Excerpted From: Nicholas Serafin, Redefining the Badges of Slavery, 56 University of Richmond Law Review 1291 (Spring, 2022) (250 Footnotes) (Full Document)

NicholasSerafinSection 2 of the Thirteenth Amendment grants Congress the authority to eliminate the “badges and incidents” of slavery. What constitutes an incident of slavery is clear: the incidents of slavery are the legal restrictions, such as submission to a master and a ban on the ownership of productive property, that were inherent in the institution of slavery itself. What constitutes a badge of slavery is far less certain, and relatively few legal scholars have examined the historical meaning of the metaphor. Nevertheless, there has emerged a renewed interest in Section 2, such that the literature now abounds with proposals for eliminating contemporary badges of slavery. Section 2 has been cited as grounds for addressing hate speech, the removal of Confederate monuments, racial profiling, sexual orientation discrimination, violence against women, limitations on the right to an abortion, sexual harassment, sweatshop labor, and more.

Yet there is a widening gulf between those who invoke the badges metaphor in support of contemporary legislative proposals and those who have examined the history of the metaphor itself. For legal scholars like Jack Balkin, Akhil Amar, Alexander Tsesis, and Andrew Koppelman, the badges metaphor can be used to characterize a number of present day injustices, injustices that Congress can address via its Section 2 authority. Lending support to this view is a series of modern cases, beginning with Jones v. Alfred H. Mayer Co., in which the Supreme Court of the United States held that Congress may “determine what are the badges and the incidents of slavery” and “translate that determination into effective legislation,” subject only to rational basis review. If this view is correct, Congress's Section 2 authority is more expansive than is commonly recognized and Section 2 can be used to address a number of contemporary injustices.

The problem is that while this scholarship may be convincing in some respects, rarely do these authors offer much historical evidence regarding the meaning of the badges metaphor itself. Moreover, recent Articles by George Rutherglen, Jennifer Mason McAward, and William Carter, Jr. have examined the history of the metaphor and have plausibly argued that Congressional authority under Section 2 is narrowly restricted. Broadly speaking, this latter group of legal scholars argues that the badges metaphor possesses a limited, historically determined meaning that cannot sustain most contemporary Section 2 proposals. Drawing on legal history and on the original public meaning of the badges metaphor, these scholars contend that in the Postbellum legal context the badges metaphor referred narrowly to practices that threatened to reimpose chattel slavery or its de facto equivalent. Since few, if any, contemporary injustices threaten to reimpose chattel slavery or its de facto equivalent, few, if any, badges of slavery remain. Hence, on this view, Congress generally lacks a predicate for the exercise of its Section 2 authority, and should Congress attempt to enact new Section 2 legislation, heightened judicial scrutiny would be warranted.

No one has yet attempted to defend an expansive view of Section 2 by appealing to legal history and to the original public meaning of the badges metaphor. This Article provides just such a defense. While legal scholars advocating for a narrow understanding of Section 2 present a compelling case, I argue in this Article that previous scholarship on the badges metaphor has overlooked just how often and how broadly the badges metaphor appeared in American public discourse. Furthermore, previous scholarship on the badges metaphor has misidentified the legal origins of the term. By introducing new historical and legal evidence I shall demonstrate that the badges metaphor, both in popular discourse and as a legal term of art, has always possessed a broad range of application. More specifically, I argue that the badges metaphor referred to state actions or social customs that stigmatized subordinate social groups. On the view I shall defend, laws or social customs that impose stigmatic harms upon particular groups are appropriate targets of Section 2 legislation.

In Part I, I canvass recent legal scholarship regarding the badges metaphor and contemporary applications of Section 2. I demonstrate that existing scholarship on the history of the badges metaphor largely cuts against an expansive understanding of Section 2. While my overall aim is to vindicate an expansive understanding of Section 2, legal scholars advocating for a restrictive understanding of Section 2 draw upon historical, textual, and legal evidence that cannot be ignored. Moreover, scholars who seek to eradicate contemporary badges of slavery have generally not engaged with the history of the metaphor. As a result, most contemporary badges proposals are not obviously grounded in any broader, historically grounded account of Congress's Section 2 authority.

In Part II, I revisit the history of the badges metaphor. I trace the origins of the badges metaphor to the Greco-Roman practices of physically marking slaves and other low status individuals. I then survey the development of the metaphor within feudal Europe and the appearance of the metaphor within eighteenth-century American political discourse. The history I survey reveals that the badges metaphor extended beyond race and chattel slavery to gender-and class-based subordination. This is in part because the badges metaphor grew out of the republican intellectual tradition, according to which slavery consisted of the public or private exercise of arbitrary authority. I then consider the history of the badges metaphor in American constitutional law. Many constitutional law scholars have claimed that the badges metaphor first appears in early postbellum cases such as United States v. Rhodes, Blyew v. United States, and the Civil Rights Cases. As I demonstrate, however, the badges metaphor appears much earlier, in Dred Scott v. Sandford. The metaphor's appearance in Dred Scott is deeply revealing and supports an expansive reading of Section 2, yet it has been overlooked by contemporary legal scholars.

Finally, in Part III, I discuss how Section 2 should be applied to contemporary issues. To ground this discussion, I consider the constitutionality of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, a 2009 piece of federal legislation that Congress enacted in part under Section 2. While proponents of the restrictive interpretation have criticized the constitutionality of the Act, I argue that, given the historical usage of the badges metaphor, the Act is well within Congress's Section 2 authority. I then consider arguments for citing Section 2 as grounds for legislation targeting violence against women. I conclude by arguing that, in light of the history of the badges metaphor, any group that is singled out for status-based deprivations of rights, liberties, or privileges warrants Section 2 protection.

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A badge of slavery referred to state actions or social customs that stigmatized subordinate groups. Going forward, Section 2 proposals and arguments should seek to demonstrate that the targeted injustice singles out particular groups for status-based deprivations of rights, liberties, or privileges that are generally available to others. This framework best accounts for the historical evidence, and that badges of slavery endure to this day, prompting a renewed need for Section 2 legislation.

Yet it is also reasonable to wonder whether expansive uses of Section 2 can find traction outside of the legal academy. The skeptical reactions that greet many badges proposals stem from a paradox inherent in contemporary Thirteenth Amendment scholarship. As Jamal Greene observes, many legal scholars are Thirteenth Amendment “optimists,” in that they believe that “the Amendment prohibits in its own terms, or should be read by Congress to prohibit, practices that one opposes but that do not in any obvious way constitute either chattel slavery or involuntary servitude as those terms are ordinarily understood.” Most Thirteenth Amendment proposals--such as using the Amendment to combat abortion restrictions and racial profiling--are optimistic in this sense. But as Greene points out, the suggestion that any of these injustices “qualif[y] as slavery or may be regulated as such does not merely feel technically incorrect as a matter of current legal doctrine; it intuitively seems to misunderstand the English language and the terms of art used within it.” That is, no matter how clever the argument or how compelling the analogy, a good deal of contemporary Thirteenth Amendment proposals simply do not survive first contact with the text of the Amendment.

As Greene acknowledges, however, the legal and political import of Section 2 is far from settled. Indeed, one of the main points of his Article is to juxtapose “the relative narrowness of Section 1 and the relative generativity of Section 2.” For Greene the generativity of Section 2 will not come from judicial interpretation, which, he believes, will almost surely disappoint Thirteenth Amendment optimists. For Greene the generativity of Section 2 must come instead from political mobilization and Congressional legislation. In his view, Section 2 “burden[s] Congress with a constitutional responsibility to root out pervasive and demeaning inequality and subjugation even in the absence of local governmental action.” Focusing on Section 2, as opposed to Section 1, “may help, in small ways, to motivate the political process necessary to craft legislation ultimately grounded in other substantive provisions.”

I am slightly more optimistic than Greene, in that I do not foreclose the possibility that a future Court could take up the expansive interpretation of the badges metaphor. The expansive interpretation possesses a respectable judicial lineage, running from Taney's anti-canonical majority opinion in Dred Scott to Harlan's canonical dissent in Plessy, and then on to Jones, upon which a future Court may rightly wish to build. Nevertheless, Greene's caution is well-taken, and one underlying aim of this Article has been to show how Section 2 arguments might contribute to the sort of political and legislative mobilization that he envisions. Debates over the badges metaphor are, of course, debates about the ways in which certain words were used in the past. At the same time they are, more importantly, debates over how to frame the relationship between past practices and present conditions. If we conceive of slavery as a temporally discrete legal regime, and if we understand the badges metaphor as a reference to distinct features of this regime, then the Thirteenth Amendment likely is a dead end for most contemporary purposes.

As I have argued in this Article, however, the historical evidence does not compel these interpretative choices. On the contrary, many who used the badges metaphor sought to eradicate not just a particular legal regime but also the commitments to group hierarchy, stigma, and subordination that underlay the slave system. Accordingly, Section 2, and the badges metaphor, call on Congress and the public to eradicate the lingering traces of group stigma, in whatever form they are found. To do so requires public discussion and debate over the extent to which contemporary inequalities follow from, or at least reflect, the unjust hierarchies of the past. This is a discussion that some vehemently wish to avoid. But this resistance is, perhaps, a hopeful indication of the critical potential that Section 2 retains.

Assistant Professor of Law, Santa Clara University School of Law.