State action, private action, and the thirteenth amendment

Virginia Law Review

Volumn 94, Issue 6, 2008, Pages 1367-1405

  Rutherglen, George ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 56449127469     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (141)

1. U.S. Const. amend. XIII, § 1.
2. 109 U.S. 3, 20 (1883).
3. For an account of the cases prohibiting peonage, see Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases, 82 Colum. L. Rev. 646 (1982).
4. U.S. Const, amend. XIII, § 2.
5. Civil Rights Cases, 109 U.S. at 20-21.
6. George Rutherglen, The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment, in Promises of Liberty: Thirteenth Amendment Abolitionism and Its Contemporary Vitality (Alexander Tsesis ed., forthcoming 2009).
7. 109 U.S. at 22.
8. 392 U.S. 409 (1968).
9. Id. at 440.
10. Act of July 13, 1787, art. VI, reenacted by Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 51.
11. U.S. Const, amend. XVIII, § 1, amend. XXI, § 1. Section 2 of the Twenty-First Amendment does impose direct federal regulation by making it unlawful under federal law to violate any state law that prohibits the delivery or use of alcoholic beverages, but this provision depends for its entire effect on state law directly regulating private conduct. Id. § 2.
12. David E. Kyvig, Repealing National Prohibition 201-02 (2d ed., Kent State Univ. Press 2000) (1979).
13. Proclamation No. 17, 12 Stat. 1268 (Jan. 1, 1863).
14. See Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 31-34 (2001).
15. Proclamation No. 17,12 Stat. 1268, 1269 (Jan. 1, 1863).
16. Act of July 13, 1787, art. VI, reenacted by Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 51.
17. See 1 Henry S. Randall, The Life of Thomas Jefferson 397-98 (New York, Derby & Jackson 1858). That proposal read: "That after the year 1800 of the Christian era there shall be neither slavery nor involuntary servitude in any of the said States, otherwise than in punishment of crimes, whereof the party shall have been duly convicted to have been personally guilty."
18. Id.
19. Senator Sumner, who argued against the existing language in the amendment, said, "I understand that it starts with the idea of reproducing the Jeffersonian ordinance." Cong. Globe, 38th Cong., 1st Sess. 1488 (1864).
20. Act of March 6, 1820, ch. 22, § 8, 3 Stat. 545, 548. Within this area, "slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited." This compromise came undone with the Kansas-Nebraska Act, Act of May 30, 1854, ch. 59, § 14, 10 Stat. 277, 283.
21. Act of April 16, 1862, ch. 54, § 1, 12 Stat. 376.
22. Act of June 19, 1862, ch. 111, 12 Stat. 432.
23. Act of July 13, 1787, §§ 2, 9, art. V, reenacted by Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 51.
24. Arthur Zilversmit, The First Emancipation: The Abolition of Slavery in the North 137-38, 199-200 (1967). When Congress abolished slavery in the District of Columbia, it did so with compensation to slaveowners loyal to the Union. See Act of April 16, 1862, ch. 54, § § 2, 3, 12 Stat. 376.
25. The Northwest Ordinance 1787: A Bicentennial Handbook 74-76, 100 (Robert M. Taylor, Jr., ed. 1987).
26. See infra text accompanying notes 89-90.
27. U.S. Const, art. IV, § 3. The plenary power of Congress over the Northwest Territory was recognized in cases that otherwise limited federal power to regulate slavery, notoriously Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 432-42 (1857). The dissenters in that case would have recognized plenary congressional power over other territories as well.
28. Id. at 539-40 (McLean, J., dissenting);
29. id. at 605-07 (Curtis, J., dissenting). The dissenters' position was later adopted by the Supreme Court.
30. See, e.g., Downes v. Bidwell, 182 U.S. 244, 285 (1901).
31. Act of July 13, 1787, § 2, reenacted by Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 51.
32. Cong. Globe, 38th Cong., 1st Sess. 1482 (1864); id. at 521; see also id. at 523.
33. S. Rep. No. 38-25, at 1 (1864).
34. Cong. Globe, 38th Cong., 2d Sess. 125 (1865); see Vorenberg, supra note 14, at 189-90.
35. Cong. Globe, 38th Cong., 1st Sess. 1489 (1864); see also id. at 553.
36. Cong. Globe, 38th Cong., 2d Sess. 171 (1865).
37. U.S. Const, art. V. The vote in the House of Representatives was 119 in favor, 56 opposed, and 8 not voting. Cong. Globe, 38th Cong. 2d Sess. 531 (1865). If three votes had switched from "in favor" to "opposed," the amendment would have failed.
38. The Declaration of Independence para. 2 (U.S. 1776).
39. Cong. Globe, 38th Cong., 1st Sess. 1324 (1864).
40. Cong. Globe, 38th Cong., 2d Sess. 155 (1865);
41. see also Cong. Globe, 38th Cong., 1st Sess. 2618 (1864) (remarks of Rep. Kellogg) (explaining that slavery must be destroyed "to make sure and certain that the cause of the rebellion being dead and buried may have no future resurrection").
42. Cong. Globe, 38th Cong., 1st Sess. 1465 (1864);
43. see also Cong. Globe, 38th Cong., 2d Sess. 171, 172 (1865) (remarks of Rep. Yeaman) (arguing for deciding the question of slavery alone to prevent consideration of "the other dangerous schemes" associated with it).
44. Cong. Globe, 38th Cong., 2d Sess. 144 (1865);
45. see also id. at 263 (remarks of Rep. Rollins) (referring to slavery as a "Gordian knot" that must be cut and disposed of once and for all).
46. Cong. Globe, 38th Cong., 2d Sess. 216 (1865).
47. Id.
48. U.S. Const, art. V (prohibiting repeal before 1808 of the restriction on congressional power to prohibit the slave trade).
49. See generally Vorenberg, supra note 14, at 107-12 (discussing the constitutionality of the amendment).
50. Cong. Globe, 38th Cong., 1st Sess. 2941 (1864);
51. see also id. at 2940 (remarks of Rep. Pruyn) (arguing against the use of federal power to interfere with domestic institutions regulated by state law).
52. Id. at 1458.
53. Cong. Globe, 38th Cong., 2d Sess. 262 (1865).
54. Id. at 173.
55. Thomas D. Morris, Southern Slavery and the Law, 1619-1860, at 42 (1996) ("[J]uristically' the idea of 'property' is the key to the definition of slavery.");
56. see also id. at 61-80.
57. Cong. Globe, 38th Cong., 1st Sess. 1458 (1864);
58. see also id. at 2952 (remarks of Rep. Coffroth) (arguing that abolition would be taking property).
59. Id. at 1489 (remarks of Sen. Davis); id. at 2941 (remarks of Rep. Wood);
60. id. at 2987 (remarks of Rep. Edgerton);
61. Cong. Globe, 38th Cong., 2d Sess. 181 (1865) (remarks of Rep. Clay).
62. Cong. Globe, 38th Cong., 2d Sess. 200 (1865);
63. see also Cong. Globe, 38th Cong., 1st Sess. 1437-38 (1864) (remarks of Sen. Harlan) (criticizing classical forms of slavery);
64. id. at 1481 (remarks of Sen. Sumner) (condemning slavery as "execrable").
65. Cong. Globe, 38th Cong., 2d Sess. 243-44 (1865) (remarks of Rep. Woodbridge).
66. Political Debates Between Abraham Lincoln and Stephen A. Douglas 116 (Cleveland, Burrows Bros. Co. 1894) (arguing slavery's existence within a state depends on the acts of the legislature).
67. Cong. Globe, 38th Cong., 2d Sess. 488 (1865);
68. see also id. at 190-91 (remarks of Rep. Kasson) (arguing for constitutional power to abolish slavery as a relation rather than as property).
69. Id. at 217.
70. Schmidt, supra note 3, at 653-54, 656-57.
71. Arthur v. Oakes, 63 F. 310, 318 (Harlan, Circuit Justice, 7th Cir. 1894).
72. See Risa L. Goluboff, The Lost Promise of Civil Rights 51-80 (2007).
73. See Alexander Tsesis, The Thirteenth Amendment and American Freedom: A Legal History 157-60 (2004).
74. Civil Rights Cases, 109 U.S. 3 (1883).
75. Ch. 114, 18 Stat. 335.
76. Civil Rights Cases, 109 U.S. at 20.
77. Id. at 21-22.
78. Id. at 18-19.
79. "It has never been doubted, therefore, 'that the power vested in Congress to enforce the [Thirteenth Amendment] by appropriate legislation,' includes the power to enact laws 'direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not.'" Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438 (1968)
80. (quoting Civil Rights Cases, 109 U.S. 3, 20, 23 (1883) (citations omitted)).
81. Civil Rights Cases, 109 U.S. at 34, 37 (Harlan, J., dissenting).
82. Ch. 31, 14 Stat. 27 (codified as amended at 42 U.S.C. §§ 1981-1982 (2000)).
83. 24 F. Cas. 337 (Chase, Circuit Justice, C.C.D. Md. 1867) (No. 14,247).
84. Id. at 339
85. (quoting Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (codified as amended at 42 U.S.C. §§ 1981-1982 (2000))).
86. Act of March 2, 1867, ch. 187, 14 Stat. 546 (codified as amended at 18 U.S.C. § 1581 (2000)).
87. See, e.g., Bailey v. Alabama, 219 U.S. 219, 242 (1911) (the essence of peonage is "compulsory service in payment of a debt").
88. 197 U.S. 207 (1905).
89. Id. at 222.
90. Id. at 216-18.
91. 83 U.S. (16 Wall.) 36, 71-72 (1873).
92. 163 U.S. 537, 542-43 (1896) (citing the Civil Rights Cases).
93. Civil Rights Cases, 109 U.S. 3, 20-25 (1883).
94. 203 U.S. 1 (1906).
95. 392 U.S. 409 (1968).
96. Id. at 413.
97. Id. at 439-40.
98. Id. at 438.
99. Id. at 441 n.78.
100. Pub. L. No. 90-284, 82 Stat. 73 (codified as amended at 42 U.S.C. §§ 3601-3619 (2000)).
101. 109 U.S. 3, 20 (1883).
102. 24 F. Cas. 337, 377 (C.C.D. Md. 1867) (No. 14, 247).
103. Arthur v. Oakes, 63 F. 310, 318 (Harlan, Circuit Justice, 7th Cir. 1894).
104. See infra text accompanying notes 57-58.
105. Rutherglen, supra note 6.
106. Vorenberg, supra note 14, at 49-50, 53.
107. Silvana R. Siddali, From Property to Person: Slavery and the Confiscation Acts, 1861-1862, at 227-50 (2005).
108. Cong. Globe, 38th Cong., 1st Sess. 1482-83 (1864).
109. Id. at 1487-89 (remarks of Sen. Trumbull).
110. 17 U.S. (4 Wheat.) 316 (1819);
111. Cong. Globe, 39th Cong., 1st Sess. 1118 (1866).
112. McCulloch, 17 U.S. (4 Wheat.) at 421.
113. Cong. Globe, 38th Cong., 1st Sess. 2962 (1864).
114. Cong. Globe, 38th Cong., 2d Sess. 180 (1865).
115. Cong. Globe, 38th Cong., 1st Sess. 1465 (1864).
116. See Charles Fairman, Reconstruction and Reunion, 1864-88, Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1224-30 (Paul A. Freund ed., 1971).
117. Ch. 31, § 1, 14 Stat. 27 (1866)
118. (codified as amended at 42 U.S.C. §§ 1981-1982 (2000)).
119. United States v. Morrison, 529 U.S. 598, 608-09 (2000).
120. See Rutherglen, supra note 6.
121. Morris, supra note 47, at 161-62, 182-83.
122. See id.
123. See supra text accompanying note 62.
124. This was true, for instance, in the cases that struck down state statutes making failure to perform labor for an advance of money prima facie evidence of criminal fraud. See, e.g., Pollock v. Williams, 322 U.S. 4, 25 (1944);
125. Taylor v. Georgia, 315 U.S. 25, 29 (1942);
126. Bailey v. Alabama, 219 U.S. 219, 243-45 (1911). For a discussion of how these laws operated with the system of convict labor to recreate involuntary servitude, see Schmidt, supra note 3, at 650-60.
127. This principle applies to both federal and state legislation. See, e.g., Califano v. Boles, 443 U.S. 282, 296 (1979);
128. Dandridge v. Williams, 397 U.S. 471, 486-87 (1970).
129. See, e.g., Moon-Ho Jung, Coolies and Cane: Race, Labor, and Sugar in the Age of Emancipation 36-38 (2006);
130. Morris, supra note 47, at 17-36;
131. Lawrence R. Murphy, Reconstruction in New Mexico, 43 N.M. Historical Rev. 99, 100-04 (1968). Peonage was occasionally practiced against white immigrants, see Schmidt, supra note 3, at 658-59, but the only comparable institution imposed systematically on non-Hispanic whites was indentured servitude. Unlike slavery, indentured servitude was always for a limited term of years and was not passed on to subsequent generations.
132. Lawrence M. Friedman, A History of American Law 82-89 (2d ed. 1985).
133. 529 U.S. 598 (2000).
134. Federal law currently prohibits racial violence against anyone participating in a long list of federally protected activities, see 18 U.S.C. § 245 (2000), a prohibition which has been upheld under the Thirteenth Amendment. United States v. Allen, 341 F.3d 870, 879-83 (9th Cir. 2003). Congress is currently considering additional prohibitions against hate crimes on the basis of race, national origin, and other grounds. S. 1105, 110th Cong. § 7 (2007); H.R. 1592, 110th Cong. § 7 (2007). For the argument for extending the Thirteenth Amendment to the related issue of racially motivated hate speech,
135. see Akhil Reed Amar, Comment, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 Harv. L. Rev. 124, 155-60 (1992).
136. E.g., Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359, 1365-66 (1992) (arguing that the Thirteenth Amendment does not allow children to be treated "as chattel and subjected (legally or illegally) to domination and degradation by a parent");
137. Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480, 484 (1990) ("When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the thirteenth amendment.").
138. For an analysis of the issues raised by expanding judicial power to eliminate the badges and incidents of slavery, see William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311, 1355-65 (2007).
139. See Fairman, supra note 98, at 1270-90.
140. 347 U.S. 483 (1954).
141. See John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1410-51 (1992).