McCulloch and the Thirteenth Amendment
Jennifer Mason McAward
Notre Dame Law School
May 29, 2013
Columbia Law Review, Vol. 112, 2012
Notre Dame Legal Studies Paper No. 1326
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.
Number of Pages in PDF File: 43
Keywords: thirteenth amendment, slavery, mccullough, section 2 legislation, judicial review, civil rights, involuntary servitude
Date posted: May 30, 2013