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Volumn 112, Issue 9, 2012, Pages 1607-1640

Federal protection, paternalism, and the virtually forgotten prohibition of voluntary peonage

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EID: 84878166257     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article
Times cited : (9)

References (223)
  • 1
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    • (statement of Sen. Lyman Trumbull)
    • Cong. Globe, 39th Cong., 1st Sess. 77 (1865) (statement of Sen. Lyman Trumbull).
    • (1865) Cong. Globe, 39th Cong., 1st Sess , vol.77
  • 2
    • 84878339617 scopus 로고    scopus 로고
    • Professor, has been at the center of several important symposia concerning the Thirteenth Amendment and its implications, including this one. See
    • Professor Alexander Tsesis has been at the center of several important symposia concerning the Thirteenth Amendment and its implications, including this one. See Symposium: Constitutional Redemption & Constitutional Faith, 71 Md. L. Rev. 953 (2012)
    • (2012) Symposium: Constitutional Redemption & Constitutional Faith , vol.71 , pp. 953
    • Tsesis, A.1
  • 3
    • 84878277772 scopus 로고    scopus 로고
    • Thirteenth Amendment Symposium
    • A symposium jointly sponsored by the University of Chicago and Loyola University, Chicago in 2009 produced The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment (Alexander Tsesis ed., 2010) [hereinafter The Promises of Liberty]
    • Thirteenth Amendment Symposium, 38 U. Tol. L. Rev. 791 (2007). A symposium jointly sponsored by the University of Chicago and Loyola University, Chicago in 2009 produced The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment (Alexander Tsesis ed., 2010) [hereinafter The Promises of Liberty].
    • (2007) U. Tol. L. Rev , vol.38 , pp. 791
  • 4
    • 84878296480 scopus 로고    scopus 로고
    • Citizenship and the Thirteenth Amendment: Understanding the Deafening Silence
    • See, e.g, (discussing scholarship analyzing Fourteenth Amendment in light of Thirteenth Amendment)
    • See, e.g., Michael Vorenberg, Citizenship and the Thirteenth Amendment: Understanding the Deafening Silence, in The Promises of Liberty, supra note 2, at 58-59 (discussing scholarship analyzing Fourteenth Amendment in light of Thirteenth Amendment).
    • The Promises of Liberty, Supra Note 2 , pp. 58-59
    • Vorenberg, M.1
  • 5
    • 77953092615 scopus 로고    scopus 로고
    • Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"
    • See, e.g, (emphasizing Thirteenth Amendment protection developed in Pollock v. Williams, of workers' "'power below'" to counter "'a harsh overlordship or unwholesome conditions of work'" (quoting 322 U.S. 4, 18 (1944)))
    • See, e.g., James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude," 119 Yale L.J. 1474, 1479 (2010) (emphasizing Thirteenth Amendment protection developed in Pollock v. Williams, of workers' "'power below'" to counter "'a harsh overlordship or unwholesome conditions of work'" (quoting 322 U.S. 4, 18 (1944))).
    • (2010) Yale L.J , vol.119
    • Pope, J.G.1
  • 6
    • 38749091507 scopus 로고    scopus 로고
    • See generally, (examining legal history of economic claims as civil rights issues before Brown v. Board of Education)
    • See generally Risa L. Goluboff, The Lost Promise of Civil Rights (2007) (examining legal history of economic claims as civil rights issues before Brown v. Board of Education)
    • (2007) The Lost Promise of Civil Rights
    • Goluboff, R.L.1
  • 9
    • 84878212608 scopus 로고    scopus 로고
    • Protecting Full and Equal Rights: The Floor and More
    • See, e.g, [hereinafter Soifer, Full and Equal Rights] (discussing historical and recent narrow treatment of federal statutory protections for core civil rights adopted after the Civil War)
    • See, e.g., Aviam Soifer, Protecting Full and Equal Rights: The Floor and More, in The Promises of Liberty, supra note 2, at 196 [hereinafter Soifer, Full and Equal Rights] (discussing historical and recent narrow treatment of federal statutory protections for core civil rights adopted after the Civil War).
    • The Promises of Liberty, Supra Note 2 , pp. 196
    • Soifer, A.1
  • 10
    • 84878283232 scopus 로고    scopus 로고
    • Emancipation and Civic Status: The American Experience, 1865-1915
    • Some in legal academia, including the author of this Essay, have been poking at the issue of the breadth and significance of the 1866 Civil Rights Act for decades, but William Wiecek has been a leader in this quest throughout his distinguished career. Therefore it is worthy of particular note that Wiecek recently declared, "The 1866 Civil Rights Act, enacted under Congress's Thirteenth Amendment authority to end the incidents of slavery and involuntary servitude, is the key to understanding the meaning of freedom, equality, and civil status after abolition."
    • Some in legal academia, including the author of this Essay, have been poking at the issue of the breadth and significance of the 1866 Civil Rights Act for decades, but William Wiecek has been a leader in this quest throughout his distinguished career. Therefore it is worthy of particular note that Wiecek recently declared, "The 1866 Civil Rights Act, enacted under Congress's Thirteenth Amendment authority to end the incidents of slavery and involuntary servitude, is the key to understanding the meaning of freedom, equality, and civil status after abolition." William M. Wiecek, Emancipation and Civic Status: The American Experience, 1865-1915, in The Promises of Liberty, supra note 2, at 78, 86.
    • The Promises of Liberty, Supra Note 2
    • Wiecek, W.M.1
  • 12
    • 0040111926 scopus 로고
    • Protecting Civil Rights: A Critique of Raoul Berger's History
    • See generally, [hereinafter Soifer, Protecting Civil Rights] (critically reviewing Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977) [hereinafter Berger, Government by Judiciary])
    • See generally Aviam Soifer, Protecting Civil Rights: A Critique of Raoul Berger's History, 54 N.Y.U. L. Rev. 651 (1979) [hereinafter Soifer, Protecting Civil Rights] (critically reviewing Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977) [hereinafter Berger, Government by Judiciary])
    • (1979) N.Y.U. L. Rev , vol.54 , pp. 651
    • Soifer, A.1
  • 13
    • 84928461006 scopus 로고
    • Status, Contract, and Promises Unkept
    • [hereinafter Soifer, Promises Unkept] (discussing complexity of free choice in context of slavery and its aftermath)
    • Aviam Soifer, Status, Contract, and Promises Unkept, 96 Yale L.J. 1916 (1987) [hereinafter Soifer, Promises Unkept] (discussing complexity of free choice in context of slavery and its aftermath).
    • (1987) Yale L.J , vol.96 , pp. 1916
    • Soifer, A.1
  • 15
    • 84861882302 scopus 로고    scopus 로고
    • (emphasis added). The words omitted contain the exception "except as a punishment for crime whereof the party shall have been duly convicted." Id. It is striking that the final phrase of Section 1 still refers to the United States in the plural, though the Civil War itself had already done much to forge a unitary national entity and to make the United States singular
    • U.S. Const. amend. XIII, § 1 (emphasis added). The words omitted contain the exception "except as a punishment for crime whereof the party shall have been duly convicted." Id. It is striking that the final phrase of Section 1 still refers to the United States in the plural, though the Civil War itself had already done much to forge a unitary national entity and to make the United States singular.
    • U.S. Const. Amend. XIII , pp. 1
  • 18
    • 84878303269 scopus 로고    scopus 로고
    • Diner quotes Rabbi Mordecai Kaplan, founder of the Reconstructionist movement within Judaism, who claimed that "halakha [Jewish law] should have a vote, but not a veto." This epigram soon transformed into "the past should have a vote, but not a veto," representing a central concept of his movement. See, (giving overview of Kaplan's contributions)
    • Diner quotes Rabbi Mordecai Kaplan, founder of the Reconstructionist movement within Judaism, who claimed that "halakha [Jewish law] should have a vote, but not a veto." This epigram soon transformed into "the past should have a vote, but not a veto," representing a central concept of his movement. See David Ellenson, Kaplan, Mordecai, in Concise Routledge Encyclopedia of Philosophy 433, 433 (2010) (giving overview of Kaplan's contributions).
    • (2010) Kaplan, Mordecai, In Concise Routledge Encyclopedia of Philosophy 433 , pp. 433
    • Ellenson, D.1
  • 21
    • 84878312607 scopus 로고    scopus 로고
    • Brock describes the dilemma moderate Republicans began to realize they faced. They had a President they distrusted, who was apparently reviving the dogmatic states' rights theory that many believed had caused the Civil War, on one side, and Radicals urging the reconstruction of Southern society on the other. Id. at 116
    • Brock describes the dilemma moderate Republicans began to realize they faced. They had a President they distrusted, who was apparently reviving the dogmatic states' rights theory that many believed had caused the Civil War, on one side, and Radicals urging the reconstruction of Southern society on the other. Id. at 116.
  • 24
    • 84859715958 scopus 로고    scopus 로고
    • See also, (discussing speech)
    • See also Brock, supra note 13, at 110-11 (discussing speech)
    • Supra Note 13 , pp. 110-111
    • Brock1
  • 27
    • 84878340788 scopus 로고
    • Section 1 of the Act reads, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or notwithstanding, 27 (codified as amended at 42 U.S.C. §§
    • Section 1 of the Act reads, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27 (codified as amended at 42 U.S.C. §§ 1981, 1982).
    • (1981) Civil Rights Act of 1866, Ch. 31, § 1, 14 Stat , pp. 27
  • 28
    • 84878299588 scopus 로고    scopus 로고
    • ("The 'full' element of 'full and equal' suggests that to treat everyone the same was neither the exclusive nor even the main goal of the sweeping civil rights guarantee enacted by Congress.")
    • Soifer, Full and Equal Rights, supra note 6, at 211-12 ("The 'full' element of 'full and equal' suggests that to treat everyone the same was neither the exclusive nor even the main goal of the sweeping civil rights guarantee enacted by Congress.").
    • Full and Equal Rights, Supra Note 6 , pp. 211-212
    • Soifer1
  • 29
    • 84878325896 scopus 로고
    • Senator Nye of Nevada may have described the guarantee most succinctly when he embraced Congress's duty to afford "equalized protection under equalized laws.", (statement of Sen. James Nye)
    • Senator Nye of Nevada may have described the guarantee most succinctly when he embraced Congress's duty to afford "equalized protection under equalized laws." Cong. Globe, 39th Cong., 1st Sess. 1074 (1866) (statement of Sen. James Nye).
    • (1866) Cong. Globe, 39th Cong., 1st Sess , pp. 1074
  • 31
    • 84884081730 scopus 로고    scopus 로고
    • The only exceptions to the broad coverage of Section 1 were for those "subject to any foreign power" and for "Indians not taxed." Id. The sweeping scope of the Act's citizenship declaration, as well as the vast range of the rights it enumerated and sought to protect with civil, criminal, and removal power in the federal courts, illustrates how expansive was the power that the men of the Thirty-Ninth Congress believed they had been afforded by the Thirteenth Amendment-which many of them had voted for as members of the Thirty-Eighth Congress
    • Civil Rights Act § 1. The only exceptions to the broad coverage of Section 1 were for those "subject to any foreign power" and for "Indians not taxed." Id. The sweeping scope of the Act's citizenship declaration, as well as the vast range of the rights it enumerated and sought to protect with civil, criminal, and removal power in the federal courts, illustrates how expansive was the power that the men of the Thirty-Ninth Congress believed they had been afforded by the Thirteenth Amendment-which many of them had voted for as members of the Thirty-Eighth Congress.
    • Civil Rights Act § 1
  • 32
    • 84878277498 scopus 로고
    • The Joint Committee on Reconstruction, consisting of six Senators and nine Representatives, was chaired by Senator William Pitt Fessenden, a Moderate Republican from Maine, and by Representative Thaddeus Stevens, leader of the Radical Republicans from Pennsylvania. It was established to investigate conditions in the South and to report on whether the Southern states were entitled to representation
    • The Joint Committee on Reconstruction, consisting of six Senators and nine Representatives, was chaired by Senator William Pitt Fessenden, a Moderate Republican from Maine, and by Representative Thaddeus Stevens, leader of the Radical Republicans from Pennsylvania. It was established to investigate conditions in the South and to report on whether the Southern states were entitled to representation. Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction 1863-1869, at 140-45 (1974).
    • (1974) A Compromise of Principle: Congressional Republicans and Reconstruction 1863-1869 , pp. 140-145
    • Benedict, M.L.1
  • 33
    • 84878309108 scopus 로고    scopus 로고
    • is the tendency to pull words out of context for the sake of advocacy
    • "Law office history" is the tendency to pull words out of context for the sake of advocacy.
    • Law Office History
  • 34
    • 0346172380 scopus 로고
    • The Fourteenth Amendment and School Segregation
    • See, ("Facts are being determined and treated in isolation... and virtually out of their contexts. Law office history... of this type could go on forever to no clear result.... [E]ven if applied evenhandedly this method is open to serious objection.")
    • See Howard Jay Graham, The Fourteenth Amendment and School Segregation, 3 Buff. L. Rev. 1, 7 (1953) ("Facts are being determined and treated in isolation... and virtually out of their contexts. Law office history... of this type could go on forever to no clear result.... [E]ven if applied evenhandedly this method is open to serious objection.")
    • (1953) Buff. L. Rev , vol.3
    • Graham, H.J.1
  • 35
    • 84878296205 scopus 로고    scopus 로고
    • How Many Critiques Must Historians Write?
    • ("Historians coined the epithet 'law-office history' over a half-century ago to describe the way Supreme Court Justices distort the historical record to provide support for positions they take on constitutional controversies.")
    • Stephen A. Siegel, How Many Critiques Must Historians Write?, 45 Tulsa L. Rev. 823, 823 (2010) ("Historians coined the epithet 'law-office history' over a half-century ago to describe the way Supreme Court Justices distort the historical record to provide support for positions they take on constitutional controversies.").
    • (2010) Tulsa L. Rev , vol.45 , pp. 823
    • Siegel, S.A.1
  • 36
    • 0002167283 scopus 로고
    • Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding
    • Eric Foner illustrates this tendency with the "influential examples" of, (advocating limited interpretation of Fourteenth Amendment)
    • Eric Foner illustrates this tendency with the "influential examples" of Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949) (advocating limited interpretation of Fourteenth Amendment)
    • (1949) Stan. L. Rev , vol.2 , pp. 5
    • Fairman, C.1
  • 40
    • 0348205442 scopus 로고
    • Soifer to the Rescue of History
    • But cf, (attempting to rebut the author's claims)
    • But cf. Raoul Berger, Soifer to the Rescue of History, 32 S.C. L. Rev. 427 (1981) (attempting to rebut the author's claims).
    • (1981) S.C. L. Rev , vol.32 , pp. 427
    • Berger, R.1
  • 41
    • 84878298143 scopus 로고
    • Searching for the Intent of the Framers of the Fourteenth Amendment
    • See generally, (surveying of attempts to interpret original intent of framers of Fourteenth Amendment)
    • See generally Robert J. Kaczorowski, Searching for the Intent of the Framers of the Fourteenth Amendment, 5 Conn. L. Rev. 368 (1977) (surveying of attempts to interpret original intent of framers of Fourteenth Amendment).
    • (1977) Conn. L. Rev , vol.5 , pp. 368
    • Kaczorowski, R.J.1
  • 42
  • 43
    • 84994279084 scopus 로고
    • See also, (statement of Sen. James F. Wilson) ("[B]ut wherever the Freedmen's Bureau does not reach, where its agents are not to be found, there you will find injustice and cruelty, and whippings and scourgings and murders that darken the continent. No man can deny this.")
    • See also Cong. Globe, 39th Cong, 1st Sess. 340 (1866) (statement of Sen. James F. Wilson) ("[B]ut wherever the Freedmen's Bureau does not reach, where its agents are not to be found, there you will find injustice and cruelty, and whippings and scourgings and murders that darken the continent. No man can deny this.")
    • (1866) Cong. Globe, 39th Cong, 1st Sess , pp. 340
  • 44
  • 46
    • 84878331240 scopus 로고    scopus 로고
    • See also, (highlighting "white South's inability to adjust to the end of slavery, the widespread mistreatment of blacks, Unionists, and Northerners, and a pervasive spirit of disloyalty")
    • See also Foner, Reconstruction, supra note 8 at 224-27 (highlighting "white South's inability to adjust to the end of slavery, the widespread mistreatment of blacks, Unionists, and Northerners, and a pervasive spirit of disloyalty").
    • Reconstruction, Supra Note 8 , pp. 224-227
    • Foner1
  • 47
    • 84878318700 scopus 로고
    • But see, (quoting extensive reports of outrages but suggesting reports had tendency to exaggerate)
    • But see J. Michael Quill, Prelude to the Radicals: The North and Reconstruction During 1865, at 127-28 (1980) (quoting extensive reports of outrages but suggesting reports had tendency to exaggerate).
    • (1980) Prelude to the Radicals: The North and Reconstruction During 1865 , pp. 127-128
    • Michael, Q.J.1
  • 49
    • 84878331586 scopus 로고
    • For a brief discussion of Alexander Bickel's reading of this proposal
    • S.J. Res. 62, Cong. Globe, 39th Cong., 1st Sess. 1906 (1866). For a brief discussion of Alexander Bickel's reading of this proposal
    • (1866) S.J. Res. 62, Cong. Globe, 39th Cong., 1st Sess , pp. 1906
  • 51
    • 84859715958 scopus 로고    scopus 로고
    • For an explanation of how Johnson's veto of the Civil Rights Act doomed Stewart's proposal, see
    • For an explanation of how Johnson's veto of the Civil Rights Act doomed Stewart's proposal, see Brock, supra note 13, at 117-18.
    • Supra Note 13 , pp. 117-118
    • Brock1
  • 53
    • 84865060037 scopus 로고    scopus 로고
    • The Rights of Citizenship: Two Framers, Two Amendments
    • (noting "the Thirty-Eighth Congress... thought their enforcement power was broad indeed, and that it extended to proclaiming freed slaves as citizens and extending to them the rights of citizenship")
    • Rebecca E. Zietlow, The Rights of Citizenship: Two Framers, Two Amendments, 11 U. Pa. J. Const. L. 1269, 1281-82 (2009) (noting "the Thirty-Eighth Congress... thought their enforcement power was broad indeed, and that it extended to proclaiming freed slaves as citizens and extending to them the rights of citizenship")
    • (2009) U. Pa. J. Const. L , vol.11
    • Zietlow, R.E.1
  • 54
    • 84878319239 scopus 로고    scopus 로고
    • See also, ("Both ideas of a constitutional guarantee and a grant of power to Congress prevailed in the end.")
    • See also ten Broek, supra note 24, at 205-08 ("Both ideas of a constitutional guarantee and a grant of power to Congress prevailed in the end.").
    • Supra Note 24 , pp. 205-208
    • Broek1
  • 55
    • 81355134770 scopus 로고    scopus 로고
    • See, ("In upholding the principles of white supremacy, in expediting the pardon of ex-Confederate leaders, in seeking to restore political and economic power to the old ruling class, President Johnson would act all too decisively.")
    • See Litwack, supra note 24, at 529 ("In upholding the principles of white supremacy, in expediting the pardon of ex-Confederate leaders, in seeking to restore political and economic power to the old ruling class, President Johnson would act all too decisively.").
    • Supra Note 24 , pp. 529
    • Litwack1
  • 56
    • 84878270829 scopus 로고    scopus 로고
    • See, e.g., id. at 530 (reporting after meeting with Frederick Douglass, Johnson reportedly told his secretary "I know that damned Douglass; he's just like any nigger, and he would sooner cut a white man's throat than not")
    • See, e.g., id. at 530 (reporting after meeting with Frederick Douglass, Johnson reportedly told his secretary "I know that damned Douglass; he's just like any nigger, and he would sooner cut a white man's throat than not")
  • 58
    • 84878274357 scopus 로고
    • (recording Johnson's remark, in his annual message to Congress, that blacks have "shown less capacity for government than any other race of people" and that "wherever they have been left to their own devices they have shown a constant tendency to relapse into barbarism")
    • Foreign Relations of the United States (1868), at 1, 6 (recording Johnson's remark, in his annual message to Congress, that blacks have "shown less capacity for government than any other race of people" and that "wherever they have been left to their own devices they have shown a constant tendency to relapse into barbarism")
    • (1868) Foreign Relations of the United States
  • 59
    • 0003443452 scopus 로고
    • ("The transubstantiation of Andrew Johnson was complete.... Because he could not conceive of Negroes as men, he refused to advocate universal democracy, of which, in his young manhood, he had been a fierce advocate, and made strong alliance with those who would restore slavery under another name.")
    • W.E.B. Du Bois, Black Reconstruction in America 322 (1935) ("The transubstantiation of Andrew Johnson was complete.... Because he could not conceive of Negroes as men, he refused to advocate universal democracy, of which, in his young manhood, he had been a fierce advocate, and made strong alliance with those who would restore slavery under another name.").
    • (1935) Black Reconstruction In America , pp. 322
    • Bois, W.E.B.1
  • 60
    • 84878298068 scopus 로고    scopus 로고
    • See generally, 2 (Arthur M. Schlesinger, Jr. & Sean Wilentz eds., 2011) (recounting Frederick Douglass's dismayed reaction on meeting Johnson)
    • See generally Annette Gordon-Reed, Andrew Johnson 2 (Arthur M. Schlesinger, Jr. & Sean Wilentz eds., 2011) (recounting Frederick Douglass's dismayed reaction on meeting Johnson).
    • Gordon-Reed, A.1    Johnson, A.2
  • 61
    • 84878332520 scopus 로고    scopus 로고
    • For accounts of the Memphis and New Orleans race riots of 1866, see, respectively, (Richard Zuczek ed
    • For accounts of the Memphis and New Orleans race riots of 1866, see, respectively, Memphis Riot, Encyclopedia of the Reconstruction Era (Richard Zuczek ed., 2006)
    • (2006) Memphis Riot, Encyclopedia of the Reconstruction Era
  • 64
    • 84878328777 scopus 로고    scopus 로고
    • For a catalog of attacks reported in Southern states against freedmen, see generally Report of the Alleged Outrages in the Southern States by the Select Committee of the Senate, S. Rep. No. 42-1 (1871)
    • For a catalog of attacks reported in Southern states against freedmen, see generally Report of the Alleged Outrages in the Southern States by the Select Committee of the Senate, S. Rep. No. 42-1 (1871).
  • 65
    • 84878341864 scopus 로고
    • See, e.g, (describing Johnson's failed efforts to build bipartisan coalition during 1866 National Union Convention)
    • See, e.g., Hans L. Trefousse, Andrew Johnson: A Biography 255-71 (1989) (describing Johnson's failed efforts to build bipartisan coalition during 1866 National Union Convention).
    • (1989) A Biography , pp. 255-271
    • Trefousse, H.L.1    Johnson, A.2
  • 66
    • 84878288820 scopus 로고    scopus 로고
    • See, (noting contention by Senator James R. Doolittle (Republican from Wisconsin), who chaired National Union Convention in Philadelphia in its failed attempt to launch new national political party in 1866, that Johnson's disastrously unpopular speaking tour may have cost Johnson and his allies a million Northern votes)
    • See Foner, Reconstruction, supra note 8, at 264-65 (noting contention by Senator James R. Doolittle (Republican from Wisconsin), who chaired National Union Convention in Philadelphia in its failed attempt to launch new national political party in 1866, that Johnson's disastrously unpopular speaking tour may have cost Johnson and his allies a million Northern votes).
    • Reconstruction, Supra Note 8 , pp. 264-265
    • Foner1
  • 67
    • 84878302449 scopus 로고    scopus 로고
    • See id. at 267 ("[T]he election became a referendum on the Fourteenth Amendment.... And the result was a disastrous defeat for the President.... [V]oters confirmed the massive Congressional majority Republicans had achieved in 1864.")
    • See id. at 267 ("[T]he election became a referendum on the Fourteenth Amendment.... And the result was a disastrous defeat for the President.... [V]oters confirmed the massive Congressional majority Republicans had achieved in 1864.").
  • 68
    • 84878278927 scopus 로고    scopus 로고
    • See id. (discussing congressional Republicans' controlling position)
    • See id. (discussing congressional Republicans' controlling position).
  • 69
    • 84878319290 scopus 로고
    • Other items on the Senate agenda that day included land grants for railroads, id. at 239, the Tenure of Office Act, id. at 241, attempts to control false representations to immigrants that induced them into servitude, id. at 247, and a proposed resolution seeking to instruct the Judiciary Committee to seek measures, if any, that could be taken "to prevent the Supreme Court from releasing and discharging the assassins of Mr. Lincoln and the conspirators to release the rebel prisoners at Camp Douglas, in Chicago." Id. at 249. This resolution failed to obtain unanimous consent. Id
    • Cong. Globe, 39th Cong., 2d Sess. 239-40 (1867). Other items on the Senate agenda that day included land grants for railroads, id. at 239, the Tenure of Office Act, id. at 241, attempts to control false representations to immigrants that induced them into servitude, id. at 247, and a proposed resolution seeking to instruct the Judiciary Committee to seek measures, if any, that could be taken "to prevent the Supreme Court from releasing and discharging the assassins of Mr. Lincoln and the conspirators to release the rebel prisoners at Camp Douglas, in Chicago." Id. at 249. This resolution failed to obtain unanimous consent. Id.
    • (1867) Cong. Globe, 39th Cong., 2d Sess , pp. 239-240
  • 70
    • 84878313851 scopus 로고
    • Id. at 251. Stevens also asserted that in the United States, "the whole sovereignty rests with the people, and is exercised through their Representatives in Congress assembled." Thus, Stevens declared, "No Government official, from President and Chief Justice down, can do any one act which is not prescribed and directed by legislative power." Id. at 252. The Supreme Court's recent decision in Ex parte Milligan, 71 U.S. 2 (1866), drew particular ire because Stevens read it to endanger all efforts to use the military to protect freed blacks and loyal unionists. Id. at 251
    • Id. at 251. Stevens also asserted that in the United States, "the whole sovereignty rests with the people, and is exercised through their Representatives in Congress assembled." Thus, Stevens declared, "No Government official, from President and Chief Justice down, can do any one act which is not prescribed and directed by legislative power." Id. at 252. The Supreme Court's recent decision in Ex parte Milligan, 71 U.S. 2 (1866), drew particular ire because Stevens read it to endanger all efforts to use the military to protect freed blacks and loyal unionists. Id. at 251.
    • (1867) Cong. Globe, 39th Cong., 2d Sess
  • 72
    • 84878286722 scopus 로고    scopus 로고
    • The Act provided, in relevant part, have produced firstrate accounts of the background and implications of antipeonage legislation
    • The Act provided, in relevant part, James Gray Pope, Lea S. VanderVelde, and Rebecca E. Zietlow have produced firstrate accounts of the background and implications of antipeonage legislation.
    • Pope, J.G.1    Vandervelde, L.S.2    Zietlow, R.E.3
  • 73
    • 79957569464 scopus 로고    scopus 로고
    • See, e.g, (reviewing legislative origins of "right to quit work" as set forth in Northwest Ordinance of 1787 and Peonage Abolition Act of 1867)
    • See, e.g., Pope, supra note 4, at 1482-87 (reviewing legislative origins of "right to quit work" as set forth in Northwest Ordinance of 1787 and Peonage Abolition Act of 1867)
    • Supra Note 4 , pp. 1482-1487
    • Pope1
  • 74
    • 84878302485 scopus 로고    scopus 로고
    • (discussing five historical uses of Congress's Section 2 enforcement power under Thirteenth Amendment)
    • Lea VanderVelde, The Thirteenth Amendment of Our Aspirations, 38 U. Tol. L. Rev. 855, 857-59 (2007) (discussing five historical uses of Congress's Section 2 enforcement power under Thirteenth Amendment)
    • (2007) The Thirteenth Amendment of Our Aspirations , vol.38
    • Vandervelde, L.1
  • 75
    • 77950470423 scopus 로고    scopus 로고
    • Free at Last! Anti-Subordination and the Thirteenth Amendment
    • (discussing passage of anti-peonage acts during Reconstruction era)
    • Rebecca E. Zietlow, Free at Last! Anti-Subordination and the Thirteenth Amendment, 90 B.U. L. Rev. 255, 262, 290-92 (2010) (discussing passage of anti-peonage acts during Reconstruction era).
    • (2010) B.U. L. Rev , vol.90
    • Zietlow, R.E.1
  • 78
    • 84878344225 scopus 로고    scopus 로고
    • published more than forty years ago, remains vital to understanding these slippery and yet fundamental matters
    • Eric Foner's book, published more than forty years ago, remains vital to understanding these slippery and yet fundamental matters.
    • Eric Foner's Book
  • 80
    • 84878311703 scopus 로고
    • (codified as amended at 18 U.S.C. § 241 and 42 U.S.C. §§ 1983, 1985(3), 1988)
    • Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13, 13 (1871) (codified as amended at 18 U.S.C. § 241 and 42 U.S.C. §§ 1983, 1985(3), 1988).
    • (1871) Ku Klux Klan Act of 1871, Ch. 22, 17 Stat , pp. 13
  • 81
    • 84878331240 scopus 로고    scopus 로고
    • See, e.g, (discussing "counterrevolutionary terror" created by Ku Klux Klan violence in American South in 1860s and 1870s)
    • See, e.g., Foner, Reconstruction, supra note 8, at 425-44 (discussing "counterrevolutionary terror" created by Ku Klux Klan violence in American South in 1860s and 1870s)
    • Reconstruction, Supra Note 8 , pp. 425-444
    • Foner1
  • 83
    • 84878338107 scopus 로고    scopus 로고
    • Justice John Harlan's strained reading of the statutory language of 42 U.S.C. § 1983 to interpret "custom and usage" to require acts by government officials in Adickes v. S.H. Kress & Co., 398 U.S. 144, 162-69 (1970), demonstrates the kinds of somersaults required to maintain the state action barrier
    • Justice John Harlan's strained reading of the statutory language of 42 U.S.C. § 1983 to interpret "custom and usage" to require acts by government officials in Adickes v. S.H. Kress & Co., 398 U.S. 144, 162-69 (1970), demonstrates the kinds of somersaults required to maintain the state action barrier.
  • 84
    • 84878294507 scopus 로고    scopus 로고
    • Rather incredibly, the Court rejected the civil rights claim of a white schoolteacher refused service at a lunch counter in Hattiesburg, Mississippi when she accompanied six black students there because she had not proved the requisite involvement of state officials with store personnel before she was arrested for vagrancy upon leaving the store. Id. at 146-47, 169-70
    • Rather incredibly, the Court rejected the civil rights claim of a white schoolteacher refused service at a lunch counter in Hattiesburg, Mississippi when she accompanied six black students there because she had not proved the requisite involvement of state officials with store personnel before she was arrested for vagrancy upon leaving the store. Id. at 146-47, 169-70.
  • 85
    • 0006223088 scopus 로고
    • On the other hand, if Shelley v. Kraemer is to be taken seriously, there seems no stopping place once the origin story identifies the arm of the state behind the enforcement of the laws. 334 U.S. 1, 19-20 (1948) (finding state court's enforcement of restrictive covenant constitutes state action). Like turtles in what may be an apocryphal ancient myth, it becomes state action all the way down, (describing turtle myth)
    • On the other hand, if Shelley v. Kraemer is to be taken seriously, there seems no stopping place once the origin story identifies the arm of the state behind the enforcement of the laws. 334 U.S. 1, 19-20 (1948) (finding state court's enforcement of restrictive covenant constitutes state action). Like turtles in what may be an apocryphal ancient myth, it becomes state action all the way down. Clifford Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures: Selected Essays 28-29 (1973) (describing turtle myth).
    • (1973) Thick Description: Toward An Interpretive Theory of Culture, In the Interpretation of Cultures: Selected Essays , pp. 28-29
    • Geertz, C.1
  • 87
    • 84878269296 scopus 로고    scopus 로고
    • Peonage customarily entailed an obligation to labor for someone to pay off a debt. Indentured servitude arrangements that brought many early settlers to the American colonies, for example, generally obligated the immigrant to work for a specified number of years to pay for his transportation and upkeep. Similar obligations, including harsh working conditions, were later imposed on Asian immigrants and former slaves. See, e.g, (explaining obligation structure of indentured servitude contracts, use of indentured servitude by slave owners to "keep their former slaves in bondage," and use of indentured servitude contracts for Chinese immigrants in mid-nineteenth century)
    • Peonage customarily entailed an obligation to labor for someone to pay off a debt. Indentured servitude arrangements that brought many early settlers to the American colonies, for example, generally obligated the immigrant to work for a specified number of years to pay for his transportation and upkeep. Similar obligations, including harsh working conditions, were later imposed on Asian immigrants and former slaves. See, e.g., Steinfeld, Invention of Free Labor, supra note 38, at 51, 137, 177 (explaining obligation structure of indentured servitude contracts, use of indentured servitude by slave owners to "keep their former slaves in bondage," and use of indentured servitude contracts for Chinese immigrants in mid-nineteenth century)
    • Invention of Free Labor, Supra Note 38
    • Steinfeld1
  • 88
    • 0039059744 scopus 로고
    • The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921
    • See also, [hereinafter, Soifer, Paradox of Paternalism] (explaining that in early twentieth-century Supreme Court case aw, "[f]reedom of contract remained sufficiently vital to preclude intervention in labor-management affairs, particularly when the state's policy suggested redistribution of wealth or power")
    • See also Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 Law & Hist. Rev. 249, 270-74 (1987) [hereinafter, Soifer, Paradox of Paternalism] (explaining that in early twentieth-century Supreme Court case aw, "[f]reedom of contract remained sufficiently vital to preclude intervention in labor-management affairs, particularly when the state's policy suggested redistribution of wealth or power")
    • (1987) Law & Hist. Rev , vol.5
    • Soifer, A.1
  • 89
    • 84878044879 scopus 로고    scopus 로고
    • Hawai'i's Masters and Servants Act: Brutal Slavery?
    • (discussing violent conditions imposed on Hawai'i's Japanese and Chinese contract laborers)
    • Wilma Sur, Hawai'i's Masters and Servants Act: Brutal Slavery?, 31 U. Haw. L. Rev. 87, 108-12 (2008) (discussing violent conditions imposed on Hawai'i's Japanese and Chinese contract laborers).
    • (2008) U. Haw. L. Rev , vol.31
    • Sur, W.1
  • 90
    • 84878327103 scopus 로고    scopus 로고
    • The contractual obligation approach is still in use today. See, (finding "the degrading institute of slavery" exists in twenty-first century in form of indentured servitude and describing debt bondage structure of modern human trafficking)
    • The contractual obligation approach is still in use today. See Trafficking Victims Protection Act, 22 U.S.C. §§ 7101, 7102(4) (2006) (finding "the degrading institute of slavery" exists in twenty-first century in form of indentured servitude and describing debt bondage structure of modern human trafficking).
    • (2006) Trafficking Victims Protection Act, 22 U.S.C , Issue.4
  • 92
    • 81255199100 scopus 로고    scopus 로고
    • (quoting Trefousse, supra note 32, at 279)
    • Gordon-Reed, supra note 30, at 129-30 (quoting Trefousse, supra note 32, at 279).
    • Supra Note 30 , pp. 129-130
    • Gordon-Reed1
  • 95
    • 84878299911 scopus 로고    scopus 로고
    • Foner noted, "The astonishingly rapid evolution of Congressional attitudes that culminated in black suffrage arose both from the crisis created by the obstinacy of Johnson and the white South, and the determination of Radicals, blacks, and eventually Southern Unionists not to accept a Reconstruction program that stopped short of this demand." Id. at 277
    • Foner, Reconstruction, supra note 8, at 276-77. Foner noted, "The astonishingly rapid evolution of Congressional attitudes that culminated in black suffrage arose both from the crisis created by the obstinacy of Johnson and the white South, and the determination of Radicals, blacks, and eventually Southern Unionists not to accept a Reconstruction program that stopped short of this demand." Id. at 277.
    • Reconstruction, Supra Note 8 , pp. 276-277
    • Foner1
  • 96
    • 84859715958 scopus 로고    scopus 로고
    • See generally, [T]he Republicans could hardly fail to be conscious of the weight of opinion behind them, and it was not unexpected that they should have spoken of themselves as national representatives of the national will, and regarded a President who had been repudiated and a Supreme Court which represented no one and still contained members who had concurred in the notorious Dred Scott decision as their inferiors in the scales of popular government. Legislative supremacy looked more logical, more desirable and more just than executive encroachments or judicial usurpations. If this view was challenged, as Johnson challenged it, by stating that a Congress which excluded eleven States was no Congress, it could be claimed that a Congress which had had authority to fight the war must have equal authority to decide the conditions of peace. Id. at 7
    • See generally Brock, supra note 13. [T]he Republicans could hardly fail to be conscious of the weight of opinion behind them, and it was not unexpected that they should have spoken of themselves as national representatives of the national will, and regarded a President who had been repudiated and a Supreme Court which represented no one and still contained members who had concurred in the notorious Dred Scott decision as their inferiors in the scales of popular government. Legislative supremacy looked more logical, more desirable and more just than executive encroachments or judicial usurpations. If this view was challenged, as Johnson challenged it, by stating that a Congress which excluded eleven States was no Congress, it could be claimed that a Congress which had had authority to fight the war must have equal authority to decide the conditions of peace. Id. at 7.
    • Supra Note 13
    • Brock1
  • 97
    • 84878294728 scopus 로고    scopus 로고
    • 80 U.S. (13 Wall.) 581, 593 (1872) ("[T]he Circuit Court had not jurisdiction of the crime of murder... because two persons who witnessed the murder were citizens of the African race, and for that reason incompetent by the law of Kentucky to testify in the courts of that State.")
    • 80 U.S. (13 Wall.) 581, 593 (1872) ("[T]he Circuit Court had not jurisdiction of the crime of murder... because two persons who witnessed the murder were citizens of the African race, and for that reason incompetent by the law of Kentucky to testify in the courts of that State.")
  • 99
    • 84928846241 scopus 로고
    • Blyew: Variations on a Jurisdictional Theme
    • (detailing Court's holding)
    • Robert D. Goldstein, Blyew: Variations on a Jurisdictional Theme, 41 Stan. L. Rev. 469, 500-08 (1989) (detailing Court's holding)
    • (1989) Stan. L. Rev , vol.41
    • Goldstein, R.D.1
  • 100
    • 84878268359 scopus 로고    scopus 로고
    • (discussing facts, holding, and impact of Blyew decision)
    • Soifer, Full and Equal Rights, supra note 6, at 206-08 (discussing facts, holding, and impact of Blyew decision).
    • Full and Equal Rights, Supra Note 6 , pp. 206-208
    • Soifer1
  • 101
    • 84878312833 scopus 로고    scopus 로고
    • 80 U.S. at 597 (Bradley, J., dissenting). In fact, Justice Bradley's dissent offered a précis of the predominant argument throughout the final year of the Thirty-Ninth Congress that clearly embraced national protection of civil rights: Merely striking off the fetters of the slave, without removing the incidents and consequences of slavery, would hardly have been a boon to the colored race. Hence, also, the amendment abolishing slavery was supplemented by a clause giving Congress power to enforce it by appropriate legislation. No law was necessary to abolish slavery; the amendment did that. The power to enforce the amendment by appropriate legislation must be a power to do away with the incidents and consequences of slavery, and to instate the freedmen in the full enjoyment of that civil liberty and equality which the abolition of slavery meant. Id. at 601
    • Blyew, 80 U.S. at 597 (Bradley, J., dissenting). In fact, Justice Bradley's dissent offered a précis of the predominant argument throughout the final year of the Thirty-Ninth Congress that clearly embraced national protection of civil rights: Merely striking off the fetters of the slave, without removing the incidents and consequences of slavery, would hardly have been a boon to the colored race. Hence, also, the amendment abolishing slavery was supplemented by a clause giving Congress power to enforce it by appropriate legislation. No law was necessary to abolish slavery; the amendment did that. The power to enforce the amendment by appropriate legislation must be a power to do away with the incidents and consequences of slavery, and to instate the freedmen in the full enjoyment of that civil liberty and equality which the abolition of slavery meant. Id. at 601.
    • Blyew1
  • 102
    • 84878302143 scopus 로고    scopus 로고
    • 83 U.S. (16 Wall.) 36, 37 (1873) ("But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government.")
    • 83 U.S. (16 Wall.) 36, 37 (1873) ("But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government.").
  • 103
    • 84878339309 scopus 로고
    • Hall asserted that he had been born a free man, but the Court determined that it did not have to reach this issue because Hall had been sold and held in Mississippi as a slave, his color presumptively made him a slave, and he had not availed himself of a Mississippi statute that was the exclusive means to claim one's freedom. Id
    • Hall v. United States, 92 U.S. 27, 30 (1875). Hall asserted that he had been born a free man, but the Court determined that it did not have to reach this issue because Hall had been sold and held in Mississippi as a slave, his color presumptively made him a slave, and he had not availed himself of a Mississippi statute that was the exclusive means to claim one's freedom. Id.
    • (1875) Hall V. United States , vol.92
  • 104
    • 84878314203 scopus 로고    scopus 로고
    • For the unanimous Court, Justice Swayne further explained, It was an inflexible rule of the law of African slavery, wherever it existed, that the slave was incapable of entering into any contract, not excepting the contract of marriage.... [Thus] it is clear that if Hall did contract with Roach, as he alleges he did, the contract was an utter nullity. In the view of the law, it created no obligation, and conferred no rights as to either of the parties. It was as if it were not. This case must be determined as if slavery had not been abolished in Mississippi, and the laws referred to were still in force there. The destruction of the institution can have no effect upon the prior rights here in question. Id. at 30-31
    • For the unanimous Court, Justice Swayne further explained, It was an inflexible rule of the law of African slavery, wherever it existed, that the slave was incapable of entering into any contract, not excepting the contract of marriage.... [Thus] it is clear that if Hall did contract with Roach, as he alleges he did, the contract was an utter nullity. In the view of the law, it created no obligation, and conferred no rights as to either of the parties. It was as if it were not. This case must be determined as if slavery had not been abolished in Mississippi, and the laws referred to were still in force there. The destruction of the institution can have no effect upon the prior rights here in question. Id. at 30-31.
  • 105
    • 84878283954 scopus 로고    scopus 로고
    • ("A kind of deep structure of belief in states' rights and sovereignty was an essential factor in the failure of Reconstruction")
    • Soifer, Promises Unkept, supra note 8, at 1950 ("A kind of deep structure of belief in states' rights and sovereignty was an essential factor in the failure of Reconstruction").
    • Promises Unkept, Supra Note 8 , pp. 1950
    • Soifer1
  • 106
    • 84878306099 scopus 로고    scopus 로고
    • See, e.g., id. at 1947 ("Moderates also allied with many Radicals in their desire to keep the freedmen in the South, and to respond to the threat of increased congressional power for the South now that blacks counted as full persons for purposes of calculating representation.")
    • See, e.g., id. at 1947 ("Moderates also allied with many Radicals in their desire to keep the freedmen in the South, and to respond to the threat of increased congressional power for the South now that blacks counted as full persons for purposes of calculating representation.")
  • 107
    • 84878301782 scopus 로고    scopus 로고
    • See also, (describing initiatives and conflicts during First Congressional Reconstruction)
    • See also Brock, supra note 13, at 95-105 (describing initiatives and conflicts during First Congressional Reconstruction).
    • Supra Note 13 , pp. 95-105
    • Brock1
  • 108
    • 81355134770 scopus 로고    scopus 로고
    • See generally, (noting African Americans' struggle for independence from end of Civil War through Reconstruction period)
    • See generally Litwack, supra note 24 (noting African Americans' struggle for independence from end of Civil War through Reconstruction period).
    • Supra Note 24
    • Litwack1
  • 109
    • 84878333692 scopus 로고    scopus 로고
    • 6 F. Cas. 546, 551-52 (Washington, Circuit Justice, C.C.E.D. Pa. 1823) (No. 3230)
    • 6 F. Cas. 546, 551-52 (Washington, Circuit Justice, C.C.E.D. Pa. 1823) (No. 3230).
  • 110
    • 84878329415 scopus 로고    scopus 로고
    • Chief Justice Lemuel Shaw's opinion in Roberts v. City of Boston, in which the Massachusetts Supreme Judicial Court rejected a challenge to the segregation of Boston's public schools, interpreted equal protection not to include the notion that "men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment." 59 Mass. (5 Cush.) 198, 206 (1850). Rather, Shaw proclaimed, the equal protection that was mentioned in the Massachusetts Constitution meant "only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security." Id
    • Chief Justice Lemuel Shaw's opinion in Roberts v. City of Boston, in which the Massachusetts Supreme Judicial Court rejected a challenge to the segregation of Boston's public schools, interpreted equal protection not to include the notion that "men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment." 59 Mass. (5 Cush.) 198, 206 (1850). Rather, Shaw proclaimed, the equal protection that was mentioned in the Massachusetts Constitution meant "only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security." Id.
  • 111
    • 0004201389 scopus 로고
    • This embrace and at least partial conflation of "paternal consideration" and "protection of the law" helps to explain why Justice Brown was delighted to invoke Shaw's decision and to quote his language in rejecting Homer Plessy's attack on segregation in, 163 U.S. 537, 544, To the Plessy Court, it was "too clear for argument" that the Thirteenth Amendment abolished nothing beyond slavery, bondage, and-somewhat remarkably-"the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services." Id. at 542
    • This embrace and at least partial conflation of "paternal consideration" and "protection of the law" helps to explain why Justice Brown was delighted to invoke Shaw's decision and to quote his language in rejecting Homer Plessy's attack on segregation in Plessy v. Ferguson, 163 U.S. 537, 544 (1896). To the Plessy Court, it was "too clear for argument" that the Thirteenth Amendment abolished nothing beyond slavery, bondage, and-somewhat remarkably-"the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services." Id. at 542.
    • (1896) Plessy V. Ferguson
  • 112
    • 84878285334 scopus 로고    scopus 로고
    • U.S. Const. amend. XIV, § 1. There may be a little willful amnesia regarding the building blocks of judicial review under the Constitution taught in Constitutional Law I. In, "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of laws, whenever he receives an injury. One of the first duties of government is to afford that protection." 5 U.S. (1 Cranch) 137, 163 (1803)
    • U.S. Const. amend. XIV, § 1. There may be a little willful amnesia regarding the building blocks of judicial review under the Constitution taught in Constitutional Law I. In Marbury v. Madison, Chief Justice John Marshall noted for the unanimous Court that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of laws, whenever he receives an injury. One of the first duties of government is to afford that protection." 5 U.S. (1 Cranch) 137, 163 (1803).
    • Marbury V. Madison, Chief Justice John Marshall Noted For the Unanimous Court That
  • 113
    • 0001960096 scopus 로고
    • Moral Ambition, Formalism, and the "Free World" of DeShaney
    • 489 U.S. 189 (1989). For this and numerous additional reasons, the author critiqued the DeShaney decision to the point of calling it "an abomination.", Though in retrospect this phrasing seems extreme, it also still seems accurate
    • 489 U.S. 189 (1989). For this and numerous additional reasons, the author critiqued the DeShaney decision to the point of calling it "an abomination." Aviam Soifer, Moral Ambition, Formalism, and the "Free World" of DeShaney, 57 Geo. Wash. L. Rev. 1513, 1514 (1989). Though in retrospect this phrasing seems extreme, it also still seems accurate.
    • (1989) Geo. Wash. L. Rev , vol.57
    • Soifer, A.1
  • 114
    • 84878288022 scopus 로고    scopus 로고
    • 489 U.S. at 196. In denying that Wisconsin had any affirmative duty to protect a child who was two years old when state officials first became involved with his case and four when his father beat him so severely that he suffered "brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded," id. at 193, Chief Justice Rehnquist hewed closely to Judge Posner's analysis for the Seventh Circuit below. Posner had said "The state does not have a duty enforceable by the federal courts to maintain a police force or a fire department, or to protect children from their parents." 812 F.2d 298, 301 (7th Cir. 1987), aff'd, 489 U.S. 189. Dissenting, Justice Brennan, joined by Justices Marshall and Blackmun, offered a devastating critique of the majority's "fixation on the general principle that the Constitution does not establish positive rights." 489 U.S. at 205 (Brennan, J., dissenting)
    • DeShaney, 489 U.S. at 196. In denying that Wisconsin had any affirmative duty to protect a child who was two years old when state officials first became involved with his case and four when his father beat him so severely that he suffered "brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded," id. at 193, Chief Justice Rehnquist hewed closely to Judge Posner's analysis for the Seventh Circuit below. Posner had said "The state does not have a duty enforceable by the federal courts to maintain a police force or a fire department, or to protect children from their parents." 812 F.2d 298, 301 (7th Cir. 1987), aff'd, 489 U.S. 189. Dissenting, Justice Brennan, joined by Justices Marshall and Blackmun, offered a devastating critique of the majority's "fixation on the general principle that the Constitution does not establish positive rights." 489 U.S. at 205 (Brennan, J., dissenting).
    • Deshaney1
  • 115
    • 84878277535 scopus 로고    scopus 로고
    • 489 U.S. at 213 (Blackmun, J., dissenting.) Blackmun added, Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents, who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles-so full of late of patriotic fervor and proud proclamations about "liberty and justice for all"-that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Id. (citation omitted)
    • 489 U.S. at 213 (Blackmun, J., dissenting.) Blackmun added, Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents, who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles-so full of late of patriotic fervor and proud proclamations about "liberty and justice for all"-that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Id. (citation omitted).
  • 116
    • 84878288234 scopus 로고    scopus 로고
    • Blackmun's cri de coeur also tellingly invokes Robert Cover, Justice Accused (1975), a brilliant study of the cognitive dissonance among judges who were personally opposed to slavery yet protested too much that their hands were tied and that they thus were obliged to return fugitives to slavery
    • Blackmun's cri de coeur also tellingly invokes Robert Cover, Justice Accused (1975), a brilliant study of the cognitive dissonance among judges who were personally opposed to slavery yet protested too much that their hands were tied and that they thus were obliged to return fugitives to slavery.
  • 117
    • 84878296959 scopus 로고    scopus 로고
    • 489 U.S. at 201 (majority opinion)
    • 489 U.S. at 201 (majority opinion).
  • 120
    • 84878271702 scopus 로고    scopus 로고
    • 109 U.S. 3, 25 (1883)
    • 109 U.S. 3, 25 (1883).
  • 121
    • 84878304135 scopus 로고    scopus 로고
    • Id. at 24-25. Notably, the majority assumed that blacks had in fact been special favorites of the law-presumably referring to congressional legislation anchored in both the Thirteenth and Fourteenth Amendments
    • Id. at 24-25. Notably, the majority assumed that blacks had in fact been special favorites of the law-presumably referring to congressional legislation anchored in both the Thirteenth and Fourteenth Amendments.
    • Reconstruction, Supra Note 8
    • Foner1
  • 123
    • 84878284211 scopus 로고    scopus 로고
    • 392 U.S. 409, 449-50 (1968) (Harlan, J., dissenting) ("[T]he Court's construction of § 1982 as applying to purely private conduct is almost surely wrong, and at the least is open to serious doubt.")
    • 392 U.S. 409, 449-50 (1968) (Harlan, J., dissenting) ("[T]he Court's construction of § 1982 as applying to purely private conduct is almost surely wrong, and at the least is open to serious doubt.").
  • 124
    • 84878326102 scopus 로고    scopus 로고
    • ("All citizens were to have the same rights-and the complete and equal benefit of all laws and proceedings for security of person and property-as enjoyed by paradigmatic white citizens. Any law or statute to the contrary was superseded." (citations omitted))
    • Soifer, Protecting Civil Rights, supra note 8, at 676 ("All citizens were to have the same rights-and the complete and equal benefit of all laws and proceedings for security of person and property-as enjoyed by paradigmatic white citizens. Any law or statute to the contrary was superseded." (citations omitted)).
    • Protecting Civil Rights, Supra Note 8 , pp. 676
    • Soifer1
  • 125
    • 84878301345 scopus 로고    scopus 로고
    • See, e.g, (holding Act only "provide[s] modes of relief against State Legislation, or State action")
    • See, e.g., The Civil Rights Cases, 109 U.S. at 11 (holding Act only "provide[s] modes of relief against State Legislation, or State action")
    • The Civil Rights Cases , vol.109 , pp. 11
  • 126
    • 84878285593 scopus 로고
    • 382 U.S. 296, 299, (analyzing lines between private and state action)
    • Evans v. Newton, 382 U.S. 296, 299 (1966) (analyzing lines between private and state action)
    • (1966) Evans V. Newton
  • 127
    • 84878281065 scopus 로고
    • (rejecting claim that state had delegated traditional power to warehouseman through role of sheriff in property seizure). The "state action" prerequisite loomed large during the congressional debates that produced the Civil Rights Act of 1964 and explains why Congress ultimately felt it necessary to rely on the Commerce Clause and the Spending Power
    • Flagg Bros. v. Brooks, 436 U.S. 149, 164-66 (1978) (rejecting claim that state had delegated traditional power to warehouseman through role of sheriff in property seizure). The "state action" prerequisite loomed large during the congressional debates that produced the Civil Rights Act of 1964 and explains why Congress ultimately felt it necessary to rely on the Commerce Clause and the Spending Power.
    • (1978) Flagg Bros. V. Brooks , vol.436
  • 128
    • 84878284436 scopus 로고
    • See, Goldberg, J., concurring) (discussing legislative history of Civil Rights Act of
    • See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 292-93 n.1 (Goldberg, J., concurring) (discussing legislative history of Civil Rights Act of 1964).
    • (1964) Heart of Atlanta Motel, Inc. V. United States , vol.379 , Issue.1
  • 129
    • 78649925736 scopus 로고
    • The requirement to prove action "under color of state law" stretches back to early, narrow constructions of what is now 42 U.S.C. § 1983. Recent decisions narrowing, have establ shed a more stringent requirement of state involvement
    • The requirement to prove action "under color of state law" stretches back to early, narrow constructions of what is now 42 U.S.C. § 1983. Recent decisions narrowing Monroe v. Pape, 365 U.S. 167 (1961), have establ shed a more stringent requirement of state involvement
    • (1961) Monroe V. Pape , vol.365 , pp. 167
  • 130
    • 84878280191 scopus 로고    scopus 로고
    • See, e.g, (holding only "unambiguously conferred right" supports cause of action brought under § 1983)
    • See, e.g., Gonzaga University v. Doe, 536 U.S. 273, 283 (2002) (holding only "unambiguously conferred right" supports cause of action brought under § 1983)
    • (2002) Gonzaga University V. Doe , vol.536
  • 131
    • 84878300299 scopus 로고
    • (expanding "qualified immunity" to protect police officers who "could have believed" warrantless search was lawful)
    • Anderson v. Creighton, 483 U.S. 635, 645-46 (1987) (expanding "qualified immunity" to protect police officers who "could have believed" warrantless search was lawful).
    • (1987) Anderson V. Creighton , vol.483
  • 132
    • 0041830367 scopus 로고
    • The Supreme Court, 1966 Term-Foreword: "State Action," Equal Protection, and California's Proposition 14
    • Charles L. Black, Jr., The Supreme Court, 1966 Term-Foreword: "State Action," Equal Protection, and California's Proposition 14, 81 Harv. L. Rev. 69, 107 (1967).
    • (1967) Harv. L. Rev , vol.81
    • Black, C.L.1
  • 133
    • 84878288880 scopus 로고    scopus 로고
    • See id. at 70 ("The amenability of racial injustice to national legal correction is inversely proportional to the durability and scope of the state action 'doctrine,' and of the ways of thinking to which it is linked.")
    • See id. at 70 ("The amenability of racial injustice to national legal correction is inversely proportional to the durability and scope of the state action 'doctrine,' and of the ways of thinking to which it is linked.").
  • 134
    • 84878329317 scopus 로고    scopus 로고
    • See id. at 100 ("[E]xpansion of the 'state action' concept to include every form of state fostering, enforcement, and even toleration does not have to mean that the fourteenth amendment is to regulate the genuinely private concerns of man.")
    • See id. at 100 ("[E]xpansion of the 'state action' concept to include every form of state fostering, enforcement, and even toleration does not have to mean that the fourteenth amendment is to regulate the genuinely private concerns of man.").
  • 135
    • 84878296374 scopus 로고    scopus 로고
    • See id. at 100-01 ("[T]he thing needed... is not a doctrine of 'state action' unresponsive entirely in terms and only crudely and fitfully responsive in application to the required distinction, but rather a substantive rule of reason operating in the interpretation of the equal protection clause....")
    • See id. at 100-01 ("[T]he thing needed... is not a doctrine of 'state action' unresponsive entirely in terms and only crudely and fitfully responsive in application to the required distinction, but rather a substantive rule of reason operating in the interpretation of the equal protection clause....").
  • 138
    • 84878285631 scopus 로고    scopus 로고
    • Text-Mess: There Is No Textual Basis for Application of the Takings Clause to the States
    • 130 S. Ct. 3020 (2010). The relevant parts of Justice Alito's opinion were joined by a majority of the Court. Id. at 3026. As a textual and historical matter, however, even Justice Thomas's broad privileges and immunities theory ought not to apply the Takings Clause to the states. Cf. id. at 3059 (Thomas, J., concurring) ("[T]he right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause."). That Clause from the Fifth Amendment was intentionally omitted from the language of the Fourteenth Amendment while other Fifth
    • 130 S. Ct. 3020 (2010). The relevant parts of Justice Alito's opinion were joined by a majority of the Court. Id. at 3026. As a textual and historical matter, however, even Justice Thomas's broad privileges and immunities theory ought not to apply the Takings Clause to the states. Cf. id. at 3059 (Thomas, J., concurring) ("[T]he right to keep and bear arms is a privilege of American citizenship that applies to the have had much to do with the new inclusion of 'privileges or immunities' or 'equal protection' in the Federal Constitution through the Fourteenth Amendment").
    • (2006) U. Haw. L. Rev , vol.28
    • Soifer, A.1
  • 139
    • 84878310089 scopus 로고    scopus 로고
    • 130 S. Ct. at 3040-41
    • 130 S. Ct. at 3040-41.
  • 140
    • 84878270581 scopus 로고    scopus 로고
    • See id. at 3036-44. It is striking that Alito relied on such Radical Republican leaders as Senator Charles Sumner and Representative Thaddeus Stevens-and even the outspoken abolitionist Lysander Spooner-as well as, to build his case for federal protection of fundamental rights. See, e.g., id. at 3030, 3038, 3041
    • See id. at 3036-44. It is striking that Alito relied on such Radical Republican leaders as Senator Charles Sumner and Representative Thaddeus Stevens-and even the outspoken abolitionist Lysander Spooner-as well as Charles Black Jr. and Eric Foner to build his case for federal protection of fundamental rights. See, e.g., id. at 3030, 3038, 3041.
    • Black Jr., C.1    Foner, E.2
  • 141
    • 84878324780 scopus 로고    scopus 로고
    • Id. at 3050 (Scalia, J., concurring) (quoting Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring))
    • Id. at 3050 (Scalia, J., concurring) (quoting Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring)).
    • Black Jr., C.1    Foner, E.2
  • 142
    • 84878340598 scopus 로고    scopus 로고
    • Id. at 3060 (Thomas, J, concurring). To be sure, the Court has recognized this fundamental change before without it seeming to matter much
    • Id. at 3060 (Thomas, J, concurring). To be sure, the Court has recognized this fundamental change before without it seeming to matter much.
    • Black Jr., C.1    Foner, E.2
  • 143
    • 84878335163 scopus 로고
    • See, e.g, (referring to "the basic alteration of our federal system accomplished during the Reconstruction Era")
    • See, e.g., Patsy v. Bd. of Regents, 457 U.S. 496, 503 (1982) (referring to "the basic alteration of our federal system accomplished during the Reconstruction Era")
    • (1982) Patsy V. Bd. of Regents , vol.457
  • 144
    • 84878292419 scopus 로고
    • ("[T]he Civil War Amendments to the Constitution... serve as a sword, rather than merely as a shield, for those whom they were designed to protect.")
    • Edelman v. Jordan, 415 U.S. 651, 664 (1974) ("[T]he Civil War Amendments to the Constitution... serve as a sword, rather than merely as a shield, for those whom they were designed to protect.").
    • (1974) Edelman V. Jordan , vol.415
  • 145
    • 84878311629 scopus 로고    scopus 로고
    • 130 S. Ct. at 3060 (Thomas, J., concurring). Thomas went on to explain that the logical reading of Section 1's provision that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" is as an affirmative guarantee of rights. Id. at 3077. The same could and should be said of the provision that follows, which declares that "nor shall any state... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1
    • 130 S. Ct. at 3060 (Thomas, J., concurring). Thomas went on to explain that the logical reading of Section 1's provision that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" is as an affirmative guarantee of rights. Id. at 3077. The same could and should be said of the provision that follows, which declares that "nor shall any state... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.
  • 146
    • 84878322270 scopus 로고    scopus 로고
    • 130 S. Ct. at 3035 (majority opinion)
    • 130 S. Ct. at 3035 (majority opinion).
  • 147
    • 84878286225 scopus 로고    scopus 로고
    • 109 U.S. 3, 20 (1883). Justice Bradley continued, It is true, that slavery cannot exist without law, any more than property in lands and goods can exist without law: and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed, that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States....Id
    • 109 U.S. 3, 20 (1883). Justice Bradley continued, It is true, that slavery cannot exist without law, any more than property in lands and goods can exist without law: and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed, that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States....Id.
  • 148
    • 84878340363 scopus 로고    scopus 로고
    • 997-98 (S.D. Ind, (discussing precedent and finding "The Civil Rights Cases did not hold or suggest that there is a private right of damages directly under the Thirteenth Amendment, nor is such a private right of damages intended for the Thirteenth Amendment to be effective")
    • John Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988, 997-98 (S.D. Ind. 2007) (discussing precedent and finding "The Civil Rights Cases did not hold or suggest that there is a private right of damages directly under the Thirteenth Amendment, nor is such a private right of damages intended for the Thirteenth Amendment to be effective")
    • (2007) John Roe I V. Bridgestone Corp , vol.492 , Issue.2 , pp. 988
  • 149
    • 84878304781 scopus 로고    scopus 로고
    • No. C 02-05570 WHA, 2003 WL 23893010, at *11 (N.D. Cal. Aug. 4, (rejecting argument that Peonage Abolition Act "was intended to implement the Thirteenth Amendment, whose language it mirrors and which has no state-action requirement")
    • Jane Doe I v. Reddy, No. C 02-05570 WHA, 2003 WL 23893010, at *11 (N.D. Cal. Aug. 4, 2003) (rejecting argument that Peonage Abolition Act "was intended to implement the Thirteenth Amendment, whose language it mirrors and which has no state-action requirement")
    • (2003) Jane Doe I V. Reddy
  • 150
    • 84878302374 scopus 로고
    • (5th Cir, (concluding "plaintiffs proceeding under [the Peonage Abolition Act] must show some state responsibility for the abuse complained of")
    • Craine v. Alexander, 756 F.2d 1070, 1074 (5th Cir. 1985) (concluding "plaintiffs proceeding under [the Peonage Abolition Act] must show some state responsibility for the abuse complained of").
    • (1985) Craine V. Alexander , vol.756 , pp. 1070
  • 151
    • 37349091235 scopus 로고    scopus 로고
    • The Case of the Missing Case: Examining the Civil Right of Action for Human Trafficking Victims
    • See generally, (describing underutilization of civil right of action for trafficking victims)
    • See generally Jennifer S. Nam, The Case of the Missing Case: Examining the Civil Right of Action for Human Trafficking Victims, 107 Colum. L. Rev. 1655 (2007) (describing underutilization of civil right of action for trafficking victims).
    • (2007) Colum. L. Rev , vol.107 , pp. 1655
    • Nam, J.S.1
  • 152
    • 84878330160 scopus 로고    scopus 로고
    • 531 U.S. 356, 360 (2001) (finding Eleventh Amendment bars suits to "recover money damages by reason of [a] State's failure to comply with the... Americans with Disabilities Act of 1990")
    • 531 U.S. 356, 360 (2001) (finding Eleventh Amendment bars suits to "recover money damages by reason of [a] State's failure to comply with the... Americans with Disabilities Act of 1990").
  • 153
    • 84878289605 scopus 로고    scopus 로고
    • 529 U.S. 598, 601-02 (2000) (finding "Congress lacked constitutional authority to enact... a federal civil remedy for the victims of gender-motivated violence")
    • 529 U.S. 598, 601-02 (2000) (finding "Congress lacked constitutional authority to enact... a federal civil remedy for the victims of gender-motivated violence").
  • 154
    • 84878330864 scopus 로고    scopus 로고
    • (Etz Hayim)
    • Genesis 29:1-30 (Etz Hayim).
    • Genesis , vol.29 , pp. 1-30
  • 156
    • 84874124420 scopus 로고    scopus 로고
    • (Etz Hayim)
    • Exodus 21:5-6 (Etz Hayim).
    • Exodus , vol.21 , pp. 5-6
  • 158
    • 84878267085 scopus 로고
    • See, e.g, Annapolis, Richard P. Bayly, (statement of Rep. George Sands) ("[I]f [the captor] spared the lives of those he took captive, it was his own gift and he had the right to the benefit of it.")
    • See, e.g., The Debates of the Constitutional Convention of the State of Maryland 931 (Annapolis, Richard P. Bayly 1864) (statement of Rep. George Sands) ("[I]f [the captor] spared the lives of those he took captive, it was his own gift and he had the right to the benefit of it.").
    • (1864) The Debates of the Constitutional Convention of the State of Maryland , pp. 931
  • 161
    • 84878277354 scopus 로고    scopus 로고
    • See, e.g., Va. Code tit. 30, ch. 103, § 3 (1869) ("It shall be lawful for any free person of color, resident within this commonwealth, of the age of eighteen years if a female, and of the age of twenty-one years if a male, to choose his or her master, upon the terms and conditions herein after mentioned.")
    • See, e.g., Va. Code tit. 30, ch. 103, § 3 (1869) ("It shall be lawful for any free person of color, resident within this commonwealth, of the age of eighteen years if a female, and of the age of twenty-one years if a male, to choose his or her master, upon the terms and conditions herein after mentioned.")
  • 162
    • 0042424085 scopus 로고
    • See generally, (describing sustained conflict over federalism in context of fugitive slaves and free states)
    • See generally Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860 (1968) (describing sustained conflict over federalism in context of fugitive slaves and free states).
    • (1968) The Slave Catchers: Enforcement of the Fugitive Slave Law , pp. 1850-1860
    • Campbell, S.W.1
  • 163
    • 0038014433 scopus 로고
    • Blueprint for Radical Reconstruction
    • (internal quotation marks omitted)
    • John G. Sproat, Blueprint for Radical Reconstruction, 23 J.S. Hist. 25, 30 (1957) (internal quotation marks omitted).
    • (1957) J.S. Hist , vol.23
    • Sproat, J.G.1
  • 165
    • 84878273420 scopus 로고
    • (Mass. Nov. 9
    • 20 Monthly L. Rep. 455 (Mass. Nov. 9, 1857).
    • (1857) Monthly L. Rep , vol.20 , pp. 455
  • 171
    • 84878303149 scopus 로고    scopus 로고
    • Id. at 156; see also, ("[T]he clear consensus, in the middle of the nineteenth century was that freedom should not include the freedom to alienate one's freedom.")
    • Id. at 156; see also Robert J. Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth Century 236 (2001) ("[T]he clear consensus, in the middle of the nineteenth century was that freedom should not include the freedom to alienate one's freedom.").
    • (2001) Coercion, Contract, and Free Labor In the Nineteenth Century , vol.236
    • Steinfeld, R.J.1
  • 172
    • 77953072354 scopus 로고    scopus 로고
    • See generally, (discussing Christopher Columbus Langdell and rise of case method within legal education, with emphasis on contract law)
    • See generally Bruce A. Kimball, The Inception of Modern Professional Education: C.C. Langdell, 1826-1906 (2009) (discussing Christopher Columbus Langdell and rise of case method within legal education, with emphasis on contract law)
    • (2009) The Inception of Modern Professional Education: C.C. Langdell , pp. 1826-1906
    • Kimball, B.A.1
  • 174
    • 67849103303 scopus 로고    scopus 로고
    • Specific Performance and the Thirteenth Amendment
    • See generally, (arguing that "involuntary servitude" does not justify per se prohibition on specific performance in personal service contracts)
    • See generally Nathan B. Oman, Specific Performance and the Thirteenth Amendment, 93 Minn. L. Rev. 2020 (2009) (arguing that "involuntary servitude" does not justify per se prohibition on specific performance in personal service contracts)
    • (2009) Minn. L. Rev , vol.93 , pp. 2020
    • Oman, N.B.1
  • 175
    • 79952820544 scopus 로고    scopus 로고
    • Specific Performance of Enlistment Contracts
    • Udi Sagi, Specific Performance of Enlistment Contracts, 205 Mil. L. Rev. 150 (2010).
    • (2010) Mil. L. Rev , vol.205 , pp. 150
    • Sagi, U.1
  • 176
    • 84878285415 scopus 로고    scopus 로고
    • Sagi points out that certain international law instruments declare that "'[n]o one shall be required to perform forced or compulsory labour.'", (alteration in original) (quoting International Covenant on Civil and Political Rights art. 8, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR])
    • Sagi points out that certain international law instruments declare that "'[n]o one shall be required to perform forced or compulsory labour.'" Sagi, supra, at 185 (alteration in original) (quoting International Covenant on Civil and Political Rights art. 8, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]).
    • Sagi, Supra , pp. 185
  • 177
    • 84878301142 scopus 로고    scopus 로고
    • As Sagi puts it, this language "strongly suggests a broad interpretation of the terms 'slavery' and 'servitude.'" Id. Efforts by the United States to add the word "involuntary" before the prohibition on "servitude" in the ICCPR failed. Id. On the other hand, as Sagi points out, the International Labour Organization's Convention Concerning Forced Labour similarly prohibits "'all work of service which is exacted from any person under the menace of any penalty,'" yet, unlike the ICCPR, it does not prohibit forced labor that was entered into voluntarily. Id. at 185 n.217 (quoting International Labour Organization, Convention (No. 29) Concerning Forced Labour art. 2, June 28, 1930, 39 U.N.T.S. 55)
    • As Sagi puts it, this language "strongly suggests a broad interpretation of the terms 'slavery' and 'servitude.'" Id. Efforts by the United States to add the word "involuntary" before the prohibition on "servitude" in the ICCPR failed. Id. On the other hand, as Sagi points out, the International Labour Organization's Convention Concerning Forced Labour similarly prohibits "'all work of service which is exacted from any person under the menace of any penalty,'" yet, unlike the ICCPR, it does not prohibit forced labor that was entered into voluntarily. Id. at 185 n.217 (quoting International Labour Organization, Convention (No. 29) Concerning Forced Labour art. 2, June 28, 1930, 39 U.N.T.S. 55).
  • 178
    • 84878292950 scopus 로고    scopus 로고
    • In West Coast Hotel Co. v. Parrish-a decision that upheld minimum wages for women and that marked a crucial turning point, as the Court moved away from its aggressive activism on behalf of "liberty of contract," which had dominated its decisions for several decades-Chief Justice Hughes wrote for the Court that exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenceless against the denial of a living wage is not only detrimental to their health and well being but casts a direct burden for their support upon the community. What these workers lose in wages the taxpayers are called upon to pay. 300 U.S. 379, 399 (1937)
    • In West Coast Hotel Co. v. Parrish-a decision that upheld minimum wages for women and that marked a crucial turning point, as the Court moved away from its aggressive activism on behalf of "liberty of contract," which had dominated its decisions for several decades-Chief Justice Hughes wrote for the Court that exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenceless against the denial of a living wage is not only detrimental to their health and well being but casts a direct burden for their support upon the community. What these workers lose in wages the taxpayers are called upon to pay. 300 U.S. 379, 399 (1937)
  • 179
    • 0042337197 scopus 로고    scopus 로고
    • See also, ("While refusing to hear coercion claims from industrial workers, the Lochner-era Court took a more sensitive approach toward 'groups it understood as weak,' a category including women and black peons, but not industrial workers." (quoting Aziz Z. Huq, Peonage and Contractual Liberty, 101 Colum. L. Rev. 351, 386 (2001)))
    • See also Pope, supra note 4, at 1494 ("While refusing to hear coercion claims from industrial workers, the Lochner-era Court took a more sensitive approach toward 'groups it understood as weak,' a category including women and black peons, but not industrial workers." (quoting Aziz Z. Huq, Peonage and Contractual Liberty, 101 Colum. L. Rev. 351, 386 (2001))).
    • Pope, Supra Note 4 , pp. 1494
  • 180
    • 84878309256 scopus 로고    scopus 로고
    • 487 U.S. 931 (1988)
    • 487 U.S. 931 (1988).
  • 181
    • 84878272657 scopus 로고    scopus 로고
    • The workers, Robert Fulmer and Louis Molitoris, were directed not to leave the farm and they worked "seven days a week, often 17 hours a day, at first for $15 per week and eventually for no pay, The Kozminskis subjected the two men to physical and verbal abuse for failing to do their work and instructed herdsmen employed at the farm to do the same." Id
    • Id. at 934-35. The workers, Robert Fulmer and Louis Molitoris, were directed not to leave the farm and they worked "seven days a week, often 17 hours a day, at first for $15 per week and eventually for no pay. The Kozminskis subjected the two men to physical and verbal abuse for failing to do their work and instructed herdsmen employed at the farm to do the same." Id.
    • Pope, Supra Note 4 , pp. 934-935
  • 182
    • 84878313847 scopus 로고    scopus 로고
    • The Court held that 18 U.S.C. § 1584 and 18 U.S.C. § 241 both required proof of "compulsion of services by the use or threatened use of physical or legal coercion." Id. at 948, 952. Congress responded in 2000 by enacting the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (codified as amended in scattered titles of the U.S.C.)
    • The Court held that 18 U.S.C. § 1584 and 18 U.S.C. § 241 both required proof of "compulsion of services by the use or threatened use of physical or legal coercion." Id. at 948, 952. Congress responded in 2000 by enacting the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (codified as amended in scattered titles of the U.S.C.).
  • 183
    • 84878181441 scopus 로고    scopus 로고
    • The Promise of Congressional Enforcement
    • See, (discussing congressional response to Kozminski)
    • See Rebecca E. Zietlow, The Promise of Congressional Enforcement, in The Promises of Liberty, supra note 2, at 182, 190-91 (discussing congressional response to Kozminski).
    • The Promises of Liberty, Supra Note 2
    • Zietlow, R.E.1
  • 184
    • 84878329113 scopus 로고    scopus 로고
    • 487 U.S. at 953 (Brennan, J., concurring); id. at 965 (Stevens, J., concurring)
    • 487 U.S. at 953 (Brennan, J., concurring); id. at 965 (Stevens, J., concurring).
  • 185
    • 84878329891 scopus 로고    scopus 로고
    • Perhaps even more striking was Judge Henry Friendly's pinched interpretation of § 1584 in United States v. Shackney, 333 F.2d 475 (2nd Cir. 1964), largely relied on by the Kozminski Court. Friendly warned of a slippery slope-"the awful machinery of the criminal law to be brought into play whenever an employee asserts that his will to quit has been subdued by a threat which seriously affects his future welfare but as to which he still has a choice, however painful"-and reversed the conviction of an immigrant rabbi who kept a Mexican worker working on his chicken farm with threats to have the worker deported after he had signed a two-year contract that required that he never drink or leave the farm. Id. at 487. Friendly interpreted the criminal statute to require a showing that there was "no way to avoid" the owner's compulsion. Id. at 486
    • Perhaps even more striking was Judge Henry Friendly's pinched interpretation of § 1584 in United States v. Shackney, 333 F.2d 475 (2nd Cir. 1964), largely relied on by the Kozminski Court. Friendly warned of a slippery slope-"the awful machinery of the criminal law to be brought into play whenever an employee asserts that his will to quit has been subdued by a threat which seriously affects his future welfare but as to which he still has a choice, however painful"-and reversed the conviction of an immigrant rabbi who kept a Mexican worker working on his chicken farm with threats to have the worker deported after he had signed a two-year contract that required that he never drink or leave the farm. Id. at 487. Friendly interpreted the criminal statute to require a showing that there was "no way to avoid" the owner's compulsion. Id. at 486.
  • 186
    • 84878337372 scopus 로고
    • (codified as amended at 42 U.S.C. §, The current version of the statute differs in only minor ways from the original, omitting, for instance, the phrase "territory of New Mexico," and instead simply referring to "territory or state."
    • Act of March 2, 1867, ch. 187, sec. 1, 14 Stat. 546 (codified as amended at 42 U.S.C. § 1994). The current version of the statute differs in only minor ways from the original, omitting, for instance, the phrase "territory of New Mexico," and instead simply referring to "territory or state."
    • (1994) Act of March 2, 1867, Ch. 187, Sec. 1, 14 Stat , pp. 546
  • 188
    • 84878311470 scopus 로고    scopus 로고
    • In re Morrissey, 137 U.S. 157 (1890); In re Grimley, 137 U.S. 147 (1890)
    • In re Morrissey, 137 U.S. 157 (1890); In re Grimley, 137 U.S. 147 (1890).
  • 190
  • 193
    • 84878312827 scopus 로고    scopus 로고
    • 219 U.S. 219 (1911). Justice Hughes's majority opinion invalidated Alabama's presumption of criminal fraud in the breach of a labor contract, relying on the Thirteenth Amendment's protection against "control by which the personal service of one man is disposed or coerced for another's benefit." Id. at 241. Bailey has been discussed by many scholars; for the author's view, see
    • 219 U.S. 219 (1911). Justice Hughes's majority opinion invalidated Alabama's presumption of criminal fraud in the breach of a labor contract, relying on the Thirteenth Amendment's protection against "control by which the personal service of one man is disposed or coerced for another's benefit." Id. at 241. Bailey has been discussed by many scholars; for the author's view, see Soifer, Paradox of Paternalism, supra note 45, at 271-73.
    • Paradox of Paternalism, Supra Note 45 , pp. 271-273
    • Soifer1
  • 194
    • 84878201099 scopus 로고
    • (Brennan, J., concurring)
    • United States v. Kozminski, 487 U.S. 931, 959 (1988) (Brennan, J., concurring).
    • (1988) United States V. Kozminski , vol.487
  • 195
    • 84878295541 scopus 로고    scopus 로고
    • See, (discussing interpretation of "involuntary servitude")
    • See id. at 961-62 (discussing interpretation of "involuntary servitude").
  • 198
    • 84878340613 scopus 로고
    • (Stevens, J. concurring) (advocating case-by-case, rather than hypothetical, approach including varied interpretations of what constitutes compulsion)
    • Id. at 967-70 (Stevens, J. concurring) (advocating case-by-case, rather than hypothetical, approach including varied interpretations of what constitutes compulsion).
    • (1988) United States V. Kozminski , vol.487 , pp. 967-970
  • 199
  • 200
    • 84878338555 scopus 로고    scopus 로고
    • 322 U.S. 4, 17-18 (1944)
    • 322 U.S. 4, 17-18 (1944).
  • 201
    • 84878341995 scopus 로고    scopus 로고
    • See, (describing Republican debates about how free labor would replace slave labor)
    • See Foner, The Fiery Trial, supra note 101, at 284-89 (describing Republican debates about how free labor would replace slave labor).
    • The Fiery Trial, Supra Note 101 , pp. 284-289
    • Foner1
  • 202
    • 84878336447 scopus 로고    scopus 로고
    • See generally, (arguing Civil War-era Republicans championed "free labor ideology")
    • See generally Eric Foner, Free Soil, supra note 38 (arguing Civil War-era Republicans championed "free labor ideology").
    • Free Soil, Supra Note 38
    • Foner, E.1
  • 203
    • 84878278934 scopus 로고    scopus 로고
    • (9th Cir, Sitting by designation, District Court Judge Nancy Gertner noted in Dann Congress's concern that modernday traffickers are "increasingly subtle" and that they often use "nonviolent coercion." Id
    • United States v. Dann, 652 F.3d 1160, 1169 (9th Cir. 2011). Sitting by designation, District Court Judge Nancy Gertner noted in Dann Congress's concern that modernday traffickers are "increasingly subtle" and that they often use "nonviolent coercion." Id.
    • (2011) United States V. Dann , vol.652
  • 204
    • 84878333560 scopus 로고    scopus 로고
    • See also, (2d Cir, (holding evidence was sufficient to "to establish [defendant's] intent to participate in the crimes of forced labor and peonage" of immigrant live-in housekeepers)
    • See also United States v. Sabhnani, 599 F.3d 215, 241-45 (2d Cir. 2010) (holding evidence was sufficient to "to establish [defendant's] intent to participate in the crimes of forced labor and peonage" of immigrant live-in housekeepers)
    • (2010) United States V. Sabhnani , vol.599
  • 205
    • 84878314659 scopus 로고    scopus 로고
    • (7th Cir, (holding evidence of abusive treatment of immigrant live-in housekeeper over many years sufficient to sustain conviction and sentence enhancement for forced labor and harboring of alien for financial gain)
    • United States v. Calimlim, 538 F.3d 706, 714-18 (7th Cir. 2008) (holding evidence of abusive treatment of immigrant live-in housekeeper over many years sufficient to sustain conviction and sentence enhancement for forced labor and harboring of alien for financial gain).
    • (2008) United States V. Calimlim , vol.538
  • 206
    • 84878287660 scopus 로고    scopus 로고
    • See, e.g, (Aug. 4, (on file with the Columbia Law Review) (last updated Aug. 4, 2011, 10:34 PM) ("A federal judge granted a request by prosecutors this morning to dismiss the forced labor charges and related counts against... Aloun Farms.")
    • See, e.g., Ken Kobayashi, Judge Dismisses Case Against Aloun Farms Owners, Honolulu Star-Advertiser (Aug. 4, 2011), http://www.staradvertiser.com/news/breaking/126785073.html?id=126785073 (on file with the Columbia Law Review) (last updated Aug. 4, 2011, 10:34 PM) ("A federal judge granted a request by prosecutors this morning to dismiss the forced labor charges and related counts against... Aloun Farms.")
    • (2011) Judge Dismisses Case Against Aloun Farms Owners, Honolulu Star-Advertiser
    • Kobayashi, K.1
  • 207
    • 84878324138 scopus 로고    scopus 로고
    • (July 20, 3:36 PM, (on file with the Columbia Law Review) (noting "federal prosecutors said they are unable to prove their case beyond a reasonable doubt")
    • Feds Drop Human-Trafficking Prosecution of Global Horizons, Honolulu Star-Advertiser (July 20, 2012, 3:36 PM), http://www.staradvertiser.com/news/breaking/163254156.html?id=163254156 (on file with the Columbia Law Review) (noting "federal prosecutors said they are unable to prove their case beyond a reasonable doubt").
    • (2012) Feds Drop Human-Trafficking Prosecution of Global Horizons, Honolulu Star-Advertiser
  • 208
    • 84878343998 scopus 로고    scopus 로고
    • 42 U.S.C. § 1994 (2006)
    • 42 U.S.C. § 1994 (2006).
  • 209
    • 84878334652 scopus 로고    scopus 로고
    • Compare, e.g, E.D.N.Y, (holding private right of action implied by prohibition of involuntary servitude in criminal law, 18 U.S.C. § 1584)
    • Compare, e.g., Manliguez v. Joseph, 226 F. Supp. 2d 377, 384 (E.D.N.Y. 2002) (holding private right of action implied by prohibition of involuntary servitude in criminal law, 18 U.S.C. § 1584)
    • (2002) Manliguez V. Joseph , vol.226
  • 210
    • 84878329236 scopus 로고    scopus 로고
    • With, e.g, (5th Cir, (upholding dismissal of Thirteenth Amendment and other civil rights claims by pretrial detainee who worked as trusty while being held illegally, except for property claim seeking wages for work performed on public property)
    • With, e.g., Brooks v. George Cnty., Miss., 84 F.3d 157, 169 (5th Cir. 1996) (upholding dismissal of Thirteenth Amendment and other civil rights claims by pretrial detainee who worked as trusty while being held illegally, except for property claim seeking wages for work performed on public property)
    • (1996) Brooks V. George Cnty., Miss , vol.84
  • 211
    • 84878337074 scopus 로고
    • (5th Cir, (requiring proof of compulsion for civil remedy, noting that "[w]hen the employee has a choice, even though it is a painful one, there is no involuntary servitude")
    • Watson v. Graves, 909 F.2d 1549, 1552 (5th Cir. 1990) (requiring proof of compulsion for civil remedy, noting that "[w]hen the employee has a choice, even though it is a painful one, there is no involuntary servitude")
    • (1990) Watson V. Graves , vol.909
  • 212
    • 84878312733 scopus 로고    scopus 로고
    • E.D. Pa, (declaring critical elements of peonage are indebtedness and compulsion)
    • Dolla v. Unicast Co., 930 F. Supp. 202, 205 (E.D. Pa. 1996) (declaring critical elements of peonage are indebtedness and compulsion).
    • (1996) Dolla V. Unicast Co , vol.930
  • 213
    • 84878315243 scopus 로고    scopus 로고
    • Recently, in, the Second Circuit strove mightily to allow the victim of blatantly abusive employers to maintain a possible Fair Labor Standards Act claim against them, though Judge Droney's opinion rejected the Alien Tort Act and other possible bases for civil remedies. No. 11-90-cv, WL 3089376, at *14 (2d Cir. July 31, 2012)
    • Recently, in Velez v. Sanchez, the Second Circuit strove mightily to allow the victim of blatantly abusive employers to maintain a possible Fair Labor Standards Act claim against them, though Judge Droney's opinion rejected the Alien Tort Act and other possible bases for civil remedies. No. 11-90-cv, 2012 WL 3089376, at *14 (2d Cir. July 31, 2012).
    • (2012) Velez V. Sanchez
  • 214
    • 84878174524 scopus 로고
    • ("By its own unaided force and effect [the Thirteenth Amendment] abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character, for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.")
    • The Civil Rights Cases, 109 U.S. 3, 20 (1883) ("By its own unaided force and effect [the Thirteenth Amendment] abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character, for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.")
    • (1883) The Civil Rights Cases , vol.109
  • 215
    • 84878285349 scopus 로고
    • ("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.")
    • The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72 (1873) ("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.").
    • (1873) The Slaughter-House Cases , vol.83 , Issue.16
  • 216
    • 0004055522 scopus 로고
    • See generally, (documenting relatively late rise of Jim Crow, primarily in 1880s and 1890s)
    • See generally C. Vann Woodward, The Strange Career of Jim Crow (1955) (documenting relatively late rise of Jim Crow, primarily in 1880s and 1890s).
    • (1955) The Strange Career of Jim Crow
    • Vann, W.C.1
  • 217
    • 84878202515 scopus 로고    scopus 로고
    • Congressional Authority to Interpret the Thirteenth Amendment: A Response to Professor Tsesis
    • See, e.g, (arguing for more limited scope of congressional power under Enforcement Clause)
    • See, e.g., Jennifer Mason McAward, Congressional Authority to Interpret the Thirteenth Amendment: A Response to Professor Tsesis, 71 Md. L. Rev. 60 (2011) (arguing for more limited scope of congressional power under Enforcement Clause)
    • (2011) Md. L. Rev , vol.71 , pp. 60
    • McAward, J.M.1
  • 218
    • 56449127469 scopus 로고    scopus 로고
    • State Action, Private Action, and the Thirteenth Amendment
    • (arguing that Thirteenth Amendment provided foundation for extending scope of congressional power to private action)
    • George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367 (2008) (arguing that Thirteenth Amendment provided foundation for extending scope of congressional power to private action)
    • (2008) Va. L. Rev , vol.94 , pp. 1367
    • Rutherglen, G.1
  • 219
    • 84878198410 scopus 로고    scopus 로고
    • Congressional Authority to Interpret the Thirteenth Amendment
    • (arguing for broad scope of congressional power under Enforcement Clause, in contrast to Fourteenth Amendment)
    • Alexander Tsesis, Congressional Authority to Interpret the Thirteenth Amendment, 71 Md. L. Rev. 40 (2011) (arguing for broad scope of congressional power under Enforcement Clause, in contrast to Fourteenth Amendment).
    • (2011) Md. L. Rev , vol.71 , pp. 40
    • Tsesis, A.1
  • 221
    • 84874042540 scopus 로고
    • President Franklin Delano Roosevelt, for instance, delighted to quote Lincoln's statement that "[t]he legitimate object of government is to do for a community of people whatever they need to have done, but cannot do at all, or cannot so well do, for themselves, in their separate and individual capacities.", Marion Mills Miller ed
    • President Franklin Delano Roosevelt, for instance, delighted to quote Lincoln's statement that "[t]he legitimate object of government is to do for a community of people whatever they need to have done, but cannot do at all, or cannot so well do, for themselves, in their separate and individual capacities." 3 Life and Works of Abraham Lincoln 215 (Marion Mills Miller ed., 1907)
    • (1907) Life and Works of Abraham Lincoln , pp. 215
  • 222
    • 84878336044 scopus 로고
    • See, Sept. 30, in FDR's Fireside Chats 53, 62 (Russell D. Buhite & David W. Levy eds., 1992) (quoting Lincoln and noting likeminded belief)
    • See Franklin D. Roosevelt, Government and Modern Capitalism (Sept. 30, 1934), in FDR's Fireside Chats 53, 62 (Russell D. Buhite & David W. Levy eds., 1992) (quoting Lincoln and noting likeminded belief).
    • (1934) Government and Modern Capitalism
    • Roosevelt, F.D.1


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