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Excerpted From: Jennifer Mason McAward, Defining the Badges and Incidents of Slavery, 14 University of Pennsylvania Journal of Constitutional Law 561 (February 2012) (352 Footnotes) (Full Document)


MelanieDWilsonIn June 1998, three white men tied James Byrd, Jr., an African American, to a truck and dragged him almost three miles, tearing his body to pieces and killing him. Four months later, two men tortured and killed Matthew Shepard, a gay man. In October 2009, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act became law, imposing significant criminal penalties on anyone who willfully injures another because of that person's "actual or perceived race, color, religion, or national origin . . . gender, sexual orientation, gender identity or disability."  Although the law requires that any crime predicated on gender, sexual orientation, gender identity, or disability have a link to interstate commerce, no such showing is required where the crime is motivated by the victim's race or color.  With respect to this latter class of cases, Congress made the following finding:

Slavery and involuntary servitude were enforced, both prior to and after the adoption of the 13th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude. 

Through this finding, Congress invoked as its authority to pass this aspect of the hate crimes bill Section 2 of the Thirteenth Amendment. While Section 1 of that amendment declares that "[n]either slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction,"  Section 2 gives Congress the "power to enforce" that ban "by appropriate legislation." 

On its face, Section 2 clearly permits legislation that directly enforces the ban on coerced labor by "proscrib[ing], prevent[ing], or remed[ying]" such conduct. Indeed, Congress has passed a number of laws doing precisely that.  Since 1883, however, the Supreme Court has interpreted Section 2 as "empower[ing] Congress to do much more" than pass direct enforcement legislation.  Rather, Section 2 permits Congress "to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States."  Under this facet of its Section 2 power, Congress has passed several civil rights bills that ostensibly target the "badges and incidents of slavery" by prohibiting both public and private racial discrimination in contracts, property conveyances, and housing sales, and penalizing racially-motivated crimes on public property.  The race- and color-based provisions of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act are the most recent of these efforts, given Congress's finding that both "public and private . . . racially motivated violence" is one of the badges and incidents of slavery. 

Few question that Section 2 permits Congress to legislate regarding the badges and incidents of slavery,  and this Article takes as a given this conception of the Section 2 power.  What, however, qualifies as a badge or incident of slavery? Does this concept refer only to a public law that discriminates against African Americans or, more generally, on the basis of race? Alternatively, does it encompass any public or private practice that "perpetuates [racial] inferiority?" Or is its scope even broader, extending to "any act motivated by arbitrary class prejudice?"  Surprisingly, there is no generally accepted understanding as to the meaning of this often-invoked but under-theorized concept.

The past two decades have seen a surge in Thirteenth Amendment scholarship. While some have focused on expanding the judicially enforceable coverage of Section 1 of the amendment,  many have urged Congress to become more active in legislating under Section 2. Among the issues identified as "badges and incidents of slavery" and therefore within Congress's purview are hate crimes,  hate speech,  racial profiling,  disproportionate capital sentencing of black defendants,  violence against women, sexual harassment, reproductive rights,  and gay marriage.  For some, the concept of the "badges and incidents of slavery" permits Congress to legislate for the special benefit of African Americans where there is a documented link between the identified problem and the institution of slavery and its historical aftermath. For others, it is more elastic, allowing Congress to pass legislation to address any oppressive behavior directed at any minority or powerless class of people.

If Section 2 of the Thirteenth Amendment were to confer on Congress a broad anti-discrimination power, the Supreme Court's recent constriction of Congress's power to legislate under Section 5 of the Fourteenth Amendment  would not be as consequential, as Section 2 would present an alternative basis of legislative power. However, the self-executing rights conveyed by the two amendments are not identical, and therefore the conduct that Congress can reach under its enforcement powers under those amendments must be distinct. The Thirteenth Amendment promised the freed slaves "universal civil and political freedom." The concept of the "badges and incidents of slavery" is meant to assist Congress in identifying ways in which it can fulfill that promise and, at the same time, to mark the outer boundaries of the Section 2 power. Indeed, the terms "badge" and "incident" are terms of art that refer to specific aspects of the slave system and its legacy. To suggest that Section 2 of the Thirteenth Amendment confers on Congress a broad power to legislate against discrimination generally overlooks this precise terminology and tends to devalue the immediate aftermath of the slave system, in which governments and individuals alike sought to achieve the de facto reenslavement of four million African Americans.

Accordingly, the goal of this Article is to provide a conceptual framework for interpreting and identifying the badges and incidents of slavery. Such a framework not only will provide a sound basis for future Thirteenth Amendment scholarship but, even more importantly, will assist Congress in crafting Thirteenth Amendment legislation and the federal courts in policing the outer boundaries of the Section 2 enforcement power. It will identify criteria by which modern social ills and injustices can be evaluated for redress under the Thirteenth Amendment.

Before proceeding, let me clarify what this Article does not do: First, it does not question that Congress can pass "pure" enforcement legislation under Section 2 to protect anyone, regardless of race, from any sort of privately or publicly sponsored slavery or involuntary servitude. There is no question that Section 1's ban on slavery and involuntary servitude applies to people of all races and prohibits public and private action alike.  Indeed, as new forms of involuntary servitude emerge (through human trafficking, for example), Congress undoubtedly has authority to pass legislation that would prevent, proscribe, and/or remedy that conduct. Legislation concerning the badges and incidents of slavery is a separate type of prophylactic enforcement legislation that Congress also can pass under the terms of Section 2.  While exploring the meaning of the badges and incidents of slavery will clarify the limits of Congress's power under this latter head of its Section 2 power, it will not affect the scope of its "pure" enforcement power.

Second, this Article does not question the scope of Congress's other constitutional enforcement powers. To the extent this Article concludes that certain types of conduct do not qualify as badges and incidents of slavery, that does not mean Congress is powerless to address them. The Commerce Clause, for example, might permit substantially similar legislative efforts.  The goal is not to tell Congress on what topics it may or may not legislate as a general matter. Rather, the goal is to guide Congress with respect to what topics it may or may not legislate under its Thirteenth Amendment enforcement power.

Third, this Article does not explore the scope of the right conveyed by Section 1 of the Thirteenth Amendment but takes as a given the prevailing judicial view that Section 1 bars only labor coerced by physical force or restraint.  Although some have proposed more expansive understandings of "involuntary servitude,"  hewing to current doctrine for purposes of this Article has at least two advantages. First, it respects judicial supremacy, a value on which the Supreme Court has placed particular emphasis in explicating Congress's role in enforcing other Reconstruction amendments.  Also, it acknowledges the political reality that the Court is unlikely to alter prevailing Section 1 doctrine any time soon and therefore permits this Article to provide Congress meaningful guidance for its Thirteenth Amendment enforcement efforts within the current legal landscape. Indeed, although this Article accepts a relatively narrow view of the scope of the Section 1 right, that view is not inconsistent with permitting Congress to legislate with respect to the badges and incidents of slavery under its Section 2 power. Such legislation is prophylactic, targeting the badges and incidents of slavery not because they are themselves unconstitutional, but because eradicating them is a means to the end of preventing the de facto reestablishment of slavery. $%^36

Finally, this Article does not seek to provide an exhaustive list of all "badges and incidents of slavery." Even if it were hypothetically possible to draft such a list, this task is better left to Congress in the first instance. Congress is best suited to develop the factual and historical record that surely must underpin any such classification. The courts, in dialogue with Congress, are then suited to review such a finding. The goal here, rather, is to develop a historical and legal understanding of the terms "badge" and "incident" as they relate to the American institution of slavery and its aftermath, and then to parlay that understanding into an objective methodology under which Congress and the courts can analyze the historical record and translate that analysis into workable constraints on legislation.

With that goal in mind, Part I of this Article attempts to determine the original public meaning of the terms "badge" and "incident" of slavery by examining the usage of those terms in the law of slavery, abolitionist writings, popular commentary in newspapers and speeches, antebellum judicial opinions, and the congressional debates over the Thirteenth Amendment and the Civil Rights Act of 1866. It then traces judicial usage of the phrase "badges and incidents of slavery" as a legal term of art in the Thirteenth Amendment context, from its genesis in late-nineteenth century briefs and judicial opinions to its modern-day interpretation.

Part II examines the ways in which Thirteenth Amendment scholars have attempted to define the "badges and incidents of slavery." The Supreme Court has said that Congress has the power to define the badges and incidents of slavery, subject only to rational basis review. Many scholars have taken that as an invitation to invoke the concept freely and argue that Congress can address an array of modern injustices pursuant to its Thirteenth Amendment enforcement power. However, there have been only limited instances where scholars have treated the "badge or incident" language as a term of art and reflected on what criteria are relevant to identifying a badge or incident of slavery for Thirteenth Amendment purposes.

Part III attempts to remedy this deficit. It draws from the materials discussed in Part I to propose a principled definition of the "badges and incidents of slavery." It derives that definition by considering several variables in the analysis: First, whom does the concept protect? Should it apply to conduct directed against African Americans specifically, against any person on the basis of her race, or against a wider array of minority groups? Second, whose conduct does the concept govern? Should it apply to public actors only? Private actors? A subset of private actors whose conduct is widespread and/or influential? Third, to what conduct does the concept apply? Is it enough to show a historical link to slavery and its aftermath? Or should there be a causal element as well?

Part III ultimately concludes that the best understanding of the "badges and incidents of slavery" refers to public or widespread private action, based on race or the previous condition of servitude, that mimics the law of slavery and that has significant potential to lead to the de facto re-enslavement or legal subjugation of the targeted group.

In the end, this Article concludes that much of the current literature concerning the scope of Congress's power to enforce the Thirteenth Amendment overshoots its target. The definition of the "badges and incidents of slavery" proposed in this Article is sufficiently narrow that Congress's Thirteenth Amendment enforcement power may well have limited applicability today. Perhaps this is as it should be. The concept of the "badges and incidents of slavery" was not meant to empower Congress to address all modern forms of injustice, or even all modern manifestations of racial bias. Rather, it was designed to permit Congress to effectuate the promise made to the former slaves in 1865: that freedom meant not just release from their shackles, but federal protection for a core set of civil rights that would enable them to enjoy full and meaningful citizenship. The Thirteenth Amendment enforcement power can justify certain legislative efforts to address race discrimination, but Congress must turn to other sources of power to enact general civil rights protections.

[. . .]

Since the Civil Rights Cases in 1883, it has been widely accepted that Section 2 of the Thirteenth Amendment gives Congress the power to enforce that amendment by legislating regarding the "badges and incidents of slavery." There is, however, no similarly accepted understanding of what a badge and incident of slavery is. Indeed, Jones v. Alfred H. Mayer, Co. empowered Congress to define the concept for itself, subject to only the most minimal rational basis review.

The premise of this Article is that there must be--and, indeed, is--a more precise way to conceptualize and identify the badges and incidents of slavery. Drawing from the historical usage of the terms "badges of slavery" and "incidents of slavery" and from the structural principles that must govern any exercise of the Section 2 power, this piece considers the "badge and incident" concept from the perspective of victims, perpetrators, and hallmarks of conduct. Ultimately, this Article proposes that a badge and incident of slavery for Thirteenth Amendment purposes is public or widespread private action, based on race or previous condition of servitude, that mimics the law of slavery and has significant potential to lead to the de facto re-enslavement or legal subjugation of the targeted group.

Associate Professor of Law, University of Notre Dame Law School; J.D., New York University School of Law, 1998; B.A., University of Notre Dame, 1994.

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