Tobias Barrington Wolff
Abstracted from: Tobias Barrington Wolff, The Thirteenth Amendment and Slavery in the Global Economy, 102 Columbia Law Review 973-1050, 973-979 (May, 2002)(309 Footnotes)
The Thirteenth Amendment to the U.S. Constitution provides that "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Its language is capacious and its mandate broad. The prohibition embodied in the Amendment, not limited to the form of chattel slavery peculiar to pre-Civil War America, forbids almost all forms of compelled labor within the physical bounds of the United States and its possessions. But what of slave labor outside U.S. territory? When U.S. citizens participate in slave practices in foreign jurisdictions, does the Thirteenth Amendment impose any interdiction? Can a U.S. citizen own a slave, so long as he does not bring the enslaved person to American shores?
These questions are emerging as matters of great importance, for the participation of U.S. citizens in foreign slave practices is on the rise. With increasing frequency, U.S.-based multinational corporations are carrying on their operations in some countries through the deliberate exploitation of involuntary or slave labor. The globalization of industry has carried with it a globalization of labor exploitation, occurring outside the ordinary jurisdiction of U.S. enforcement authorities. In countries such as Burma, Mauritania, Pakistan, and Ivory Coast, outright practices of slave labor have arisen, in varying forms and with varying levels of corporate involvement. American participation in such exploitation is often carried out indirectly--through intermediaries, with plausible deniability. And yet the abuse of foreign laborers under conditions of slavery is assuming an increasingly important position in the economics of some U.S. industries-- notable among them the resource extraction and manufacturing industries, where the use of cheap, expendable, involuntary labor has markedly increased profitability.
This development in the foreign labor practices of U.S. entities heralds a new era of challenge and transformation for the Thirteenth Amendment and its prohibition on the existence of slavery or involuntary servitude. It has become necessary to reexamine the range of activities in American industry, and American participation in global industry, that the Amendment reaches. The inquiry is long overdue. Despite the importance of the principle that the Thirteenth Amendment embodies, its doctrinal landscape is severely underdeveloped and has not yet been meaningfully translated into the present industrial context.
The Amendment has faced such challenges before. One of the first came around the turn of the twentieth century, in response to the attempts of post-Civil War landowners and industrialists to reinstate the practical realities of slavery in a more legally palatable form through the practice of peonage. No longer able to exploit slave labor as a formal institution, some employers pressed the law into service in the decades following emancipation, enacting statutes that purported to aim at such evils as debt default and fraud but had the effect of tying disempowered workers to forced terms of labor under threat of prosecution and imprisonment. The Supreme Court rose to this challenge, elevating substance over form and striking down these peonage schemes. In doing so, it carried forward into a new industrial context the Thirteenth Amendment's dual promise to emancipate the slave laborer within American industry and to emancipate American industry from slave labor.
The present era of globalization has brought with it the next logical step in this progression: the pressing into involuntary service of foreign laborers by U.S.-based multinational entities. Corporations based in the United States can now export the slave dependent elements of their business operations to foreign lands and then retrieve the fruits of those operations for domestic use and profit. With that step, we are once again seeing the reintroduction of slave labor into American industry. It has thus become necessary once again to translate the command of the Thirteenth Amendment for a new industrial context.
I choose the language of translation advisedly. As Professor Guyora Binder has observed, anyone seeking to articulate a coherent approach to modern interpretations of the Thirteenth Amendment must address difficult questions of history. The enactment of the Reconstruction Amendments undermined the precepts on which earlier approaches to constitutional interpretation had rested, throwing into question the proper interpretive approach to the Amendments themselves. "It was the Reconstruction Amendments' command to abolish one of American culture's defining customs," Professor Binder has observed, "that rendered them peculiarly uninterpretable."
In the case of the Fourteenth Amendment, this interpretive dilemma has already played out on the constitutional stage. The road from Plessy v. Ferguson to Brown v. Board of Education marked a journey between two distinct visions of the relationship between tradition and constitutional analysis. In Plessy, the Court explicitly rested its rejection of the equal protection challenge to legally enforced segregation upon "the established usages, customs and traditions of the people." Under that tradition, the Court explained, a separation of the races in public facilities could be defended as "reasonable, and . . . enacted in good faith for the promotion of the public good." Custom and usage were a sufficient response to a constitutional challenge under the dispensation to which the Plessy majority subscribed. One of the revolutionary changes wrought by Brown was a deliberate rejection of this interpretive method. "In approaching this problem [of segregation]," the Court wrote in Brown,
we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.
Thus, in concluding that legally enforced segregation in educational facilities is "inherently unequal," the Brown Court dramatically rejected custom and tradition, holding that the Fourteenth Amendment embodied substantive principles that do not automatically defer to established social norms. A similar observation may be made about the Fifteenth Amendment, which has occupied an interpretive landscape that has recapitulated that of the Fourteenth in most relevant respects.
In the case of the Thirteenth Amendment, the interpretive problem has at once been more straightforward and more opaque. There has never been any question that the Amendment, in eradicating slavery and elevating emancipation to the status of a constitutional imperative, embodied a substantive rejection of one of America's most pervasive customs and traditions. In that respect, the Thirteenth Amendment directly implemented a reshaping of the constitutional landscape that would only take hold in the other Reconstruction Amendments after the passage of ninety more years. But in a broader sense, the Thirteenth Amendment has yet to travel the road marked out by Plessy and Brown. Consider Robertson v. Baldwin, one of the early post- Reconstruction Thirteenth Amendment decisions, which the Court handed down in the Term following Plessy. In Robertson, a merchant seaman challenged a federal statute that authorized the imprisonment and forcible return of sailors who wished to leave the employ of their vessels. In rejecting this Thirteenth Amendment claim, the majority embraced the same interpretive method that it had recently deployed in its Fourteenth Amendment analysis in Plessy. Despite the radical rejection of tradition around the subject of slavery and labor that was inherent in the Thirteenth Amendment itself, the Robertson Court relied uncritically upon pre-Civil War common law authorities to carve out a substantive exception to the scope of the Amendment's command, concluding that "the amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional." Indeed, Robertson includes a vigorous dissent by Justice Harlan, who staked out the same interpretive ground that he had occupied in his Plessy dissent a year earlier, rejecting the use to which the Robertson majority put custom and tradition as inappropriate following the enactment of the Thirteenth Amendment.
To articulate a Thirteenth Amendment jurisprudence that is both internally coherent and in step with the interpretive method now firmly established for the Fourteenth and Fifteenth Amendments, one must avoid a myopic hindsight that views the Amendment as accomplishing nothing more than the constitutionalization of emancipation. This is especially so in seeking out sources to identify the core values that the Amendment embodies. Binder poses the problem in the following terms: "When the Constitution condemns society, where can we turn for aid in construing it? What aspects of American society authorize the Thirteenth Amendment and what aspects are amended by it? What was the essential feature of the slavery that the Thirteenth Amendment commands us to disestablish?" The Court made an initial gesture toward answering these interpretive questions early in the twentieth century when it employed the Thirteenth Amendment to strike down the peonage and "antifraud" statutes mentioned above. But since then, despite the interpretive revolution in the other Reconstruction Amendments heralded by Brown and its progeny, the Court has developed no approach to two basic questions of interpretation: "What was the essential feature of the slavery that the Thirteenth Amendment commands us to disestablish"; and "[W]here can we turn for aid in construing it?"
This Article examines the most pressing contemporary application of these questions: the increasingly important role played by multinational corporate entities in forced labor practices around the globe. In doing so, it offers an approach to addressing the broader implications of the Thirteenth Amendment's interpretive challenge. My principal contention is that the Thirteenth Amendment forbids the deliberate incorporation of slave labor into American industry. More precisely, I contend that the knowing use of slave labor by U.S. based entities in their foreign operations constitutes the presence of "slavery" within the United States, as that term is used in the Thirteenth Amendment, and hence that this practice renders such U.S. entities subject to the prohibitory authority of American courts through a private civil action. The term "slavery" as it is used in the Amendment entails more than the physical presence of enslaved individuals. Slavery is a multilayered practice. It creates a distinctive form of interpersonal relationship. It depends upon the existence of interrelated, supporting institutions for its sustainability. And it arises not by happenstance, but in response to the urging of industries that benefit from its distinctive features and intentionally create a market for it. Those who drafted the Thirteenth Amendment understood all three of these aspects of slavery--the interpersonal, the institutional, and the industrial--to be vital elements of the practice that they sought to eradicate with the Amendment's enactment. In this Article, I hope to begin the process of translating that understanding into the language of the global economy and, in the process, to lay the foundation for a more modern and salient Thirteenth Amendment jurisprudence.
Part I examines the Court's translation of the Thirteenth Amendment to the changing industrial conditions of the late nineteenth and early twentieth centuries--the peonage cases--and provides an overview of the exploitation of forced labor in the emerging context of today's global economy.
Part II employs an historical analysis of key elements of the American institutions of slavery and peonage to identify the principles underlying the Amendment's mandate that slavery "not exist" within the United States. Part II.A examines interjurisdictional slavery disputes--cases where slaves were carried to free jurisdictions--and recovers the conclusion, reached by nineteenth- century jurists, that slavery creates a robust social relation affecting the status of both master and slave. Part II.B traces the history of American efforts to prohibit illegal participation in the foreign slave trade and examines the Supreme Court's application of those prohibitions to certain supporting institutions--shipwrights and provisioners--that permitted illegal slave trading to flourish. Part II.C turns to the relationship between slavery and industrial forces, surveying the recognition by both jurists andscholars that slavery often arises because certain industries have intentionally created markets for forced labor. Part II ends by examining the proposed application of these principles to the foreign slave practices of contemporary American corporations.
Part III then considers this foreign slavery doctrine in light of prior treatments of the extraterritorial application of American law.
*Assistant Professor of Law, University of California Law School at Davis; J.D., Yale Law School, 1997; B.A., Yale University, 1992.