Defining the Badges and Incidents of Slavery
Jennifer Mason McAward
Notre Dame Law School
August 27, 2010
UNIVERSITY OF PENNSYLVANIA LAW SCHOOL JOURNAL OF CONSTITUTIONAL LAW, VOLUME 14, ISSUE 3 (2012)
Notre Dame Law School Legal Studies Research Paper No. 10-22
Most agree that Section Two of the Thirteenth Amendment empowers Congress to legislate regarding the “badges and incidents of slavery.” Few, however, have explored in depth the precise meaning of this concept. The goal of this Article is to provide a historical and conceptual framework for interpreting and identifying the badges and incidents of slavery. It examines the original public meaning of the terms “badge of slavery” and “incident of slavery” as well as how the “badges and incidents” concept has been incorporated into and used in Thirteenth Amendment jurisprudence. It considers several analytical variables from historical, jurisprudential, and policy perspectives, including what populations Congress can protect; what actors Congress can regulate; and what types of conduct Congress can target under its Section Two power.
Ultimately, this Article concludes that the best understanding of the “badges and incidents of slavery” refers to public or widespread private action, aimed at any racial group or population that has previously been held in slavery or servitude, that mimics the law of slavery and has significant potential to lead to the de facto reenslavement or legal subjugation of the targeted group. This limited definition will assist Congress in identifying ways in which it can fulfill the Thirteenth Amendment’s promise of universal civil and political freedom. At the same time, it will provide judicially enforceable limits for the exercise of the Section Two power.
Number of Pages in PDF File: 71
Keywords: thirteenth amendment, section two power, slavery, badges and incidents of slaveryAccepted Paper Series
Date posted: August 29, 2010 ; Last revised: March 25, 2013
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