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 Abstract

Excerpted From: Michael A. Lawrence, The Thirteenth Amendment as Basis for Racial Truth & Reconciliation, 62 Arizona Law Review 637 (Fall, 2020) (252 Footnotes) (Full Document)

This Article builds upon the foundation laid in 2018 in Racial Justice Demands Truth & Reconciliation, which outlined the sad reality of “a persistent, deeply-rooted systemic racism [that] has worked, without interruption, to oppress people of color on this continent ... [f]rom the earliest days of the slave markets of Virginia in 1619, to the [present-day's continuing] economic disadvantages and disproportionately-skewed criminal justice system.” The human toll of this centuries-long cruel travesty, as described by Ta-Nehisi Coates, is tragic and heartbreaking.

The discussion continues in this Article through the review of various possible constitutional bases for efforts toward advancing the goal of racial truth and reconciliation in America. It begins conventionally enough in Part I, in considering the potential of the Fourteenth Amendment Equal Protection Clause for enabling the further steps needed to advance the elusive goals of a racially just society. It is the Equal Protection Clause, after all, that has been the constitutional basis for much racial and other social justice progress over the past 60-some years, beginning with Brown v. Board of Education in 1954 and continuing into the Civil Rights era and beyond. This Article explains, however, that arguments based on the Equal Protection Clause now face a number of steep challenges in the Supreme Court, to the point where many of the earlier gains have stagnated and even regressed, largely due to the Court's adoption of an organizing approach based on the “anti-discrimination” principle.

Part II provides background on the Thirteenth Amendment; gives a brief history of the Supreme Court's Thirteenth Amendment jurisprudence; discusses what sorts of things count as “badges and incidents of slavery” under Section 1; and explains why the Court's existing strong rational basis deference for Congress's Section 2 enforcement power is mandated in the Constitution's text and structure. This Part also explains how the Amendment, in its substance, requires adherence to an organizing approach based upon the “group-disadvantaging” principle--an approach that offers a promising alternative for achieving robust progress in the racial justice realm.

Part III makes the case that ongoing aspects of the systemic discrimination that has plagued Black Americans for 400 years on this continent and the entire nearly 250-year history of the United States constitute “badges and incidents of slavery” that demand doctrinal attention under the Thirteenth Amendment. Specifically, Section 1 demands judicial enforcement of private and public violations alike (including public inaction); and that, coupled with Congress's Section 2 enforcement power plus the inherent police power possessed by the states, authorizes (or even mandates) the broad use of all manner of governmental remedies, including unapologetically race-conscious affirmative action measures (an approach that is essentially forbidden under the Supreme Court's current Equal Protection doctrine). Such approaches are necessary to atone for and to reconcile, in moral and legal terms, the truth and reality of the long history of systemic, deeply embedded racial injustice and to begin to fulfill the nation's promise of liberty and justice for all.

[. . .]

This Article has reviewed various possible constitutional bases for efforts toward advancing the elusive goals of a racially just society in America. This Article explained that, while much racial justice work has been accomplished in the name of equal protection, arguments based on the Fourteenth Amendment Equal Protection Clause face a number of steep challenges in the Supreme Court (largely due to the Court's adoption of an organizing approach based on the “antidiscrimination” principle), to the point where now many of the earlier gains have stagnated and even regressed.

This Article also discussed the comparative merits of Thirteenth Amendment arguments, adding to a growing chorus of scholars explaining that the Amendment's Section 1 charge that “neither slavery nor involuntary servitude shall exist” in America, coupled with Congress's Section 2 enforcement power, provides strong constitutional grounds for implementing meaningful measures toward achieving robust progress in the racial justice realm. Further, this Article explained how these arguments are premised on an organizing approach based on the “group-disadvantaging” principle.

Finally, this Article made the case that on-going aspects of the systemic race-based discrimination that continues to exist in America constitutes “badges and incidents of slavery” that demand attention under the Thirteenth Amendment. Specifically, it explained that Section 1 demands judicial enforcement of private and public violations alike (including public inaction) and that Congress's Section 2 enforcement power, coupled with the inherent police power possessed by the States, authorizes (or even mandates) the broad use of all manner of governmental remedies, including unapologetically race-conscious affirmative action measures. This Article concludes that such approaches are necessary to atone for and to reconcile, in moral and legal terms, the truth and reality of the long history of systemic, deeply embedded racial injustice in America, and to begin to fulfill the nation's promise of liberty and justice for all.

Professor of Law and past Foster Swift Professor of Constitutional Law (2016-2019), Michigan State University College of Law.

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