C. The Badges of Slavery Apply Even Without Slavery
The state of peonage was considered a symptom of slavery, but certainly was not the only symptom. In Bailey the Court stated that the plain intention of the Thirteenth Amendment was to:
[A]bolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit, which is the essence of involuntary servitude.
The Bailey court thus recognized that the symptoms of slavery still existed, and that these symptoms, called the “badges and incidents” of slavery, were unconstitutional under the Thirteenth Amendment.
The Supreme Court in The Civil Rights Cases elaborated on the relationship between badges and incidents of slavery and the Thirteenth Amendment:
It may be that by the black code . . . in the times when slavery prevailed, the proprietors of inns and public conveyances were forbidden to receive persons of the African race, because it . . . was merely a means of preventing . . . escapes, and was no part of the servitude itself . . . . The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a [W]hite person, and such like burdens and incapacities were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offenses.
The Court in Jones expanded on this concept, reversing a district court's dismissal of a complaint brought by plaintiffs who were not allowed to buy a home because of their race. The Court explained that just as the Black Codes enacted after the Civil War had restricted the free enjoyment of rights, so did the exclusion of African-Americans from White communities. The Court continued, “[w]hen racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.”
Since Jones, the Court has indicated that it is Congress' responsibility to interpret and give meaning to the “badges and incidents” of slavery. The Court also has acknowledged that the Amendment's reach is much broader than that of the other Reconstruction Amendments--the Fourteenth and Fifteenth Amendments. Accordingly, the Supreme Court has never ruled that the Thirteenth Amendment is limited only to the conditions of literal slavery. Rather, actual slavery, as well as the “badges and incidents” of slavery, or the legacies of slavery, are both prohibited by the Thirteenth Amendment.
The question becomes, what reasonably constitutes a “badge or incident” of slavery? Professor Donald P. Judges argues that today's underclass experience badges and incidents of slavery in their impoverished economic and related social conditions, regardless of race, “joblessness, crime, welfare dependency, drug addiction, inadequate health care and broken families . . . .” Conditions that are severe enough to form a caste society thus are considered badges and incidents of slavery, especially when they promote a cycle of poverty, rendering the underclass “chronically disadvantaged.” More specifically, these conditions are manifested through “denial of freedom of movement, ability to own or dispose of property, the right to make and enforce contracts . . . .” Furthermore, scholars have posited that “human trafficking, hate speech, child abuse, violence against women, abortion, the citizenship of children of immigrants, the autonomy of American workers, and U.S. corporations' use of exploited foreign laborers” are all encompassed by the Thirteenth Amendment's prohibition of incidents of “involuntary servitude.”
Economic independence is a priority of the Thirteenth Amendment's goal to eliminate the badges and incidents of slavery, and is an essential predicate for an inclusive, free democratic society. “Economic independence is necessary if the citizen is to be able to deliberate on the common good, the res publica, the thing public.” The freedoms afforded under the Thirteenth Amendment are threatened when citizens have failed to be set free from economic dependence. Professor Amar argues that the Thirteenth Amendment should be interpreted to “guarantee each American a certain minimum stake in society.” This will help create independent citizens who have economic opportunity, a voice in the political arena, and who are not socially isolated--a central goal of the Thirteenth Amendment. Professor Amar suggests that insurance of minimal entitlements are a constitutional duty and the nation needs minimum birthrights for every individual. If you view the minimum stake in society as a floor for minimum rights enjoyed by every individual in this country, those below the floor will suffer from economic, political, and social isolation which leaves them vulnerable to suffering the “badges and incidents of slavery.”
