McCulloch and the Thirteenth Amendment

43 Pages Posted: 30 May 2013  

Jennifer Mason McAward

Notre Dame Law School

Date Written: May 29, 2013

Abstract

Section 2 of the Thirteenth Amendment gives Congress the “power to enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” The conventional view of Section 2 regards this language as an allusion to McCulloch v. Maryland’s explication of Congress’s executory powers, and holds that Congress has substantial, and largely unreviewable, power to determine both the ends and the means of Section 2 legislation.

This Essay argues that the conventional view departs from the original meaning of Section 2. It demonstrates that McCulloch preserved a role for judicial review with respect to both the ends and means of federal legislation. This role was clearly part of the understanding and anticipated application of McCulloch by the time the Thirteenth Amendment was ratified and the Civil Rights Act of 1866 enacted. This Essay concludes that Section 2 preserves a role for meaningful judicial review and grants Congress power to regulate conduct that threatens the reinvigoration of slavery or involuntary servitude, but not near-plenary power over all civil or human rights.

Keywords: thirteenth amendment, slavery, mccullough, section 2 legislation, judicial review, civil rights, involuntary servitude

Suggested Citation

McAward, Jennifer Mason, McCulloch and the Thirteenth Amendment (May 29, 2013). Columbia Law Review, Vol. 112, 2012; Notre Dame Legal Studies Paper No. 1326. Available at SSRN: https://ssrn.com/abstract=2271748

Jennifer Mason McAward (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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