Free at Last! Anti-Subordination and the Thirteenth Amendment

Abstract

For many people, the highlight of the inauguration of the first Black president of the United States was Aretha Franklin’s rendition of the song, 'My Country ‘Tis of Thee.' The song evoked memories of the Civil Rights movement in the United States, through which thousands of activists fought for freedom and equality in our society. Yet notwithstanding the powerful symbolism that liberty has in the American psyche, liberty was largely absent from the legal reforms that originated from that movement. In the second half of the Twentieth Century, our civil rights law was based entirely in the Equal Protection Clause and its promise of formal equality. People of color and women of every race have made significant advances under the Equal Protection model of equality, but they continue to lag behind whites and men under virtually every economic index. This paper argues for an alternative model of equality, an anti-subordination model, which allows decision-makers to focus on the material conditions that contribute to inequality in our society, and to remedy those conditions. That model can be found in another Reconstruction Amendment, the Thirteenth Amendment, which empowers Congress to remedy racial and economic subordination in order to further the belonging of outsiders in our society. This paper considers the abolitionist roots of the Thirteenth Amendment to aid in an understanding of its potential, and analyzes the congressional debates enacting and enforcing that Amendment. The paper focuses on congressional debates because the Court is highly deferential to Congress in this arena, and because the Reconstruction Congress expected Congress to play the leading role in shaping the meaning of the Amendment’s promise of freedom and equality. It concludes by presenting examples of means by which a Twenty-First Century Congress could re-shape the meaning of 'equality' and 'liberty' to enact measures that will effectively address the subordination of people of color, and women of all races, in our society.

Keywords: constitution, civil rights, equality, liberty, Thirteenth Amendment, Congress, constitutional theory

JEL Classification: K19, K39