The Thirteenth Amendment and Human Trafficking: Lessons and Limitations
22 Pages Posted: 10 Jul 2020 Last revised: 18 Aug 2020
Date Written: 2020
This Article urges a Thirteenth Amendment framework for human trafficking law and policy-- one that applies a race-conscious lens to the amendment’s prohibition on slavery, involuntary servitude and its evolving forms. This approach legitimizes the Trafficking Victims Protection Act as an appropriate exercise of Congress’s Section Two power to enforce the Thirteenth Amendment. It also encourages a structural analysis of human trafficking that highlights populations particularly vulnerable to race‑based economic subordination and identifies deficiencies in current anti‑trafficking policies and practices that fail to reach them. Importantly, this approach cautions against anti‑trafficking measures, which exceed the Thirteenth Amendment’s unfulfilled yet intended scope, to eliminate slavery, involuntary servitude and its "badges and incidents," namely those systems that maintain race‑based economic subordination. Such scrutiny would discourage the rush to policies that conflate human trafficking with an ever‑expanding range of exploitive conduct, which results in over‑criminalization and diverts attention away from the forced labor and services of people of color. It also helps to preserve the integrity of the Thirteenth Amendment as the constitutional paradigm by which to address race‑based economic subordination.
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