Redefining the Badges of Slavery

Abstract

In The Civil Rights Cases the Supreme Court held that Section 2 of the Thirteenth Amendment grants Congress the authority to eliminate the “badges of slavery.” Many legal scholars have argued that some contemporary injustices impose a badge of slavery and thus can be addressed via Section 2 legislation. For example, Section 2 has been cited as grounds for addressing hate speech, racial profiling, sexual orientation discrimination, violence against women, limitations on the right to an abortion, sexual harassment, and more.

But what precisely is a badge of slavery? Relatively few legal scholars have attempted to answer this prior question. Those who have argue that the badges metaphor referred narrowly to antebellum practices that threatened to reimpose chattel slavery. According to this view, few, if any, contemporary injustices threaten to reimpose chattel slavery, and so few, if any badges of slavery remain. Thus, legislation addressing contemporary injustices falls outside of Congress’s Section 2 authority.

No one has attempted to defend a more expansive view of Section 2 by appealing to the legal history and to the original public meaning of the badges metaphor. This paper provides just such a defense. In this Article I demonstrate that the badges metaphor has always possessed a broad range of application. The badges metaphor extended beyond race and chattel slavery to gender- and class-based subordination. Moreover, the badges metaphor first appears not in the Civil Rights Cases, as is most often claimed, but in Dred Scott v. Sandford. Justice Taney’s usage of the metaphor in Dred Scott is deeply revealing and supports an expansive reading of Section 2, yet it has been overlooked by contemporary legal scholars.

Drawing on the popular and legal history of the badges metaphor, I defend the view that a badge of slavery results from laws or social customs that impose stigmatic harms upon subordinate social groups. I then demonstrate how this expansive understanding of Section 2 can be used to support attempts to eradicate contemporary badges of slavery.