Herman N. Johnson Jr. , From Status to Agency: Abolishing the “Very Spirit of Slavery” , 7 Columbia Journal of Race and Law 245 -340 (2017) (424 Footnotes Omitted) (Full Article)
Observers praise Griggs v. Duke Power Co., which established the disparate impact claim as a viable doctrine, as one of the Supreme Court's most important civil rights decisions. But the dispute regarding the doctrine's constitutionality lingers after the Supreme Court's decision in Ricci v. DeStefano. In Ricci, Justice Scalia argued in his concurring opinion that the disparate impact claim may violate the Equal Protection Clause because it requires an employer to engage in race-based, remedial conduct when its selection practices demonstrate a disproportionate impact upon a particular set of applicants; Scalia suggested that disparate impact laws are tantamount to Congress compelling employers to discriminate on the basis of race.
*248 In Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., the Supreme Court unexpectedly provided a justification for the disparate impact doctrine that assails Justice Scalia's argument: disparate impact claims counteract hidden discrimination and implicit bias. In upholding the viability of the Fair Housing Act's disparate impact claim, the Court proclaimed that disparate impact liability serves to attack practices born of “unconscious prejudices and disguised animus.” Therefore, disparate impact liability does not compel employers to racially discriminate on behalf of some employees; it actually ensures that selection practices do not inappropriately exclude protected groups from an institution's benefits based upon a criterion that is difficult to discern via disparate treatment standards.
However, a question arises upon formulating the response to Justice Scalia's Ricci concurrence: what constitutional power underlies the rationale posited in Texas Department of Housing? This Article submits that the *249 Thirteenth Amendment to the Constitution--section two of which gives Congress the power to enforce section one's prohibition against slavery and involuntary servitude the Court's ‘unconscious prejudices and disguised animus' rationale for the disparate impact claim. “Unconscious prejudices and disguised animus” reveal the presence of diminished status, denoting the low esteem society accords to members of a particular group. Properly conceived, the Thirteenth Amendment exists to remedy the diminished status of individual members of the aggrieved group. Indeed, long-ignored interpreters of the Thirteenth Amendment provide that slavery in the United States encompassed a diminished status suffered by the enslaved population and free Black persons. As perceived by those interpreters, the Thirteenth Amendment exists to aggrieve the diminished status suffered by persons under the various forms of slavery prevalent in the United States during the antebellum era; those forms are principally characterized as chattel slavery, defined as the ownership of individuals as property, and civil slavery, the state of one group being subordinate to other groups in society.
Specifically, defining slavery pursuant to nineteenth century conventions casts the Thirteenth Amendment as a vehicle to transition enslaved persons from the subordinated status of servitude to the liberated status of agency, which *250 represents personal autonomy over individual actions and aspirations. However, the nineteenth century efforts to transform status proved insufficient as they failed to account for the structural impediments in society that impeded former slaves from transitioning to individual agency. The Court's insight in Texas Department of Housing demonstrates that Congress may proscribe these structural features that inhibit individual agency-- particularly via the disparate impact doctrine--and Congress' endeavor is sanctioned by the Thirteenth Amendment's aim to transition subjugated persons from status to effective agency.
The ensuing parts of this Article will explore the meaning of slavery as status and the Thirteenth Amendment's focus to transition enslaved persons from status to agency. In Part I, after reviewing the inconclusive legislative history of the Thirteenth Amendment and the meaning of freedom attributed to it by freed Black persons, the Article will assess the dichotomy in interpretation among Supreme Court justices. The assessment will reveal that some Supreme Court justices adopted the sociological view that the status of free Black persons did not differ significantly from Black persons who suffered under chattel slavery. Most notable among these voices is Justice John Marshall Harlan's dissent in The Civil Rights Cases. *251 Harlan's Civil Rights Cases dissent deserves as much praise and allegiance as his Plessy v. Ferguson dissent, which is viewed as a forerunner to Brown v. Board of Education. His dissent classifies slavery as involving not just formal chattel slavery, but also the civil slavery encompassing free Black persons, a condition propagated explicitly by the Dred Scott case. Other cases decided during the period also describe this phenomenon of civil slavery. These opinions depict the status of Black persons as the “very spirit of slavery,” and support the conclusion that Justice Harlan's Civil Rights Cases dissent should be installed as a judicial canon evoking the proper interpretation of the Thirteenth Amendment.
In Part I, after reviewing the inconclusive legislative history of the Thirteenth Amendment and the meaning of freedom attributed to it by freed Black persons, the Article will assess the dichotomy in interpretation among Supreme Court justices. The assessment will reveal that some Supreme Court justices adopted the sociological view that the status of free Black persons did not differ significantly from Black persons who suffered under chattel slavery. Most notable among these voices is Justice John Marshall Harlan's dissent in The Civil Rights Cases. *251 Harlan's Civil Rights Cases dissent deserves as much praise and allegiance as his Plessy v. Ferguson dissent, which is viewed as a forerunner to Brown v. Board of Education. His dissent classifies slavery as involving not just formal chattel slavery, but also the civil slavery encompassing free Black persons, a condition propagated explicitly by the Dred Scott case. Other cases decided during the period also describe this phenomenon of civil slavery. These opinions depict the status of Black persons as the “very spirit of slavery,” and support the conclusion that Justice Harlan's Civil Rights Cases dissent should be installed as a judicial canon evoking the proper interpretation of the Thirteenth Amendment.
Part II examines the three dimensions of status underlying Harlan's conception of slavery--stigma, station, and stratification--so as to fully understand slavery and the concomitant scope of the Thirteenth Amendment. This analysis will depict stigma as the understanding that slaves were dehumanized and treated as animalized, inferior beings. Station refers to the doctrine used to justify slavery against the moral arguments of abolitionists. Slave owners and apologists developed an ideology of familial station; that is, slaves represented the lowest station in the families of slave owners--below spouses, children, and other servants--and slave owners assumed patriarchal control over the development of all these stations of individuals under their influence. The phenomenon of stratification portrays that slaves in the United States occupied the lowest rungs in the labor force and were relegated to performing menial work, unlike slaves in other slave systems.
In Part III, the Article establishes the Thirteenth Amendment as a measure to transition former enslaved persons from status to agency, from subordination to relatively liberated individuals. Two nineteenth century *252 sociological developments converge to shape the interpretation of the Thirteenth Amendment vis-…-vis the three aforementioned dimensions of slavery. Free labor ideology posited the belief that freeing all forms of labor to pursue their self-interest in advancement, principally through the right to contract, would transform the labor force into artisans and independent owners of production. Just as important, Sir Henry Thomas Maine declared in his seminal work Ancient Law that advanced societies evolved from establishing legal relationships on the basis of status to a legal order based upon individual contract. Sociologist Amy Stanley elaborated upon this evolution, writing that the abolition of slavery represented a movement from the status of bondage to the freedom of contract.
As Part III will reveal, nineteenth century interpreters of the Thirteenth Amendment failed to appreciate that the transition from the status of bondage could not rely merely upon the endeavor to give freed persons the right to contract. Rather, the right to contract symbolized the more foundational concept of agency, which denotes the freedom of individuals to determine the course of their lives and take action to effect that course. As later sociologists understood, the province of agency runs head-on into structural features of society that impede the best efforts of individuals to achieve effective action.
With this understanding, Part III crystallizes a primary impetus for the Thirteenth Amendment. The Amendment exists to transition freed persons and their descendants from the status of slavery--conceived as chattel, civil, and social subordination--to the state of individual agency, and this transition sanctions the use of legal tools to effect the evolution. One such legal tool has been the provision *253 of the right to contract and other rights (to acquire and sell property, etc.) free of discrimination, yet the Thirteenth Amendment also buttresses the use of the disparate impact doctrine as a tool to remove barriers to individual agency. As the Court stated in Texas Department of Housing, hidden discrimination and implicit bias exist in society as impediments to the exercise of rights. The disparate impact doctrine serves to address such bias. The disparate impact claims also serve to end racial stigma and stratification, which represent different variations of implicit bias. Therefore, the disparate impact claim represents a proper exercise of Congress' enforcement power under the Thirteenth Amendment because it serves to address discriminatory barriers constituting badges and incidents of slavery.
Finally, Part IV provides that the disparate impact doctrine withstands any perceived violations of the Fourteenth Amendment's Equal Protection Clause because the Thirteenth Amendment compellingly justifies the doctrine's proscription of discriminatory status. More critically, nineteenth century Supreme Court authority reveals that the Thirteenth and Fourteenth Amendments work together to ensure that no class of persons should occupy a subordinate status to other groups. With this structural interpretation, a claim relying upon the Thirteenth Amendment for its constitutional foundation forestalls an argument that it violates the consonant provisions under the Fourteenth Amendment.
This Article examines the Thirteenth Amendment's meaning sociologically because other methods of interpretation have not captured this dynamic in the amendment's origin. Reviewing the historical record underlying the passage and ratification of the amendment provides contested findings. The members of Congress who passed the amendment appeared to have divergent understandings of the provision. Some thought it would only eradicate actual slavery and involuntary servitude, whereas *254 some believed it would also curtail discrimination in other facets of life. The states who ratified the amendment had their own interpretation as well, which traversed the gamut from mere prohibition of slavery to a broadly-defined conception of freedom. In addition, abolitionists had their own thoughts as to its meaning. All of these interpretations occurred against a backdrop where pervasive racial discrimination subjugated free Black people in the antebellum North and South, and such discrimination persisted after the Civil War.
Supreme Court case law also leaves questions in its wake. Notably, the 1883 majority decision in The Civil Rights Cases held that Congress may enact legislation to ameliorate the badges and incidents of slavery, which were perceived then as post-emancipation laws enacted by recalcitrant Southerners that re-imposed the legal restrictions concomitant with slavery. The Court's interpretations of the amendment contracted and expanded for nearly a century until the Court decided Jones v. A.H. Mayer Co., where it held that Congress possesses the authority to rationally specify the badges and incidents of slavery, and to pass legislation to address such problems. Jones' formulation of the Thirteenth Amendment standard has spawned numerous articles about its meaning.
Some commenters limit the Thirteenth Amendment's enforcement clause to only prohibiting actual slavery and involuntary servitude. Other scholars argue that the clause should be limited to addressing discriminatory violations that resemble chattel slavery or relegate people back to such *255 slavery. Still other scholars provide a broader interpretation of the amendment, positing that interpreters should heed the ideals of freedom embodied in the Declaration of Independence and trumpeted by some people before and during the Civil War. This conception provides an expansive interpretation of the amendment, ostensibly calling for the protection of autonomy and liberty for all people. Many of the articles interpreting the scope of the Thirteenth Amendment reach conclusions comparable to those of the aforementioned scholars.
*256 Although the approaches by those scholars are laudable, a comprehensive interpretation of the Thirteenth Amendment requires an analysis beyond an exegesis on the meaning of freedom. It also demands a long-due examination of the meaning of the word “slavery” in the Thirteenth Amendment. In defining slavery, sociological, and in certain respects, legal sociological insights and developments present a different lens for interpreting the Thirteenth Amendment and its enforcement clause. Specifically, such studies define the particular meaning of slavery in the United States context, as well as the meaning of freedom attendant upon this understanding of slavery. This Article will examine these sociological insights to develop the principle claim set forth previously: the Thirteenth Amendment provides a constitutional foundation for laws that combat implicit bias and hidden discrimination because it serves to transform persons from a status of bondage to the relative freedom of individual agency.
Associate Professor of Law, Cumberland School of Law, Samford University; Juris Doctor and Master of International Affairs, Columbia University School of Law and School of International & Public Affairs, 1999; Bachelor of Arts, Economics, Duke University, 1991.