Thursday, April 19, 2018

Slavery to Reparations

The Emancipation Proclamation

By the President of the United States of America
Whereas on the 22nd day of September, A.D. 1862, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

"That on the 1st day of January, A.D. 1863, all persons held as slaves within any State or designated part of a State the people whereof shall then be in rebellion against the United States shall be then, thenceforward, and forever free; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

"That the executive will on the 1st day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State or the people thereof shall on that day be in good faith represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such States shall have participated shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State and the people thereof are not then
in rebellion against the United States."

Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-In-Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for supressing said rebellion, do, on this 1st day of January, A.D. 1863, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the first day above mentioned, order and designate as the States and parts of States wherein the people thereof, respectively, are this day in rebellion against the United States the following, to wit:

Arkansas, Texas, Louisiana (except the parishes of St. Bernard, Palquemines, Jefferson, St. John, St. Charles, St. James, Ascension, Assumption, Terrebone, Lafourche, St. Mary, St. Martin, and Orleans, including the city of New Orleans), Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia (except the
forty-eight counties designated as West Virginia, and also the counties of Berkeley, Accomac, Morthhampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of Norfolk and Portsmouth), and which excepted parts are for the present left
precisely as if this proclamation were not issued.

And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States and parts of States are, and henceforward shall be, free; and that the Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all case when allowed, they labor faithfully for reasonable wages.

And I further declare and make known that such persons of suitable condition will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God.

From Racial Discrimination to Separate but Equal: the Common Law Impact of the Thirteenth Amendment

David S. Bogen

Excerpted from: David S. Bogen, From Racial Discrimination to Separate but Equal: the Common Law Impact of the Thirteenth Amendment, 38 Ohio Northern University Law Review 117 (2011) (125 Footnotes)


Some constitutional amendments have an impact beyond their terms: they transform the way people look at the world. An amendment evidences a consensus for change, and may be a catalyst for more. For example, by the end of the Civil War the North reached a consensus against slavery that it implemented by the 13th Amendment. The prohibition of slavery profoundly altered society: reflecting a view of African-Americans as members of society entitled to the fundamental rights of citizens. Abolition pushed against the racial discrimination embedded in law, and the Civil Rights Act of 1866 and the 14th Amendment followed. Abolition also altered the common law both directly and indirectly.

The 13th Amendment commands that [n]either slavery nor involuntary servitude ... shall and empowers Congress to enforce that command. The narrow legal application of the amendment does not prohibit all racial discrimination and limits Congressional power under it to issues concerning slavery, involuntary servitude, and their badges and incidents. Nevertheless, abolition led to an acknowledgement of African-American citizenship that transformed the racial aspects of common carrier law. Statutes and judicial decisions ended antebellum racial exclusion and discrimination on common carriers, but the Constitution did not control all aspects of private relationships. The idea of equality met existing racial prejudice. The collision produced the doctrine of separate but equal in public transport. Segregation grew in the shadow of the 13th Amendment until it took over the 14th Amendment in Plessy.


Section 1 of the 13th Amendment abolished slavery and involuntary servitude. Any law triggered by or expressly dependent on slavery no longer had force. Former slaveholders might continue to treat their former slaves as though nothing had happened, but the situation had changed. Abolition removed the powers that slaveholders had over their slaves, such as a right to use physical force--moderate correction. But abolition did not end racial prejudice.

Southern states adopted racially-discriminatory laws--restrictions on contract, property, and procedural rights--to compel the former slaves to remain in virtually the same position. States contended that these Black Codes did not constitute slavery or involuntary servitude because they did not impose all the characteristics of slavery.

Courts took a broader view of the essence of the prohibition, applying it even where the subjects retained some rights. For example, Supreme Court Justice Salmon P. Chase, on circuit in 1867, struck down the discriminatory Maryland apprentice law as an involuntary servitude prohibited by the 13th Amendment. In the Slaughter-House Justice Miller pointed to Chase's decision to illustrate how the amendment reached involuntary servitude.

Nevertheless, the Court rejected arguments that would broaden involuntary servitude to apply to any restrictions on liberty. The plaintiffs in the Slaughter-House Cases argued that the slaughter-house monopoly created an involuntary servitude because it forced them against their will to use the sanctioned company. Justice Miller denied this interpretation of the amendment:

To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government--a declaration designed to establish the freedom of four millions of slaves--and with a microscopic search endeavor to find in it a reference to servitudes, which may have been attached to property in certain localities, requires an effort, to say the least of it.

Scholars debate the breadth of the 13th Amendment's command, ranging from the view that it prohibits only slavery to contentions that a variety of constraints on individual choice constitute involuntary servitude. Thus far the Court has used section 1 of the 13th Amendment only for slavery or for involuntary servitude that was very close to slavery, like the Maryland apprentice laws and peonage in Alabama, and has turned a deaf ear to more extensive claims.


Section 2 of the amendment empowered Congress to enforce the abolition of slavery and involuntary servitude. Thus, Congress may establish a remedial framework for persons held in involuntary servitude or may make criminal the act of holding another in slavery. Section 2 also supports Congressional legislation against the badges and incidents of slavery to assure that slavery and involuntary servitude will not exist. Pursuant to this reasoning, Congress passed the Civil Rights Act of 1866, arguing that the abolition of slavery also authorized them to prohibit racial discrimination in contracts, property, and rights in court.

Courts agreed that Congress could protect against a revival of slavery. Restrictions on commerce, property ownership, and court enforcement could compel the victims to servitude. Blot out this act and deny the constitutional power to pass it, and the worst effects of slavery might speedily follow. It would be a virtual abrogation of the More than a century later, the Supreme Court held that the Civil Rights Act of 1866 forbade racial discrimination in private transactions, and that the 13th Amendment authorized Congress to legislate to eliminate badges or incidents of slavery.

When Congress enacted the Civil Rights Act of 1875 prohibiting racial discrimination in public accommodations, Justice Harlan said that innkeepers, common carriers, and places of public accommodation had a quasi-public character that required them to be open to all, and that discrimination by such a quasi-public entity was a badge or incident of slavery. Nevertheless, Justice Bradley wrote for the majority of the Supreme Court that it would be running the slavery argument into the ground to find the amendment authorized such legislation. Unlike the civil rights protected by the 1866 Act, Justice Bradley considered public accommodations a social right that was not a badge or incident of slavery.

Plaintiffs had argued that exclusion from public accommodations was a badge or incident of slavery because laws in some states during slavery required carriers and places of public accommodations to deny African-Americans access. Bradley responded that the exclusion was a means of preventing slaves from escaping and not an incident of slavery itself. Slaves lack legal rights and therefore could not contract, own property, or sue. But slaves could ride on carriers with their master or with their master's permission. Discrimination on carriers had long been common in the North where slavery did not exist, and Bradley considered it a purely associational matter.

Scholars continue to debate the deference to be paid to Congressional views on the badges and incidents of slavery, and whether the specific legislation is necessary and appropriate to remove them; however, the Court has not yet reversed its Civil Rights Cases decision that racial discrimination in public accommodations is not a badge or incident of slavery and that Congress enjoys only a limited power under the 13th Amendment.


Although the Supreme Court did not consider racial discrimination in public accommodations to violate section 1 of the 13th Amendment and believed it beyond the reach of the section 2 enforcement power of Congress, supporters thought the amendment would have far greater effect than its words alone suggest. They were right.


Many abolitionists contended that slavery corrupted the masters and the society that tolerated or approved it. Some Republican advocates of the amendment emphasized the impact of slavery on free men of both races, arguing that it deprived them of fundamental rights. The debaters were not clear on how the amendment would secure fundamental rights such as free speech. Nevertheless, proponents believed that the abolition of slavery would affect a broad network of ideology and relationships, not just the narrow conception of status.

Abolition's social, economic, and political effects satisfied traditional requirements of changed conditions for overturning old constitutional interpretations and common law decisions. The understanding that abolition should result in the protection of fundamental rights of African-Americans resulted in the extension of citizenship for African-Americans and changes in the law of common carriers. The amendment altered laws that did not expressly turn on slave status because courts took a different view of African-Americans in its wake.


Chief Justice Taney's opinion in Dred Scott v. divided people born in the United States and subject solely to its jurisdiction into three classes: citizens, slaves, and free negroes. Although the 13th Amendment abolished slavery, it did not on its face affect the status of free negroes. Nevertheless, the Civil Rights Act of 1866 stated that all persons born in the United States were citizens. Republicans supporting the statute believed that the amendment had effectively overruled Dred But how did it do so? A close look at the mechanism for this transformation reveals how the amendment could affect change in an area beyond its direct scope--not only black citizenship, but also racial discrimination by common carriers.

The 13th Amendment did not expressly make citizens of all African-Americans born in the United States. An opponent of black citizenship could argue, as Taney did in Dred Scott, that free blacks were not considered citizens under the original Constitution and that Congress could only confer citizenship on persons born abroad. Republicans argued that the 13th Amendment transformed the position of African-Americans and made it appropriate for Congress to state that change, as it did in the first section of the Civil Rights Act of 1865. The amendment destroyed the rationale for denial of citizenship.

Taney's controversial views rested on three premises: First, that negroes could be reduced to slavery. The 13th Amendment rendered the first premise irrelevant--no one could be reduced to slavery any more.

Taney's second premise contended that African-Americans were stigmatized by anti-miscegenation laws, but this was a weak premise from the start. The anti-miscegenation laws may have been stigmatic, but they restricted both races. Finally, Taney's third premise for denying citizenship to African-Americans was that American society viewed discrimination against African-Americans as necessary. He illustrated the third premise by showing that nowhere in the nation except Maine did they have civil and political rights equal to whites. He argued that the consequences of citizenship would endow blacks with privileges and immunities that were unacceptable to whites, such as the right to travel, freedom of speech, and the right to bear arms. Finally he said that this class of persons were governed by special legislation directed expressly to them, and always connected with provisions for the government of slaves, and not with those for the government of free white

Taney's home state of Maryland provided strong evidence for his final premise. Many laws discriminating against free African-Americans arose from concern to maintain the institution of slavery. Fearing slaves might revolt against their masters, legislatures prohibited unlicensed meetings of free blacks, possession of dogs and guns, and immigration into the state. Attempting to prevent slaves from escaping, states imposed licensing requirements for travel out of state and excluded free black testimony that might help free slaves or limit a master's power over them. Concerned that rebellious slaves might steal from their masters, states required licenses for African-Americans who sold farm goods.

In Dred Scott, Taney argued that free African-Americans were not citizens because they could have their rights stripped from them, but most laws stripped them of rights in order to maintain slavery. Because Taney's third premise flowed from slavery, abolition undermined his argument. When there are no slaves, there is no sense in having laws connected with provisions for the government of slaves Thus, the destruction of the institution meant that many racially-discriminatory laws lost their rationale.

The 14th Amendment resolved the question of African-American citizenship without the need for a court decision on the citizenship effect of the 13th Amendment. Nevertheless, the reasoning for the citizenship consequences of the 13th Amendment played a critical role in some judicial decisions in other areas.


The abolition of slavery impacted transportation. Although common carriers had a common law obligation to carry all goods and passengers, antebellum carriers treated race as good cause for an exception because there were so many reasons to refuse passage to African-Americans, whether slave or free. Abolition undercut the reasons for refusal and led courts and legislatures to eliminate the exception.


Prior to the Civil War, African-Americans could be refused passage on common carriers in the South on the grounds that the captain feared that they might be slaves trying to escape; Justice Bradley remarked on this in the Civil Rights In Maryland, railroads and steamboats carefully guarded against transporting slaves because the ship's master could be held liable. In 1834, the Court of Appeals of Maryland upheld liability against a steamboat company for failure to find a runaway slave even though the ship's master permitted a limited search. Based on the law of 1839, the company would be liable for a penalty of five hundred dollars for transporting any slave without the written permission of the slave's owner and--in the event the slave escaped--the transportation company would also be liable to the owner for the value of the slave.

Maryland Federal District Court Judge William Fell Giles explained how these laws supported carrier discrimination:

As long as slavery existed a slave could make no contract, and the laws were very stringent to prevent common carriers from transporting colored persons who were slaves; in fact, some of the common carriers of the State refused to carry colored people as passengers without first obtaining a bond of indemnity signed by white persons to save them harmless in the event that the passengers should turn out to be slaves. This grew out of the fact that the Court of Appeals had decided that color was presumptive evidence of the condition of servitude.

As Judge Giles noted, carriers used fear of slave escapes to justify exclusion of free African-Americans as well. Statutes also imposed travel limits on free blacks. Statutes required free blacks traveling by ship to have a certificate of freedom plus a certificate of identity describing them. Further, any negro or mulatto leaving the state for more than thirty days without leaving a written statement of his plans and intention to return with the clerk of the county court, or without bringing back a certificate showing that he was restrained from returning by illness or coercion, would be treated as a resident of another state. The free negro would thus be subject to all the laws prohibiting immigration from another state. A number of states prevented free negroes from entering. This was constitutional under Dred Scott because if African-Americans were not citizens, the Privileges and Immunities Clause of Article IV did not apply to them. The corollary of exclusion empowered common carriers to refuse to carry African-Americans whose transport they feared might violate the laws of the state.


Slaves might accompany their masters in steamboat facilities in the South, but African-Americans traveling on their own often received shabby treatment. William Chambers wrote of the inferior eating areas for coloreds on a steamer crossing the Susquehanna river. Steamboats often had separate quarters for negroes, sometimes in the hull next to the crew.

Even in northern states like Michigan and Pennsylvania, African-Americans received second class treatment. The courts reasoned that the common law obligation of carriage did not cover the manner and location and allowed companies to exclude African-Americans from the enclosed portion of vehicles. Samuel Ringgold Ward wrote of other discrimination in the North. His ticket for a voyage to Liverpool had a notation that specifically required him to eat in his cabin because of his race, and his wife and children were excluded from a ship's cabin on a trip from New York to Canada. Although a conductor in Ohio who excluded an African-American from a streetcar was convicted of battery, the exclusion was total and the opinion did not require equal facilities. In short, carriers freely discriminated against African-Americans before the war in both the North and the South, contending successfully either that they were justified in excluding them or in treating them as second-class travelers so long as they were carried.


The abolition of slavery transformed antebellum racial practices. As Professor Joseph Singer has written:

The year 1865 marked an enormous turning point in the history of public accommodations law .... The case law that emerged after 1865 is absolutely consistent in affirming a common-law right of access to places of public accommodation without regard to race until the time of the Jim Crow laws of the 1890s. This right of access is premised not only on the traditional duties of public accommodation, but also on newly emerging conceptions of racial equality.

Northern states outlawed discrimination in public accommodations after the war by legislation and by common law decision or both. The change in common carrier law after the Civil War had two aspects. Carriers could no longer exclude African-Americans on the basis of race--the amendment rendered fears of escape or immigration law violation baseless. But carriers were also prohibited from treating negroes worse than they treated whites: courts imposed a common law separate but equal standard that prohibited the previously-existing disparity in facilities.

For example, a Philadelphia lower court in 1865 found ejection from a streetcar was actionable because the war had changed the common law, even before the 13th Amendment was ratified:

The logic of events of the past four years has in many respects cleared our vision and corrected our judgment; and no proposition has been more clearly wrought out by them than that the men who have been deemed worthy, to become the defenders of the country, to wear the uniforms of the soldier of the United States, should not be denied the rights common to humanity ....

A few years later, the Pennsylvania Supreme Court approved segregation on streetcars when the accommodations for African-Americans were not inferior. The decision assumed that common carrier law required carriers to carry African-Americans and that the requirement had an equality component--imposing a separate but equal standard. The court noted that the case arose before the passage of the Act of 22d March 1867, declaring it an offence [sic] for railroad companies to make any distinction between passengers on account of race or color, recognizing the probability that the statute went beyond the new common law to forbid segregation as well.

The changes in the common law were not limited to the North. In Maryland, Judge Giles struck down streetcar discrimination in Baltimore as a violation of the common law. He acknowledged that carriers freely discriminated against colored people before the war, but:

[a]ll that, however, has passed away. Slavery has been abolished, and the reason for such rule and regulation no longer exists. Under the Fourteenth Amendment to the Constitution of the United States the colored man has become a citizen, and can sue in the United States Courts. After citing several authorities, Judge Giles said: It appears to me that no common carrier has a right to refuse to carry any peaceable man who is willing to pay his

Judge Giles' reference to 14th-Amendment citizenship referred to the ability of the plaintiff to get the suit into federal court, but the abolition of slavery provided the fulcrum for his substantive decision that common carriers must carry African-Americans. The application of the common carrier law to African-Americans gave them a common law right of access to passage, and, moreover, that right included equal treatment with other passengers. Judge Giles followed his own decision in several later cases in which plaintiffs won judgments for common carrier mistreatment on the grounds that their accommodations were inferior to those of whites.

In the Civil Rights Cases, Justice Bradley assumed that African-Americans were entitled to equal access to common carriers and public accommodations as part of state law--i.e. the common law. If the state enforced the right of others to public accommodations and common carriers but did not protect African-Americans, it would violate the 14th Amendment because the antebellum exception could no longer be justified. If the carrier's exclusion policy violated anyone's rights:

his redress is to be sought under the laws of the State; or if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws, or State action, prohibited by the Fourteenth Amendment.

States avoided the 14th Amendment's constitutional prohibition in two ways. First, the state could abolish the common law by statute and deny the right of access to carriers and inns to everyone. Although Tennessee did this in 1875, the impact of the denial on white travelers made it politically problematic.

Alternatively, states could enforce a right of access while permitting the carrier to choose the location of the passenger--i.e., equal in access and physical accommodations but separated by race. Both races would have the right to first-class facilities, but the state would not give either race a right to a particular location, leaving the carrier free to segregate the races. This was the path chosen.

African-Americans brought numerous suits in the latter half of the 19th century on the basis of either a common law or a statutory right to carriage arising after the Civil War. Separate but equal became the legal standard behind which they won victory after victory against discriminatory treatment. That same standard became a barrier when subsequently applied by the Court in the very different context of the equal protection clause of the 14th Amendment.

. Professor Emeritus of Law University of Maryland Francis King Carey School of Law.

The Thirteenth Amendment and Interest Convergence

William M. Carter, Jr


Abstracted from: William M. Carter, Jr., The Thirteenth Amendment, Interest Convergence, and the Badges and Incidents of Slavery, 71 Maryland Law Review 21, 23-35, 39 (2011) (89 Footnotes Omitted).

Interest convergence theory reflects the legal realist perspective animating much of Critical Race Theory. Stated succinctly, interest  convergence theory posits that substantive legal gains for racial minorities seldom occur unless they converge or are perceived as converging with the interests of white elites. Professor Derrick Bell's formulation represents interest convergence theory in its strongest form:

The interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites. However, the fourteenth amendment, standing alone, will not authorize a judicial remedy providing effective racial equality for blacks where the remedy sought threatens the superior societal status of middle and upper class whites.

Interest convergence theory therefore rejects the notions of classical legal theory that idealism, abstract legal doctrine, or the deployment of novel legal strategies will bring about significant advances in civil rights.  While all of these may play a role, interest convergence theory holds that it is the actual or perceived alignment of the interests of the elite with those of the subordinated that is outcome determinative in achieving substantive justice.

Interest convergence theory has been controversial.  What has made it particularly controversial is the claim made by Professor Bell, and furthered by Professor Mary Dudziak, that Brown v. Board of Education  provides an example of interest convergence in action.  The  traditional narrative of Brown explains that equality and fairness finally triumphed in both law and public opinion over the forces of intolerance, leading to the Court's holding that “separate but equal” was inherently unconstitutional.  Both Bell and Dudziak argued, however, that global and national political considerations provide a more compelling explanation for the decision in Brown.  After all, as Professor Richard Delgado noted in advancing the interest convergence thesis, “‘[t]he NAACP had been litigating school desegregation cases for decades, losing each time, or winning, at best, very narrow victories. Then, in 1954, the skies opened. The Supreme Court of the United States held, for the first time in a school desegregation case, that separate is never equal.”’  Bell contended that the Brown decision came about because dismantling de jure segregation at that time was consistent with the interest of white elites. He asserted that the ideological struggle against communism and the potential for unrest among black servicemen returning from war counseled in favor of eliminating the glaring message of racial inequality sent by de jure segregation.  Dudziak expanded this thesis by uncovering historical documents showing that the United States government's intervention on the side of the plaintiffs in Brown was largely driven by geopolitical concerns:

[T]he international focus on U.S. racial problems [in the years following World War II] meant that the image of American democracy was tarnished. The apparent contradictions between American political ideology and practice led to particular foreign policy difficulties with countries in Asia, Africa and Latin America. U.S. government officials realized that their ability to sell democracy to the Third World was seriously hampered by continuing racial injustice  at home. 

Under this view, American apartheid ended only when it no longer served the material interests of white elites.

Because interest convergence theory is controversial, important nuances are often overlooked. Accordingly, three points will help to clarify interest convergence theory. First, interest convergence theory does not contend that individual whites perform a conscious calculus of whether certain advances in racial justice will work in their material self-interest. Rather, interest convergence theory suggests that whites are likely to react adversely to civil rights measures that they perceive as solely benefiting racial minorities.  Second, as to judges, interest convergence theory is not merely a variation on the theme that “all law is politics.” Rather, given the narrow segment of the mostly white elite from which federal judges (and especially Supreme Court Justices) are drawn,  interest convergence theory suggests their worldview and life experience will generally be such that remedies perceived as benefiting only people of color are unlikely to find their favor.  Third, interest convergence theory acknowledges that altruism can motivate some persons who have nothing directly at stake in a given controversy to nonetheless demand justice on behalf of others. As Professor Bell recognized, “there were whites for whom recognition of the racial equality principle was sufficient motivation [to work toward both school desegregation and the abolition of slavery]. But [in both situations], the number who would act on morality alone was insufficient to bring about the desired racial reform.”

* * *

Thirteenth Amendment jurisprudence can be analyzed through the prism of interest convergence. Doing so requires unpacking the various strains of Thirteenth Amendment doctrine because the appli  cability of interest convergence theory may be more or less persuasive depending on the context.

The most successful aspect of modern Thirteenth Amendment jurisprudence has been its extension to contemporary instances of coercion, such as human trafficking, involuntary confinement, and forced labor.  The operation of interest convergence theory in such cases is fairly straightforward. Prohibiting such practices aligns with the interests of white elites because any person of any race, given sufficient coercion, can (at least conceptually) be compelled to labor or confined against her will.

The Thirteenth Amendment's history demonstrates that, in addition to abolishing chattel slavery and compelled labor, the Reconstruction Amendments' framers intended to eliminate the lingering vestiges of the slave system.  However, there have been very few cases where courts have accepted the badges and incidents of slavery theory of the Thirteenth Amendment. The few cases that have done so can be viewed as instances of interest convergence.

The United States Court of Appeals for the Second Circuit's opinion in United States v. Nelson  provides a recent illustration of interest convergence with regard to the badges and incidents of slavery. Nelson arose out of the Crown Heights riots in New York City. According to the trial testimony, a car driven by a Jewish person struck two African-American children, one of whom died from his injuries.  After the accident, an angry crowd soon formed. One of the defendants made a speech urging the crowd to, among other things, “get the Jews.”  Members of the crowd subsequently spotted and targeted Yankel Rosenbaum, a Jewish man wearing orthodox Jewish clothing,  and some shouted “get the Jew, kill the Jew.”  Defendant Nelson stabbed Rosenbaum, who eventually died of his injuries.

The two defendants were convicted for violating 18 U.S.C. § 245(b)(2)(B), which makes it a federal crime to interfere with a person's enjoyment of public facilities on account of his race, color, religion, or national origin.  On appeal, the defendants argued that the statute exceeded Congress's power to enforce the Thirteenth Amendment insofar as it prohibited religious, rather than racial, hate crimes.

The Nelson court noted that the Thirteenth Amendment's prohibition of slavery and involuntary servitude is race-neutral and has been so interpreted by the Supreme Court.  As the court acknowledged, however, Jews are not thought to be a racial group in contemporary society.  Accordingly, even if the Thirteenth Amendment protects all racial groups, the court had to determine whether the Thirteenth Amendment protects non-racial classes.

The court reasoned that “race” is a “term of art” that is not necessarily limited to its contemporary meaning.  Thus, the court held the fact that Jews are not currently considered to be a distinct race “does not rule out Jews from the shelter of the Thirteenth Amendment.”  Indeed, as the Nelson court recognized, Supreme Court cases analyzing 42 U.S.C. §§ 1981 and 1982, statutes which are based on the Thirteenth Amendment, clearly hold that these statutes apply to Jewish persons.  Second, the court stated that Jews were in fact considered to be a distinct race at the time of the Amendment's ratification. Ac  cordingly, the court believed that the attack could be considered to have been motivated by the victim's “race” as that term would have been understood at the time the Amendment was adopted.  Finally, the Nelson court held that such hate crimes were badges and incidents of slavery, reasoning that “acts of violence or force committed against members of a hated class of people with the intent to exact retribution for and create dissuasion against their use of public facilities have a long and intimate historical association with slavery and its cognate institutions.”

Nelson can be seen as a case of interest convergence. The Nelson court itself alluded to this issue, noting with some apparent discomfort that it was “employ[ing] a constitutional provision enacted with the emancipation of black slaves in mind to uphold a criminal law as applied against black men who, the jury found, acted with racial motivations, but in circumstances in which they were, at least partly, responding to perceived discrimination against them.”  To be clear, I believe that Nelson was correctly decided and the attack at issue indeed imposed a badge or incident of slavery within the scope of Congress's enforcement power. I therefore do not, by suggesting that interest convergence theory may help explain Nelson, intend to imply that the result in Nelson was wrong. However, it seems plausible that the successful use of Thirteenth Amendment reasoning in Nelson was influenced by the fact that the court and Congress saw an instance where the Thirteenth Amendment would be as applicable to whites as to African-Americans in protecting them from racial violence.

Jones v. Alfred H. Mayer Co.  can also be analyzed through the prism of interest convergence. In Jones, an interracial couple alleged that the defendant's refusal to sell property to them because the husband was African-American violated 42 U.S.C. § 1982, which prohibits racial discrimination in the sale or rental of property.  After concluding that Section 1982 applies to discrimination by private individuals,  the Supreme Court further held that the Thirteenth Amendment provided Congress with the constitutional power to enact such a statute. The Amendment, the Court held, grants Congress the authority “to pass all laws necessary and proper for abolishing all badges  and incidents of slavery in the United States.”

To be sure, the Jones Court's reasoning was grounded in the unique harms segregation imposed on African-Americans. As the Court stated:

Just as the Black Codes, enacted after the Civil War to restrict the free exercise of [the freedmen's] rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when 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.

Jones nonetheless also had a strong interest convergence component. By the time Jones was decided in 1968, widespread housing discrimination worked against both the national economic interest and the social interest of individual whites in public order and stability.  As to the national economic interest, racial discrimination against qualified black buyers had the effect of artificially limiting the demand for housing stock. The housing sector, of course, was and is an important component of the national economy, with many subsidiary businesses dependent upon it.  Moreover, by the time of Jones, widespread racial segregation was arguably no longer in the interest of  white elites due to the civil unrest it caused. As one of the briefs in Jones argued:

The riots and civil disturbances which plague our urban areas; the growing number of militant separatist movements; and the increasing alienation from the main stream of American life of many Negro Americans--all these have resulted in large part from segregated housing.

Jones, therefore, had a substantial interest convergence component. Unlike other circumstances where only the civil rights of a subordinated group are at issue (for example, the consequences of mass incarceration of the mostly black and brown poor),  widespread housing discrimination perceptibly posed substantial threats to the economic and material conditions of the country and individual whites.

By contrast, such strong interest convergence was lacking in cases where the badges and incidents of slavery theory has been unsuccessful. Consider two older cases, Palmer v. Thompson  and Memphis v. Greene.  In Palmer, the plaintiffs sued the city of Jackson, Mississippi, for maintaining segregated public facilities.  After a ruling that such facilities violated the Equal Protection Clause, the city desegregated its public parks, auditoriums, zoo, and golf courses.  The city refused, however, to desegregate its public swimming pools, choosing instead to close them all rather than integrate them.

Plaintiffs alleged that the city's action violated, inter alia, the Thirteenth Amendment as a badge or incident of slavery because it amounted to an official expression of the message that blacks were “so inferior that they [were] unfit to share with whites this particular type of public facility.”  The Supreme Court rejected the plaintiffs'  Thirteenth Amendment argument, stating that accepting their claim would require the Court to “severely stretch [the Amendment's] short simple words and do violence to its history.”

The Court also rejected a Thirteenth Amendment claim in Greene.  In Greene, the city of Memphis, at the request of residents of a predominantly white neighborhood, closed a street running through their neighborhood. The street closing separated the white area from the African-American area bordering it.  Residents of the African-American neighborhood sued, alleging, inter alia, that the city's actions imposed a badge or incident of slavery upon residents of the black neighborhood.  The plaintiffs' Thirteenth Amendment claim was grounded in the fact that the separation of the neighborhoods conveyed a stigmatizing message of blacks as “undesirable”  persons whose presence would disrupt and devalue the “tranquil []”  white neighborhood. The plaintiffs also submitted expert testimony regarding the negative psychological effects that the resultant segregation had on black residents, who would likely see the street closing as a “monument to racial hostility.”  The Court, while accepting that the Thirteenth Amendment reaches the badges and incidents of slavery, dismissed the Thirteenth Amendment argument in Greene in a single sentence: “To regard [the street closing] as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom.”

In neither Palmer nor Greene is interest convergence readily apparent. Palmer concerned the city's operation of a discretionary public entertainment facility with limited fiscal impact and benefits. Jones, by contrast, involved private discrimination that distorted a large and important sector of the national economy. Moreover, at an individual level, the harm of closing the pools in Palmer would be felt most strongly not by white elites, but by lower income (disproportionately minority) individuals who could not afford private swimming clubs or personal pools.  Similarly, in Greene, the de facto segregation caused  by the street closing worked in the interests of white elites, who would receive the financial and psychological benefits of living in an area designed and maintained “as an exclusive residential neighborhood for white citizens.”  Furthermore, the countervailing social forces providing interest convergence in cases like Brown or Jones were not nearly as strong in Greene or Palmer. By the 1970s and 1980s, the specter of the substantial urban unrest present at the time of Jones had receded. And while Cold War concerns of projecting an image of racial egalitarianism abroad were still present at that time, the passions of the moment were very different at the time of Brown in the early Cold War era during the open hostilities abroad and the Red Scare at home, than during the détente period of the 1970s and 1980s.

Similarly, interest convergence is lacking in many of the lower court cases rejecting badges and incidents of slavery claims.  In Rog  ers v. American Airlines,  for example, an African-American woman sued her employer, challenging a grooming policy that prohibited the wearing of braided hairstyles. She claimed that the policy imposed a badge or incident of slavery in violation of the Thirteenth Amendment. She argued that prohibiting a black woman from wearing an Afrocentric hairstyle reflected “a [slave] master mandate that one wear hair [in a manner] divorced from one['s] historical and cultural perspective [but that is instead] consistent with the ‘white master’ dominated society and [beauty] preference thereof.”  The court dismissed her claim, holding that the Thirteenth Amendment “prohibits [only] practices that constitute a badge of slavery and, unless a plaintiff alleges she does not have the option of leaving her job, does not support claims of racial discrimination in employment.”

It is difficult to locate any convergence of plaintiff Rogers's interests with those of white elites. Her claim, by definition, was unique to black women (or at least women of color) who are excluded from economic opportunities due to their unwillingness to conform to white beauty standards. Rogers involved what Kenji Yoshino calls a refusal to “cover”: that is, Ms. Rogers refused to accede to demands to “modulate her conduct to make [it] easy for those around her to disattend her known stigmatized trait.”  A demand to cover, of course, is only imposed on those possessing the stigmatized trait. Thus, eliminating the grooming policy's demand to cover in Rogers would presumably be of little benefit to those not possessing that trait. Accordingly, the interests of black women in a case like Rogers would be unlikely to converge to any significant degree with those of white women, white men, or even most black men, since “beauty” standards  operate very differently for women than men.

To be sure, the explanatory power of interest convergence theory has limits, and cannot fully account for developments in civil rights law. In particular, the schism in the Thirteenth Amendment case law regarding whether the badges and incidents of slavery are ever judicially cognizable under Section 1, or whether eliminating the vestiges of slavery is solely a congressional power under Section 2, provides an alternative doctrinal explanation for the differences in the cases discussed in this Part.  Jones and Nelson involved statutes where Congress had proscribed the conduct at issue under its Section 2 power,  as did the earlier Supreme Court cases upon which the Nelson court relied.  By contrast, Palmer, Greene, and Rogers (and many of the other lower court cases rejecting badges and incidents of slavery claims) involved plaintiffs asserting badges and incidents of slavery claims directly under the Thirteenth Amendment itself, not a statute enacted pursuant thereto.

Moreover, case law provides counterexamples where interest convergence was arguably present yet the plaintiffs' claims nonetheless failed. For example, Warth v. Seldin  is arguably contrary to interest convergence theory with regard to housing segregation. Warth, like Jones, involved attempts to integrate a segregated community. In Warth, the community was segregated by class, rather than race. The town of Penfield (a suburb of Rochester, New York), had a zoning law that prohibited the construction of low-income or multi-family dwellings.  Given the correlation between race and income, the beneficiaries of a change to the zoning policy would likely have disproportionately been racial minorities.  The plaintiffs in Warth consisted of  three groups: individuals who wanted to live in Penfield, but claimed they could not due to the lack of affordable housing; Rochester property owners who claimed that Penfield's exclusionary practices increased their tax rates since Rochester had to accommodate those in need of affordable housing; and home builders who wanted to construct such housing in Penfield.  Thus, the interest convergence in Warth was apparent in the coalition that brought the lawsuit. Moreover, many of the same factors that interest convergence theory would suggest were important in Jones (for example, the magnitude of the housing sector as a portion of the American economy) would seem to be equally applicable in Warth. But the Warth Court dismissed their claims for lack of standing, holding that plaintiffs could not prove that the ordinance caused their alleged injuries.

While this Article recognizes the limits of interest convergence theory, * * * attention to interest convergence provides at least a partial explanation for the different results in the cases discussed above.

* * *

Negro Peonage and the Thirteenth Amendment (1904)

From: Comment, Negro Peonage and the Thirteenth Amendment, 13 Yale Law Journal 452 (June, 1904) (Comment)


No little interest has been aroused by Judge Speer's recent decision in the District Court at Savannah (United States v. McClellan, 127 Fed. 971), maintaining the application of the Thirteenth Amendment to uphold the constitutionality of the statutes of 1867 against peonage, and their prohibition of recent attempts to obtain forced labor from negroes to work out debts. This incipient system of compulsory labor, with its partial return to ante helium conditions, would seem to have met with a large measure of approbation among leaders in public affairs in the State. One of the defendants was the sheriff of the county where the negro in question was seized; members of Congress and other prominent men were active in behalf of the defense; the opinion makes allusion to the political aspect of the questions involved. For this reason the case has an interest quite out of proportion to its legal importance, for it is difficult to conceive that it could ever be successfully maintained that involuntary servitude within the literal meaning of the Thirteenth Amendment was not charged by the indictment, on a demurrer to which the case came before the court.

It is a more plausible proposition that the statute of 1867, passed as it was to check the New Mexican system of peonage then in operation, was not intended to have any such result as that sought, but on this point, as on the other, the well-rounded arguments of the court carry conviction. A rigid and impartial interpretation of these provisions, which represent a large part of the tangible results of our Civil war, will, it is to be hoped, check practises which, *453 however much they may be approved by local opinion, are undoubtedly looked upon throughout the country as a whole as obnoxious to the spirit of our institutions.

In this connection, it may not be out of place to note some of the attempts which have been made to limit or extend the application of this Thirteenth Amendment. It is hardly necessary to allude to the effort made in the Slaughter House Cases, 16 Wall. 36, to include within “involuntary servitudes” monopolies created by law in occupations which, in the absence of statute, would be lawful for the public. In Tyler v. Heidorn, 46 Barb. 439, an interesting but futile attempt was made to apply the amendment to invalidate an obligation to pay an annual rental in bushels of wheat in accordance with the covenant of the grantee of the land concerned. On the ground that begetting a bastard child had been made a misdemeanor it has been held not unconstitutional to compel the father to work out fines under bastardy proceedings. Myers v. Stafford, 114 N. C. 234. And a State constitutional provision substantially similar to the Thirteenth Amendment has been held not to be contravened by a statute providing that a wilful failure by a laborer without just cause to reasonably fulfill his contract should render him liable to fine or imprisonment. State v. Williams, 32 S. C. 583. Again, the employment at labor of a person committed to a city prison, crediting him with one dollar a day on the judgment against him is not repugnant to the Amendment. Topeka v. Boutwell, 53 Kan. 20. On the other hand, in Thompson v. Bunton, 117 Mo. 83, a statute authorizing a vagrant, unconvicted of crime, to be hired for six months to the highest bidder, was declared a contravention. An exceptionally salutary application was made when it was held in Re Sah Quah, 31 Fed. 327, that the customs prevalent in Alaska of slaveholding and enforced servitude among the native tribes were not only contrary to the terms of the Amendment, but also subject to its provisions.

As has been intimated, it is its connection with the race question in the South which lends to the recent peonage case its chief importance. As long as the cleft between the races remains so broad, as long as the memories of negro slavery remain so vivid, as long as the negro race itself remains in a condition of such widespread ignorance, courts will undoubtedly have to deal with efforts such as are involved in this case to nullify in part the constitutional requirements on this subject. It will be generally agreed that, aside from the purely legal phase of the question, to permit such practices would have an unhealthy influence, and would tend to the postponement of the solution of one of our most vital as well as most difficult national problems.


Transatlantic Slave Trade
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Laws related to Slavery
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Civil War and Reconstruction
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13th Amendment
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Legal Apartheid (Jim Crow)
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Civil Rights Era
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Racial reentrenchment
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