Jack M. Balkin (Yale Law School) and Sanford Levinson (University of Texas Law School) have posted The Dangerous Thirteenth Amendment (Columbia Law Review, forthcoming) on SSRN. Here is the abstract:
Through most of its history, the Thirteenth Amendment has been interpreted extremely narrowly, especially when we compare it to the Fourteenth Amendment and the Bill of Rights. Modern lawyers would never read the Fourteenth Amendment in the way that they read the Thirteenth — as limited to close analogies to specific historical practices. The Thirteenth Amendment has been read in this way because it is “dangerous.” The demand that “neither slavery nor involuntary servitude . . . shall exist within the United States,” taken seriously, potentially calls into question too many different aspects of public and private power, ranging from political governance to market practices to the family itself.
Our contemporary association of “slavery” with a very limited set of historical practices is anachronistic and the result of a long historical process. The language of the Thirteenth Amendment is taken from the 1787 Northwest Ordinance. Yet at the time of the founding the concept of “slavery” was far broader than we currently understand it. ”Slavery” meant illegitimate domination, political subordination, and the absence of republican government; “chattel slavery” was only the most extreme and visible example of slavery. For example, American colonists repeatedly argued that the British Empire had made them slaves because they lacked political freedoms and representation in Parliament.
The broader, anti-republican concept of slavery was narrowed during the fight for the abolition of chattel slavery for political and strategic reasons. Abolitionists wanted to avoid awkward comparisons to the economic and political subordination of wage laborers and women. Once chattel slavery was abolished, labor activists and suffragists sought to revive the older, broader concept of “slavery.” But emancipation allowed defenders of the status quo to insist that American society was now “free.” Everyday aspects of economic and family life could not be “slavery,” which was by definition the worst of evils and had already been eradicated by law. Even today, calling an injustice “slavery” is generally seen as overheated hyperbole and even a presumptuous insult to the memory of the victims of African American chattel slavery. This essay concludes by asking how our political imagination has been limited as a result of this history.