Congressional Authority to Interpret the Thirteenth Amendment

20 Pages Posted: 1 Feb 2011 Last revised: 12 Jan 2012

See all articles by Alexander Tsesis

Alexander Tsesis

Loyola University Chicago School of Law

Date Written: January 31, 2011


This essay investigates whether the Court is likely to superimpose its Fourteenth Amendment conservatism, from cases like City of Boerne v. Flores, unto Thirteenth Amendment jurisprudence. I claim that the scope of Congress’s legislative authority under Section Two of the Thirteenth Amendment is not limited to the Court’s remedial interpretation of the Fourteenth Amendment.

I first address an originalist argument for restraining Thirteenth Amendment legislative authority. Some scholars have called for prohibiting legislators from identifying the badges and incidents of involuntary servitude, leaving that task to the Supreme Court. A historical survey demonstrates, to the contrary, that the Thirteenth Amendment empowers Congress to identify and prohibit remaining vestiges of unfreedom. I review statements that congressmen made during debates on the proposed Amendment, paying close attention to claims about Section 2, Enforcement Clause, authority.

I next turn to a Thirteenth Amendment doctrinal analysis. I argue that irrespective of the original intent of the Amendment’s framers, the Warren Court’s expansive understanding of the Thirteenth Amendment in Jones v. Alfred H. Mayer remains binding despite the Rehnquist Court’s narrow expostulation of Section 5 of the Fourteenth Amendment. I aim to dispel the notion that the new Section 5 doctrine can be transposed unto Section 2 interpretation and thereby render the Supreme Court the only proper interpreter of the Thirteenth Amendment’s scope. My survey of the historical and jurisprudential backgrounds of the Thirteenth Amendment indicates that Boerne’s congruent and proportional test is inapplicable to the judicial review of statutes passed pursuant to the Thirteenth Amendment. Furthermore, the Court has specifically ruled out applying the congruence and proportionality standard outside the Section 5 context.

Keywords: Constitutional Law, Thirteenth Amendment

JEL Classification: K10, K40

Suggested Citation

Tsesis, Alexander, Congressional Authority to Interpret the Thirteenth Amendment (January 31, 2011). Maryland Law Review, Vol. 71, 2011, Loyola University Chicago School of Law Research Paper No. 2011-005, Available at SSRN:

Alexander Tsesis (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States
312-915-7929 (Phone)

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