The Thirteenth Amendment in Historical Perspective

Journal of Constitutional Law, Volume 11:5, 2009

23 Pages Posted: 1 Aug 2016

See all articles by Risa L. Goluboff

Risa L. Goluboff

University of Virginia School of Law

Date Written: July 29, 2016

Abstract

There are at least two different historical approaches to constitutional interpretation. The first is what constitutional scholars most readily think of as historical interpretation: originalism. Following that approach, much ink has been spilled on the original meaning of the Thirteenth Amendment, the relationship between precursors to the Amendment and the Amendment itself, and the relationship between the Thirteenth, Fourteenth, and Fifteenth Amendments. The second historical approach leads to a very different kind of historical endeavor. This approach assumes that constitutional understandings are elaborated by historical practice in American history long after the founding. It is this second historical approach—the nonoriginalist historical approach—that this paper engages. What concerns me here is not what the Thirteenth Amendment meant in originalist terms, but how its meaning has changed over time. The meaning of the Thirteenth Amendment has diverged widely at different moments in history— emphasizing the right to contract during the Lochner era, New Deal labor and economic rights in the 1930s and 1940s, and desegregation and antidiscrimination during the civil rights era of the 1960s. These shifting historical meanings of the Thirteenth Amendment—and of the slavery and involuntary servitude it prohibits—offer up a resource for thinking about the Amendment’s purview today.

Suggested Citation

Goluboff, Risa L., The Thirteenth Amendment in Historical Perspective (July 29, 2016). Journal of Constitutional Law, Volume 11:5, 2009. Available at SSRN: https://ssrn.com/abstract=2815975

Risa L. Goluboff (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

HOME PAGE: http://www.law.virginia.edu/lawweb/Faculty.nsf/FHPbI/9230

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