Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery
William M. Carter Jr.
University of Pittsburgh - School of Law
March 1, 2006
UC Davis Law Review, Vol. 40, p. 1311, 2007
Case Research Paper Series in Legal Studies Working Paper 06-04
The Supreme Court has held that the Thirteenth Amendment prohibits slavery or involuntary servitude and also empowers Congress to end any lingering "badges and incidents of slavery." The Court, however, has failed to provide any guidance as to defining the badges and incidents of slavery when Congress has failed to identify a condition or form of discrimination as such. This has led the lower courts to conclude that the judiciary's role under the Thirteenth Amendment is limited to enforcing only the Amendment's prohibition of literal enslavement.
This article has two primary objectives. First, it offers an interpretive framework for defining the badges and incidents of slavery that is true to both the Amendment's drafters' original purposes and that can also serve as a vibrant remedy for the legacies of slavery. The Thirteenth Amendment should neither be construed as a dead letter whose purpose was served with the removal of the freedmen's bonds nor as a limitless remedy for all forms of discrimination. Rather, the Amendment must be interpreted in an evolutionary manner, but with specific regard to the experience of the victims of human bondage in the United States (i.e., African-Americans) and the destructive effects that the system of slavery had upon American society, laws, and customs.
Second, this Article explains that the judiciary has concurrent power with Congress to define and offer redress for the badges and incidents of slavery. Limiting the Amendment, in the absence of Congressional action, to literal enslavement ignores the Amendment's Framers' expressed original intent that the Amendment itself would eliminate all lingering vestiges of the slave system. Furthermore, such an interpretation violates separation of powers principles by imputing to Congress the ability to legislate under the Amendment's Enforcement Clause against conditions that purportedly do not in any way violate the Amendment itself. Even in the absence of Congressional action, the judiciary should enforce the Thirteenth Amendment's promise to eliminate the badges or incidents of slavery.
Keywords: Thirteenth Amendment, badges and incidents of slavery, Enforcement Clause, Judicial Authority, Constitutional Interpretation, Original Intent, Discrimination, Separation of Powers, Critical Race Theory, Jones v. Alfred H. Mayer Co., Boerne v. Flores
JEL Classification: K19, K49Accepted Paper Series
Date posted: March 7, 2006 ; Last revised: March 27, 2011
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