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«∗ The Supreme Court has held that the Thirteenth Amendment prohibits slavery or involuntary servitude and also empowers Congress to end any ...»

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Race, Rights, and the Thirteenth

Amendment: Defining the Badges

and Incidents of Slavery

William M. Carter, Jr.∗

The Supreme Court has held that the Thirteenth Amendment prohibits

slavery or involuntary servitude and also empowers Congress to end any

lingering badges and incidents of slavery. The Court, however, has failed

to provide any guidance as to how courts should define the badges and

incidents of slavery absent such congressional action. This has led the

lower courts to conclude that the judiciary’s role under the Thirteenth Amendment is limited to enforcing only the Amendment’s prohibition of literal enslavement.

This Article has two primary objectives. First, it offers an interpretive framework for defining the badges and incidents of slavery that is true to ∗ William M. Carter, Jr., is an Associate Professor of Law at Case Western Reserve University School of Law. The author thanks Mel Durchslag, Jonathan Entin, Abigail Horn, Jessie Hill, Sharona Hoffman, and Bob Strassfeld for their valuable criticisms and suggestions, and the faculty at Temple Law School for their feedback on this article at a faculty workshop. I would also like to thank Mansi Arora, Matt Dunkle, Amy Klosterman, and Scott Perlmuter for their research assistance. This article is dedicated to my daughter, Rebecca Claire Carter, who has brought more joy to my life than I had imagined possible.

1312 University of California, Davis [Vol. 40:1311 both the Amendment’s drafters’ original purposes and that can also serve as a vibrant remedy for the legacies of slavery. The Thirteenth Amendment should neither be construed as a dead letter whose purpose was served with the removal of the freedmen’s bonds nor as a limitless remedy for all forms of discrimination. Rather, the Amendment must be interpreted in an evolutionary manner, but with specific regard to the experience of the victims of human bondage in the United States (i.e., African Americans) and the destructive effects that the system of slavery had upon American society, laws, and customs.

Second, this Article explains that the judiciary has concurrent power with Congress to define and offer redress for the badges and incidents of slavery. Limiting the Amendment, in the absence of congressional action, to literal enslavement ignores the Amendment’s framers’ expressed original intent that the Amendment itself would eliminate all lingering vestiges of the slave system. Furthermore, such an interpretation violates separation of powers principles by imputing to Congress the ability to legislate under the Amendment’s Enforcement Clause against conditions that purportedly do not violate the Amendment itself in any way. Even in the absence of congressional action, the judiciary should enforce the Thirteenth Amendment’s promise to eliminate the badges and incidents of slavery.




HISTORY, AND SUPREME COURT INTERPRETATION.................. 1320 A. The Thirteenth Amendment Debates

B. Supreme Court Interpretation of the Badges and Incidents of Slavery





A. Thirteenth Amendment Literalism

B. Separation of Powers Approach: Broad Congressional Power and Narrow Judicial Power

C. Expansionist Approach: As a Remedy for Any ClassBased Discrimination

1. The Badges and Incidents of Slavery as Applied Beyond African Americans

2. The Badges and Incidents of Slavery as Applied to Non-Racial Classes


2007] Race, Rights, and the Thirteenth Amendment 1313 OF SLAVERY

A. Justification for a Two-Pronged Approach to Defining the Badges and Incidents of Slavery

B. Application of the Badges and Incidents of Slavery Analysis

1. Religiously Motivated Hate Crimes

2. Racial Profiling of Arabs and Muslims in Terrorism Investigations

3. The “Digital Divide” and the Badges and Incidents of Slavery

C. The “Black-White Binary Paradigm” and Commonality of Oppression: Criticism and Response


[I]t is perhaps difficult to draw the precise line, to say where freedom ceases and slavery begins....1


Despite its seemingly simple command that “[n]either slavery nor involuntary servitude... shall exist within the United States,”2 the Thirteenth Amendment’s scope remains ambiguous. In Jones v. Alfred H. Mayer Co.,3 the Supreme Court construed the Amendment as not only abolishing African slavery, but also empowering Congress to “pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”4 In so holding, the Court resurrected the Thirteenth Amendment as a potentially significant source of civil rights protections after more than one hundred years during which the Amendment had largely been treated as obsolete.

The Court, however, has never articulated or even suggested a consistent exegesis of the Amendment’s meaning. Rather, the current jurisprudence rests wholly upon ad hoc determinations of whether a CONG. GLOBE, 39th Cong., 1st Sess. 475 (1866), reprinted in THE


DEBATES IN CONGRESS ON THE 13TH, 14TH, AND 15TH AMENDMENTS 122 (Alfred Avins ed., 1967) [hereinafter THE RECONSTRUCTION AMENDMENTS’ DEBATES] (statement of Sen. Trumbull in support of Civil Rights Act of 1866, passed pursuant to Thirteenth Amendment).

U.S. CONST. amend. XIII, § 1.

392 U.S. 409 (1968).

Id. at 439.

1314 University of California, Davis [Vol. 40:1311 given statute or complaint falls within the Thirteenth Amendment.

Significant questions regarding the Amendment’s scope and interpretation therefore remain unanswered. First, given “[t]he fact that southern slavery was, in the main, [African] slavery,”5 can the Amendment’s proscription of the badges of slavery be interpreted as extending to racial groups other than African Americans?6 Second, even if the Thirteenth Amendment’s prohibition of the badges of slavery does apply to all racial groups, does it apply to non-racial classes?7 Third, what principles should guide judges, legislators, or potential litigants in determining whether a particular condition or form of discrimination constitutes a badge of slavery?

In addition to this lack of definition regarding the scope of the Amendment’s prohibition of the badges and incidents of slavery, a significant separation of powers question also remains unresolved. In Jones, the Supreme Court held that the Thirteenth Amendment’s Enforcement Clause empowers Congress to enact legislation it deems necessary to eliminate the badges and incidents of slavery.8 Neither in Jones nor in subsequent cases, however, has the Court defined the Amendment’s self-executing scope. The Jones Court specifically reserved the question of whether the Amendment, in the absence of See, e.g., KENNETH M. STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN THE ANTEBELLUM SOUTH 193 (1961). Stampp posits that one reason for the ascendancy of African slavery was because “[i]f he ran away, the Negro slave with his distinctive skin color could not so easily escape detection as could a white indentured servant.” Id.

The Supreme Court has held that a variety of civil rights statutes passed pursuant to the Thirteenth Amendment do apply to persons who are not African American. See, e.g., Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987) (holding that 42 U.S.C. § 1982 applies to discrimination against Jewish persons);

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) (noting that 42 U.S.C. § 1981 applies to discrimination in making or enforcement of contracts without regard to victim’s race). The Court, however, has never directly addressed whether such persons can bring a direct cause of action under the Thirteenth Amendment itself (as opposed to under a statute implementing the Amendment) because the Court has also never definitively addressed whether such a direct cause of action exists. For a discussion of the dichotomy in the case law regarding the scope of Congress’s Thirteenth Amendment Enforcement Clause power versus the scope of the Amendment in the absence of congressional action, see infra Part IV.B.

See Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. PA. L. REV. 1097, 1143 (1998) (criticizing this “settled interpretation” of Thirteenth Amendment: “[T]he promise of the Thirteenth Amendment for women is split down race lines. All women may claim the Amendment’s protections against states of [actual] servitude.... Black women may invoke the civil rights statutes based on the Thirteenth Amendment for claims of racial discrimination.”).

Jones, 392 U.S. at 439.

2007] Race, Rights, and the Thirteenth Amendment 1315 implementing legislation, reaches the badges and incidents of slavery.9 In the absence of a definitive statement from the Court, lower courts have uniformly held that the judicial power to enforce the Amendment is limited to conditions of literal slavery or involuntary servitude.10 These courts have simultaneously affirmed that the Amendment empowers Congress to offer redress for the badges and incidents of slavery.11 In Jones, the Court noted that “[w]hether or not the Amendment itself did any more than [abolish slavery]” was “a question not involved in this case.” See Jones, 392 U.S. at 439. In City of Memphis v. Greene, 451 U.S. 100, 125 (1981), the Court subsequently stated that Congress’s power to eliminate the badges and incidents of slavery “is not inconsistent with the view that the Amendment has self-executing force,” but neither embraced nor rejected any particular view of the Amendment’s scope.

While the Court has never reached an actual holding on this issue, in Palmer v.

Thompson, 403 U.S. 217, 226-27 (1971), the Court indicated its skepticism toward construing the Amendment as providing a remedy for the badges of slavery in the absence of congressional legislation defining a condition as such. (Palmer is discussed in more detail in Part II.B, infra.) The Court’s Thirteenth Amendment discussion in Palmer, although dicta, could be read as a strong signal that the badges of slavery power is relegated solely to congressional enforcement, were it not for the portion of Greene cited in note 9, supra, which was decided after Palmer.

See Crenshaw v. City of Defuniak Springs, 891 F. Supp. 1548, 1556 (N.D. Fla.

1995) (“While neither the Supreme Court... or the Courts of Appeal have decided the extent to which a direct cause of action exists under the Thirteenth Amendment, district courts have uniformly held that the amendment does not reach forms of discrimination other than slavery or involuntary servitude.”); Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 YALE J.L. & FEMINISM 207, 213 (1992) (“[T]he Thirteenth Amendment is generally, albeit implicitly, interpreted by the courts [solely] as a prohibition against coerced wage labor in the market economy.... If one accepts this limited perspective, the Thirteenth Amendment guarantees workers nothing more than the freedom to contract their labor.”); see also Larry J. Pittman, Physician-Assisted Suicide in the Dark Ward: The Intersection of the Thirteenth Amendment and Health Care Treatments Having Disproportionate Impacts on Disfavored Groups, 28 SETON HALL L.

REV. 774, 860-71 (1998) (surveying lower courts’ Thirteenth Amendment cases). The conclusion that the Amendment empowers Congress to legislate against the badges of slavery, but that the Amendment itself only reaches literal enslavement, is far from compelled by the Amendment’s history or Supreme Court cases. In fact, it runs directly counter to the Amendment’s legislative history and context. It also raises serious constitutional concerns by imputing to Congress a power under the Amendment’s Enforcement Clause that is completely separate from what these courts believe the Amendment itself prohibits. See infra Part IV.B. This structure may make sense as a practical matter, if one believes that courts are ill-suited to determine what modern day conditions constitute lingering effects of slavery. But the lower courts have cast their narrow interpretations of the judiciary’s power under the Amendment as constitutional decisions regarding the Amendment’s meaning or original intent, not as matters of prudential abstention.

1316 University of California, Davis [Vol. 40:1311 This lack of clarity since the Court’s decision in Jones has resulted in a growing divide between Thirteenth Amendment case law and Thirteenth Amendment scholarship. The lower courts have consistently found that the Amendment itself prohibits only literal slavery, involuntary servitude, or other forms of coerced labor.12 Concurrent with this judicial narrowing of the Amendment’s potential, scholars and litigants have advocated for an expansive interpretation of the Amendment as applying to various forms of social injustice.13 See discussion supra note 11. One court has even gone so far as to suggest that asserting the Thirteenth Amendment as a direct cause of action for the badges or incidents of slavery was so improper as to be sanctionable under Federal Rule of Civil Procedure 11. See Sanders v. A.J. Canfield, 635 F. Supp. 85, 87 (N.D. Ill. 1986).

See, e.g., ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM: A LEGAL HISTORY (2004) [hereinafter TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM] (arguing that scope of Thirteenth Amendment reaches beyond actual enslavement and has important implications for civil liberties); Akhil Reed Amar, Remember the Thirteenth, 10 CONST. COMMENTARY 403 (1993) (arguing that Thirteenth Amendment’s “significance is underappreciated in a wide range of contexts where issues of state action and private power have been problematic”);

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