The dangerous Thirteenth Amendment

Columbia Law Review

Volumn 112, Issue 9, 2012, Pages 1459-1500

  Balkin, Jack M ^a   Levinson, Sanford ^b  

^a YALE UNIVERSITY   (United States)

^b UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 84867875437     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (280)

1. U.S. Const. amend. XIII, § 1.
2. Id. § 2.
3. One might also compare the Nineteenth Amendment, which, like the Thirteenth, was the product of sustained social movements. Each has left relatively few traces in either case law or even the operative rhetoric of American political discourse. Reva Siegel has pointed out that a narrow reading of the Nineteenth Amendment was by no means required by the Amendment's text, even though its language is arguably narrower than that of the Thirteenth. See Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 953 (2002)
4. (observing that immediately after ratification, some courts understood the Nineteenth Amendment to have implications for practices other than voting,... [but] soon thereafter the Amendment came to be interpreted as a nondiscrimination rule governing voting with no bearing on questions of women's citizenship outside the context of the franchise).
5. United States v. Kozminski, 487 U.S. 931, 942 (1988).
6. Id. (quoting Butler v. Perry, 240 U.S. 328, 332 (1916)) (emphasis added).
7. Id. at 944.
8. See id. (We draw no conclusions from this historical survey about the potential scope of the Thirteenth Amendment.). Section 241 creates no substantive rights, but prohibits interference with rights established by the Federal Constitution or laws and by decisions interpreting them.
9. Id. at 941. Fair warning requires that convictions under § 241 show intentional interference with rights made specific either by the express terms of the Federal Constitution or laws or by decisions interpreting them.
10. Hence it was necessary for the Court to recite the established law of Section 1 of the Thirteenth Amendment.
11. See Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 164 (2011) (Following the collapse of slavery, southern states attempted to reinstitute chattel slavery by another name through the Black Codes and through a campaign of terror against the freedmen and their white allies. The Fourteenth Amendment sought to outlaw these practices and promised equal citizenship.)
12. see also Cong. Globe, 39th Cong., 1st Sess. 588-589 (1866) (statement of Rep. Ignatius Donnelly) (describing legislation passed by various Southern states that reestablished conditions akin to slavery)
13. id. at 474 (statement of Sen. Lyman Trumbull) (noting Southern legislatures still imposed upon [the freedmen]... the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished).
14. Kozminski, 487 U.S. at 942 (quoting Butler, 240 U.S. at 332).
15. Well, not quite a parody since one of the most famous originalist scholars argued something very much like this. See, e.g., Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 20-23, 29-31, 44, 117-133 (1977) (arguing that Fourteenth Amendment was designed to overturn Black Codes by guaranteeing basic common law civil rights protected by Civil Rights Act of 1866, and little more, and should be so interpreted today)
16. Raoul Berger, Selected Writings on the Constitution 185 (1987) ([T]he uncontroverted evidence, confirmed in these pages, is that the framers [of the Fourteenth Amendment] repeatedly stated that the amendment and the Civil Rights Act of 1866 were 'identical').
17. U.S. Const. art. IV, § 4.
18. See J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963, 975 (1998) (describing pedagogical canon of key cases and materials taught in law schools).
19. See infra notes 80-93 and accompanying text (discussing provenance of Thirteenth Amendment).
20. See infra text accompanying notes 117-121.
21. Robert M. Cover, The Supreme Court 1982 Term, Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 11, 40 (1983).
22. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), which limited the scope of the Fourteenth Amendment's Privileges or Immunities Clause, also read the Thirteenth Amendment narrowly. The obvious purpose of the Amendment, Justice Miller explained, was to forbid all shades and conditions of African slavery,
23. id. at 69, and any new form of slavery that might arise similar to that suffered by blacks: Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void.
24. Id. at 72. Justice Miller's opinion rejected the plaintiff butchers' broader argument that the New Orleans ordinance, by forcing butchers to work for a monopoly controlled by a small group of favored businessmen, was akin to feudal servitude. See also infra note 155 (discussing Thirteenth Amendment arguments of plaintiffs in Slaughter-House Cases).
25. See Joint Comm. on Reconstruction, 39th Cong., Report of the Joint Committee on Reconstruction, at xiii-xiv (1866) (explaining why new amendment was necessary to protect freed men and women)
26. Laurent B. Frantz, Congressional Power To Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J. 1353, 1354-1358 (1964) (explaining Reconstruction Congress believed it needed new tools to deal with discrimination and violence in Southern states).
27. It is also possible that the Fourteenth Amendment limited the legal reach of the Thirteenth Amendment because it was ratified later in time. See Mark Graber, Subtraction by Addition?: The Thirteenth and Fourteenth Amendments, 112 Colum. L. Rev. 1501+1506 (2012)
28. ([T]he proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment.). But the bare texts of the two Amendments, considered by themselves, do not lead to this conclusion. If this occurred, it must be for other reasons.
29. See Santa Clara Cnty. v. S. Pac. R.R., 118 U.S. 394, 394 (1886) (treating corporations as persons for purposes of Fourteenth Amendment).
30. James Gray Pope, The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957, 102 Colum. L. Rev. 1, 18 (2002) (Unlike the Fourteenth Amendment, which applied only to state action, the Thirteenth made no distinction between governmental and private conduct, and thus could support legislation banning employers as well as government from interfering with labor rights.).
31. See Jack M. Balkin, Corporations and the Thirteenth Amendment, Balkinization (Jan. 28, 2012, 10:27 AM), http://balkin.blogspot.com/2012/01/corporations-and-thirteenth-amendment .html (on file with the Columbia Law Review) ([F]or-profit corporations are by nature designed to be 'slaves' [of their owners]. That is what distinguishes them from natural persons.)
32. Jack M. Balkin, More on Corporations as Slaves, Balkinization (Jan. 29, 2012, 3:31 PM), http://balkin.blogspot.com/2012/01/more-on-corporations-as-slaves.html (on file with the Columbia Law Review) (Like slavemasters, [the owners of a for-profit corporation]... have the power of life or death over their corporations. On the other hand, the owners can sue other people who attempt to injure the corporation, and... take various steps to avoid hostile takeovers.).
33. Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation 4 (1998).
34. Garrison was far more sympathetic to the plight of exploited workers in a free labor system than this quote suggests. His point, rather, was to emphasize the importance of being able to own and sell one's own labor.
35. Eric Foner, Nothing but Freedom: Emancipation and Its Legacy 1 (1983) (Whether accomplished by black revolution, legislation, or civil war, emancipation... raised intractable questions about the system of economic organization and social relations that would replace slavery.).
36. Id. at 55. Greeley had, of course, penned a famous letter in the Tribune to Abraham Lincoln in August of 1862 pressing Lincoln for a quicker path to emancipation. Lincoln's equally famous reply was that his goal was to save the Union, whether with slavery or without it. But by September, Lincoln had announced plans for an Emancipation Proclamation to take effect on January 1, 1863.
37. Robert C. Williams, Horace Greeley: Champion of American Freedom 233-234 (2006).
38. Paul Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials 431 (5th ed. 2006).
39. See Stanley, supra note 23, at 6 (Whether free persons could contract away all their rights and therefore voluntarily become slaves was a point of theoretical dispute.).
40. (comparing Hobbes and Pufendorf, both of whom recognized legitimacy of contracts for slavery, with Locke, who did not).
41. Pete Daniel, The Shadow of Slavery: Peonage in the South, 1901-1969, at 19-20 (1972)
42. see also Pete Daniel, The Metamorphosis of Slavery, 1865-1900, 66 J. Am. Hist. 88, 89 (1979) ([P]eonage was widespread in the South by the turn of the century [S]lavery had indeed ended for some blacks, but for others it had endured, metamorphosed.).
43. See United States v. Reynolds, 235 U.S. 133 (1914)
44. Bailey v. Alabama, 219 U.S. 219 (1911).
45. 219 U.S. at 231.
46. In two other cases, the Court was decidedly unsympathetic to Thirteenth Amendment claims that government practices were involuntary servitude. Butler v. Perry involved a Florida law that required males between twenty-one and forty-five to work for six ten-hour days on roads and bridges each year. 240 U.S. 328, 329 (1916).
47. They could avoid this task by providing an able-bodied substitute (evoking memories of the notorious system of conscription during the Civil War), or by paying three dollars in lieu of a day's labor to the county road and bridge fund.
48. Id. Writing for a unanimous Court, Justice McReynolds explained that the Thirteenth Amendment was not designed to end the ancient tradition of requiring residents to provide labor for road upkeep: The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.
49. Id. at 333. A year later, the Court rejected a Thirteenth Amendment challenge to the Selective Draft Act of 1917, arguing that military service was a public duty.
50. The Selective Draft Law Cases, 245 U.S. 366, 390 (1918). Chief Justice White stated, [W]e are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation... can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment. The issue is still alive today in calls for enhancing Americans' sense of common what it does protect, it protects absolutely?
51. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) (It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract.).
52. Bailey, 219 U.S. at 228.
53. Id. at 246 (Holmes, J., dissenting).
54. See infra text accompanying notes 155-162 (describing examples of arguments by labor activists following Civil War).
55. This history is described in Risa L. Goluboff, The Lost Promise of Civil Rights (2007).
56. Id. at 10-13, 217-218, 256-257, 259.
57. See Robert L. Carter, The NAACP's Legal Strategy Against Segregated Education, 86 Mich. L. Rev. 1083, 1084-1085 (1988) (reviewing Mark Tushnet, The NAACP's Legal Strategy Against Segregated Education, 1925-1950 (1987)) (explaining that NAACP's strategy under Charles Houston and Thurgood Marshall was to focus on desegregating graduate and professional schools, followed by public schools).
58. See Goluboff, supra note 40, at 217, 228 (Once [Thurgood] Marshall fixed his sights on Plessy, the labor cases that had once held out legal as well as institutional promise fell by the doctrinal wayside.).
59. 347 U.S. 483 (1954).
60. Major victories in the courts by social movements for the rights of women, gays, and noncitizens reflect this focus on the model of Brown and the Fourteenth Amendment rather than the Thirteenth Amendment. See, e.g., Lawrence v. Texas, 539 U.S. 558, 564 (2003) (protecting gay rights under Fourteenth Amendment's Due Process Clause)
61. Romer v. Evans, 517 U.S. 620, 635-636 (1996) (protecting gay rights under Fourteenth Amendment's Equal Protection Clause)
62. Plyler v. Doe, 457 U.S. 202, 215 (1982) (holding that children of undocumented aliens are protected by Fourteenth Amendment's Equal Protection Clause)
63. Craig v. Boren, 429 U.S. 190, 197 (1976) (holding Fourteenth Amendment's Equal Protection Clause requires heightened scrutiny of sex classifications)
64. Roe v. Wade, 410 U.S. 113, 164 (1973) (upholding abortion rights under Fourteenth Amendment's Due Process Clause)
65. Reed v. Reed, 404 U.S. 71, 77 (1971) (holding that preference for male over female administrators of estates violated Equal Protection Clause of Fourteenth Amendment)
66. Graham v. Richardson, 403 U.S. 365, 376 (1971) (holding state statute denying welfare benefits to resident aliens violates Fourteenth Amendment's Equal Protection Clause).
67. 392 U.S. 409 (1968).
68. 403 U.S. 88 (1971).
69. 427 U.S. 160 (1976).
70. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-618 (1987) (holding that Congress's remedial powers under Thirteenth Amendment allow it to ban discrimination against Jews, who were considered race at time of Thirteenth Amendment's enactment)
71. Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) (applying 42 U.S.C. § 1981 to persons of Arab ancestry)
72. cf. United States v. Nelson, 277 F.3d 164, 190-191 (2d Cir. 2002) (holding that Section 2 gives Congress power to reach some religious discrimination in order to eliminate badges and incidents of slavery).
73. The Civil Rights Cases, 109 U.S. 3, 20 (1883).
74. See infra text accompanying notes 80-93 (discussing debates over Thirteenth Amendment's language).
75. See infra text accompanying notes 103-107 (describing how concept of slavery was invoked by colonists protesting British rule).
76. U.S. Const. art. IV, § 4.
77. See Luther v. Borden 48 U.S. (7 How.) 1, 42, 46-47 (1849) (For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.)
78. see also Baker v. Carr, 369 U.S. 186, 223-229 (1962) (reaffirming that Guarantee Clause is nonjusticiable while holding that courts may review state legislative reapportionment schemes under Equal Protection Clause)
79. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 148 (1912) (The fundamental doctrines thus so lucidly and cogently announced by the court, speaking through Mr. Chief Justice Taney in the case which we have thus reviewed, have never been doubted or questioned since)
80. Taylor v. Beckham, 178 U.S. 548, 578 (1900) (It was long ago settled [by Luther v. Borden] that the enforcement of this guarantee belonged to the political department.).
81. Although Luther has come to stand for the general proposition that the Guarantee Clause is nonjusticiable, it could-and should-be read far more narrowly. See Jack M. Balkin, Living Originalism 241-242 (2011) [hereinafter Balkin, Living Originalism] ([Luther v. Borden] holds only that some kinds of claims-those involving recognition of governments and deciding when domestic violence requires intervention by federal troops-are best determined by the political branches).
82. Senator Charles Sumner once called the Guarantee Clause a sleeping giant in the Constitution, because [t]here is no clause which gives to Congress such supreme power over the States Cong. Globe, 40th Cong., 1st Sess. 614 (1867) (statement of Sen. Charles Sumner)
83. It is precisely for that reason, William Wiecek has argued, that the Clause has largely been left undisturbed since Reconstruction. William M. Wiecek, The Guarantee Clause of the U.S. Constitution 295 (1971).
84. See Sanford Levinson, Framed: America's Fifty-One Constitutions and the Crisis of Governance 17-27 (2012) (explaining distinction between mostly textual Constitution of Settlement and Constitution of Conversation, which concerns indeterminate aspects of Constitution). Examples of provisions in the Constitution of Settlement are the length of the president's term, the timing of inauguration day, and the allocation of two senators to each state regardless of population.
85. U.S. Const. art. IV, § 4.
86. Id. art. I, § 9, cl. 8
87. id. art. I, § 10, cl. 1.
88. Id. art. I, § 9, cl. 3.
89. See The Civil Rights Cases, 109 U.S. 3, 23 (1883) (Under the Thirteenth Amendment, the legislation... may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not; under the Fourteenth... it must necessarily be... corrective in its character, addressed to counteract and afford relief against state regulations or proceedings.)
90. id. at 35-36 (Harlan, J., dissenting) ([U]nder the Thirteenth Amendment, Congress has to do with slavery and its incidents; and that legislation... may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not.).
91. Id. at 24-25 (majority opinion) (It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.).
92. See generally David Blight, Race and Reunion: The Civil War in American Memory 137-138 (2001) (describing terms of Compromise of 1877).
93. See C. Vann Woodward, The Strange Career of Jim Crow 67 (1955) ([T]he liberals... felt themselves strongly drawn toward the cause of sectional reconciliation. And since the Negro was the symbol of sectional strife, the liberals joined in deprecating further agitation of his cause and in defending the Southern view of race in its less extreme forms.).
94. See Michael Les Benedict, Reform Republicans and the Retreat from Reconstruction, in Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era 168, 168-172 (2006) (noting Northern reformers viewed redistributive policies as threat to human liberty and equal rights).
95. Id. at 172.
96. Id. (quoting Abram S. Hewitt, The Mutual Relations of Capital and Labor: Speech at the Church Congress, Cincinnati (Oct. 18, 1878)
97. Selected Writings of Abram S. Hewitt 277, 277 (Allan Nevins ed., 1937))
98. Compare this with the thundering pronouncement of the United States Supreme Court in Coppage v. Kansas, which invalidated a Kansas law that prevented employers from requiring their employees to sign yellow dog contracts under which employees promised not to join labor unions: No doubt, wherever the right of private property exists, there must and will be inequalities of fortune; and thus it naturally happens that parties negotiating about a contract are not equally unhampered by circumstances. This applies to all contracts, and not merely to that necessary result of the exercise of those rights. 236 U.S. 1, 17 (1915).
99. 163 U.S. 537, 551 (1896).
100. The Civil Rights Cases, 109 U.S. 3, 24 (1883).
101. Charles Fairman, The History of the Supreme Court of the United States: Reconstruction and Reunion, 1864-1888, pt. 2, at 564 (1987).
102. On the distinction between civil and social equality, see, e.g., Cong. Globe, 42d Cong., 2d Sess. 901 (1872) (statement of Sen. Lyman Trumbull) (stating Civil Rights Act of 1866 was confined exclusively to civil rights and nothing else, no political and no social rights)
103. Balkin, Living Originalism, supra note 54, at 222-226 (explaining Reconstruction Era distinctions between civil, political, and social equality)
104. Harold M. Hyman & William W. Wiecek, Equal Justice Under Law: Constitutional Development, 1835-1875, at 277-278, 394-402 (1982) (explaining that whereas civil rights were those rights essential to differentiate a slave from a free person, the highest and most controversial stratum of rights concerned social equality, which, in the view of most whites, included equal access to public accommodations)
105. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947+1024 (1995) (It was generally understood that the nondiscrimination requirement of the Fourteenth Amendment applied only to 'civil rights.' Political and social rights, it was agreed, were not civil rights and were not protected.)
106. Mark Tushnet, Civil Rights and Social Rights: The Future of the Reconstruction Amendments, 25 Loy. L.A. L. Rev. 1207, 1208 (1992) (For Reconstruction legal thinkers civil, political and social rights were seen as three distinct categories. Civil rights attached to people simply because they were people Social rights were exercised in the rest of the social order [G]overnment had nothing to do with guaranteeing social rights).
107. See Plessy v. Ferguson, 163 U.S. 537, 544 (1896) (The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but... it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality)
108. id. at 559 (Harlan, J., dissenting) (noting superiority of white race socially in prestige, in achievements, in education, in wealth and in power but arguing that [i]n respect of civil rights, all citizens are equal before the law).
109. Or, as contemporary opponents of the individual mandate might put it, the Thirteenth Amendment's guarantees have no limiting principle.
110. The 1856 platform of the new Republican Party, for example, insisted on both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism-Polygamy, and Slavery. Republican Platform of 1856, in 1 National Party Platforms, 1840-1956, at 27 (Donald Bruce Johnson ed., Univ. of Ill. Press rev. ed. 1978) (1924).
111. See Akhil Reed Amar, Forty Acres and a Mule: A Republican Theory of Minimal Entitlements, 13 Harv. J.L. & Pub. Pol'y 37, 37 (1990) ([A] minimal entitlement to property is so important, so constitutive, and so essential for both individual and collective selfgovernance that to provide each citizen with that minimal amount of property, the government may legitimately redistribute property from other citizens who have far more than their minimal share.).
112. See Susan B. Anthony, Is It a Crime for a United States Citizen To Vote? (1872-1873), in 2 History of Woman Suffrage, 1861-1876, at 630-647 (Arno & The New York Times 1969) (Elizabeth Cady Stanton et al. eds., 1882) (arguing that because women had been subject to restrictions of coverture, denied rights of political participation, and prevented from pursuing their own ambitions in life, they had effectively been held in slavery by their fathers, brothers, and husbands)
113. Akhil Reed Amar, Remember the Thirteenth, 10 Const. Comment. 403, 404-405 (1993) (You might think that... slavery is about oppression of the Other and not about family [But] biology is in no way inconsistent with oppression.)
114. Akhil Reed Amar & Daniel Widawsky, Commentary, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359, 1364 (1992) (Under ordinary circumstances, parental custody does not violate the Thirteenth Amendment But when a parent perverts this coercive authority by systematically abusing and degrading his ward... the parent violates the Thirteenth Amendment and should be subject to suit.).
115. The condition of slavery is normally thought to concern treating human beings like animals, but some animal rights activists have sought to extend the idea even to relations between humans and animals. Consider a lawsuit recently filed against SeaWorld parks in San Diego and Orlando for their confinement of five orca whales.
116. See David Crary & Julie Watson, PETA Lawsuit Seeks To Expand Animal Rights, Yahoo! News (Oct. 25, 2011), http://news.yahoo.com/peta-lawsuit-seeks-expand-animal-rights-222219887. html (on file with the Columbia Law Review) (People for the Ethical Treatment of Animals [PETA] is accusing the SeaWorld parks of keeping five star-performer whales in conditions that violate the 13th Amendment ban on slavery.). According to the lawyer for PETA, By any definition, these orcas are slaves-kidnapped from their homes, kept confined, denied everything that's natural to them and forced to perform tricks for SeaWorld's profit.
117. Id. Moreover, [t]he males have their sperm collected, the females are artificially inseminated and forced to bear young which are sometimes shipped away.
118. Id. Not surprisingly, SeaWorld sees things quite differently, calling the use of the Thirteenth Amendment baseless and in many ways offensive.
119. Id. In addition to the differences between keeping whales and human beings in captivity, the company explained that its treatment of the whales could not be like slavery because SeaWorld is among the world's most respected zoological institutions There is no higher priority than the welfare of the animals entrusted to our care and no facility sets higher standards in husbandry, veterinary care and enrichment.
120. Id. 79.17 U.S. (4 Wheat.) 316 (1819).
121. Northwest Ordinance of 1787, art. VI, 1 Stat. 51 n.(a).
122. An Act to Secure Freedom to All Persons Within the Territories of the United States, ch. 111, 12 Stat. 432, 432 (1862) (declaring there shall be neither slavery nor involuntary servitude in territories)
123. An Act for the Release of Certain Persons Held to Service or Labor in the District of Columbia, ch. 54, 12 Stat. 376, 376 (1862) (proclaiming neither slavery nor involuntary servitude shall exist in District of Columbia).
124. Similar language was also used in the Missouri Compromise of 1820, ch. 22, 3 Stat. 545, 548 (prohibiting slavery and involuntary servitude in territory north of compromise line).
125. Cong. Globe, 38th Cong., 1st Sess. 1483 (1864) (statement of Sen. Charles Sumner).
126. Id. at 1488 (statement of Sen. Jacob Howard).
127. id. (discussing disagreement over precise wording, but not substance, of Thirteenth Amendment).
128. See Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 48 (1986) (Republicans believed that the Thirteenth Amendment effectively overruled Dred Scott so that blacks were entitled to all rights of citizens.)
129. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1816 (2010) [hereinafter Balkin, Reconstruction Power] (The Reconstruction Republicans believed that once blacks became free, they enjoyed all the rights of citizens.).
130. See Cong. Globe, 39th Cong., 1st Sess. 499 (1866) (statement of Sen. Edgar Cowan) (That amendment, everybody knows and nobody dare deny, was simply made to liberate the negro slave from his master. That is all there is of it.)
131. id. at 477 (statement of Sen. Willard Saulsbury) ([T]he effect of that amendment is simply to say that a person who heretofore was a slave of another shall be no longer his slave, and it operates no further.).
132. Curtis, supra note 85, at 48
133. Balkin, Reconstruction Power, supra note 85, at 1816.
134. See Cong. Globe, 38th Cong., 1st Sess. 1488 (1864) (statement of Sen. Lyman Trumbull) (noting he was unsure that phrases copied from the French Revolution[] are the best words for us to adopt).
135. See id. at 1489 (statement of Sen. Jacob Howard) (stating he preferred good old Anglo-Saxon language employed by our fathers in the ordinance of 1787 over French constitutions or French codes).
136. Compare Atkins v. Virginia, 536 U.S. 304, 347-348 (2002) (Scalia, J., dissenting) (criticizing use of foreign materials in interpreting Eighth Amendment's Cruel and Unusual Punishments Clause)
137. Printz v. United States, 521 U.S. 898, 921 n.11 (1997) (Scalia, J.) (distinguishing between use of foreign examples in drafting constitution and interpreting existing one).
138. See Cong. Globe, 38th Cong., 1st Sess. 1488 (1864) (statement of Sen. Lyman Trumbull) (pointing out that even if proposed language was not perfect, a majority of the committee thought they were the best words they accomplish the object, and that if senators bickered over minor changes in wording we shall have very little legislation).
139. Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery and the Thirteenth Amendment 58-59 (2001) (Trumbull played to the War Democrats by claiming that the committee simply borrowed the language of Thomas Jefferson).
140. See, e.g., Cong. Globe, 38th Cong., 1st Sess. 1488 (1864) (statement of Sen. James R. Doolittle) (They are both in the Jeffersonian ordinance.)
141. see also Vorenberg, supra note 92, at 59 (The 'Jeffersonian' label stuck to the Amendment throughout the congressional debates.).
142. 554 U.S. 570, 608 (2008).
143. See Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 Harv. L. Rev. 145, 173 (2008) ([L]ater commentary is at best imperfect evidence of what the American people meant when they discussed, drafted, and ratified an arms-bearing amendment in the years between 1787 and 1791.)
144. Jack M. Balkin, Is Heller an Original Meaning Decision?, Balkinization (July 2, 2008, 9:31 AM), http://balkin.blogspot.com/ 2008/07/is-heller-original-meaning-decision.html (on file with the Columbia Law Review) (arguing Scalia's best evidence comes from nineteenth-century views, which may be permissible constructions of text but should not be confused with its original meaning).
145. Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2752-2753 (2011) (Thomas, J., dissenting) (looking to Puritan childrearing practices to understand children's lack of First Amendment rights at Founding and arguing that [a] complete understanding of the founding generation's views on children and the parent-child relationship must therefore begin roughly a century [earlier than the Founding] in colonial New England).
146. See Balkin, Living Originalism, supra note 54, at 228-229, 257-258, 333 (treating history as resource that helps interpreters generate permissible constructions consistent with original meaning of text).
147. Id. at 7 (When adopters use [vague or abstract] language that delegates constitutional construction to future generations, fidelity to the Constitution requires future generations to engage in constitutional construction.).
148. Id. at 23, 199-200, 228-29, 256-58, 268-70, 333, 342 n.2 (describing use of history as resource for construction).
149. See Alison L. LaCroix, The Ideological Origins of American Federalism 81-83 (2010).
150. Id. at 83.
151. Id. at 82.
152. Bernard Bailyn, Ideological Origins of the American Revolution 232 (enlarged ed. 1992).
153. Id. at 233.
154. Id. at 234 (citation omitted)
155. Id. (emphasis added).
156. The Humble Advice, and Tender Declaration, or Remonstrance of Several Thousands of Men Fearing God, in the County of Durham, Northumberland, and the Adjacent Parts of Westmerland and Cumberland, with the North Part of Yorkshire
157. To the Lord General Monk and Those with Him (London, Henry Hills 1659).
158. T.J., A Letter of Advice to His Excellency the Lord General Monck, Tending to the Peace and Welfare of this Nation 3-4 (n.p. 1659).
159. John Penruddock, Speech Delivered upon the Scaffold in Exon Castle (May 16, 1655), in England's Black Tribunal Set Forth in the Tryal of King Charles I. By the Pretended High Court of Justice in Westminster-Hall 161, 165 (London, H. Playford 4th ed. 1703).
160. The Picture of the Good Old Cause Drawn to Life in the Effigies of Master PraisGod Barebone (London, 1660).
161. To the Parliament of the Common-wealth of England, &c., The Humble Petition and Representation of Divers Well-Affected of the County of South-hampton (London, R.W. 1659).
162. See Fairman, supra note 69, at 564 (reporting Justice Bradley's observations).
163. Rule, Britannia! Lyrics, http://www.hymns.me.uk/rule-brittania-lyrics.htm (on file with the Columbia Law Review) (last visited June 20, 2012). We are grateful to Eugene Fidell for suggesting the importance of these lyrics to us.
164. Bailyn, supra note 103, at 232-233 (emphasis in original).
165. Id. at 233.
166. Id. (citing John Adams, Novanglus, in 4 The Works of John Adams 11, 28 (Charles Francis Adams ed., Boston, Charles C. Little & James Brown 1851)).
167. Benjamin Church, Liberty and Property Vindicated, and the St-pm-n Burnt, in Pamphlets of the American Revolution, 1750-1776, at 580, 596 (Bernard Bailyn ed., 1965).
168. Aziz Rana, The Two Faces of American Freedom 3, 12-14, 22-23 (2010).
169. Algernon Sidney, Discourses Concerning Government (London, A. Millar 3d ed. 1751).
170. Id. § 21, at 349.
171. Id. § 21, at 349-350.
172. Extract of a Letter from a Young Man in the Army at New-York, to His Father in Town, dated New-York, July 13, 1776, Am. Gazette, or, the Const. J.
173. (Salem, Mass.), July 23, 1776, at 24
174. quoted in Alexander Tsesis, For Liberty and Equality: The Life and Times of the Declaration of Independence 27 (2012).
175. Letter from Samuel Adams to Richard Henry Lee (Dec. 3, 1787), in 1 The Founders' Constitution 267, 268
176. (Philip B. Kurland & Ralph Lerner eds., 1987). Nor are these isolated examples. Consider, for example, a survey of only the primary sources in the chapter on Republican Government in the first volume of Kurland and Lerner's compendium: [W]hen republican virtues fail, slavery ensues. Thomas Paine, Common Sense (1776), reprinted in The Founders' Constitution, supra, at 103, 107.
177. [T]here not being in the whole circle of the sciences, a maxim more infallible than this, 'Where annual elections end, there slavery begins.' John Adams, Thoughts on Government (1776), reprinted in The Founders' Constitution, supra, at 107, 109.
178. Thus, if a man surrender [sic] all his alienable rights, without reserving a controul over the supreme power, or a right to resume in certain cases, the surrender is void, for he becomes a slave a slave can receive no equivalent. The Essex Result (1778), reprinted in The Founders' Constitution, supra, at 112, 115 (explaining rejection of draft Massachusetts Constitution).
179. A city composed only of the rich and the poor, consists but of masters and slaves, not freemen John Adams, Defence of the Constitutions of Government of the United States (1787), reprinted in The Founders' Constitution, supra, at 119, 121.
180. [C]an a free and enlightened people create a common head so extensive, so prone to corruption and slavery, as this city probably will be, when they have it in their power to form one pure and chaste, frugal and republican. Federal Farmer, No. 18 (1788), reprinted in The Founders' Constitution, supra, at 132, 133 (expressing concern about Congress's power to create new national capital).
181. John C. Calhoun, The Fort Hill Address (1831), in Theories of Federalism: A Reader 135, 138 (Dimitrios Karmis & Wayne Norman eds, 2005).
182. Republican Party Platform of 1956 (Aug. 20, 1956), available at http://www.presidency.ucsb.edu/ws/index.php?pid=25838#ixzz1cxgbkwcl (on file with the Columbia Law Review).
183. Chris Matthews, Jack Kennedy: Elusive Hero 87 (2011).
184. See Noah Kristula-Green, The Tea Party's Growing Slavery Obsession, FrumForum (Aug. 5, 2010, 3:30 PM), http://www.frumforum.com/the-tea-partys-growingslavery-obsession/ (on file with the Columbia Law Review) (linking to videos of town hall event on Affordable Care Act and Rick Barber commercial).
185. Barber4Congress, Slavery, YouTube (June 27, 2010), http://www.youtube.com/ watch?v=kn14RwuJJRg (on file with the Columbia Law Review).
186. ThinkProgress5, Rand Paul Equates Universal Health Care and Slavery, YouTube (May 11, 2011), http://www.youtube.com/watch?feature=player_embedded&v=u_HVyoT2PgM (on file with the Columbia Law Review).
187. See Deborah L. Rhode, Pro Bono in Principle and in Practice: Public Service and the Professions 9-10, 38 (2005) (describing various unsuccessful Thirteenth Amendment arguments and criticizing those who use these arguments to justify their refusal to provide a little legal help to those, who in today's society, are most like the freed slaves).
188. The most obvious association is to modern libertarian classics, such as Robert Nozick's Anarchy, State, and Utopia. But Nozick's work is far more radical than that of the Founders, who, after all, believed in the legitimacy of taxation with representation.
189. See Robert Nozick, Anarchy, State, and Utopia 280-284 (1974) (describing thought experiment of demoktesis and showing inconsistency between democracy and libertarianism). One should also acknowledge the work of the indefatigable Randy Barnett, both with regard to his attempts to revive the works of such nineteenth-century anarchists as Lysander Spooner and his own work defending libertarianism, including its application to the United States Constitution.
190. See generally Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004) (describing Barnett's libertarian theory of constitutional interpretation)
191. Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (2000) (describing Barnett's libertarian political theory).
192. The Massachusetts colonists who feared that the British wished to reduce them to the status of slaves lived in a regime where slavery was legal. There were more than 400 slaves in Boston in 1705, and the Commonwealth did not abolish slavery until 1783. Black Heritage Trail, Museum of African American History, http://www.maah.org/trail.htm (on file with the Columbia Law Review) (last visited May 30, 2012).
193. Slavery was effectively abolished by a 1783 Massachusetts state court decision interpreting the 1780 constitution, drafted in large measure by John Adams, which declared that all men are born free and equal, and have... the right of enjoying and defending their lives and liberty. Commonwealth v. Jennison (Mass. 1783) (unreported)
194. Paul Finkelman, The Law of Freedom and Bondage 36-37 (1986).
195. Interestingly enough, the 1778 draft constitution that had been rejected by the populace both recognized slavery and deprived free blacks of suffrage. Emancipation in Massachusetts, Slavery in the North, http://www.slavenorth.com/massemancip.htm (on file with the Columbia Law Review) (last visited Aug. 8, 2012).
196. Vermont, not yet a state, had, as the independent Commonwealth of Vermont, abolished slavery in 1777. Slavery in Vermont, Slavery in the North, http://www.slavenorth.com/vermont.htm (on file with the Columbia Law Review) (last visited Aug. 8, 2012).
197. See supra text accompanying note 126 ([H]e is a slave who serves the best and gentlest man in the world.).
198. Just as the revolutionary generation opposed republicanism to slavery, early abolitionists opposed slavery to republicanism. This opposition was stated perhaps most forcefully in the early debates that led up to the Missouri Compromise. In 1819, Representative Timothy Fuller of Massachusetts argued that because the United States government was required to guarantee each state a republican form of government, Congress could not admit Missouri as a slave state, because a state whose constitution recognized slavery was not republican, and Fuller proceeded to quote the Declaration of Independence as proof. 33 Annals of Cong. 1179-1180 (1819)
199. (statement of Rep. Timothy Fuller). At this point, the report of the congressional proceedings continued: Mr. F was here interrupted by several gentlemen, who thought it improper to question in debate the republican character of the slaveholding states, which had also a tendency, as one gentleman (Mr. Colston, of Virginia,) said, to deprive those states of the right to hold slaves as property, and he adverted to the probability that there might be slaves in the gallery listening to the debate.
200. Id. at 1180. Fuller, simply by putting together the language of the Guarantee Clause and the framers' idea that slavery was antirepublican, had thrown a rhetorical hydrogen bomb into the debate
201. If Fuller was right, not only should Missouri not be admitted as a slave state, but the United States had a duty to end slavery in all of the existing slave states as well. Fuller quickly backtracked, but only partly, assur[ing] the gentlemen that nothing was further from his thoughts than to question on that floor the right of Virginia and other States, which held slaves when the Constitution was established, to continue to hold them. Id. Those states were grandfathered in, and Congress could do nothing to disturb them. Although Fuller did not wish to excite local animosities, he nevertheless claimed that a republican government was a government without slavery, a government in which all men are free, and have an equal right to liberty, and all other privileges.
202. Id. at 1182. Out of necessity, and for the sake of preserving the Union, slaveholding states were permitted to make exceptions to this principle only so far as necessary until they should think it proper or safe to conform to the pure principle by abolishing slavery.
203. see Wiecek, supra note 55, at 143-147 (discussing role played by Guarantee Clause in debates over Missouri Compromise). Fuller's 1819 argument that the federal government lacked the power to create new slave states was eventually taken up by the Republican Party in the 1850s in a different form. Relying primarily on the Due Process Clause, Republicans argued that slavery could not exist in federal territories.
204. See Jacobus tenBroek, Equal Under Law 140-141 & nn.5-6 (1965) (describing Due Process argument in Republican Party platforms)
205. Republican Platform of 1856, in 1 National Party Platforms, supra note 76, at 27 ([I]t becomes our duty to maintain this [due process] provision of the Constitution against all attempts to violate it for the purpose of establishing Slavery in the Territories... by positive legislation)
206. see generally Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of The Fourteenth Amendment, 3 J. of Legal Analysis 165, 177-183 (2011) (describing development of abolitionist and antislavery arguments based on Due Process Clause in antebellum era).
207. Cf. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 24 (2000) (noting gradual dismantling of property qualifications in United States in antebellum period).
208. See infra text accompanying notes 152, 167-169 (describing early suffragists' comparison between marriage and slavery).
209. See infra text accompanying notes 143-150, 156-166 (describing arguments comparing wage labor to slavery).
210. James Henry Hammond, Letter to an English Abolitionist (Jan. 28, 1845), in The Ideology of Slavery: Proslavery Thought in the Antebellum South, 1830-1860, at 168, 171 (Drew Gilpin Faust ed., 1981).
211. See George Fitzhugh, Cannibals All!, or Slaves Without Masters 28 (C. Vann Woodward ed., Harvard Univ. Press 1960) (1857) [hereinafter Fitzhugh, Cannibals All] (Masters treat their sick, infant, and helpless slaves well, not only from feeling and affection, but from motives of self-interest.).
212. Hammond, supra note 143, at 177.
213. Id. at 193.
214. Id. at 196.
215. Fitzhugh, Cannibals All, supra note 144
216. Eugene D. Genovese, The World the Slaveholders Made: Two Essays in Interpretation 124-131 (1969) (providing extensive discussion of George Fitzhugh and his defense of chattel slavery).
217. George Fitzhugh, Southern Thought, XXIII De Bow's Rev. 337 (1857)
218. reprinted in The Ideology of Slavery, supra note 143, at 274, 275.
219. Id. at 277
220. Had Fitzhugh wished, of course, he could have borrowed extensively from Friedrich Engels's masterwork, The Condition of the Working-Class in England in 1844, which described the travails of workers in Birmingham. Friedrich Engels, The Condition of the Working-Class in England in 1844 (Florence Kelley Wischnewetzky trans., George Allen & Unwin 1950) (1892).
221. Richard Hofstadter long ago referred to John C. Calhoun as the Marx of the master class, Richard Hofstadter, The American Political Tradition, and the Men Who Made It 87 (1946), but that title really should go to Fitzhugh.
222. See Fitzhugh, Cannibals All, supra note 144, at 205 ([B]esides wife and children, brothers and sisters, dogs, horses, birds and flowers-slaves, also, belong to the family circle [T]he interests of the master and slave are bound up together, and each in his appropriate sphere naturally endeavors to promote the happiness of the other.).
223. Stanley, supra note 23, at 179 (quoting Elizabeth Cady Stanton on nearly parallel status of slave codes and laws governing married women).
224. Cong. Globe, 36th Cong., 1st Sess. 2591-2592 (1860) (statement of Sen. Charles Sumner).
225. William Lloyd Garrison, Chattel Slavery and Wages Slavery, The Liberator, Oct. 1, 1847, at 17, 40.
226. Labor organizer William West disagreed with Garrison, arguing that [t]his apparent freedom of the wage slaves is wholly fictitious. Stanley, supra note 23, at 20.
227. In the very first case construing the Thirteenth Amendment, The SlaughterHouse Cases, 83 U.S. (16 Wall.) 36 (1873), the plaintiff butchers argued that the Thirteenth Amendment's ban on involuntary servitude was designed to throw off all vestiges of European feudalism. A New Orleans ordinance required that butchers practice their trade only in slaughterhouses run by seventeen named individuals who ran a statecreated monopoly.
228. Id. at 59
229. id. at 83 (Field, J., dissenting). This, the plaintiffs argued, was like European feudal rules that bound serfs to engage in agriculture only on an assigned plot of land owned by a feudal lord. New Orleans had made the butchers subject to the arbitrary will of a corporation just as peasants had been subject to the arbitrary will of an overlord: Is not this a servitude? Might it not be so considered in a strict sense? It is like the thirlage of the old Scotch law and the banalités of seignioral France
230. which were servitudes undoubtedly. But, if not strictly a servitude, it is certainly a servitude in a more popular sense, and, being an enforced one, it is an involuntary servitude. Men are surely subjected to a servitude when, throughout three parishes, embracing 1200 square miles, every man and every woman in them is compelled to refrain from the use to their corporation. The abused persons are the community, who are deprived of what was a common right and bound under a thraldom.
231. Id. at 50-51 (reporting plaintiffs' argument). Justice Field's dissent, while not conclusively resolving the Thirteenth Amendment issue, agreed that the comparison to feudalism was apt: The prohibitions imposed by this act upon butchers and dealers in cattle in these parishes, and the special privileges conferred upon the favored corporation, are similar in principle and as odious in character as the restrictions imposed in the last century upon the peasantry in some parts of France
232. Id. at 92-94 (Field, J., dissenting). The majority dismissed the butchers' Thirteenth Amendment argument curtly, labeling it a microscopic search... to find in [the Thirteenth Amendment]... a reference to servitudes, which may have been attached to property in certain localities.
233. Id. at 69 (majority opinion). Justice Miller, writing for the majority, reasoned that only servitude to a person was covered by the Amendment, not a servitude to land, and the obvious purpose was to forbid all shades and conditions of African slavery. Id. In this way, Justice Miller neatly sidestepped the plaintiffs' real argument-that a revival of feudal practices, because they were inherently antirepublican, would also violate the Thirteenth Amendment.
234. George W. Julian, The Lessons of the Anti-Slavery Conflict, Address Before the Anti-Slavery Reunion (June 10, 1874), in Chi. Trib., July 11, 1874, at 10.
235. Comm. of the Senate, 48th Cong., Report of the Committee of the Senate upon the Relations Between Labor and Capital, and Testimony Taken by the Committee 219 (1885).
236. T.V. Powderly, Thirty Years of Labor: 1859 to 1889, at 545 (Columbus, Excelsior Publ'g House 1890).
237. Stanley, supra note 23, at 86.
238. Samuel Gompers Papers 185 (Stuart B. Kaufman ed., 1986).
239. The Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony 178 (Ann D. Gordon ed., 2000)
240. see also Nancy Isenberg, Sex and Citizenship in Antebellum America 107-108 (1998) (describing various comparisons suffragists made between married women and slaves, including civil death that both slaves and married women suffered).
241. Stanley, supra note 23, at 177 (quoting Letter from Elizabeth Cady Stanton to Gerrit Smith (1851)).
242. Ida Husted Harper, Life and Work of Susan B. Anthony 1011 (1969).
243. Henry Sumner Maine, Ancient Law 170 (London, John Murray 11th ed. 1887) ([T]he movement of the progressive societies has hitherto been a movement from Status to Contract.).
244. See Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) (overturning Child Labor Tax Act)
245. Hammer v. Dagenhart, 247 U.S. 251 (1918)(overturning Keating-Owen Act of 1916).
246. See Dina Mishra, Child Labor as Involuntary Servitude: The Failure of Congress To Legislate Against Child Labor Pursuant to the Thirteenth Amendment in the Early Twentieth Century, 63 Rutgers L. Rev. 59, 63 (2010) (Throughout this period, Congress never once attempted to enact child labor legislation pursuant to its power under [Section 2 of] the Thirteenth Amendment.). Mishra notes two interesting facts about Progressiveera attempts to outlaw child labor at the federal level. First, [t]hroughout this early stage of the movement to federally limit child labor, members of Congress failed to conceive of the Thirteenth Amendment's prohibition of involuntary servitude as a legislative basis.
247. Id. at 75. Second, the descriptions of child labor in congressional hearings and debates during this period invoked terminology and concepts underlying the Thirteenth Amendment.
248. Id. at 76. Indeed, a few members of Congress even compared child labor to slavery and to peonage systems, which Congress could surely reach under Section 2 of the Thirteenth Amendment.
249. Id. at 79, 93. Yet congressmen and senators were either unable or unwilling to connect the dots. Indeed, the House Judiciary Committee refused even to consider a Thirteenth Amendment theory in a bill proposed by Samuel Gompers, president of the American Federation of Labor, and drafted by a government attorney James F. Lawson.
250. Id. at 89 & n.193
251. Nor did Congress invoke its Thirteenth Amendment power in passing the Mann Act, ch. 395, 36 Stat. 825 (1910) (codified as amended at 18 U.S.C. §§ 2421-2424), the White Slave Traffic Act that originally banned transportation of women across state lines for immoral purposes.
252. Id. at 83 n.143. Mishra offers several different explanations for why Congress was unwilling to consider Thirteenth Amendment theories, but ultimately concludes that the failure is surprising.
253. Id. at 91. Mishra's study is evidence of the multiple and overlapping forms of thought and practice that have limited the Thirteenth Amendment's reach.
254. Although the Thirteenth Amendment, by its terms, excludes criminal punishments from its reach, it is worth noting that American prisoners have sometimes been treated worse than antebellum slaves. David Oshinsky's important book about the Parchman prison system in Mississippi compares conditions at Parchman to chattel slavery and finds the slaves better off. David M. Oshinsky, Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (unpaginated opening page) (1996).
255. L.G. Shivers, writing in 1930, stated that [t]he convict's condition [following the Civil War] was much worse than slavery. The life of the slave was valuable to the master, but there was no financial loss... if a convict died. Id. at unpaginated opening page cf.
256. Sanford Levinson, Slavery and the Phenomenology of Torture, 74 Soc. Res. 149, 150 (2007) (arguing torture, like slavery, depends on creation of perception that victims have 'no rights' that the rest of us are 'bound to respect' (quoting Scott v. Sandford, 60 U.S. 393, 407 (1857))).
257. The Thirteenth Amendment's exclusion of criminal punishments has also been used to justify chain gangs and other forms of convict labor, especially in the South. See, e.g., Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2009) (offering a history of systems of convict labor).
258. Blackmon notes that his book, examining convict labor in Birmingham, Alabama, was inspired by asking a provocative question: What would be revealed if American corporations were examined through the same sharp lens of historical confrontation as the one then being trained on German corporations that relied on Jewish slave labor during World War II and the Swiss banks that robbed victims of the Holocaust of their fortunes?
259. Id. at 3.
260. See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 2 (2010) ([W]e use our criminal justice system to label people of color 'criminals' and then engage in all the practices we supposedly left behind.).
261. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747-748 (2007) (opinion of Roberts, C.J.) (Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts... have not... demonstrat[ed] that we should allow this once again-even for very different reasons.)
262. id. at 773-780 (Thomas, J., concurring) (The segregationists in Brown embraced the arguments the Court endorsed in Plessy. Though Brown decisively rejected those arguments, today's dissent replicates them to a distressing extent.).
263. See Amar & Widawsky, supra note 78, at 1363-1365 (analogizing parental child abuse to antebellum slavery and arguing that Thirteenth Amendment provides remedy).
264. See Memorandum from Jay C. Bybee, Assistant Attorney Gen., to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), available at http://www.justice.gov/olc/docs/memo-gonzales-aug2002.pdf (on file with the Columbia Law Review) (adopting very narrow construction of torture in federal statutes in order to insulate certain interrogation practices from liability under domestic and international law).
265. See Peonage Abolition Act, ch. 187, 14 Stat. 546, 546 (1867) (codified as amended at 18 U.S.C. § 1581, 42 U.S.C. § 1994).
266. See Mishra, supra note 168, at 82 (describing purposes of Mann Act).
267. Harriet Beecher Stowe, Uncle Tom's Cabin (Signet Classic 1962) (1852).
268. Toni Morrison, Beloved (1987).
269. Sensitivity about political uses of the term slavery is not merely a matter of liberal objections to Tea Party rhetoric. Republicans pounced on Vice President Joseph Biden when he suggested during a campaign speech in Virginia before an audience including many African Americans that Romney wants to let... the big banks once again write their own rules, unchain Wall Street. They're going to put you all back in chains. Rebecca Berg, Biden Warns Romney Policies Would Put Crowd Back in Chains, N.Y. Times The Caucus (Aug. 14, 2012, 2:14 PM), http://thecaucus.blogs.nytimes.com/2012/08/14/biden-warns-romney-policie s-would-put-crowd-back-in-chains/ (on file with the Columbia Law Review) (last updated Aug. 14, 2012, 9:43 PM).
270. Former Mayor of New York Rudolph Giuliani, although proclaiming that I don't think... [Biden is] nuts, nevertheless went on to wonder if he's got the kind of balance-probably what I should have said is the balance to be president of the United States. Brian Knowlton, Giuliani and Santorum Assail Biden for Virginia Speech, N.Y. Times The Caucus (Aug. 19, 2012, 1:30 PM), http://thecaucus.blogs.nytimes.com/2012/08/19/giuliani-and-santorum-assa ilbiden-for-virginia-speech/ (on file with the Columbia Law Review). Former Pennsylvania Senator Rick Santorum was less charitable he denounced Biden's language as horrendous and accused the Vice President of playing the race card.
271. Noting that a conservative politician who had made similar remarks would be pilloried for racial insensitivity, the reliably liberal Boston Globe argued in an editorial that Biden should apologize for this gaffe. Editorial, Biden Should Apologize: "Back in Chains," Bos. Globe Aug. 17, 2012, at A14.
272. Transcript of Oral Argument at 80
273. Florida v. Dep't of Health & Human Servs. (No. 11-400), decided sub nom.
274. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (emphasis added).
275. For a recent cri de coeur, see Lawrence Lessig, Republic, Lost: How Money Corrupts Congress-and a Plan To Stop It (2011) (arguing for campaign finance reform to prevent political corruption).
276. Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age 286 (2008)
277. see also Timothy Noah, The Great Divergence: America's Growing Inequality Crisis and What We Can Do About It (2012).
278. See A Bartels, supra note 181, at 253, 275, 286 (testing this hypothesis in context of U.S. Senate)
279. Martin Gilens, Inequality and Democratic Responsiveness, 69 Pub. Opinion Q. 778, 794 (2005) ([I]nfluence over actual policy outcomes appears to be reserved almost exclusively for those at the top of the income distribution.)
280. See Bartels, supra note 181, at 286 (noting the potential for a debilitating feedback cycle linking the economic and political realms).