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The Dangerous Thirteenth Amendment


Jack M. Balkin


Yale University - Law School

Sanford Levinson


University of Texas Law School

July 22, 2012

Columbia Law Review, Forthcoming
U of Texas Law, Public Law Research Paper No. 224
Yale Law School, Public Law Working Paper No. 258

Abstract:     
Through most of its history, the Thirteenth Amendment has been interpreted extremely narrowly, especially when we compare it to the Fourteenth Amendment and the Bill of Rights. Modern lawyers would never read the Fourteenth Amendment in the way that they read the Thirteenth — as limited to close analogies to specific historical practices. The Thirteenth Amendment has been read in this way because it is “dangerous.” The demand that “neither slavery nor involuntary servitude . . . shall exist within the United States,” taken seriously, potentially calls into question too many different aspects of public and private power, ranging from political governance to market practices to the family itself.

Our contemporary association of “slavery” with a very limited set of historical practices is anachronistic and the result of a long historical process. The language of the Thirteenth Amendment is taken from the 1787 Northwest Ordinance. Yet at the time of the founding the concept of “slavery” was far broader than we currently understand it. ”Slavery” meant illegitimate domination, political subordination, and the absence of republican government; “chattel slavery” was only the most extreme and visible example of slavery. For example, American colonists repeatedly argued that the British Empire had made them slaves because they lacked political freedoms and representation in Parliament.

The broader, anti-republican concept of slavery was narrowed during the fight for the abolition of chattel slavery for political and strategic reasons. Abolitionists wanted to avoid awkward comparisons to the economic and political subordination of wage laborers and women. Once chattel slavery was abolished, labor activists and suffragists sought to revive the older, broader concept of “slavery.” But emancipation allowed defenders of the status quo to insist that American society was now “free.” Everyday aspects of economic and family life could not be “slavery,” which was by definition the worst of evils and had already been eradicated by law. Even today, calling an injustice “slavery” is generally seen as overheated hyperbole and even a presumptuous insult to the memory of the victims of African American chattel slavery. This essay concludes by asking how our political imagination has been limited as a result of this history.

Number of Pages in PDF File: 46

Keywords: slavery, Thirteenth Amendment, emancipation, republicanism, Guarantee Clause, social memory, Reconstruction

JEL Classification: K10

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Date posted: July 22, 2012  

Suggested Citation

Balkin, Jack M. and Levinson, Sanford, The Dangerous Thirteenth Amendment (July 22, 2012). Columbia Law Review, Forthcoming; U of Texas Law, Public Law Research Paper No. 224; Yale Law School, Public Law Working Paper No. 258. Available at SSRN: http://ssrn.com/abstract=2115222

Contact Information

Jack M. Balkin (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)
Sanford V. Levinson
University of Texas Law School ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-471-3273 (Phone)
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