprudence rests wholly upon ad hoc determinations of whether a given statute or complaint falls within the Thirteenth Amendment.

Significant questions regarding the Amendment's scope and interpretation therefore remain unanswered. First, given "[t]he fact that southern slavery was, in the main, [African] slavery,"  can the Amendment's proscription of the badges of slavery be interpreted as extending to racial groups other than African Americans? Second, even if the Thirteenth Amendment's prohibition of the badges of slavery does apply to all racial groups, does it apply to non-racial classes? Third, what principles should guide judges, legislators, or potential litigants in determining whether a particular condition or form of discrimination constitutes a badge of slavery?

In addition to this lack of definition regarding the scope of the Amendment's prohibition of the badges and incidents of slavery, a significant separation of powers question also remains unresolved. In Jones, the Supreme Court held that the Thirteenth Amendment's Enforcement Clause empowers Congress to enact legislation it deems necessary to eliminate the badges and incidents of slavery. Neither in Jones nor in subsequent cases, however, has the Court defined the Amendment's self-executing scope. The Jones Court specifically reserved the question of whether the Amendment, in the absence of implementing legislation, reaches the badges and incidents of slavery.  In the absence of a definitive statement from the Court, lower courts have uniformly held that the judicial power to enforce the Amendment is limited to conditions of literal slavery or involuntary servitude.These courts have simultaneously affirmed that the Amendment empowers Congress to offer redress for the badges and incidents of slavery. 

This lack of clarity since the Court's decision in Jones has resulted in a growing divide between Thirteenth Amendment case law and Thirteenth Amendment scholarship. The lower courts have consistently found that the Amendment itself prohibits only literal slavery, involuntary servitude, or other forms of coerced labor.  Concurrent with this judicial narrowing of the Amendment's potential, scholars and litigants have advocated for an expansive interpretation of the Amendment as applying to various forms of social injustice. 

At the extremes, the current approaches to construing the Thirteenth Amendment's self-executing prohibition of the badges and incidents of slavery are misguided. Those courts that dismiss "badges and incidents of slavery" claims out of hand without seriously considering such claims can do so only by disregarding Supreme Court precedent, the Amendment's legislative history, its historical context, and its framers' intent. Scholars and litigants who view the Thirteenth Amendment as providing a generalized constitutional remedy for all forms of discrimination without analyzing whether the practice or condition at issue has a real connection to the institution of chattel slavery ignore enslavement itself and the consequent injuries thereof that motivated the Amendment's adoption. In so doing, they weaken the Amendment's potential as an effective legal remedy for the claims that it does encompass.

African Americans are the most obvious beneficiaries of the Thirteenth Amendment. I ultimately conclude, however, that persons who are not African American can also suffer a badge or incident of slavery when the injury at issue is proximately traceable to the system of slavery. Defining the badges and incidents of slavery requires an examination of the nexus between group history and the nature and genesis of the complained of injury or condition. In other words, as the group's link to slavery grows more attenuated, the nature of the injury must be more strongly connected to the system of slavery to be rationally considered a badge or incident thereof. Conversely, where the harm suffered is less directly traceable to the system of slavery, the injured party must be able to show that her group's current status, history, and societal perception are sufficiently similar to those actually enslaved such that inequality arising out of or based upon that status is an outgrowth or legacy of slavery.

In both formulations, the point of reference remains where I believe it must: either on the group formerly enslaved (African Americans) and those classes sufficiently similar to them in terms of history and societal standing, or upon the system of slavery and the specific damage it caused to American society. In this way, the constitutional command to eliminate the badges and incidents of slavery remains tethered to the actual historical facts of American slavery and its particular victims.  In short, because the institution of slavery was about the interaction of race,  power, and group status, the Thirteenth Amendment should be expressly construed in terms of race, power, and group status.

I have argued elsewhere that viewing the Amendment as vesting Congress alone with the power to address the badges of slavery is inconsistent with the Amendment's legislative history and the Supreme Court's recent precedents regarding congressional power to enforce the Reconstruction Amendments. This Article expands upon those themes and also addresses the separation of powers concerns from a pragmatic perspective. While Congress may, in some cases and for pragmatic reasons, be the better branch of government to define what conditions amount to badges of slavery, it is not the only branch practically equipped or constitutionally empowered to do so. Thus, while courts should accord substantial deference to congressional determinations that particular injuries or conditions are lingering effects of slavery, they should also, in the absence of applicable federal legislation, exercise their independent constitutional authority to say "what the law is" regarding the Thirteenth Amendment. 

This Article has two primary objectives. First, it offers an interpretive framework for defining "badges and incidents of slavery" that is true to the Amendment's drafters' original purposes and that can also serve as a vibrant remedy for the legacies of slavery. Second, it explains that the judiciary has concurrent power with Congress to define and offer redress for the badges and incidents of slavery. These two objectives are related because the courts, regardless of their formal power to enforce constitutional rights, are unlikely to do so where the proposed interpretation is so indeterminate as to raise concerns about judicial policymaking. I believe that courts have been unwilling to extend the Amendment to its full scope at least in part because the badges and incidents of slavery prohibited by the Thirteenth Amendment remain so undefined. 

Part I of this Article briefly reviews the existing Thirteenth Amendment literature, the Amendment's legislative history, and Supreme Court jurisprudence to discern generally accepted principles and remaining areas of ambiguity.

Part II proposes principles of constitutional interpretation to guide us in defining the badges and incidents of slavery, and concludes that an understanding of the Amendment's framers' purposes supports interpreting the Amendment as reaching substantially beyond literal slavery or involuntary servitude.

Part III reviews the current approaches to Thirteenth Amendment interpretation and concludes that none of the prevailing approaches is tenable.

In Part IV, I synthesize the foregoing principles and propose that the badges and incidents of slavery be evaluated with reference to whether the identity of the victim and the nature of the injury demonstrate a concrete link to the system of chattel slavery. I also provide examples of how the framework I propose would be applied in practice. Finally, in Part IV, I briefly respond to the potential criticism that grounding the badges and incidents of slavery analysis in the specifics of chattel slavery and the experiences of African Americans under that institution would unduly minimize the unique experiences of other racial and ethnic minorities. I conclude by arguing that the Thirteenth Amendment's promise to rid America of the lingering vestiges of slavery remains a vibrant option for the furtherance of substantive equality.

[. . .]

The Thirteenth Amendment provides a vibrant legal basis for Congress and the judiciary to craft legal remedies to confront the legacies of slavery in the United States. It would be misguided as a matter of originalism to interpret the Thirteenth Amendment as a mere historical curiosity whose sole purpose was accomplished with the end of chattel slavery. If the Thirteenth Amendment is to realistically mean anything, however, it cannot mean everything. While it is tempting in the current regressive climate in the area of civil rights to turn to the relatively blank slate of the Thirteenth Amendment as a remedy for a variety of social injustices, detaching the Amendment's interpretation from the legacy of slavery is likely to diminish its force as a legal remedy.

William M. Carter, Jr., is an Associate Professor of Law at Case Western Reserve University School of Law.

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