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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.