29 Pages Posted: 30 Oct 2012
Date Written: 2012
The Thirteenth Amendment’s Framers envisioned the Amendment as providing federal authority to eliminate the “badges and incidents of slavery.” The freemen and their descendants are the most likely to be burdened with the effects of stigma, stereotypes, and structural discrimination arising from the slave system. Because African Americans are therefore the most obvious beneficiaries of the Amendment’s promise to eliminate the legacy of slavery, it is often mistakenly assumed that federal power to eradicate the badges and incidents of slavery only permits remedies aimed at redressing the subordination of African Americans. While African Americans were the primary victims of slavery and are the most likely to feel the effects of its legacy, however, the debates leading to the Thirteenth Amendment’s ratification reveal that its architects understood the Slave Power to have inflicted grave harm upon the country itself by undermining the founding ideals in service of slavery. One incident of slavery felt keenly by non-blacks and of immediate interest to the Amendment’s Framers was the public and private suppression of abolitionists’ and Unionists’ freedom of speech. Prior to and following the Civil War, slaveowners and their allies routinely retaliated against the advocates of freedom with impunity. This Essay argues that contemporary antiretaliation law provides inadequate protection of those who engage in pro-equality speech, and that the Thirteenth Amendment authorizes Congress to expand such protection.
Keywords: Thirteenth Amendment, antiretaliation, slavery, freedom of speech, retaliation, abolition, civil rights, racial equality, discrimination, racial justice, abolitionists, enslavement, Reconstruction, post-racial, social norms
JEL Classification: K00, K19, K30
Suggested Citation: Suggested Citation
Carter, William M., The Thirteenth Amendment and Pro-Equality Speech (2012). Columbia Law Review, Vol. 112, p. 1855, 2012; U. of Pittsburgh Legal Studies Research Paper No. 2012-30. Available at SSRN: https://ssrn.com/abstract=2166859