The Thirteenth Amendment and the regulation of custom

Columbia Law Review

Volumn 112, Issue 9, 2012, Pages 1811-1854

  Miller, Darrell A H ^a  

^a UNIVERSITY OF CINCINNATI   (United States)

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EID: 84874003150     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (406)

1. E.g., Susan Bandes, Monnell, Paratt, Daniels, and Davidson: Distinguishing a Custom or Policy from a Random, Unauthorized Act, 72 Iowa L. Rev. 101, 104 (1986) (discussing distinction between random acts and government customs under § 1983)
2. Myriam E. Gilles, Breaking the Code of Silence: Rediscovering Custom in Section 1983 Municipal Liability, 80 B.U. L. Rev. 17, 49-50 (2000) (discussing failure of contemporary jurisprudence to adequately take into account custom in civil rights enforcement under § 1983).
3. E.g., George Rutherglen, Custom and Usage as Action Under Color of State Law: An Essay on the Forgotten Terms of Section 1983, 89 Va. L. Rev. 925, 927 (2003) [hereinafter Rutherglen, Custom and Usage] (discussing role of custom in understanding 42 U.S.C. § 1983 and its relationship to Fourteenth Amendment).
4. Civil Rights Act of 1866, ch. 31, § 2, 14 Stat. 27 (declaring anyone, who, through custom, deprives another of rights protected by Act is guilty of a misdemeanor)
5. accord Jones v. Alfred H. Mayer Co., 392 U.S. 409, 423 (1968) (To the Congress that passed the Civil Rights Act of 1866, it was clear that [the rights guaranteed under the Act] might be infringed not only by 'State or local law' but also by 'custom, or prejudice.' (quoting Cong. Globe, 39th Cong., 1st Sess., 129, 209 (1866)).
6. See United States v. Kozminski, 487 U.S. 931, 942 (1988) ([T]he Thirteenth Amendment extends beyond state action)
7. The Civil Rights Cases, 109 U.S. 3, 20 (1883) (recognizing power under Amendment to act direct and primary upon acts of individuals)
8. George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1370 (2008) [hereinafter Rutherglen, State Action] (remarking on Thirteenth Amendment's unique applicability to private conduct).
9. See, e.g., Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359, 1368 (1992) ([T]he Thirteenth Amendment broke sharply with custom insofar as custom condoned the condition of slavery.)
10. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1817 (2010) (To enforce the Thirteenth Amendment, Congress must disestablish all the institutions, practices, and customs associated with slavery and make sure they can never rise up again.).
11. One welcome exception in this regard is William Carter, who has discussed in more detail how custom interacts with the Thirteenth Amendment analysis. 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, 1365-1379 (2007) (discussing custom, race, and badges and incidents of slavery).
12. This Essay attempts to fit his insights on custom into a larger structural and theoretical framework describing the regulation of custom in general, its historical provenance, and its potential in Thirteenth Amendment construction
13. See, e.g., Robert C. Ellickson, The Evolution of Social Norms: A Perspective from the Legal Academy, in Social Norms 35, 44 (Michael Hechter & Karl-Dieter Opp eds., 2001) (discussing concept and role of norm entrepreneurs)
14. Cass R. Sunstein, On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021, 2031-2033 (1996) (discussing how law and private norm entrepreneurs work together to change behavior).
15. Morton J. Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy 123 (1992).
16. Horwitz used this image to describe the fact that conservative legal thinkers of the late nineteenth century invoked custom to avoid the perils of natural rights individualism and unchecked majoritarian legislation.
17. Benjamin Franklin, William Temple Franklin & William Duane, Memoirs of Benjamin Franklin 214 (New York, Derby & Jackson 1859) (1818) (transcribing examination of Franklin before House of Commons in 1766).
18. E.g., John Hawles, The Englishman's Right: A Dialogue Between a Barrister at Law and a Juryman 9 (London, Free-School, Gower's Walk 1844) (1680).
19. See James Q. Whitman, Why Did the Revolutionary Lawyers Confuse Custom and Reason?, 58 U. Chi. L. Rev. 1321, 1323-1327 (1991) (discussing muddled nature of how founding-era lawyers used word custom)
20. see also infra Part I.A (examining custom as form of higher law).
21. See Rutherglen, Custom and Usage, supra note 2, at 928 (Custom was not always confined to such a derivative role. It used to be a source of law that public officials were required to recognize, which preexisted their official acts and survived afterward as well.).
22. But see Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale L.J. 202, 229 (2010) (identifying Chief Justice Marshall's opinion on legitimacy of slave trade in The Antelope, 23 (10 Wheat.) U.S. 66 (1825), as example of legal positivism).
23. See District of Columbia v. Heller, 554 U.S. 570, 591-592 (2008) (finding right to keep and bear arms for confrontation preexists constitutional text).
24. See Hans v. Louisiana, 134 U.S. 1, 15 (1890) (discussing common law tradition of sovereign immunity from suit reflected in Eleventh Amendment).
25. See Roe v. Wade, 410 U.S. 113, 152-153 (1973) (finding right to abortion is substantive due process right).
26. For a sustained discussion of this idea, see generally Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1156 (1987) [hereinafter Sherry, Unwritten Constitution] (discussing Bill of Rights in particular as simply codifying certain fundamental natural law rights).
27. See Whitman, supra note 11, at 1331-1341 (discussing decline of local custom).
28. See Riorden v. Clarke, 8 S.W.3d 182, 185 (Mo. Ct. App. 1999) (permitting lower court to use custom and practice to interpret ambiguous statutory term travel time)
29. Omri Ben-Shahar, Agreeing to Disagree: Filling Gaps in Deliberately Incomplete Contracts, 2004 Wis. L. Rev. 389, 394 (noting Uniform Commercial Code gives broad permission for courts to fill gaps by incorporating practices and unwritten customs (citing U.C.C. § 2-204(3) (1977))).
30. Ellickson, supra note 7, at 35-36. Offering a seat on a train to a pregnant or elderly person might be one such example of a cultural or behavioral norm.
31. Id. at 36 (discussing how internalized norms are self-enforcing)
32. Richard M. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 340 (1997) [hereinafter McAdams, Regulation of Norms] (referring to norms as informal social regulations that individuals feel obligated to follow because of an internalized sense of duty,... fear of external non-legal sanctions, or both).
33. See Frederic W. Maitland & Francis C. Montague, A Sketch of English Legal History 79 (James F. Colby ed., 1915) (observing Magna Carta's own theory of itself... is that the old law, which a lawless king has set at naught, is to be restored, defined, covenanted, and written)
34. see also Hawles, supra note 10, at 8-9 (referring to customs as reified in Magna Carta).
35. Arthur R. Hogue, Origins of the Common Law 177 (1966) (The [common law] principle can exist, without a writing, in the form of a generally accepted tradition.)
36. see also Kunal M. Parker, Common Law, History, and Democracy in America, 1790-1900, at 38 (2011) (discussing distinction as expressed in Matthew Hale, History of the Common Law of England 2 (Lawbook Exchange 2000) (1713)).
37. As Professor Palmer writes, [C]ustoms form part of the cultural-legal history of slavery and their study can provide insights into the theoretical relationship between law and extralegal norms and the nature of legal change. Vernon Valentine Palmer, The Customs of Slavery: The War Without Arms, 48 Am. J. Legal Hist. 177, 178 (2006).
38. See Charles Howard McIlwain, The High Court of Parliament and Its Supremacy 42 (1910) (Laws in feudal times are in the main declarations of existing custom; they are... 'not enactments but records.' (quoting Edward Jenks, Law and Politics in the Middle Ages 61 (London, John Murray 1897)))
39. James R. Stoner Jr., The Idiom of Common Law in the Formation of Judicial Power, in The Supreme Court and American Constitutionalism 47, 50 (Bradford P. Wilson & Ken Masugi eds., 1998) (Common law was, in the first place, the immemorial customary law of England)
40. see also R.H. Helmholz, Christopher St. German and the Law of Custom, 70 U. Chi. L. Rev. 129, 132 (2003) ("Custom [in medieval England] was not simply a background norm. For many purposes it was treated as binding law.").
41. For criticism of this account, see J.W. Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions 1-2 (2000) (arguing medieval evidence is too mixed to establish custom as the only or even the primary way of conceptualizing the common law).
42. John Davies, Preface Dedicatory to Les Reports des Cases & Matters en Ley, Resolves & Adjudges en les Courts del Roy en Ireland (John Davies ed.) (London, E. Flesher, J. Streater, & H. Twyford 1674) (emphasis omitted)
43. see also Parker, supra note 22, at 33-34 (drawing upon Davies and discussing law as self-given, as opposed to hierarchically imposed and inherited by all people).
44. Davies, supra note 25.
45. Whitman, supra note 11, at 1330 (Custom formed the 'basic norm,' the fundamental source of legitimacy upon which 'legal reality'... was founded. (footnote omitted)).
46. (using similar terms to describe Western European notions of custom).
47. (stating that to medieval jurists, [w]hat was not customary, was not right)
48. cf. Burnham v. Superior Court, 495 U.S. 604, 621 (1990) (Scalia, J., plurality decision) (noting that due process limitations of Fourteenth Amendment are determined by traditional notions of fair play and substantial justice and looking to pedigree to determine what is just).
49. See S.F.C. Milsom, Historical Foundations of the Common Law 1 (2d ed. 1981) (describing early courts as essentially community meetings)
50. see also Whitman, supra note 11, at 1330 (noting that customs could only be determined by consensus arrived at during community gatherings).
51. Compurgators, also known as an oath-helpers, were persons who would swear to the soundness of the litigant's oath. If a sufficient number of compurgators swore, the party won.
52. See F.W. Maitland, The Forms of Action at Common Law 12 (A.H. Chaytor & W.J. Whittaker eds., 1979) (1910).
53. Some scholars trace the English jury to this custom. See Laurie L. Levenson, Courtroom Demeanor: The Theater of the Courtroom, 92 Minn. L. Rev. 573, 615 (2008)
54. (When jury trials first began, jurors served as compurgators-individuals who were selected to sit as jurors because they knew the defendant and could, as witnesses, offer opinions regarding the defendant's credibility and law-abiding nature.).
55. Others disagree. See William Forsyth, History of Trial by Jury 69-70 (London, John W. Parker and Son 1852) (arguing that compurgators were distinct from juries).
56. See Whitman, supra note 11, at 1353 ([T]he initial English practice was to determine custom through the consultation of local witnesses-especially as organized into juries.)
57. see also Lysander Spooner, An Essay on the Trial by Jury 25 (Da Capo Press 1971) (1852) (discussing Magna Carta as recognizing that juries had authority to determine justice of law)
58. cf. Hogue, supra note 22, at 187-188 (suggesting 1164 compilation of Constitutions of Clarendon was comparable to work of special jury of experts summoned to offer something like the juror's verdict on general customs of realm).
59. Whitman, supra note 11, at 1360.
60. See id. at 1329-1331, 1352-1353 (describing these forces in both England and continental Europe).
61. E.g., William Blackstone, Commentaries 67
62. Christopher St. Germain, Doctor and Student 17, 34 (William Muchall ed., Cincinnati, Robert Clarke & Co. 1886) (1518).
63. Blackstone also identified an additional type of particular custom: that associated with the civil and canon law and operative only in particular courts or jurisdictions. 1 Blackstone, supra, at 79.
64. See Edward Jenks, English Civil Law, 30 Harv. L. Rev. 1, 15 (1916) (noting 'custom of the realm,' referred to in Blackstone, is the result of the efforts of the King's judges, mainly in the thirteenth and fourteenth centuries, to build up, out of the varying customs of the different parts of England[,] a body of law for unified commonwealth (quoting 1 Blackstone, supra note 36, at *.69)).
65. See Whitman, supra note 11, at 1357, 1360-1361 (discussing switch from local witness testimony about custom to judicial reliance on other judges' statements about what custom is).
66. See Peter Goodrich, Satirical Legal Studies: From the Legists to the Lizard, 103 Mich. L. Rev. 397, 481 (2004) (citing fifteenth-century writer Fortescue's proposition that [t]he ultimate source of reason... was custom and practice so immemorial as to be part of the law of nature and concluding even custom was attributed to a divine rather than human inspiration)
67. Mark D. Walters, The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law, 51 U. Toronto L.J. 91, 108 (2001) (noting connection in Fortescue, who found common law to be a divine, rational, ancient, and perfect embodiment of the ius naturale)
68. Whitman, supra note 11, at 1361 (discussing way in which these concepts were blended).
69. Henry St. John Bolingbroke, A Dissertation upon Parties 108 (3d ed. London, H. Haines 1735).
70. Stewart Jay, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819, 823 (1989) (alteration in original) (quoting E. de Vattel, The Law of Nations, at lvi (J. Chitty ed., Philadelphia, T & J.W. Johnson 1863)).
71. Id. at 822.
72. Id. at 824 (quoting 4 Blackstone, supra note 36, at *.66-*.67)
73. see also id. at 822 (In the eighteenth century a consensus existed that the law of nations rested in large measure on natural law.).
74. See generally, e.g., Pennoyer v. Neff, 95 U.S. 714, 722 (1877) (using public law and public international law to decide whether Oregon could compel California citizen to defend himself in Oregon's courts)
75. Bonham's Case, (1610) 77 Eng. Rep. 646+652
76. 8 Co. Rep. 113b, 118a (suggesting that common law could void an act of Parliament, when an Act of Parliament is against common right and reason)
77. Jonathan F. Mitchell, Stare Decisis and Constitutional Text, 110 Mich. L. Rev. 1, 21 (2011) (arguing that Bonham suggested that established common-law customs could trump a later-enacted act of Parliament).
78. Blackstone, supra note 36, at *.75.
79. Bolingbroke, supra note 40, at 108.
80. See Whitman, supra note 11, at 1365 (observing that eighteenth-century legal scholars faced a tradition that mixed terminology about 'reason' and 'custom,' none of which had clear meaning)
81. see also Stoner, supra note 24, at 49 (discussing how Framers wrote Constitution in idiom of the common law which saw natural rights as complementary).
82. Lawrence M. Friedman, A History of American Law 46 (3d ed. 2005) (Clearly, there was a kind of custom of enslaving blacks, before law explicitly recognized the status of the slave.)
83. Alexander Johnston, Slavery (in U.S. History), in 3 Cyclopædia of Political Science, Political Economy, and of the Political History of the United States 725 (John J. Lalor ed., New York, Charles E. Merrill & Co. 1890) ([N]egro slavery in the colonies never existed or was originally established by law, but that it rested wholly on custom.).
84. John Russell Bartlett, Records of the Colony of Rhode Island and Providence Plantations in New England 243 (Providence, A. Crawford Greene & Brother 1856).
85. See William M. Wiecek, The Origins of the Law of Slavery in British North America, 17 Cardozo L. Rev. 1711, 1746 (1996) [hereinafter Wiecek, Origins] (noting failure of this statute).
86. Robert Walsh, An Appeal from the Judgments of Great Britain Respecting the United States of America 312 (1819) (emphasis omitted) (internal quotation marks omitted).
87. Jacoway v. Denton, 25 Ark. 625, 636 (1869) (holding Federal Constitution's Contracts Clause prevented state constitutional provision abrogating contract for slaves).
88. Jackson v. Bulloch, 12 Conn. 38, 42 (1837).
89. See Richard Hildreth, Despotism in America: An Inquiry into the Nature and Results of the Slave-Holding System in the United States 8 (Boston, Whipple and Damrell 1840) ([B]ut whether one or a thousand [slaves], of those he does own, the laws create him... the absolute master, lord and despot.).
90. For a discussion of the antislavery rhetoric surrounding American independence, see A. Leon Higginbotham, In the Matter of Color: Race and the American Legal Process 371-376 (1978).
91. The Antelope, 23 U.S. (10 Wheat.) 66, 121 (1825)
92. see also Tindal v. Hudson, 2 Del. (2 Harr.) 441, 441 (Del. Super. Ct. 1838) (The origin of slavery will always be traced to conquest).
93. Compare with the United States Supreme Court's discussion of the rights to real property in America and its relationship to conquest in Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 588 (1823) (Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.).
94. See, e.g., Fable v. Brown, 11 S.C. Eq. (2 Hill Eq.) 378, 391-392 (1835) (I think that the true state of the slave must be ascertained by reference to the disabilities of an alien enemy, in which light the heathen were anciently regarded.)
95. Anonymous, Personal Slavery Established by the Suffrages of Custom and Right Reason 11 (Philadelphia, John Dunlap 1773) (arguing liberty of enslaving the Africans and the Heathen round about us comes from Mosaic law).
96. The Antelope, 23 U.S. (10 Wheat.) at 120-121 (referring to law of nations for legitimacy of slavery)
97. Neal v. Farmer, 9 Ga. 555, 568-569 (1851) (tracing slavery to law of nations)
98. Williams v. Johnson, 30 Md. 500, 505 (1869) (finding public history shows slavery was sanctioned and protected by all of the enlightened commercial nations of Europe).
99. Ellen Holmes Pearson, Remaking Custom: Law and Identity in the Early American Republic 116-118 (2011) (citing 2 James Kent, Commentaries on American Law 250 (New York, O. Halsted 1827)
100. St. George Tucker, On the State of Slavery in Virginia (c. 1790), in St. George Tucker, Ten Notebooks of Law Lectures, bk. 9, at 18) (commenting on these analogies).
101. See Fable, 11 S.C. Eq. (2 Hill Eq.) at 390 (The status, the entire civil and political condition of the villein, was, in almost every particular, different from that of our slave.)
102. Commonwealth v. Turner, 26 Va. (5 Rand.) 678, 684-686 (1827) (discussing distinctions between slavery and villenage).
103. See Turner, 26 Va. (5 Rand.) at 685 (looking to laws of ancient Jews, Greeks, and Romans for sources of American slave law).
104. Pearson, supra note 60, at 121 (stating that writers used these sources to deflect rather than absolve themselves of guilt).
105. Thomas R.R. Cobb, An Inquiry into the Law of Negro Slavery, at xxxv (Philadelphia, T. & J.W. Johnson & Co. 1858).
106. For a discussion of the ways writers used natural law to support or condemn slavery, see Parker, supra note 22, at 182-187.
107. Cobb, supra note 64, at 51.
108. 41 U.S. (16 Pet.) 539 (1842).
109. 60 U.S. (19 How.) 393 (1857).
110. Prigg, 41 U.S. (16 Pet.) at 613
111. see Black's Law Dictionary 1382 (9th ed. 2009) (defining recaption as [p]eaceful retaking, without legal process, of one's own property that has been wrongfully taken).
112. Prigg, 41 U.S. (16 Pet.) at 613.
113. There is much disagreement about Prigg, its holding, and its place in the jurisprudence of slavery and freedom.
114. For an unpacking of the Prigg opinions, see generally Paul Finkelman, Sorting Out Prigg v. Pennsylvania, 24 Rutgers L.J. 605 (1993) [hereinafter Finkelman, Sorting Out Prigg].
115. For an account that suggests Prigg is less proslavery than it has been described, see Leslie Friedman Goldstein, A Triumph of Freedom After All?: Prigg v. Pennsylvania Re-Examined, 29 Law & Hist. Rev. 763 (2011).
116. Prigg, 41 U.S. (16 Pet.) at 613 (citing 3 Blackstone, supra note 36, at *.4).
117. Id. at 612.
118. See Finkelman, Sorting Out Prigg, supra note 69, at 636 (arguing that Story's opinion nationalized slavery).
119. See Robert J. Kaczorowski, Fidelity Through History and to It: An Impossible Dream?, 65 Fordham L. Rev. 1663, 1674-1675 (1997) (noting Fugitive Slave Clause expanded... and elevated [recaption] into a new constitutional right that authorized slaveholders to pursue and recover their slave property even when their slaves escaped to a state that did not recognize slavery).
120. See also A Finkelman, Sorting Out Prigg, supra note 69, at 636 (coming to similar conclusion).
121. Scott v. Sandford, 60 U.S. (19 How.) 393, 407, 412 (1857).
122. Id. at 411.
123. Parker, supra note 22, at 186 (quoting George S. Sawyer, Southern Institutes 143 (Philadelphia, J.B. Lippincott 1858)).
124. See John Craig Hammond, Slavery, Freedom, and Expansion in the Early American West 172 (2007) (calling slaveholders' vision one where slavery was... the national norm, freedom the exception)
125. Parker, supra note 22, at 186 (describing argument that freedom was the exception to the underlying universal law of slavery).
126. Parker, supra note 22, at 185 (stating that for proslavery thinkers [s]lavery derived its legitimacy precisely from custom)
127. Pearson, supra note 60, at 114 (remarking on American legists' use of Blackstone to both condemn and justify existence of slavery in America).
128. Dinesh D'Souza summarized the position this way: [The American Founders] produce[d] a Constitution in which the concept of slavery [was] tolerated, in deference to [popular] consent, but nowhere given any moral approval, in recognition of the slave's natural rights. Dinesh D'Souza, The End of Racism: Principles for a Multiracial Society 109 (1995).
129. Suzanna Sherry, Natural Law in the States, 61 U. Cin. L. Rev. 171, 183 n.64 (1992) (It is well-established that neither the Supreme Court nor most state courts used principles of natural justice to abolish slavery.).
130. Id. Compare with England's Somerset decision, which was cited for the proposition that slavery could arise only from positive law. Somerset v. Stewart, (1772) 98 Eng. Rep. 499+510
131. Lofft. 1, 17-18 (opinion of Lord Mansfield, C.J.).
132. But see William M. Wiecek, Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World, 42 U. Chi. L. Rev. 86, 105-109 (1974) [hereinafter Wiecek, Somerset] (discussing some ambiguities of decision that make it less than ringing endorsement for abolition).
133. Blackstone, supra note 36, at *.76.
134. Id. at 76-78.
135. David J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L. Rev. 1375, 1394 (1996)
136. (quoting Le Case de Tanistry, (1608) 80 Eng. Rep. 516+524
137. Dav. 28b+36 (unofficial translation from Law French)).
138. Id. at 1394-1395
139. (citing Haspurt v. Willis, (1670) 86 Eng. Rep. 50 (K.B.)
140. Vent. 71
141. Barker v. Cocker, (1621) 80 Eng. Rep. 471 (K.B.)
142. Hob. 329.
143. Blackstone, supra note 36, at *.78.
144. Lon L. Fuller, The Morality of Law 234 (rev. ed. 1969) ([C]ustomary law... plays an important, though usually silent role, not only in the interpretation of written law, but in helping to supply the gaps that will always be perceived in any body of enacted law.).
145. See Bederman, supra note 85, at 1438-1444 (gathering cases and discussing this phenomenon in context of property disputes)
146. Henry E. Smith, Community and Custom in Property, 10 Theoretical Inquiries L. 5, 36-41 (2009) (discussing role of custom in establishing baselines in regulatory takings jurisprudence).
147. See Wiecek, Somerset, supra note 82, 118-127 (discussing tensions between custom, English common law, natural law, and existence of slavery in England and America).
148. David Bederman identifies a Virginia court which opined that no local or particular custom could develop in the state 'because it lacks the essential ingredient of good custom-it is not immemorial.' Bederman, supra note 85, at 1400 (quoting Harris v. Carson, 34 Va. (7 Leigh) 632, 638-639 (1836)).
149. Blackstone himself appears to have reconsidered the relationship between slavery and the common law, softening the strong abolitionist language of his first edition of the Commentaries. See Wiecek, Somerset, supra note 82, at 98-99 (discussing Blackstone's modification of his initial position).
150. Wright's Lessee v. Cannon, 1 Del. Cas. 227, 228 (1796) (citation omitted) (citing Pirate v. Dalby, 1 Dall. 167, 169 (Pa. 1786)).
151. Jackson v. Bulloch, 12 Conn. 38, 42 (1837).
152. see also Wiecek, Somerset, supra note 82, at 123 (discussing the Bulloch decision).
153. See Williams v. Johnson, 30 Md. 500, 506 (1869) (stating slavery was established by local law only and was entirely distinct in its origin and authority, and in its territorial and personal extent from the common law (internal quotation marks omitted) (citation omitted))
154. see also Miller v. McQuerry, 17 F. Cas. 335, 336 (C.C.D. Ohio 1853) (No. 9583) (suggesting that Southern customs had made slavery legal, notwithstanding lack of express legislative authorization, and contrary English common law traditions).
155. Jonathan A. Bush, Free to Enslave: The Foundations of Colonial American Slave Law, 5 Yale J.L. & Human. 417, 426 (1993) (noting that slave norms occurred outside legal forms including private rule-making by slave owners).
156. See infra text accompanying notes 100-130 (discussing use of custom by courts and legislatures in context of slavery).
157. Palmer, supra note 23, at 177-178.
158. Rutherglen, Custom and Usage, supra note 2, at 938 (noting this paradox as challenge to coherent slave law)
159. see also Bush, supra note 97, at 420 (In the end, colonists awkwardly and often implicitly fitted the issues raised by their slaveholding into the traditional categories of the common law.).
160. See, e.g., Orlando Patterson, Slavery and Social Death 95-96 (1982) (identifying degradation and dependence as features of Southern slave society).
161. Pirate v. Dalby, 1 Dall. 167, 168 (Pa. 1786).
162. Id. at 169 (emphasis added)
163. accord United States v. Sanders, 27 F. Cas. 950, 951 (C.C.D. Ark. 1847) (No. 16,220) (identifying doctrine as common law borrowing from civil law)
164. Wilks's Adm'r v. Greer, 14 Ala. 437, 444-446 (1848) (identifying doctrine as common law custom)
165. Wiecek, Origins, supra note 50, at 1756 (discussing emergence of this civil law legal exotic into America's otherwise common law system).
166. See Palmer, supra note 23, at 179 (When legislators incorporated a custom into positive law, they both dignified and recognized it and highlighted the interplay of statute and custom.).
167. See La. Civ. Code Art. 183 (1824), reprinted in Documentary History of Slavery in North America 177 (Willie Lee Rose ed., 1976) (codifying that slave status follows mother)
168. An Act Relating to Servents [sic] and Slaves (1715), reprinted in Archives of Maryland, Proceedings and Acts of the General Assembly of Maryland, April, 1715-August, 1716, at 289 (William Hand Browne ed., 1910) (providing that children of slaves would be slaves for their natural lives).
169. George M. Stroud, A Sketch of the Laws Relating to Slavery in the Several States of the United States of America 66 (1827).
170. Respublica v. Mulatto Bob, 4 U.S. 145+145 n.1 (1795).
171. The Fundamental Constitutions of Carolina, Drawn Up by John Locke, March 1, 1669, reprinted in 1 Colonial Records of North Carolina 187, 204 (W.L. Saunders ed., 1886)
172. see also John Spencer Bassett, Slavery and Servitude in the Colony of North Carolina 27 (Baltimore, Johns Hopkins Press 1896)
173. Friedman, supra note 48, at 48.
174. Bassett, supra note 108, at 27
175. see also Friedman, supra note 48, at 48 (discussing customary roots of slave law and citing Bassett).
176. See Wiecek, Somerset, supra note 82, at 93 (discussing how Attorney General and Solicitor General of England decided baptism had no effect on slave status in refectory in Lincoln's Inn in 1729).
177. An Act Relating to Servents and Slaves, supra note 105, at 289 (emphasis added).
178. See An Act to Incourage [sic] the Baptizing of Negro, Indian and Mulatto Slaves, Oct. 21, 1706, as reprinted in 1 The Colonial Laws of New York from the Year 1664 to the Revolution 597-98 (Albany 1894) (declaring that baptism does not create reason for setting a slave free)
179. An Act Declaring That Baptisme Doth Not Exempt Them from Bondage (Virginia 1667), as reprinted in Documentary History of Slavery in North America, supra note 105, at 19.
180. For more on this point, see Paul Finkelman, The Crime of Color, 67 Tul. L. Rev. 2063, 2073-2077 (1993) (discussing laws governing baptism and slave status).
181. Lawrence G. Sager, Congress's Authority to Enact the Violence Against Women Act: One More Pass at the Missing Argument, 121 Yale L.J. Online 629, 631 (2012) (noting that elasticity of common law allowed it to accomodat[e] slavery).
182. For a discussion of the concept of tainted law see Michael C. Dorf, Tainted Law, 80 U. Cin. L. Rev. (forthcoming 2012).
183. Mark Tushnet, The American Law of Slavery, 1810-1860: A Study in the Persistence of Legal Autonomy, 10 Law & Soc'y Rev. 119, 138 (1975). 115.
184. Id. at 139.
185. Id. at 143 (quoting State v. Jarrott, 23 N.C. (1 Ired.) 76, 86 (1840)) (internal quotation marks omitted).
186. Mitchell v. Wells, 37 Miss. 235 (1859).
187. Note, American Slavery and the Conflict of Laws, 71 Colum. L. Rev. 74, 97 (1971).
188. Wells, 37 Miss. at 251 (emphasis omitted).
189. Id. at 262-263.
190. See id. at 264 (Ohio, by... conferring rights of citizenship there, contrary to the known policy of Mississippi, can [not] confer freedom on a Mississippi slave (emphasis omitted)).
191. See African Methodist Episcopal Church v. City of New Orleans, 15 La. Ann. 441 (1860).
192. Id. at 442.
193. See id. at 443 (Had the question been submitted to this court, in the absence of [the Act], whether the Legislature intended to sanction... the formation of corporations composed entirely of colored persons... we would have been bound to rule the negative.).
194. See Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia 315 (reissued ed. 2003) (noting linkage between race and slavery as Virginia adopted slave economy)
195. Alan Watson, Slave Law in the Americas 128 (1989) (noting racism was part of English slave law from beginning and gradually became harsher to both enslaved and free blacks in exactly the same way).
196. See Watson, supra note 126, at 127 (noting lack of race determinate in Roman slavery)
197. Wiecek, Origins, supra note 50, at 1727-1728 (The ancients [Egyptians, Greeks, Romans] did not equate slave status with race.).
198. Paul Finkelman, Introduction: The Centrality of Slavery in American Legal Development, in Slavery and the Law 3, 6 (Paul Finkelman ed., 1997) [Finkelman, Centrality of Slavery] (Only blacks could be slaves [in the United States]
199. no one else, however great their misfortune could end up enslaved.)
200. Wiecek, Origins, supra note 50, at 1720 (noting that during eighteenth century, [s]lavery became a condition reserved exclusively for Africans and, in dwindling numbers, the indigenous peoples).
201. A contemporary dictionary of American English usage defined a slave state as a State in which negro slavery exists. John Russell Bartlett, Dictionary of Americanisms: A Glossary of Words and Phrases Usually Regarded as Peculiar to the United States 605 (4th ed. 1877) (emphasis added).
202. For a discussion of the gradual extinction of Indian slavery, see generally Gregory Ablavsky, Comment, Making Indians White: The Judicial Abolition of Native Slavery in Revolutionary Virginia and Its Racial Legacy, 159 U. Pa. L. Rev. 1457 (2011).
203. Tindal v. Hudson, 2 Del. (2 Harr.) 441, 441-442 (Super. Ct. 1838)
204. see also Phillis v. Lewis, 1 Del. Cas. 417, 418 (Ct. Com. Pl. 1796) (explaining [s]lavery in this state does not extend, nor has it ever been held to extend, to other persons than Negroes and mulattoes descended from a female Negro and [t]here is no law which recognizes slaves of any other description, nor any custom which has allowed others to be held in slavery and freeing slave because her mother was Asian rather than African).
205. See Mandeville v. Cookenderfer, 16 F. Cas. 580, 582 (C.C.D.C. 1827) (No. 9009) (Every negro is... prima facie to be considered as a slave, and the property of somebody; and he, who acts in regard to him as if he were a free man, acts at his peril)
206. Stringfield v. State, 25 Ga. 474, 476 (1858) (In this State every negro is presumed to be a slave and to have an owner)
207. State v. Dorsey, 6 Gill 388, 390 (Md. 1848) ([T]he law has gone so far as to presume every negro a slave to some one)
208. State v. Heddon, 1 N.J.L. 377, 381 (1795) (Chetwood, J., dissenting) (stating blacks must prove themselves to be free when claimed by another person)
209. see also Finkelman, Centrality of Slavery, supra note 128, at 6 (making similar observation).
210. The relationship between this presumption and discrimination against even free blacks in the law of common carriers, for example, is explored in David S. Bogen, From Racial Discrimination to Separate But Equal: The Common Law Impact of the Thirteenth Amendment, 38 Ohio N.U. L. Rev. 117, 126 (2011).
211. Professor Bogen asserts that [p]rior to the Civil War, African-Americans could be refused passage on common carriers in the South on the grounds that the captain feared that they might be slaves trying to escape...
212. Id. at 126.
213. Richard A. Epstein, The Path to The T.J. Hooper: The Theory and History of Custom in the Law of Tort, 21 J. Legal Stud. 1, 6-7 (1992).
214. See H.L.A. Hart, The Concept of Law 9-10, 44 (1961) (distinguishing mere convergent habitual behavior from law)
215. Smith, supra note 89, at 10-11 (describing positivist claims that law gets its force from a rule of recognition, which leaves little room for custom to operate as law on its own).
216. See Horwitz, supra note 8, at 140 (noting Oliver Wendell Holmes's abandonment of idea of custom as buffer between consent and coercion).
217. See, e.g., Christopher R. Leslie, Trust, Distrust, and Antitrust, 82 Tex. L. Rev. 515, 585-590 (2004) (discussing role of social norms of mutual trust and cooperation in industry cartels)
218. Richard A. Posner, The Material Basis of Jurisprudence, 69 Ind. L.J. 1, 10 (1993) (noting weavers' guild sought... to encourage social cohesiveness among its members to restrict competition).
219. See McAdams, Regulation of Norms, supra note 20, at 340-41 (examining literature that uses norms to explain variety of positive and normative issues).
220. Bederman, supra note 85, at 1375.
221. These types of norms can eventually harden into what one might consider positive law. As with international law, norms in this informal sense can ripen or crystalize into a binding law. Cf. Bradley & Gulati, supra note 12, at 211 (discussing this process)
222. Ian Johnstone, Law-Making Through the Operational Activities of International Organizations, 40 Geo. Wash. Int'l L. Rev. 87, 88 (2008) (discussing process of hardening of norms in international law).
223. Patterson, supra note 101, at 36 (noting that for slavery to survive, [t]hose who were not directly involved... had to come to accept it... as the normal order of things).
224. See Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 Harv. L. Rev. 1003, 1060 (1995) (describing method in which race discrimination produces status).
225. See id. at 1060 (applying status-production model to racial beliefs).
226. Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America 8 (1998).
227. Id. (From the most intimate connections between men and women to the most public ones between ruler and ruled, all relationships mimicked those of slavery.)
228. Patterson, supra note 101, at 76 (noting that in South, single symbolic code came to define all authority relations-not only... between master and slave but, among the masters between male and female, upper class and working class, parent and child).
229. Cong. Globe, 39th Cong., 1st Sess. 589 (1866) (statement of Rep. Ignatius Donnelly).
230. Id. at 908 (statement of Rep. William Lawrence) (quoting Headquarters Dep't of Va., General Orders, No. 4 (1866))
231. see also id. (reporting prohibition of [a]ll combinations or agreements which are intended to hinder, or may so operate as to hinder, the employment of labor (quoting Headquarters Dep't S.C., General Orders, No. 1 (1866))).
232. Id. (quoting Headquarters Dep't of Va., General Orders, No. 4 (1866)).
233. Id. at 941 (statement of Sen. Lyman Trumbull) (quoting letter from De Gress, Colonel, Freedmen's Bureau, to Howard, Major Gen., Freedmen's Bureau (Dec. 15, 1865)).
234. Id. at 589 (statement of Rep. Ignatius Donnelly).
235. Carl Schurz, Report on the Condition of the South (1865) [hereinafter Schurz, Report], reprinted in 1 Speeches, Correspondence and Political Papers of Carl Schurz 279, 325 (Frederic Bancroft ed., 1913)
236. see also Darrell A.H. Miller, White Cartels, the Civil Rights Act of 1866, and the History of Jones v. Alfred H. Mayer Co., 77 Fordham L. Rev. 999, 1030 (2008) [hereinafter Miller, White Cartels] (discussing how private restraints often worked in concert with facially neutral law).
237. Miller, White Cartels, supra note 147, at 1028 (quoting Schurz, Report, supra note 147, at 311) (internal quotation marks omitted)).
238. For more on the connections between economic and race-based cartels, see Darrell A.H. Miller, Racial Cartels and the Thirteenth Amendment Enforcement Power, 100 Ky. L.J. 23, 28-34 (2012) (arguing that racial discrimination can be understood as cartel behavior from economic, historical, and behavioral perspectives)
239. Daria Roithmayr, Racial Cartels, 16 Mich. J. Race & L. 45, 50-65 (2010) (describing mechanisms by which race-based cartels derive significant economic, social, and political benefits from racial exclusion).
240. See, e.g., Parker, supra note 22 (noting custom provided sense of continuity with past that Americans needed to legitimize slavery).
241. See supra text accompanying notes 131-149 (discussing post-emancipation norms designed to preserve slavery's features).
242. Guyora Binder, The Slavery of Emancipation, 17 Cardozo L. Rev. 2063, 2066 (1996).
243. Blackstone, supra note 36, at *.86.
244. Id. at 86-87.
245. U.S. Const. amend. XIII, § 1. 158.
246. Id. § 2.
247. See Binder, supra note 152, at 2067 (arguing that slavery's use of custom makes its use in legal interpretation problematic).
248. For more on these themes, see Carter, supra note 6, at 1349-1355 (arguing that both Congress and courts share responsibility for enforcing Thirteenth Amendment against badges and incidents of slavery, but that there are prudential and institutional reasons why Congress is better suited to do so)
249. Rutherglen, State Action, supra note 4, at 1399-1403 (describing relationship between Section 1 and Section 2 enforcement power as difference between disabilities that display all the wrongs of slavery as opposed to just a single wrong).
250. Winthrop D. Jordan, The White Man's Burden: Historical Origins of Racism in the United States 36 (1974) (noting, in English colonies, [s]ervitude, no matter how long, brutal, and involuntary, was not the same thing as perpetual slavery).
251. But see United States v. Shackney, 333 F.2d 475, 486
252. (2d Cir. 1964) (Friendly, J.) (concluding original meaning of involuntary servitude was something 'akin to African slavery,' although without some of the latter's incidents (quoting Butler v. Perry, 240 U.S. 328, 332 (1916))).
253. A further reason for this reading is the textual caveat: except for punishment for a crime whereof the party shall have been duly convicted. If slavery and involuntary servitude meant the same thing, it would suggest that one can be duly convicted and condemned to chattel slavery, a conclusion that one writer has called a legal absurdity. Andrea C. Armstrong, Slavery Revisited in Penal Plantation Labor, 35 Seattle U. L. Rev. 869, 873 (2012) (conducting textual analysis of Thirteenth Amendment).
254. See Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 1005, 1009 n.12 (2011) (discussing application of the Thirteenth Amendment to both private and public action)
255. Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 1 Stan. L. Rev. 1209, 1214 n.11 (2010) (acknowledging that Thirteenth Amendment could be violated by both private and public actors).
256. Lea VanderVelde, The Thirteenth Amendment of Our Aspirations, 38 U. Tol. L. Rev. 855, 857 (2007)
257. see also The Civil Rights Cases, 109 U.S. 3, 20 (1883) (stating Thirteenth Amendment is an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States).
258. The Civil Rights Cases, 109 U.S. at 20 (recognizing power of Amendment to reach badges and incidents).
259. 203 U.S. 1, 17 (1906) (quoting Webster's Dictionary definition of slavery).
260. See, e.g., Eric Foner, Free Soil, Free Labor, Free Men 88-89 (1970) (discussing concept of slave power as totalizing slave regime and its political development and deployment in the North)
261. see also Berlin, supra note 140, at 8 (noting totalizing aspect of slavery in slave societies).
262. 109 U.S. at 20 (commenting on Thirteenth Amendment's reflex character [of] establishing and decreeing universal civil and political freedom throughout the United States; and... cloth[ing] Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States).
263. Jack M. Balkin & Sanford Levinson, The Dangerous Thirteenth Amendment, 112 Colum. L. Rev. 1459, 1482 (2012)
264. see also George A. Rutherglen, The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment, in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 163, 164-167 (Alexander Tsesis ed., 2010) (describing rhetorical use of slavery during eighteenth and nineteenth centuries.)
265. Balkin & Levinson, supra note 168, at 1483 (quoting letter written by John Dickinson in 1768).
266. See 1 Thomas Jefferson, Memoirs, Correspondence, and Private Papers 404 (Thomas Jefferson Randolph ed., London, Henry Colburn and Richard Bentley 1829) (describing economic practices of English merchants as ensnaring Virginia planters with debt so that debts had become hereditary from father to son, for many generations, so that the planters were a species of property, annexed to certain mercantile houses in London).
267. Oddly enough, until the Thirteenth Amendment, slavery was not slavery-it was importation, it was other persons, it was service or labour. See U.S. Const. arts. I, IV.
268. See James M. McPherson, Drawn with the Sword: Reflections on the American Civil War 50 (1996) (compiling examples of allusions to slavery used by politicians and in newspapers).
269. See Jurisdictional Statement and Brief at 55
270. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)
271. (No. 515) (presenting hotel's argument that requirement to serve African Americans in public hotels is tantamount to legalized thraldom).
272. Andy Barr, Ad: Health Care is Slavery, Politico (June 29, 2010, 4:28 PM), http://www.politico.com/news/stories/0610/39154.html (on file with the Columbia Law Review) (reporting Alabama Republican candidate's description of President Obama's health care reform).
273. Matt Pitchford, Allen West: Social Security Disability is Modern Slavery, Daily Caller (Aug. 9, 2012, 1:06 PM), http://dailycaller.com/2012/07/09/allen-west-social-security-disability-is-modern-slavery/ (on file with the Columbia Law Review) (reporting remarks of Allen West, U.S. Representative from Florida).
274. McPherson, supra note 171, at 51 (noting Orwellian nature of remark)
275. see also Cong. Globe, 27th Cong., 2d Sess. 173 (1842) (statement of Rep. Henry Wise) ([W]herever black slavery existed, there was found at least an equality among the white population; but where it had no place, such equality was never to be found.).
276. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441, 443 (1968) (noting Congress's freedom under Thirteenth Amendment to determine badges, incidents, and relics of slavery).
277. The Civil Rights Cases, 109 U.S. 3, 20 (1883).
278. See Jones, 392 U.S. at 440-443 (highlighting example of private discrimination that can be prohibited through Thirteenth Amendment).
279. See, e.g., Tobias Barrington Wolff, The Thirteenth Amendment and Slavery in the Global Economy, 102 Colum. L. Rev. 973, 1008 (2002) (noting syntax [of an institution] aims at capturing the elaborate body of ritual and praxis that surrounded the systematic exploitation of involuntary labor in America)
280. see also Frederick Schauer, Institutions as Legal and Constitutional Categories, 54 UCLA L. Rev. 1747, 1752 (2007) (observing institutions exist by virtue of a... multifaceted set of rules and relationships and explaining that one's considerate or empathetic treatment of another human being is an act, but etiquette is an institution).
281. See Robertson v. Baldwin, 165 U.S. 275, 281 (1897) ([E]ven if the contract of a seaman could be considered within the letter of the Thirteenth Amendment, it is not, within its spirit, a case of involuntary servitude.).
282. See, e.g., United States v. Holmes, 387 F.2d 781, 784 (7th Cir. 1967) (affirming constitutionality of selective service).
283. Compare Runyon v. McCrary, 427 U.S. 160
284. 172-176 (1976) (holding Congress may prohibit racial discrimination at private school despite freedom of association claims)
285. Jones, 392 U.S. at 412-413 (deciding prohibition on racial discrimination in real estate is legitimate exercise of Thirteenth Amendment power)
286. Jones, 392 U.S. at 473-474 (Harlan, J., dissenting) (identifying instances of public and private discrimination in North).
287. Orlando Patterson, reviewing the works of others, has identified excessive honor, militarism, idealization of women, and regional nationalism as essential components of Southern slave society. Patterson, supra note 101, at 95.
288. See Higginbotham, supra note 56, at 171 (noting South Carolina's eighteenthcentury slave laws obliged whites to whip slaves found abroad without pass and unaccompanied by white person)
289. Schurz, Report, supra note 147, at 326 (discussing southern laws investing every white man with the power... of a police officer as against every black man)
290. Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309, 335-336 (1998) (discussing overlap between slave patrols and militias).
291. Cf. Terry v. Adams, 345 U.S. 461, 465-467 (1953) (plurality opinion) (concluding private associations connected to political campaign are not insulated from constitutional scrutiny).
292. Runyon, 427 U.S. at 170 (holding Congress may prohibit discrimination in private schooling through Thirteenth Amendment enforcement power). 188.
293. William E. Nelson, The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 Harv. L. Rev. 513, 533 (1974) (commenting on restrictions on abolitionist speech and organization in antebellum period).
294. Binder, supra note 152, at 2067.
295. See United States v. Kozminski, 487 U.S. 931, 943 (1988) ([N]ot all situations in which labor is compelled by physical coercion or force of law violate the Thirteenth Amendment.).
296. See Balkin & Levinson, supra note 168, at 1471.
297. See, e.g., The Slaugher-House Cases, 83 U.S. 36, 72 (1872) ([W]hile negro slavery alone was in the mind of... Congress... [the Thirteenth Amendment] forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop [into] slavery... this amendment... [will] make it void.).
298. David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 910-916 (1996) (discussing manner in which text can serve as focus of agreement in common law constitutional interpretation).
299. Blackstone, supra note 36, at *.86.
300. Cf. McElvain v. Mudd, 44 Ala. 48, 80 (1870) (Peters, J., dissenting) (suggesting it is for states to determine effects of emancipation).
301. An alternative interpretation is that Congress would have possessed power to enforce the Amendment, but only by implication, and only by relying on reasoning in the despised Prigg v. Pennsylvania decision. See Rebecca E. Zietlow, The Ideological Origins of the Thirteenth Amendment, 49 Hous. L. Rev. 393, 407 (2012) (discussing early version of Thirteenth Amendment that omitted separate congressional enforcement provision as unnecessary).
302. Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 67 (2001) (observing that concepts of freedom and slavery were to occur through enforcement of Amendment).
303. For more on the concept of underenforced constitutional norms, see Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1219, 1234-1235 n.21, (1978)
304. [hereinafter Sager, Fair Measure] (describing thesis as presuming that there exist constitutional norms which are not enforced to their full conceptual limits... and that such underenforced constitutional norms are legally valid to their conceptual limits and speculating about thesis in light of Thirteenth Amendment)
305. see also Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410, 433 (1993) ([I]n the Thirteenth Amendment in particular, the underenforcement premise is very near the surface.).
306. Blackstone, supra note 36, at *86. It is possible, as stated earlier, that the textual word slavery combined with an enforcement provision actually contemplates that judicial enforcement was going to be too narrow and circumscribed. Rutherglen, State Action, supra note 4, at 1369 (noting that Thirteenth Amendment has always been underenforced rather than overenforced).
307. See, e.g., Parker, supra note 22, at 181-186 (discussing ideological differences between Lysander Spooner and George Sawyer as to whether slavery or freedom was universal).
308. William Lloyd Garrison famously denounced the Constitution with these words from the Book of Isaiah. See Sanford Levinson, Constitutional Faith 66 (1988).
309. See Wiecek, Somerset, supra note 82, at 118-119 (discussing various approaches of abolitionist thinking with respect to slavery, the Constitution, and custom).
310. See Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson 6 (2d ed. 2001) (observing slavery appears first in the Thirteenth Amendment, and then, only to abolish it).
311. Cf. Sherry, Unwritten Constitution, supra note 16, at 1158 (1987) (noting Ex Post Facto Clause was defended as offering textual hook for otherwise natural law theory).
312. Vorenberg, supra note 196, at 108 (noting opponents said the Declaration of Independence was intended for whites, not blacks, and that the framers obviously approved of slavery wholeheartedly).
313. Id. at 107-112
314. ([O]pponents [of the amendment] were steadfast in their claim that, by overthrowing slavery, an institution accepted by the framers, the amendment was inherently unconstitutional.).
315. Cf. Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1, 97 (2004) (noting common law practice at framing was for courts to create... standard adjudicatory devices... when administering statutes and discussing in light of constitutional implementation).
316. In speaking of the drafting of the Fourteenth Amendment, Michael McConnell has observed that the Republicans of the Thirty-Ninth Congress could hardly have been warm to arguments that the institution that gave the nation Scott v. Sandford still retained primary authority to construe the Constitution. Michael W. McConnell, Comment, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997)
317. see also Nelson, supra note 188, at 549-550 (discussing low confidence in Court after Civil War).
318. Michael Les Benedict has concluded that neither the ratifying legislatures nor Congress expected courts to be the primary enforcement mechanism for the Thirteenth Amendment. Instead [t]hey expected it to be enforced through the political process, of which the judicial process would simply be a part. See Michael Les Benedict, Constitutional Politics, Constitutional Law, and the Thirteenth Amendment, 71 Md. L. Rev. 163, 176 (2011).
319. Vorenberg, supra note 196, at 237.
320. Consider, for example, the reaction of the editors of the Anglo-African to ratification of the Amendment. They wrote, [O]ne thing which makes this triumph the richer... is the [second] Section of the Amendment This gives to the Congress the power for ever to legislate in reference to the rights of the freedmen-power to see that they are not subject to impartial and oppressive law-power to protect them in all the rights of freemen.
321. Thanks to God for Victory, Anglo-African, Dec. 23, 1865, available at http://research.udmercy.edu/find/special_collections/digital/baa/item.php?record_id=2547&collectionCode=baa (on file with the Columbia Law Review).
322. See Vorenberg, supra note 196, at 67
323. (observing this represented middle course, allowing enumeration of rights to occur through enforcement legislation).
324. Professor Araiza has articulated an approach that shares some of these same features in an article on Fourteenth Amendment enforcement power. See William D. Araiza, New Groups and Old Doctrine: Rethinking Congressional Power to Enforce the Equal Protection Clause, 37 Fla. St. U. L. Rev. 451, 506, 516, 529, 537 (2010) (discussing role of consensus in evaluating constitutionality of Fourteenth Amendment enforcement legislation).
325. The Civil Rights Cases, 109 U.S. 3, 37 (1883) (Harlan, J., dissenting).
326. See Miller, White Cartels, supra note 147, at 1026-1031 (discussing reports).
327. Schurz, Report, supra note 147, at 319-320 (quoting letter to Schurz from assistant commissioner of Freedman's Bureau in Mississippi).
328. Id. at 355.
329. Professor Rutherglen has concluded that Congress used custom as a term of art in 1866 to mean something akin to state action. See Rutherglen, Custom and Usage, supra note 2, at 941-950.
330. Whether that is true with respect to construing the 1866 Act, this Essay contends that Congress clearly understood that its Thirteenth Amendment power extended beyond state action, and permitted regulation of privately generated norms far less positive and definitive than enactments or even government policy.
331. Compare City of Memphis v. Greene, 451 U.S. 100, 125-126 (1981) (deciding closing road not violative of Section 1 of Thirteenth Amendment)
332. Palmer v. Thompson, 403 U.S. 217, 226 (1971) (holding no Thirteenth Amendment violation when city closed public pools rather than desegregate them)
333. Runyon v. McCrary, 427 U.S. 160, 170-173 (1976) (holding that prohibitions on discrimination in private schooling are rational application of Section 2 enforcement power)
334. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-443 (1968) (holding that congressional prohibitions on discrimination in housing rational application of Section 2 enforcement power).
335. For a discussion of the courts' restrained view of judicial enforcement of the Thirteenth Amendment, see Sager, Fair Measure, supra note 197, 1219 n.21.
336. See Runyon, 427 U.S. at 170
337. Jones, 392 U.S. at 440-443.
338. This literature can be plotted along a spectrum of increasingly narrow distinctions. In recent years, Professor Currie has stated that the Thirteenth Amendment has nothing to do with civil rights and that Jones v. Alfred H. Mayer Co. and its ilk are wrong. See David P. Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 396 (2008) (To equate emancipation with freedom and freedom with the enjoyment of civil rights was nothing but a play on words.). Professor McAward has suggested a somewhat broader test: that Congress may legislate against badges and incidents of slavery, but only if the badge or incident is sufficiently virulent or prevalent as to threaten the reemergence of slavery or involuntary servitude.
339. Jennifer Mason McAward, Defining the Badges and Incidents of Slavery, 14 U. Pa. J. Const. L. 561, 624 (2012).
340. And Professor Tsesis has suggested that the badges and incidents rationale applies to many forms of arbitrary domination. Alex Tsesis, Furthering American Freedom: Civil Rights & The Thirteenth Amendment, 45 B.C. L. Rev. 307, 309 (2004). Other theories fall somewhere along this spectrum.
341. See, e.g., G. Sidney Buchanan, The Quest for Freedom: A Legal History of the Thirteenth Amendment 186-189 (1976) (suggesting that any arbitrary prejudice based on race, color, religion, sex or national origin can fall within Section 2 power, and speculating it may extend to other classifications as well).
342. See Carter, supra note 6, at 1368-1379 (proposing that the badges and incidents of slavery be evaluated with specific reference to the damaging effects of the institution of slavery itself and the experience of African Americans under that system and thereafter).
343. See Rutherglen, State Action, supra note 4, at 1393-1400 (noting that badges and incidents of slavery referred to unified or disaggregated subjects that were characteristic of slavery).
344. This writer will not expand further on Professor Rutherglen other than to note that the concept of a badge of slavery connotes a signification to a polity-a concept fully consistent with the idea of custom in this Essay.
345. See The Civil Rights Cases, 109 U.S. 3, 20 (1883).
346. See Rutherglen, State Action, supra note 4, at 1369 (noting that Thirteenth Amendment enforcement and Commerce Clause enforcement of civil rights tend to overlap).
347. See, e.g., Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No. 111-184, div. E, § 4702, 123 Stat. 2835, 2836 (2009) (to be codified at 18 U.S.C. § 249) (citing Thirteenth, Fourteenth, and Fifteenth Amendments for authority and necessity of passing hate crimes legislation)
348. cf. United States v. Lopez, 514 U.S. 549, 561 (1995) (holding aggregated effects of crime are not sufficient nexus to interstate commerce to support congressional action).
349. See Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011, H.R. 3541, 112th Cong. § 2(b)(2) (2011) (proscribing elective abortions where motivation is race or sex selection and identifying Section 2 of Thirteenth Amendment as authority)
350. cf. Roe v. Wade, 410 U.S. 113, 164-165 (1973) (upholding substantive due process right to abortion).
351. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579-2580 (2012) (upholding 2010 Patient Protection and Affordable Care Act).
352. See Tennessee v. Lane, 541 U.S. 509, 560 (2004) (Scalia, J., dissenting) ([W]hat § 5 does not authorize is so-called 'prophylactic' measures, prohibiting primary conduct that is itself not forbidden by the Fourteenth Amendment.).
353. Consider Bailey v. Alabama, in which the Court upheld the federal Anti-Peonage Act of 1867, 42 U.S.C. § 1994 (2006), as a valid exercise of Thirteenth Amendment enforcement power, even though the Act sweeps in by its own terms allegedly voluntary compelled service in liquidation of a debt. 219 U.S. 219, 241-43 (1911).
354. See Coleman v. Court of Appeals of Md., 132 S. Ct. 1327, 1338-1339 (2012) (Scalia, J., concurring in judgment) (suggesting that prophylactic rules with respect to race discrimination are valid, perhaps under strong form of stare decisis)
355. Lane, 541 U.S. at 563-565 (Scalia, J., dissenting) (same).
356. City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
357. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding federal statute permitting suits for money damages against states for violation of Americans with Disabilities Act not valid exercise of Section 5 power)
358. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (reaching similar result with respect to Age Discrimination in Employment Act)
359. But cf. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 n.16 (1996) (acknowledging some suits for injunctive relief against state officials for violation of federal law are permitted under Ex Parte Young fiction).
360. Lane, 541 U.S. at 533-534 (holding that Title II of ADA as applied to access to courts is congruent and proportional legislation under Section 5)
361. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 735 (2003) (upholding family care provision of Family and Medical Leave Act (FMLA) as constitutional exercise of Section 5 Power).
362. But see Coleman, 132 S. Ct. at 1338 (holding self-care provision of FMLA not congruent and proportional).
363. See Coleman, 132 S. Ct. at 1338 (Scalia, J., concurring in the judgment) (questioning soundness of proportionality and congruence test)
364. Lane, 541 U.S. at 557-581
365. (Scalia, J., dissenting) (describing congruence and proportionality test as flabby, invitation to judicial arbitrariness, and one designed to bring [the Court] into constant conflict with a coequal branch of Government).
366. See Walter Johnson, Resetting the Legal History of Slavery: Divination, Torture, Poisoning, Murder, Revolution, Emancipation, and Re-enslavement, 29 Law & Hist. Rev. 1089, 1093 (2011) (describing slavery as bundle of rights exercised by one person over another)
367. see also United States v. Beebe, 807 F. Supp. 2d 1045, 1051 (D.N.M. 2011) ('[S]lavery,' banned by Section 1 of the Thirteenth Amendment, [is] a system made of various component parts.).
368. Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917, 1929 (2012).
369. See Rutherglen, State Action, supra note 4, at 1399-1400 (suggesting that distinction between congressional enforcement and judicial enforcement is that congressional enforcement may target practices that display only some of wrongs of slavery, such as private racial discrimination in contracting).
370. See Carter, supra note 6, 1366-1369 (articulating model of Thirteenth Amendment enforcement that takes into account both racial nature of persons injured, and relationship between injury and historical custom or practice of slavery).
371. But see Coleman, 132 S. Ct. at 1338-1339 (Scalia, J., concurring in the judgment) (suggesting in Fourteenth Amendment cases-other than those dealing with race-congressional power to enforce means only power to proscribe what Court has already identified as constitutional violation).
372. See Miller, White Cartels, supra note 147, at 1045 (Congress can use its Thirteenth Amendment enforcement power to prevent individual and isolated instances of racial discrimination... [that,] if aggregated over a broad spectrum of persons, would have the effect of locking out African Americans from valuable social, economic, or political opportunities.).
373. Coleman, 132 S. Ct. at 1338 (Scalia, J., concurring) (This grading of Congress's homework is a task we are ill suited to perform and ill advised to undertake.).
374. See Charles Fried, The June Surprises: Balls, Strikes, and the Fog of War, SCOTUSblog (Aug. 2, 2012, 12:19 PM), http://www.scotusblog.com/2012/08/the-junesurprises-balls-strikes-and-the-fog-of-war/ ("The propriety of the reach [of congressional power] has been thought to be a question of whether the claim bumps against an explicit or implicit constitutional barrier. ") (on file with the Columbia Law Review).
375. This Essay advocates a different approach from Professor McAward's approach, which argues that Congress's assessment of causation should be presumptively valid unless there is some other constitutional value that would temper that presumption. See McAward, supra note 219, at 626-629 (discussing causation requirement).
376. Cf. Runyon v. McCrary, 427 U.S. 160, 172-176 (1976) (finding no freedom of association defense to congressional legislation integrating private school)
377. Rutherglen, State Action, supra note 4, at 1370 (observing that Thirteenth Amendment's applicability to private action allows regulation of what would otherwise be purely domestic relations).
378. Pamela Brandwein, Slavery as an Interpretive Issue in the Reconstruction Congresses, 34 Law & Soc'y Rev. 315, 324 (2000) (observing that process of defining slavery also defined boundaries between federal and state, public and private).
379. Cf. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2585-2592 (2012) (opinion of Roberts, C.J.) (holding Patient Protection and Affordable Care Act's individual mandate is not valid exercise of Congress's Commerce Clause power)
380. id. at 2644-2650 (Scalia, Kennedy, Thomas, Alito, JJ., dissenting) (same)
381. Seven-Sky v. Holder, 661 F.3d 1, 20 (D.C. Cir. 2011) (acknowledging that public accommodation laws are encroachment on individual liberty but confirming that they are permissible encroachment under Commerce Clause) (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-259 (1964)), abrogated by Sebelius, 132 S. Ct. 2566.
382. Pub. L. No. 111-84, 123 Stat. 2190, 2836 (to be codified at 18 U.S.C. § 249) (citing Thirteenth, Fourteenth, and Fifteenth Amendments for authority and necessity of passing hate crimes legislation).
383. H.R. 3541, 112th Cong. (2011) (proscribing elective abortions where motivation is race or sex selection and identifying Section 2 of Thirteenth Amendment as authority). 248.807 F. Supp. 2d 1045, 1047 (D.N.M. 2011).
384. Id. at 1048
385. Id. at 1056.
386. Id. at 1051.
387. Id. 254.
388. Id. at 1052-1053 (providing historical overview of racially motivated violence in institution of slavery).
389. Id. at 1052.
390. Id. at 1055.
391. Id. at 1055-1056 (applying rational basis review per McCulloch v. Maryland, 17 U.S. 316 (1819)).
392. See Harrington v. Richter, 131 S. Ct. 770, 778 (2011) (noting double deference owed to state courts under ineffective assistance of counsel test and Antiterrorism and Effective Death Penalty Act).
393. This writer uses all these terms guardedly, aware that there is significant disagreement both between and among these different schools of constitutional theory, and disagreement even as to the boundaries between one school of theory and another.
394. See Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 716-36 (2011) (laying out description of new originalism).
395. District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (identifying longstanding prohibitions and common law sources as potential limitations on scope of the Second Amendment).
396. For more on this, see Darrell A.H. Miller, Historical Tests, (Mostly) Unbalanced Rights, and What the Seventh Amendment Can Teach Us About the Second, 122 Yale L.J. (forthcoming 2012) (discussing role of extratextual history and custom in construing unclear text).
397. See James E. Ryan, Laying Claim to the Constitution: The Promise of New Textualism, 97 Va. L. Rev. 1523, 1539-1555 (2011). (offering one description of new textualism and its use by various scholars).
398. See Carter, supra note 6, at 1366 (Determining whether a particular injury or form of contemporary inequality constitutes a badge or incident of slavery requires a discourse about the historical facts of chattel slavery.).
399. See Brannon P. Denning, The New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller, 75 Tenn. L. Rev. 789, 797 (2008) (identifying and discussing concept of new doctrinalism and decision rules).
400. See generally Strauss, supra note 193, at 877-890 (setting out concept of common law constitutionalism).
401. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting) (discussing scope of Due Process Clause).
402. Consider, for instance, this selection from the abolitionist newspaper, Elevator, speaking on the way slave culture influenced northern rules on enfranchisement: Thus we see [in the Northern states] how the influence of slavery has changed the organic law, and how the oligarchy of the petty State of South Carolina has ruled and governed-not only the other slave States, but those which have been called by way of distinction, free States. Citizenship and Suffrage, Elevator, Dec. 22, 1865, available at http://research.udmercy.edu/find/special_collections/digital/baa/item.php?record_id=726&collectionCode=baa (on file with the Columbia Law Review).
403. One must consider what American popular constitutional discourse would sound like if Americans intoned the names Frederick Douglass, William Lloyd Garrison, John Bingham, and Charles Sumner, The same reverence as Thomas Jefferson, James Madison, Patrick Henry, and George Washington. For discussion of what Akhil Amar has called America's curiously selective ancestor worship,
404. see Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 293 (1998)
405. Tom Donnelly, Our Forgotten Founders: Reconstruction, Public Education, and Constitutional Heroism, 58 Clev. St. L. Rev. 115, 117 (2010) (discussing treatment of Reconstruction versus Founding Era historical figures in popular culture and textbooks).
406. Ariela Gross, When Is the Time of Slavery?: The History of Slavery in Contemporary Legal and Political Argument, 96 Calif. L. Rev. 283, 287 (2008).