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Excerpted From: Michael A. Lawrence, Falling Short of the Promise of the Thirteenth Amendment: Time for Change, 12 ConLawNOW 143 (2021) (51 Footnotes) (Full Document)
In 2020 we witnessed another series of egregious events, most shocking the videotaped murder of George Floyd by Minneapolis police, that galvanized the world--finally--to emphatically protest racially abusive police practices. As horrible as these events have been, however, there may be silver linings in the response. “Something feels different now, but how far are we willing to go?” asks Dr. Michael Eric Dyson. “Are we prepared to sacrifice tradition and convention for genuine transformation? Are we prepared to reckon with the disastrous social forces that have been unleashed in such unprecedented fashion?”
Will this time be different? “To me, this feels less and less like just another iteration of the set-piece drama we've lived through so many times,” writes Washington Post columnist Eugene Robinson. “[A]n unjust killing, a few days of protest, a chorus of promises of reform, a return to normal, an all-too-brief interlude until the next unjust killing. This eruption feels like a potential inflection point, a collective decision that 'normal’ is no longer acceptable.” And: “One of the most hopeful and heartening features of the current protests has been the images of people of all races, in this country and around the world, openly supporting antiracism [and] ... carrying Black Lives Matter posters in discussing the matter of state violence against black people,” New York Times columnist Charles Blow suggests. “The challenge here is to sustain the current sentiment and not let this version of Freedom Summer be yet another moment when allies fail.” When it comes to matters of racial justice, the time for half-measures is past. “Rarely has the tragic fact of Black death been as urgently in need of interpretation and engagement as in this moment,” Dr. Dyson observes. And, for once, a sitting President is saying that Americans can no longer continue to separate themselves from the evils of white supremacy and systemic racism.
This Essay seeks to shine additional light on the potential of the underutilized Thirteenth Amendment (as contrasted to the much-litigated Fourteenth Amendment Equal Protection Clause) for advancing racial justice and equity. Building upon two recent Articles, The Thirteenth Amendment as Basis for Racial Truth & Reconciliation (2020) and Racial Justice Demands Truth & Reconciliation (2018), the Essay suggests the Thirteenth Amendment provides strong constitutional basis for an unapologetic embrace of the sorts of new, race-conscious measures that will be necessary to begin to achieve true racial equity in a country that for centuries has erected massive structural barriers to Black opportunity and advancement.
Until now, such measures have been thwarted by the Supreme Court's cramped reading of the Equal Protection Clause. The Thirteenth Amendment, in banning slavery outright, is not so limited. And the Supreme Court itself has clearly explained that Congress has broad scope under its Section 2 enforcement power “rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”
Neither are State nor local governments constrained in their own efforts, legislative and otherwise, to eradicate the badges and incidents of slavery. Every law student learns that it is the states, not the federal government, that retain the general “police power” to regulate for the health, safety, and welfare of the citizenry. And it is a dominant lodestar of conservative jurisprudence that guides courts to accord great respect and deference to state sovereignty and states' rights with respect to the states' police power prerogatives. So there is strong reason for the judiciary to apply the highest possible measure of deference to states' actions seeking to eradicate once and for all what they have identified to be the badges and incidents of slavery; and, correspondingly, there is little reason for courts to interfere with those actions.
The Thirteenth Amendment, part of the Reconstruction Amendments, provides:
Sec. 1. 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.
Sec.2. Congress shall have power to enforce this article by appropriate legislation.
Historian Eric Foner, the dean of Reconstruction studies, suggests in a new book, The Second Founding, that the changes brought about by the three constitutional amendments (the Thirteenth, Fourteenth, and Fifteenth) ratified during the Reconstruction era (the decade or so following the Civil War) were so profound that they “should be seen not simply as an alteration of an existing structure but as a 'second founding,’ a 'constitutional revolution’ ... that created a fundamentally new document with a new definition of both the status of blacks and the rights of all Americans.” Professor Foner's study describes how the amendments are evidence of “the rapid evolution of thinking in which previously distinct categories of natural, civil, political, and social rights merged into a more diffuse, more modern idea of citizens' rights.” More importantly for present purposes, Foner suggests that “more robust interpretations of the amendments are possible, as plausible, if not more so, in terms of the historical record, than how the Supreme Court has in fact construed them.”
It is true that over time the Supreme Court largely has been no friend to racial justice and equity. And it is not just the Supreme Court of old--of Dred Scott (1856), Plessy v. Ferguson (1896), or even Korematsu (1944) infamy earn these low marks. It is the Supreme Court of today, of the modern twenty-first century that still turns a blind eye to the realities, on the ground, of systemic racial injustice. It is the Supreme Court of 2007, for example, striking down as unconstitutional two K-12 school districts' racial balancing plans that had been designed to comply with the mandate to develop desegregation plans from Brown v. Board of Education fifty years earlier, stating, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” And it is the Supreme Court of 2013, holding that Congress's exercise of its Fifteenth Amendment Section 2 enforcement power in reauthorizing a key portion of the Voting Rights Act of 1965 did not meet (a watered-down version of) rational basis review--notwithstanding an overwhelmingly bipartisan vote in Congress (98-0 in the Senate; 390-33 in the House) and mountains of congressional findings. (It adds insult to injury, with respect to the Court's future prospects regarding racial justice, to note that these two later cases were both decided even before the addition of three more conservative justices to the Court in 2017, 2018, and 2020.)
This Lochnerian sort of judicial activism is simply inappropriate in a constitutional system based on separation of powers and coequal branches of government. The Court is operating outside of its constitutional guardrails and needs to make a conscious effort to move back into its own lane. Part of that task will be to undertake its interpretive role with greater humility, and with increased recognition of the proper roles of the other players operating within the constitutional framework. A full discussion of the “departmental theory” of constitutional interpretation is beyond the scope of this Essay, but suffice it to say that there are numerous prominent constitutional scholars arguing against the propriety of the modern Court's insistence upon its own concept of strong judicial supremacy.
Indeed, according to Eric Foner, “in terms of the historical record, ... more robust interpretations of the amendments are [at least as] plausible” as the interpretations heretofore made by the Supreme Court. His assessment mirrors and echoes that of many constitutional scholars whose studies also conclude that the Reconstruction Amendments are powerful tools provided within our constitutional framework that can be validly utilized by governmental entities at all levels to enact meaningful measures designed to achieve greater racial justice and equity.
To give just one prominent example, Yale Law Professor Jack Balkin argues that all three of the Reconstruction Amendments are entitled to high deference under the well-understood and long-accepted principle first set down by Chief Justice John Marshall in McCulloch v. Maryland: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are Constitutional.” “The framers of the Reconstruction Amendments sought to ensure that the test of McCulloch would apply to the new powers created by the Reconstruction Amendments,” Balkin explains; “that is why they included the word 'appropriate’ in the text of all three enforcement clauses.”
As briefly discussed above, however, over time, the Supreme Court has not adhered to the deferential McCulloch-based understanding. The fact that a majority on the Supreme Court has repeatedly failed to honor the constitutional design does not mean the constitutional design disappears, however. “The statesmen who drafted the Reconstruction Amendments gave Congress independent enforcement powers because they feared that the Supreme Court would prove an unreliable guarantor of liberty and equality. Their fears were proved correct. Time and again, the Supreme Court hobbled Congress's enforcement powers through specious technicalities and artificial distinctions,” Balkin notes. “These limitations are not required either by the Constitution's original meaning or by principles of federalism. Quite the contrary: Fidelity to text, structure, and history gives Congress broad authority to protect equal citizenship and equality before the law,” he concludes, asserting, “[i]t is long past time to remedy the Supreme Court's errors, and reconstruct the great Reconstruction Power of the Constitution.”
Among the Reconstruction Amendments, the Thirteenth, in some important respects, stands separate from the Fourteenth and Fifteenth Amendments. Specifically with regard to the Supreme Court's consideration of the three amendments, on the rare occasions when the Court has spoken in any depth on the Thirteenth Amendment-principally the Civil Rights Cases (1883) and Jones v. Alfred Mayer (1968) has described in broad terms Congress's plenary authority to define and regulate “badges and incidents of slavery.”
Moreover, there are compelling textual and structural arguments that Congress's Thirteenth Amendment enforcement authority stands separate, even when compared to the analogous provisions in the other two Reconstruction Amendments. First, the Thirteenth Amendment is the only one of the three whose Section 1 rights-protecting text is free of any sort of limiting component, stating simply: “Neither slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction.”
Both of the others extend their protections only against government abridgment: Section 1 of the Fourteenth Amendment provides:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.
And Section 1 of the Fifteenth Amendment reads, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Arguably this textual distinction can explain the federalism concerns that dominated the Court's reasoning in City of Boerne v. Flores (Fourteenth Amendment) and Shelby County v. Holder (Fifteenth Amendment). In Boerne, for example, regarding Congress's exercise of its Fourteenth Amendment enforcement power, the Court says, “RFRA's sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description,” and so the Court imposes a heavier burden on Congress to demonstrate the statute is “congruent and proportional.” The Court placed significant weight on the Amendment's legislative history--i.e., during the drafting process, the framers intentionally narrowed the scope of the Section 5 enforcement power--to justify imposing greater restrictions on Congress today. Specifically, the Court pointed out, after the Amendment's opponents had argued during the debates “that the proposed Amendment would give Congress power to intrude into traditional areas of state responsibility, a power inconsistent with the design central to the Constitution, ... [u]nder the [subsequently] revised Amendment, Congress's power was no longer plenary but remedial.”
Similarly, in Shelby County, in striking down Congress's exercise of its Fifteenth Amendment Section 2 enforcement power, the Court focused heavily on the harms done to notions of state sovereignty by the 2006 reauthorization of the Voting Rights Act. “The Framers of the Constitution,” the Court explained, “intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” Moreover, in a passage whose very length is instructive in demonstrating the weight the Court attached to the sovereignty issue, it added:
States retain broad autonomy in structuring their governments and pursuing legislative objectives .... This “allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States.” ... [F]ederalism secures to citizens the liberties that derive from the diffusion of sovereign power .... Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States .... The Voting Rights Act sharply departs from these basic principles. It suspends “all changes to state election law--however innocuous-- until they have been precleared by federal authorities in Washington, D.C.” States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own .... And despite the tradition of equal sovereignty, the Act applies to only nine States ....
By contrast, the Thirteenth Amendment has no such baggage. Besides lacking any textual reference to “States,” the Amendment's legislative history is clean as well. While its opponents, mostly Southern Democrats, certainly opposed the imposition of the Amendment's constraints on the states, they lost the debate. Simply put, no opposition views on the matter of federalism-- protecting states from the Amendment--managed to carry the day during the Thirteenth Amendment debates. Instead, the Amendment's proponents' views prevailed, as expressed by Senator Trumbull, who brought the Amendment to the floor in 1864: “[T]he second clause ... says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery,” the Court stated in 1968, quoting from the contemporaneous Congressional Globe. “Congress [may] adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end.”
The Court added: “Surely Senator Trumbull was right. Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.” Moreover, none of the Thirteenth Amendment cases have expressed the federalism concerns expressed in cases involving the other two amendments.
In sum, in terms of original intent and original understanding, it is clear that the framers of the Thirteenth Amendment managed to prevail with their vision of a broad Section 2 enforcement power, whereas the framers of at least the Fourteenth had to scale back their original broader vision. And given the fact that the Thirteenth Amendment is broader in scope--i.e., it applies to all action, public and private, whereas the other two Amendments are limited solely to state action--one may reasonably conclude that it inherently presents fewer direct federalism concerns. Accordingly, there is little or no basis for the Court to intrude upon Congress's Thirteenth Amendment authority.
Where does all of this leave us today as we strive to move toward a more racially-just society? Professor Foner's recent observations from the professional historian's perspective are important, albeit sobering:
More recently, we have experienced a slow retreat from the ideal of racial equality. We live at a moment in some ways not unlike the 1890s and early twentieth century, when state governments, with the acquiescence of the Supreme Court, stripped black men of the right to vote and effectively nullified the constitutional promise of equality .... As history shows, progress is not necessarily linear or permanent. But neither is retrogression.
[. . .]
So while the road may seem blocked against racial justice and equity at the moment, because retrogression is “not necessarily linear or permanent,” we may hope that there is a path for progress--and the Thirteenth Amendment may indeed provide an avenue by which federal and state lawmakers may proceed, and open an off-ramp of sorts for the Supreme Court from the confining strictures of its Fourteenth Amendment equal protection doctrine.
Even though the Reconstruction amendments have not (yet) been interpreted to achieve their full potential by the Supreme Court, they still remain an enduring “declaration of popular rights. They retain unused latent power that, in a different political environment, may yet be employed to implement in new ways the Reconstruction vision of equal citizenship for all.”
Who knows? Maybe this precise moment in time--2021--is the sort of “different political environment” Professor Foner imagines. Specifically, now that Democrats control both Congress and the Presidency, perhaps they can muster the political will to employ the always-available, but as-yet-unused, tool of the Thirteenth Amendment “to implement in new ways the Reconstruction vision of [Black] equal citizenship.” And the Supreme Court, for its part, would then stay within its own constitutional guardrails to allow Congress to exercise its plenary power to erase the badges and incidents of slavery by whatever rational terms Congress might determine--as the framers of the Thirteenth Amendment originally intended.
In sum, Professor Foner's lifetime project of studying the history of the Reconstruction era, together with the work of many other historians and constitutional scholars, has demonstrated that the framers of the Thirteenth, Fourteenth, and Fifteenth Amendments--the Republican majorities in Congress at the time--intended nothing short of a “'constitutional revolution’ ... that created a fundamentally new document with a new definition of both the status of blacks and the rights of all Americans.” And, especially with regard to the Thirteenth Amendment, the framers intended that Congress should have plenary “power to enforce this article with appropriate legislation” constitutional delegation of authority expressly acknowledged and accepted by the Supreme Court.
Professor of Law and past Foster Swift Professor of Constitutional Law, Michigan State University College of Law.
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