Originalism, abortion, and the Thirteenth Amendment

Columbia Law Review

Volumn 112, Issue 9, 2012, Pages 1917-1946

  Koppelman, Andrew ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 84878170213     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (219)

1. See generally Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480 (1990) [hereinafter Koppelman, Forced Labor]
2. Andrew Koppelman, Forced Labor, Revisited: The Thirteenth Amendment and Abortion [hereinafter Koppelman, Forced Labor Revisited], in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 226 (Alexander Tsesis ed., 2010) [hereinafter Promises of Liberty].
3. The definition of originalism will become clearer in the following discussion, but as a first cut, this discussion will follow Lawrence Solum's use of the term to refer to the family of constitutional theories that subscribe to the following claims: (1) that the meaning of each provision of the Constitution is fixed at the time of ratification, (2) sound interpretation requires recovery of original public meaning, (3) that meaning has the force of law, and (4) construction, supplementing the textual meaning, is necessary only when the text is abstract or vague Lawrence Solum, We Are All Originalists Now, in Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate 1, 2-4 (2011).
4. Note that claim (3) is vague as to whether the force of law trumps all other considerations, and so it is unclear whether every form of originalism that falls within Solum's definition is vulnerable to Mitchell Berman's devastating criticisms of those theories that give original meaning absolute and dispositive weight.
5. See Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 6 (2009).
6. Note also that these claims are consistent with the view that many of the most important questions of constitutional law are underdetermined by the linguistic meaning of the constitutional text. Solum, supra, at 22.
7. Koppelman, Forced Labor, supra note 1, at 515-518.
8. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part).
9. See Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 716-736 (2011) (surveying scholarly positions within originalism).
10. Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making.
11. John Milton, Areopagitica, in Complete Poems and Major Prose 743 (Merritt Y. Hughes ed., 1957).
12. Originalist writings making such claims are collected in Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 288 n.225 (2008)
13. Colby, supra note 5, at 716-717, 750-751, 769-776
14. Berman, supra note 2, at 9-16.
15. Colby & Smith, supra note 7, at 273-292
16. Peter J. Smith, How Different Are Originalism and Non-Originalism?, 62 Hastings L.J. 707 (2011).
17. Pamela S. Karlan, Constitutional Law as Trademark, 43 U.C. Davis L. Rev. 385, 389 (2009) [hereinafter Karlan, Trademark]
18. Jamal Greene, On the Origins of Originalism, 88 Tex. L. Rev. 1, 3 (2009) (The notion that the meaning of a political constitution is, in any practical sense, fixed at some point in the past and authoritative in present cases is pooh-poohed by most leading jurists in Canada, South Africa, India, Israel, and throughout most of Europe.).
19. Those who think this nonetheless disagree about what it is that is obviously being recovered. Compare, e.g., Larry Alexander, Simple-Minded Originalism, in The Challenge of Originalism: Theories of Constitutional Interpretation 87 (Grant Huscroft & Bradley Miller eds., 2011) (arguing originalism is about recovering thoughts of writer of text)
20. Gary Lawson, On Reading Recipes... and Constitutions, 85 Geo. L.J. 1823 (1997) (arguing originalism is about recovering semantic meaning of text, without regard to what author may have been thinking).
21. Greene, supra note 10, at 62-81.
22. Richard Primus, The Functions of Ethical Originalism, 88 Tex. L. Rev.
23. See Also 79, 86-88 (2010).
24. Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 52 (2011).
25. Balkin's account of the appeal of originalism resembles Greene's. See Jack M. Balkin, Living Originalism 84 (2011) [hereinafter Balkin, Living Originalism].
26. Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government 145-159 (2001) [hereinafter Rubenfeld, Freedom and Time].
27. Balkin has a similar view. See Balkin, Living Originalism, supra note 14, at 57-58, 63-64.
28. This conclusion reinforces Jack Balkin's argument that the United States has multiple Constitutions, rooted in the ideals of its multiple interpreters. See Andrew Koppelman, Respect and Contempt in Constitutional Law, or, Is Jack Balkin Heartbreaking?, 71 Md. L. Rev. 1126 (2012).
29. Originalists, Berman notes, tend to root their argument either in transcendent linguistic necessity or in some form of rule-consequentialism. See Berman, supra note 2, at 82-86. He is addressing their arguments on the merits. This Essay claims that such arguments are not the source of whatever persuasive power originalism has.
30. That claim is supported by Berman's demonstration that they are very bad arguments. It follows that the claim to an authority that overrides all other considerations, which Berman takes to be definitive of originalism, see Berman, supra note 2, at 18-22, is something of a distraction from the real source of that power. Filial piety does not necessarily entail despising every other possible object of affection.
31. See Cordelia's response to Regan and Goneril in William Shakespeare, King Lear act 1, sc.1.
32. The only exception of whom I am aware is Earl Maltz. See generally Earl Maltz, Originalism and the Desegregation Decisions-A Response to Professor McConnell, 13 Const. Comm. 223 (1996).
33. Originalists on the Court now claim fidelity, not to what the Equal Protection Clause meant in 1868, but to what the Court, or perhaps even the plaintiffs' attorneys, meant in 1954. See Karlan, Trademark, supra note 9, at 401-405.
34. See Andrew Koppelman, Why Jack Balkin Is Disgusting, 27 Const. Comm. 177 (2010).
35. Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, at xii (1999).
36. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 952 (1995) [hereinafter McConnell, Originalism]. Other originalists have conceded the same point.
37. See Colby & Smith, supra note 7, at 299.
38. Robert Bork, The Tempting of America 77 (1990).
39. For arguments that courts should follow the framers' specific intentions, see Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 117-133, 161-163 (1977)
40. Alfred Avins, Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent, 52 Va. L. Rev. 1224 (1966).
41. The most impressive attempt to respond to this challenge from within an originalist-intentionalist framework is McConnell, Originalism, supra note 22, at 953-954 (arguing Brown is consistent with originalist understanding of Fourteenth Amendment).
42. But see Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 Va. L. Rev. 1881, 1883 (1995) (arguing McConnell's claims for originalist support of desegregation are unpersuasive)
43. Maltz, supra note 18, at 223 (same).
44. The task is easier for forms of originalism that make intention irrelevant. See Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, BYU L. Rev. (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2020371 (on file with the Columbia Law Review) (defending Court's invalidation of miscegenation laws on this basis).
45. See Karlan, Trademark, supra note 9.
46. It is also not infinitely manipulable, because the aspiration to connect with the framing generation is subject to the norms of historical accuracy and so cannot support an argument that misrepresents its sources or conceals pertinent evidence. See generally Andrew Koppelman, Phony Originalism and the Establishment Clause, 103 Nw. U. L. Rev. 727 (2009) [hereinafter Koppelman, Phony Originalism].
47. Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Constitutional Influence Through Negative Models, 1 Int'l J. Const. L. 296, 298 (2003).
48. Scheppele quotes the preamble of the 1996 South African constitution, which begins: We, the people of South Africa, Recognize the injustices of our past
49. Honour those who suffered for justice and freedom in our land Id. at 304 (quoting S. Afr. Const., 1996, pmbl.).
50. Id. at 300.
51. Harry Frankfurt pertinently observes: As the set of its essential characteristics specifies the limits of what a triangle can be, so does the set of actions that are unthinkable for a person specify the limits of what the person can will to do. It defines his essence as a volitional creature. Harry Frankfurt, Rationality and the Unthinkable, in The Importance of What We Care About 177, 188 (1988).
52. Rubenfeld, Freedom and Time, supra note 15, at 178-195.
53. See generally Theodore Brantner Wilson, The Black Codes of the South (1965).
54. One may consider this a reductio ad absurdum of semantic originalism. Lawrence Solum argues that the linguistic meaning of a legal text like the Constitution is a function of (1) the conventional semantic meanings of the words and phrases that make up the text and (2) the rules of syntax and grammar that combine the words and phrases. Solum, supra note 2, at 10.
55. The question is not what the interpreters at the time meant. Rather, it is, as Gary Lawson and Guy Seidman emphasize, hypothetical and counterfactual: What would a fully informed public audience at the relevant point in time, in possession of all relevant information about the Constitution and the world around it, have understood the Constitution to mean?
56. Gary Lawson & Guy Seidman, The Constitution of Empire: Territorial Expansion and American Legal History 9 (2004).
57. The semantic approach implies that, in interpreting the meaning of equal protection of the laws in the Fourteenth Amendment, one would look up each of the words to discern its meaning in 1868, but one would not be allowed to notice that those words had anything to do with the mistreatment of the former slaves, since that is not part of their dictionary meaning.
58. Elsewhere Solum writes that we can resort to those aspects of the framing and ratification of a given constitutional provision that would have been available to the general public. Solum, supra note 2, at 25.
59. So perhaps context matters after all (and perhaps this is what Lawson and Seidman are saying). But then semantic originalism is a misnomer, because we are now looking beyond the semantic meaning of the constitutional text. Rubenfeld, Freedom and Time, supra note 15, at 181.
60. Id. at 183.
61. Id. at 178-195.
62. In this sense, the meanings of constitutional provisions are indeed fixed at the time of the framing. Thus paradigm case interpretation fits Solum's definition of originalism. See Solum, supra note 2.
63. That fixed meaning is not a rule, but Solum concedes that the fixed meanings may not be rules. See Jed Rubenfeld, Revolution by Judiciary: The Structure of American Constitutional Law 32-33 (2005) [hereinafter Rubenfeld, Revolution] (describing historical context of Fourth Amendment limitations).
64. Id. at 67-68.
65. Rubenfeld, Freedom and Time, supra note 15, at 194-195.
66. Id. at 184.
67. Rubenfeld elsewhere elaborates on this critique of originalism. Id. at 62-65, 87-88.
68. Balkin, Living Originalism, supra note 14, at 6.
69. Id. at 345 n.23.
70. Berman so identifies it. See Berman, supra note 2, at 28 n.70.
71. In Balkin's terminology, paradigm cases are a different linguistic technology of regulation and constraint. Balkin, Living Originalism, supra note 14, at 43.
72. Put in terms of his taxonomy, it is a standard, not a principle. Commitments, he writes, always exist against a background of assumptions about how society is organized, what is technologically feasible, and how the world works. Social, economic, and technological changes might undermine these background assumptions.
73. Balkin, Living Originalism, supra note 14, at 346.
74. Changes in these assumptions may very well change the way in which a paradigm case is interpreted-for example, what one thinks is wrong about slavery-but that is different from abandoning the paradigm case altogether.
75. Rubenfeld, Freedom and Time, supra note 15, at 194.
76. Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev. 1127, 1138 (1998).
77. See generally Jed Rubenfeld, The Paradigm-Case Method, 115 Yale L.J. 1977 (2006).
78. Rubenfeld comes close to acknowledging his silence on this point: The task of building up doctrine from paradigm cases is of course an openended one-quite familiar to judges in a common law system-that necessarily involves normative judgment. That is why I refer to the effort to 'do justice' to a constitutional provision in light of its paradigm cases.
79. Id. at 198.
80. Rubenfeld, Freedom and Time, supra note 15, at 186.
81. Ronald Dworkin, Taking Rights Seriously 136 (rev. ed. 1978).
82. See id. at 77-78.
83. There is a sense in which a paradigm case is a principle, thus defined, but, so far as I am aware, every example of a principle that Dworkin offers is capable of being stated in general propositional form, with recourse directly to that proposition when applying the principle to future cases. See, e.g., Ronald Dworkin, Law's Empire 435 n.7 (1986)
84. (noting tension between principles that people should be free to do what they wish with their own property and that people should begin life on equal terms).
85. It is characteristic of paradigm cases that no such general proposition exhausts the law's meaning, because no such general proposition can completely capture the historical specificity of the paradigm.
86. Albert R. Jonsen & Stephen Toulmin, The Abuse of Casuistry: A History of Moral Reasoning 2 (1988).
87. Id. at 7.
88. Id. at 18.
89. The particularists' claims are controversial. See generally the essays, by both particularists and their critics, collected in Moral Particularism (Brad Hooker & Margaret Olivia Little eds., 2000).
90. Their position is, however, a possible account of morality, and so it is worth thinking about what constitutional reasoning would look like if that account were correct. That inquiry calls attention to the possibility (which the Thirteenth Amendment illustrates) that what the Constitution enacts, at least in some provisions, is a particular moral judgment, not a rule or a principle. The example is drawn from Jonathan Dancy, Moral Particularism, Stanford Encyclopedia of Philosophy (Jan. 14, 2009), http://plato.stanford.edu/entries/moral-particularism/
91. [hereinafter Dancy, Moral Particularism] (on file with the Columbia Law Review).
92. Jonathan Dancy, Ethics Without Principles 2 (2004).
93. Dancy, Moral Particularism, supra note 58.
94. This objection is raised against Rubenfeld in Michael J. Gerhardt, The End of Theory, 96 Nw. U. L. Rev. 283, 324 (2001).
95. See Rubenfeld, Freedom and Time, supra note 15, at 191.
96. The Third Amendment is an example. Quartering of troops in citizens' homes in peacetime is a very specific paradigm case, but hardly any analogous evils have been presented. This can be seen in the paucity of case law on the Third Amendment, which has only five different cases noted in the U.S.C.A. See Notes of Decisions, Third Amendment, in Amendment 1 (End) to Amendment 4, United States Code Annotated: Constitution of the United States Annotated 208, 209 (2004).
97. 203 U.S. 1, 2-3 (1906)
98. overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
99. Id. at 18.
100. Id. at 16.
101. Id. at 17.
102. This point is not as devastating as the Court hopes, because it may just mean that the Amendment gives Congress enormous power to bring about human liberty by any means necessary. See Jack Balkin & Sanford Levinson, The Dangerous Thirteenth Amendment, 112 Colum. L. Rev. 1459, 1470-1477 (2012).
103. The Civil Rights Cases, 109 U.S. 3, 24 (1883).
104. Plessy v. Ferguson, 163 U.S. 537, 543 (1896)
105. overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
106. Can, not must. Consider again the sterile jurisgenerative history of the Third Amendment. See supra note 64.
107. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 236 (1963) (Brennan, J., concurring).
108. Id. at 241.
109. A defense of present Establishment Clause law that is originalist in this sense, building on Brennan's insight, is Andrew Koppelman, Defending American Religious Neutrality (forthcoming Jan. 2013).
110. For a good introduction to that problem, see Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution (1991). Because even an abstract understanding of the original meaning is nonetheless grounded in a paradigm case, what is offered here is not the I Have No Idea Originalism of Justice Antonin Scalia
111. which I have previously criticized. See Koppelman, Phony Originalism, supra note 26, at 735.
112. Hodges v. United States, 203 U.S. 1, 17-19 (1906) ([O]ne of the disabilities of slavery... was a lack of power to make or perform contracts... [but] it was not the intent of the [Thirteenth] Amendment to denounce every act done to an individual which was wrong if done to a free man).
113. Pamela S. Karlan, Contracting the Thirteenth Amendment: Hodges v. United States, 85 B.U. L. Rev. 783, 807 (2005).
114. See Rebecca E. Zietlow, The Promise of Congressional Enforcement, in Promises of Liberty, supra note 1, at 182, 186-191 (discussing cases).
115. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968).
116. Id. at 440.
117. Id. at 442-443.
118. See George A. Rutherglen, The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment, in Promises of Liberty, supra note 1, at 163.
119. Examples of arguments that rely on this language are collected in Jennifer Mason McAward, The Scope of Congress's Thirteenth Amendment Enforcement Power After City of Boerne v. Flores, 88 Wash. U. L. Rev. 77, 81 n.23 (2010)
120. Alexander Tsesis, The Thirteenth Amendment and American Freedom 137-160 (2004).
121. See United States v. Nelson, 277 F.3d 164, 190 (2d Cir. 2002).
122. The Supreme Court suggested in Griffin v. Breckenridge that the Thirteenth Amendment is not confined to injuries to blacks, or even to those based on race, and held that the Ku Klux Klan Act, outlawing private conspiracies to deprive any class of persons of their constitutional rights, was a valid exercise of Congress's Thirteenth Amendment powers. 403 U.S. 88, 96 (1971).
123. In order to avoid creating a general federal tort law, the Court held that the mental element required for a violation of the statute was some racial, or perhaps otherwise class-based, invidiously discriminatory animus.
124. Id. at 102
125. (emphasis added). In a footnote, the Court added that [w]e need not decide, given the facts of this case, whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable.
126. Id. at 102 n.9.
127. Aviam Soifer, Protecting Full and Equal Rights: The Floor and More, in Promises of Liberty, supra note 1, at 199.
128. McAward, supra note 82, at 81.
129. See City of Boerne v. Flores, 521 U.S. 507, 519 (1997)
130. (Congress' power under § 5, however, extends only to 'enforc[ing]' the provisions of the Fourteenth Amendment.... Congress does not enforce a constitutional right by changing what the right is.).
131. McAward, supra note 82, at 130.
132. Id. at 144.
133. Lawrence Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1219 n.21 (1978).
134. 18 U.S.C. § 1584 (2006).
135. United States v. Kozminski, 487 U.S. 931, 961 n.8 (1988) (Brennan, J., concurring in the judgment).
136. McAward, supra note 82, at 140.
137. She also writes that the Amendment arguably is not underenforced at all
138. perhaps it only abolishes slavery.
139. But she does not seem to really believe this, because she does not call for the complete overruling of Jones. Note, The New Thirteenth Amendment: A Preliminary Analysis, 82 Harv. L. Rev. 1294, 1301-1302 (1969).
140. The soundness of Jones depends on this kind of argument, since it is doubtful that the framers of the Thirteenth Amendment, with their broad attachment to freedom of contract, would have interpreted slavery this way. Justice Harlan emphasized this point in his dissent. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 476 (Harlan, J., dissenting).
141. Scheppele, supra note 27, at 298.
142. This problem is inevitably true of any account of any historical evil, which will make salient the concerns of the historian and his time. See generally E.H. Carr, What is History? 1-25 (2d ed. 2001).
143. See Berger, supra note 24, at 131
144. (discussing Thirteenth Amendment framers' opposition to racial equality).
145. United States v. Kozminski, 487 U.S. 931, 951 (1988).
146. United States v. Nelson, 277 F.3d 164, 185 n.20 (2d Cir. 2002).
147. See supra text accompanying notes 85-88 (describing McAward's view).
148. Rational basis review is, of course, not infinitely deferential. Sometimes it is used to invalidate statutes. See, e.g., Romer v. Evans, 517 U.S. 620, 632 (1996).
149. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968) (emphasis added).
150. See supra note 1.
151. Plessy v. Ferguson, 163 U.S. 537, 542 (1896) (emphases added).
152. Bailey v. Alabama, 219 U.S. 219, 241 (1911).
153. Hodges v. United States, 203 U.S. 1, 16 (1906)
154. see also supra notes 65-68 and accompanying text (describing narrow reading of slavery in Hodges).
155. 219 U.S. 219, 222 (1911)
156. (A breach of contract for personal service upon which advances have been received cannot be made prima facie evidence of a fraudulent intent in entering into the contract.).
157. See Restatement (Second) of Contracts § 367 (1981) (A promise to render personal service will not be specifically enforced.).
158. The same is, of course, true of any system of slavery sanctioned by positive law, such as that of the antebellum South: The master did not need to resort to self-help to control his slaves but could rely on the authorities to come to his assistance if necessary. Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (plurality opinion).
159. This thesis obviously elicits objections, which I have addressed in my earlier work. On the relevance of compelled jury service and the military draft, see Koppelman, Forced Labor, supra note 1, at 518-522.
160. On the relevance of the obligations that law imposes on parents, see Koppelman, Forced Labor Revisited, supra note 1, at 236-237.
161. The claim that the pregnancy is not involuntary if the woman is compelled to bring it to term after voluntarily engaging in sexual intercourse is addressed infra in the text accompanying note 153-160.
162. John O. McGinnis, Decentralizing Constitutional Provisions Versus Judicial Oligarchy: A Reply to Professor Koppelman, 20 Const. Comment. 39, 56 (2003).
163. This objection is telling only if one follows one particular school of originalism. McGinnis and Michael Rappaport argue that one should follow the principles of interpretation that a reasonable person at the time of the framing and ratification thought would be applied to the Constitution.
164. John O. McGinnis & Michael Rappaport, Original Interpretive Principles as the Core of Originalism, 24 Const. Comment. 371, 372 (2007).
165. They think that the original expected applications of otherwise vague provisions are powerful evidence of the original meaning of those provisions. Id. In other accounts of originalism-paradigm case reasoning is one example, see supra note 37 and accompanying text-it matters less what the people of the time may have thought or have been likely to think.
166. Koppelman, Forced Labor, supra note 1, at 508-509 (footnotes omitted).
167. Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 23 (1997).
168. Id. at 29 (quoting Harriet Jacobs, Incidents in the Life of a Slave Girl 64 (Nellie Y. McKay & Frances Smith Foster eds., W.W. Norton & Co. 2001) (1861)).
169. Id. at 23 (quoting Henry Louis Gates, Jr., To Be Raped, Bred or Abused, N.Y. Times Book Rev., Nov. 22, 1987, at 12).
170. See generally Jennifer L. Morgan, Laboring Women: Reproduction and Gender in New World Slavery (2004).
171. See Roberts, supra note 115, at 24.
172. Deborah Gray White, Ar'n't I a Woman? Female Slaves in the Plantation South 98 (rev. ed. 1999).
173. Roberts, supra note 115, at 25 (quoting Thomas Jefferson, Letter to John W. Eppes (June 30, 1820), in Thomas Jefferson's Farm Book: With Commentary and Relevant Extracts from Other Writings 45, 46 (Edwin Morris Betts ed., 1953)).
174. Roberts quotes anther planter's calculations: I own a woman who cost me $400, when a girl, in 1827...She now has three children, worth over $3000... I would not this night touch $700 for her. Her oldest boy is worth $1250 cash, and I can get it.
175. Id. at 24 (quoting Herbert G. Gutman, The Black Family, in Slavery and Freedom, 1750-1925, at 77, 78 (1976)).
176. Id. at 25.
177. Id. at 26.
178. White, supra note 120, at 100.
179. Id. at 101 (quoting Interview with Berry Clay (May 8, 1937), in Slave Narratives: A Folk History of Slavery in the United States from Interviews with Former Slaves 189, 191 (Works Projects Admin. ed., 1941)).
180. Roberts, supra note 115, at 26.
181. White, supra note 120, at 103.
182. Peggy Cooper Davis, Neglected Stories: The Constitution and Family Values 178 (1997).
183. White, supra note 120, at 100-101.
184. Roberts, supra note 115, at 33-34.
185. Women and Slavery in America: A Documentary History 109 (Catherine M. Lewis & J. Richard Lewis eds., 2011).
186. I never marries, 'cause one 'sperience am 'nough for dis nigger. After what I does for de massa, I's never want no truck with any man. De Lawd forgive dis cullud woman, but he have to 'scuse me and look for some others for to 'plenish de earth.
187. Other narratives by ex-slave women are collected in Patrick Minges, Far More Terrible for Women: Personal Accounts of Women in Slavery (2006).
188. Roberts, supra note 115, at 28.
189. Id. at 27.
190. For additional examples, see Davis, supra note 129, at 176-179.
191. Roberts, supra note 115, at 29.
192. Joshua D. Rothman, Notorious in the Neighborhood: Sex and Families Across the Color Line in Virginia, 1787-1861, at 19-20 (2003).
193. Id. at 138.
194. Id. at 149-163. The daughter and her two co-conspirators had their death sentences commuted and were sold and shipped to parts unknown.
195. Id. at 163.
196. Roberts, supra note 115, at 46-49 (describing various abortion techniques said to be practiced by slaves and noting that some slave women practiced infanticide to prevent their children from living as chattel)
197. White, supra note 120, at 84-86 (Some Southern whites were certain that slave women knew how to avoid pregnancy as well as how to deliberately abort a pregnancy [A]n 1869 South Carolina court case revealed that a slave woman sold as 'unsound' and barren in 1857 had three children after emancipation.).
198. See supra note 37 and accompanying text (discussing concept of paradigm case).
199. Davis, supra note 129, at 175.
200. Rothman, supra note 137, at 133. Rubenfeld observes this fact but does not note its relevance in the context of the Thirteenth Amendment.
201. See Rubenfeld, Freedom and Time, supra note 15, at 225 (It is impossible to name a single prohibitory law in our legal system with greater affirmative, conscriptive, life-occupying effects than those imposed by a law forcing a woman to bear a child against her will.). He does, however, note that a much less severe imposition, a law requiring blacks to shine white people's shoes, would be obviously unconstitutional, though even here he cites the Fourteenth rather than the Thirteenth Amendment.
202. Id. at 205.
203. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992) ([T]he State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.).
204. Roe v. Wade, 410 U.S. 113, 175-177 (1973) (Rehnquist, J., dissenting).
205. The Civil Rights Cases, 109 U.S. 3, 25 (1883).
206. Hodges v. United States, 203 U.S. 1, 19 (1906)
207. overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
208. See, e.g., Office of Women's Health, Fed. Drug Admin., Birth Control Guide (August 2012), http://www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf (on file with the Columbia Law Review) (discussing reliability of various contraception methods).
209. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., dissenting) (reasoning that woman's liberty to have abortion is not protected because the Constitution says absolutely nothing about it).
210. See Susan Estrich, Real Rape: How the Legal System Victimizes Women Who Say No 28 (1987) ([S]imple rape... cases are difficult if not virtually impossible to prove.).
211. This objection also places great rhetorical weight on the injury of rape while treating the burdens of unwanted pregnancy as something a reasonable woman should be willing to endure. This ranking of burdens is inconsistent with respect to the disruption of the victim's life, the duration of the harm, and even the permanence of the bodily injury.
212. Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Aff. 47, 59 (1971).
213. See supra text accompanying notes 115, 118-136.
214. This argument is elaborated in Koppelman, Forced Labor, supra note 1, at 501. That piece also addresses the general notion that women's consent legitimates unwanted pregnancy.
215. See id. at 491-493, 495-509.
216. There are other issues as well. The most pertinent developments since that article was written are the growing unavailability of contraception to low-income women and the spread of abstinence-focused sex education, which increases the likelihood that a girl will not even know how to use contraception when she has her first sexual experience. See John Santelli et al., Abstinence and Abstinence-Only Education: A Review of U.S. Policies and Programs, 38 J. Adolescent Health 72, 77 (2006) (describing effects of abstinence-only education on students' understanding of contraception)
217. Jennifer J. Frost et al., Improving Contraceptive Use in the United States, Guttmacher Institute: In Brief, 2-3 (2008), available at http://www.guttmacher.org/pubs/2008/05/09/ImprovingContraceptiveUse.pdf (on file with the Columbia Law Review) (de-scribing barriers to accessing contraception).
218. It may also follow that, given the danger of rape, a reasonable woman who does not wish to bear children will get a hysterectomy at the earliest opportunity, or at a minimum regularly use chemical contraception even if she is not heterosexually active.
219. See Koppelman, Forced Labor, supra note 1, at 511 n.136.