The Thirteenth Amendment 'Exception' to the State Action Doctrine: An Originalist Reappraisal

Abstract:     
In 1865, the Thirteenth Amendment banned slavery in the United States. There is an overwhelming consensus that the Thirteenth Amendment represents an exception to the state action doctrine – the general rule that the U.S. Constitution does not apply to private actors. There has never been an analysis of this assertion using reasonable-observer originalism. As a result, the consensus view on the Thirteenth Amendment threatens to undermine a key feature of the Constitution – that it provides rules of conduct solely for governmental actors.

This Essay uses reasonable-observer originalism to examine the text and context of the Thirteenth Amendment. This is the first analysis that finds that Section 1 of the Thirteenth Amendment is not the aberration that most have claimed; it is consistent with the state action doctrine and only applies to governmental actors. However, Section 2 allows Congress to act on private individuals when a state has refused to enforce its generally-applicable laws protecting bodily integrity and freedom from restraint. Both aspects of this analysis demonstrate how the case law that has arisen from the Thirteenth Amendment is in harmony with the revised view set forth in this Essay, and that the constitutional ban of slavery is properly understood as an anti-caste provision prohibiting discriminatory governmental exemptions from laws protecting persons from physical force.

Number of Pages in PDF File: 51

Keywords: slavery, Thirteenth Amendment, state action doctrine, originalism, textualism

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