Thirteenth Amendment optimism

Columbia Law Review

Volumn 112, Issue 9, 2012, Pages 1733-1768

  Greene, Jamal ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 84878174604     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (281)

1. See generally William M. Carter, Jr., A Thirteenth Amendment Framework for Combating Racial Profiling, 39 Harv. C.R.-C.L. L. Rev. 17 (2004).
2. See Darrell A.H. Miller, A Thirteenth Amendment Agenda for the Twenty-First Century: Of Promises, Power, and Precaution, in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 291, 294 (Alexander Tsesis ed., 2010) [hereinafter Promises of Liberty] (arguing [u]nder the Thirteenth Amendment Congress could use its enforcement authority to abrogate [felon disenfranchisement laws] based on their disparate impact).
3. See Akhil Reed Amar, Comment, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 Harv. L. Rev. 124, 126 (1992) [hereinafter Amar, Missing Amendments] (contending hate speech constitute[s] [a] badge[] of servitude that may be prohibited under the Thirteenth and Fourteenth Amendments)
4. Alexander Tsesis, Regulating Intimidating Speech, 41 Harv. J. on Legis. 389 (2004) (arguing Congress can prohibit hate speech under Section 2 of Thirteenth Amendment).
5. See Dina Mishra, Child Labor as Involuntary Servitude: The Failure of Congress to Legislate Against Child Labor Pursuant to the Thirteenth Amendment in the Early Twentieth Century, 63 Rutgers L. Rev. 59, 66-67 (2010) (suggesting child labor is form of involuntary servitude prohibited by Thirteenth Amendment).
6. See Akhil Reed Amar & Daniel Widawsky, Commentary, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359 (1992).
7. See Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480 (1990) [hereinafter Koppelman, Forced Labor].
8. See Violence Against Women: Victims of the System: Hearing on S. 15 Before the S. Comm. on the Judiciary, 102d Cong. 89 (1991) (statement of Burt Neuborne, Professor of Law, N.Y. Univ.) [hereinafter Neuborne] (arguing Congress should recognize that there are badges and incidents of the chattel slavery that women were subjected to and that under article II of the 13th amendment, if Congress wished, it could act)
9. Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. Pa. L. Rev. 1097 (1998).
10. See Catherine A. MacKinnon, Prostitution and Civil Rights, 1 Mich. J. Gender & L. 13, 21-26 (1993).
11. See Jennifer L. Conn, Sexual Harassment: A Thirteenth Amendment Response, 28 Colum. J.L. & Soc. Probs. 519 (1995).
12. See Robert L. Misner & John H. Clough, Arrestees as Informants: A Thirteenth Amendment Analysis, 29 Stan. L. Rev. 713, 716 (1977) (contending use of previously arrested individuals as informants violates Thirteenth Amendment).
13. See David P. Tedhams, The Reincarnation of Jim Crow: A Thirteenth Amendment Analysis of Colorado's Amendment 2, 4 Temp. Pol. & Civ. Rts. L. Rev. 133, 133 (1994) (suggesting Colorado's constitutional amendment to bar legislation... which afford[s] lesbians, gay men, or bisexuals their civil rights violates Thirteenth Amendment).
14. See Akhil Reed Amar, Sterling Professor of Law, Yale Law Sch., Remarks at the Columbia Law Review Symposium: The Thirteenth Amendment: Meaning, Enforcement, and Contemporary Implications (Jan. 27, 2012) (on file with the Columbia Law Review).
15. See Alexander Tsesis, The Thirteenth Amendment and American Freedom: A Legal History 137-149 (2004).
16. See Complaint for Declaratory and Injunctive Relief at 1, Tilikum v. Sea World Parks & Entm't, Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 2012) (11-cv-02476-JM-WMC), 2011 WL 5077854, at *1 (alleging keeping orcas at SeaWorld violates Thirteenth Amendment).
17. See Larry J. Pittman, Physician-Assisted Suicide in the Dark Ward: The Intersection of the Thirteenth Amendment and Health Care Treatments Having Disproportionate Impacts on Disfavored Groups, 28 Seton Hall L. Rev. 774, 885-887 (1998) (indicating that physician assisted suicide could violate Thirteenth Amendment because of disproportionate impact on African Americans).
18. Such was the unanimous view of the Supreme Court that decided the Civil Rights Cases.
19. See 109 U.S. 3, 20-21 (1883) (conceding Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents)
20. id. at 35 (Harlan, J., dissenting) (declaring indisputable that Section 2 permits Congress to legislate for the eradication, not simply of the institution, but of its badges and incidents). It is not, however, the unanimous view of scholars.
21. Compare Jacobus tenBroek, Thirteenth Amendment to the Constitution of the United States: Consummation to Abolition and Key to the Fourteenth Amendment, 39 Calif. L. Rev. 171, 203 (1951) (arguing [t]he Thirteenth Amendment nationalized the right of freedom)
22. David P. Currie, The Civil War Congress, 73 U. Chi. L. Rev. 1131, 1177-1178 (2006) (denying Reconstruction Congress's intent to allow bans on race discrimination under Thirteenth Amendment).
23. Given that the Civil Rights Cases Court applied this language in manifestly narrower fashion than the Court that decided Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441-443 (1968), one must wonder whether the term badges and incidents is polysemous and therefore misleading as precedent.
24. 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 2, at 163, 164 (The inherent ambiguity in this phrase is the key to understanding its role, initially in political thought and then in constitutional interpretation.).
25. Lawrence Sager attaches significance to the fact that Jones, unlike the Civil Rights Cases, includes within Congress's remedial power the authority to target not just the badges and incidents but also the relics of slavery.
26. See Lawrence G. Sager, A Letter to the Supreme Court Regarding the Missing Argument in Brzonkala v. Morrison, 75 N.Y.U. L. Rev. 150, 151-156 (2000) (contending Thirteenth Amendment's empowerment of Congress to target relics of slavery provides ground for federal criminalization of violence against women).
27. Jones, 392 U.S. at 439 (holding Congress's authority to enforce legislation under Thirteenth Amendment includes the power to eliminate all racial barriers to the acquisition of real and personal property).
28. See Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 10 (2011) [hereinafter Balkin, Constitutional Redemption] (The possibility that constitutional government will ultimately be responsive to public mobilization and public opinion gives ordinary people reason to hope that in time the Constitution can be redeemed.)
29. Robert M. Cover, Forward: Nomos and Narrative, 97 Harv. L. Rev. 4, 68 (1983) (discussing possibility of radical constitutional change emerging from resistance to the state)
30. Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 350-351 (2001) [hereinafter Siegel, Text in Contest] (Active engagement with constitutional questions may well produce fidelity to constitutional values in ways that passive obedience to the Court's authority cannot.)
31. cf. Jeremy Waldron, Law and Disagreement 16 (1999) (explaining courts are forum for making social decisions in context of disagreement).
32. The term, of course, is Robert Bork's. See Nomination of Robert H. Bork To Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 249 (1989) (statement of Robert H. Bork) ([I]f you had an amendment that says 'Congress shall make no' and then there is an ink blot and you cannot read the rest of it... I do not think the court can make up what might be under the ink blot if you cannot read it.)
33. Robert H. Bork, The Tempting of America: The Political Seduction of the Law 166 (1990) [hereinafter Bork, Tempting America] (A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an ink blot.).
34. See Charles L. Black Jr., Structure and Relationship in Constitutional Law 33 (1969) (quipping that we come close to using... the three celebrated prohibitory clauses in the Fourteenth Amendment, like gin, for everything)
35. cf. Buck v. Bell, 274 U.S. 200, 208 (1927) (calling tailoring arguments grounded in Equal Protection Clause the usual last resort of constitutional arguments).
36. But see Suzanna Sherry, Too Clever by Half: The Problem with Novelty in Constitutional Law, 95 Nw. U. L. Rev. 921, 926 (2001) (criticizing phenomenon in which proposing counterintuitive ideas is the fastest way up the academic ladder).
37. Andrew Koppelman, Forced Labor Revisited: The Thirteenth Amendment and Abortion [hereinafter Koppelman, Forced Labor Revisited], in Promises of Liberty, supra note 2, at 226, 227.
38. See Larry D. Kramer, Popular Constitutionalism, Circa 2004, 92 Calif. L. Rev. 959, 979 (2004) (Most... commentators... not to mention lawyers, judges, and politicians, dismiss [scholarly Thirteenth Amendment] musings as academic flights of fancy-the kinds of things only law professors, unconnected to reality, would think worth pursuing.).
39. See generally James Gray Pope, The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957, 102 Colum. L. Rev. 1, 12-25 (2002) [hereinafter Pope, Thirteenth Amendment Versus Commerce Clause] (discussing pre-New Deal labor movement's use of Thirteenth Amendment to justify constitutionality of pro-labor legislation).
40. 392 U.S. 409 (1968). Jones is, of course, a Section 2 case, but, as Part II explains, it did not rest on a political infrastructure.
41. U.S. Const. amend. XIII, § 1.
42. See Arver v. United States, 245 U.S. 366, 367 (1918) (upholding constitutionality of Selective Draft Law against claim that it violated Thirteenth Amendment).
43. See Bailey v. Alabama, 219 U.S. 219, 245 (1911) (finding state statute violated Thirteenth Amendment because it made failure to perform service contract prima facie evidence of intent to defraud employer).
44. U.S. Const. amend. XIII, § 2.
45. The Civil Rights Cases, 109 U.S. 3, 25 (1883) (On the whole we are of opinion, that no countenance of authority for the passage of the law [banning racial discrimination in public accommodations] can be found in... the Thirteenth... Amendment).
46. See Pamela Brandwein, Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth 62-65 (1999) (describing congressional reactions to social equality)
47. Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, at 368-372 (1988) (discussing how consideration of outlawing racial discrimination divided Republican governors and legislators).
48. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 454-473 (1968) (Harlan, J., dissenting) (showing legislative history of Civil Rights Act of 1866 is at best ambiguous)
49. Gerhard Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 Sup. Ct. Rev. 89, 104 (explaining the [Civil Rights Act of 1866] was not explicitly concerned with residential segregation)
50. Louis Henkin, On Drawing Lines, 82 Harv. L. Rev. 63, 84-86 (1968) (discussing difficulties with Court's opinion in Jones).
51. See Victor H. Mair, Danger + Opportunity ≠ Crisis: How a Misunderstanding about Chinese Characters Has Led Many Astray, Pīnyīn. info: A Guide to the Writing of Mandarin Chinese in Romanization, http://pinyin.info/chinese/crisis.html (on file with the Columbia Law Review) (last modified Sept. 2009) (hypothesizing causes of common misunderstanding).
52. Indeed, one federal appellate court has cited Koppelman's argument (in addition to related arguments advanced by Laurence Tribe and Donald Regan) as evidence that applying the Thirteenth Amendment to abortion rights is not frivolous, on which basis the district court had awarded attorney's fees to the State of Utah. Jane L. v. Bangerter, 61 F.3d 1505, 1514, 1515 & n.9 (10th Cir. 1995).
53. See supra note 22 and accompanying text (describing Koppelman's position that Thirteenth Amendment arguments supporting abortion are seldom taken seriously).
54. Koppelman is far from the first abortion rights proponent to invoke the Thirteenth Amendment, but his argument is more detailed than most. For other discussions, see Laurence H. Tribe, American Constitutional Law § 15-10, at 1354 n.113 (2d ed. 1988) (contending [t]he thirteenth amendment's relevance [to laws requiring a woman to continue an unwanted pregnancy] is underscored by the historical parallel between the subjugation of women and the institution of slavery)
55. Donald H. Regan, Rewriting Roe v. Wade, 77 Mich. L. Rev. 1569, 1619-1620 (1979) (suggesting constitutional argument against abortion statutes could be based on nonsubordination and physical integrity values of Thirteenth Amendment).
56. For examples of the use of Thirteenth Amendment arguments by advocates see Reva B. Siegel, Roe's Roots: The Women's Rights Claims That Engendered Roe, 90 B.U. L. Rev. 1875, 1884 n.34, 1891, 1896 n.98 (2010).
57. Koppelman, Forced Labor, supra note 6, at 485.
58. Id. at 486 (emphases added by Koppelman) (quoting Plessy v. Ferguson, 163 U.S. 537, 542 (1896) (internal quotation marks omitted)).
59. Plessy, 163 U.S. at 542.
60. Koppelman, Forced Labor Revisited, supra note 22, at 235 (If there is a defect in [the abortion] argument, no one has ever stated it in print.).
61. John O. McGinnis, Decentralizing Constitutional Provisions Versus Judicial Oligarchy: A Reply to Professor Koppelman, 20 Const. Comment. 39, 56 (2003).
62. Koppelman, Forced Labor Revisited, supra note 22, at 235.
63. Cf. Richard Primus, Constitutional Expectations, 109 Mich. L. Rev. 91, 92-93 (2010) (using presidential oath, which is never in fact read verbatim, as example of way in which our expectations about constitutional practice may supplement or substitute for text).
64. Jack Balkin has argued that originalism should pay careful attention to the level of specificity at which a constitutional command was originally understood.
65. See Balkin, Constitutional Redemption, supra note 18, at 229.
66. 83 U.S. (16 Wall.) 36, 72 (1873).
67. See id. at 71-72 (describing slavery as relationship of unlimited dominion).
68. 165 U.S. 275, 282 (1897) (internal citations omitted).
69. Justice White wrote for a unanimous Court in the Selective Draft Law Cases, [W]e are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment 245 U.S. 366, 390 (1918). Unless we understand the Thirteenth Amendment to describe a term of art, the Court's failure of imagination baffles.
70. Koppelman, Forced Labor Revisited, supra note 22, at 238.
71. Id. (citing Katherine A. Taylor, Compelling Pregnancy at Death's Door, 85 Colum. J. Gender & L. 85, 146 n.198 (1997)).
72. See id. (explaining [a]s Thirteenth Amendment arguments become more familiar, the Thirteenth Amendment case for abortion will become less surprising... [and] [t]he Thirteenth Amendment may again become a part of our constitutional conscience).
73. Amar, Missing Amendments, supra note 3
74. Amar & Widawsky, supra note 5.
75. Amar & Widawsky, supra note 5, at 1365 n.18.
76. Id. at 1365.
77. Id. at 1364.
78. 489 U.S. 189, 195-198 (1989).
79. Amar & Widawsky, supra note 5, at 1362.
80. 334 U.S. 1, 20 (1948) (finding judicial enforcement of private restrictive covenants in order to enjoin property transfer in violation of Equal Protection Clause)
81. see Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628 (1991) (finding state action in private civil litigant's racially discriminatory exercise of peremptory challenges)
82. Evans v. Newton, 382 U.S. 296, 302 (1966) (finding state action in transfer of park between private entities under segregation covenant).
83. See Robertson v. Baldwin, 165 U.S. 275, 282 (1897) (stating Thirteenth Amendment was not intended... to disturb the right of parents and guardians to the custody of their minor children or wards).
84. Cf. Richard A. Posner, Overcoming Law 213 (1995) (DeShaney's case could just as readily be analogized to one in which a mugger beats up his victim in the presence of a police officer who, having been inadequately trained, is unable to prevent the crime.).
85. See id. at 212 ([I]t does not follow that every relation that is brutal, degrading, and dehumanizing is a form of slavery, any more than it follows from the fact that all judges are wise that all wise men are judges.).
86. In fact, Amar and Widawsky discuss some historical instances of cross-comparison between the master-slave and the parent-child relationship. For example, during the congressional debate over passage of the Thirteenth Amendment, several members of Congress drew analogies between these relationships.
87. See Amar & Widawsky, supra note 5, at 1367 (quoting Cong. Globe, 38th Cong., 2d Sess. 215 (1865) (statement of Rep. Chilton White)
88. Cong. Globe, 38th Cong., 1st Sess. 2941 (1864) (statement of Rep. Fernando Wood)
89. Cong. Globe, 37th Cong., 2d Sess. 1636 (1862) (statement of Rep. Samuel Shellabarger)). None of the statements Amar and Widawsky cite make the case that anyone of consequence believed the Thirteenth Amendment would in fact cover such parental relationships, and two come from opponents of the Amendment and so do not represent especially reliable evidence of its intended scope.
90. 505 U.S. 377 (1992).
91. Id. at 383-384.
92. Id. at 411 (White, J., concurring in the judgment) (Although I disagree with the Court's analysis, I do agree with its conclusion However, I would decide the case on overbreadth grounds.).
93. Amar, Missing Amendments, supra note 3, at 155-160.
94. For a general critique, see Alex Kozinski & Eugene Volokh, A Penumbra Too Far, 106 Harv. L. Rev. 1639, 1647-1656 (1993) (rejecting Amar's argument that Thirteenth Amendment trumps First Amendment).
95. Amar, Missing Amendments, supra note 3, at 147 & n.130. Justice O'Connor's later vote in favor of the University of Michigan Law School's plan in Grutter v. Bollinger, 539 U.S. 306 (2003), means that all four Justices who refused to join the majority opinion in R.A.V. have voted to uphold affirmative action plans.
96. This is no longer so, as Justice Souter dissented in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)
97. Gratz v. Bollinger, 539 U.S. 244 (2003), and voted with the majority in Grutter. R.A.V. was decided at the end of Justice Souter's second term, and there is some evidence that Supreme Court Justices engage in unstable voting patterns early in their careers.
98. See Lee Epstein, Kevin Quinn, Andrew D. Martin & Jeffrey A. Segal, On the Perils of Drawing Inferences About Supreme Court Justices from Their First Few Years of Service, 91 Judicature 168, 169 (2008) (finding all but 4 of the 26 judges... investigated exhibited statistically significant ideological drift from their initial preferences). The authors conclude that Souter in particular made a 180-degree turn from the preferences revealed in [his] first few terms.
99. Id. at 177.
100. See Amar, Missing Amendments, supra note 3, at 150 (arguing Justice White... seemed to be thinking more about the alleged incident before him).
101. Id. at 147.
102. In re Welfare of R.A.V., 464 N.W.2d 507, 510 (Minn. 1991), rev'd sub nom. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
103. 315 U.S. 568, 574 (1942) (upholding New Hampshire statute forbidding use of words tending to cause a breach of the peace against constitutional challenge).
104. See Hess v. Indiana, 414 U.S. 105, 107 (1973) (reversing conviction of demonstrator who loudly said [w]e'll take the fucking street because his words were not intended and likely to produce imminent disorder)
105. Cohen v. California, 403 U.S. 15, 19-20 (1971) (rejecting that wearing jacket that said Fuck the Draft in courthouse fell into those relatively few categories of instances where... [the] government [could] deal more comprehensively with certain forms of individual expression)
106. Terminiello v. City of Chicago, 337 U.S. 1, 5 (1949) (finding fighting words exception did not permit breach of peace conviction simply for speech that stirred people to anger, invited public dispute, or brought about a condition of unrest).
107. R.A.V., 505 U.S. at 414 (White, J., concurring).
108. Amar appears to recognize this problem: In a footnote, he drafts a more defensible ordinance that is tied much more specifically to the Thirteenth Amendment.
109. See Amar, Missing Amendments, supra note 3, at 160 n.187. Amar's proposed legislation includes gender subordination as a badge of slavery, but he seems to view it as a close question.
110. See id. (noting narrower version of proposed legislation that only targets racial subordination is easier to fit into standard Thirteenth Amendment doctrine than version that also targets gender subordination).
111. R.A.V., 505 U.S. at 398 (White, J., concurring).
112. See id. at 400-401
113. cf. Wisconsin v. Mitchell, 508 U.S. 476, 487-488 (1993) (upholding state statute that singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm).
114. Virginia v. Black, 538 U.S. 343, 347-348 (2003). Justice Stevens said so expressly in Black
115. See id. at 368 (Stevens, J., concurring) (referring specifically to his and Justice White's separate opinions in R.A.V. that concluded intent to intimidate unquestionably qualifies as the kind of threat that is unprotected by the First Amendment).
116. See id. at 388 (Thomas, J., dissenting) (concluding whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct)
117. Mitchell, 508 U.S. at 487 (upholding state statute because it was aimed at conduct unprotected by the First Amendment).
118. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (concluding fighting words are no essential part of any exposition of ideas).
119. See Watts v. United States, 394 U.S. 705, 708 (1969) (concluding in order not to violate First Amendment, government must prove true threat under federal statute prohibiting threats against President).
120. See J.M. Balkin, Free Speech and Hostile Environments, 99 Colum. L. Rev. 2295, 2312 (1999) (analyzing captive audience doctrine in workplace context and arguing doctrine should regulate particular situations where people are particularly subject to unjust and intolerable harassment and coercion).
121. See City of Erie v. Pap's A.M., 529 U.S. 277, 296 (2000) (concluding city's asserted interest in combating the negative secondary effects associated with adult entertainment establishments... is unrelated to the suppression of the erotic messages conveyed by nude dancing and therefore turning to other factors to determine ordinance was content neutral)
122. Renton v. Playtime Theaters, Inc., 475 U.S. 41, 52 (1986) (upholding city ordinance tailored to affect only that category of theaters shown to produce... unwanted secondary effects)
123. Aguilar v. Avis Rent-A-Car Sys., Inc., 53 Cal. Rptr. 2d 599, 606-608 (Ct. App. 1996) (adopting secondary effects rationale to reject First Amendment challenge to injunction against workplace racial harassment), aff'd on other grounds, 980 P.2d 846 (Cal. 1999).
124. Amar, Missing Amendments, supra note 3, at 151-155 (explaining how Justices could have integrated Reconstruction Amendments into their opinions in R.A.V.).
125. See Cass R. Sunstein, Democracy and the Problem of Free Speech 193 (1993) (explaining [t]he Thirteenth, Fourteenth and Fifteenth Amendments fundamentally altered the Constitution by placing equality... in the forefront of constitutional concern and therefore hate speech is without First Amendment protection)
126. Thomas C. Grey, Civil Rights vs. Civil Liberties: The Case of Discriminatory Verbal Harassment, 63 J. Higher Educ. 485, 485 (1992) (exploring conflict of civil rights and civil liberties in context of discriminatory verbal harassment on college campuses)
127. Charles R. Lawrence III, Crossburning and the Sound of Silence: Antisubordination Theory and the First Amendment, 37 Vill. L. Rev. 787, 792 (1992) (When hate speech is employed with the purpose and effect of mantaining established systems of caste and subordination, it violates [the] core value [of full and equal citizenship expressed in the Fourteenth Amendment's Equal Protection Clause].).
128. Violence Against Women Act of 1994 (VAWA), Pub. L. No. 103-322 tit. IV, § 40302(c), 108 Stat. 1902, 1941 (codified at 42 U.S.C. § 13981(c)). 88.529 U.S. 598, 627 (2000).
129. Id. at 618.
130. Id. at 626-627.
131. See Neuborne, supra note 7, at 89 ([T]here are badges and incidents of the chattel slavery that women were subjected to and that under article II of the 13th amendment, if Congress wished, it could act [to prohibit it].)
132. Hearn, supra note 7, at 1098 (Section 2 of the Thirteenth Amendment is an alternative source of Congress's power to create a cause of action for private discrimination.).
133. See Hearn, supra note 7, at 1145 (arguing just as Congress can enact legislation that addresses other badges and incidents of nineteenth-century slavery, it has the power to enact the VAWA)
134. see also Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 Yale J.L. & Feminism 207, 209-210 (1992) (arguing battered women are subjected to form of involuntary servitude cognizable under Thirteenth Amendment).
135. See Hearn, supra note 7, at 1141-1143 (focusing on text and history of Thirteenth Amendment and applying it to women).
136. Id. at 1144. Hearn also argues that modern violence against black women is a badge or incident of nineteenth-century chattel slavery. Id. at 1143 (Black women may invoke the civil rights statutes based on the Thirteenth Amendment for claims of racial discrimination.)
137. cf. Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 139-140 (arguing antidiscrimination law obscures interaction between race and sex discrimination for black women).
138. See, e.g., State v. Rhodes, 61 N.C. (Phil.) 453, 456 (1868) (affirming acquittal of husband in unprovoked whipping of his wife, on grounds that state government is subordinate to family government)
139. see also Reva B. Siegel, The Rule of Love: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2119 (1996) [hereinafter Siegel, Rule of Love] (demonstrating in detail ways in which repudiation of chastisement regime preserved sexual status hierarchies within families).
140. See Cong. Globe, 38th Cong., 2d Sess. 215 (1865) (statement of Rep. Chilton White) (A husband has a right of property in the service of his wife he has the right to the management of his household affairs All these rights rest upon the same basis as a man's right of property in the service of slaves.)
141. id. at 242 (statement of Rep. Samuel Cox) (Should we amend the Constitution so as to change the relation of parent and child, guardian and ward, husband and wife, the laws of inheritance, the laws of legitimacy?).
142. Neuborne, supra note 7, at 102
143. see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438, 441 (1968) (holding Congress has power under the Thirteenth Amendment to eradicate conditions that prevent Negroes from buying and renting property because of their race or color since those conditions constitute badges and incidents of slavery).
144. See generally Siegel, Rule of Love, supra note 95, at 2119 (calling change in the rules and rhetoric of a status regime 'preservation through transformation').
145. This is quite apart from the equally obvious relationship between gender-motivated violence and the interstate labor market, which is subject to federal regulation under the Commerce Clause. The extensive evidence Congress compiled to this effect is summarized in United States v. Morrison, 529 U.S. 598, 628-634 (2000) (Souter, J., dissenting).
146. Id. at 620 (majority opinion).
147. Id. at 626.
148. Id. at 665 (Breyer, J., dissenting) (questioning why Congress could not provide remedy against private actors if legislation is remedial).
149. Neuborne, supra note 7, at 87-89.
150. Neuborne testified that the Commerce Clause was the easiest ground for decision.
151. Id. at 88.
152. 521 U.S. 507, 530 (1995) (limiting reach of Congress's Section 5 power to remedies congruent and proportional to identified violation).
153. Sager, supra note 16, at 153.
154. See David Segal, Is Law School a Losing Game?, N.Y. Times, Jan. 9, 2011, at BU1 (criticizing law schools because while [j]ob openings for lawyers have plunged... law schools are not dialing back enrollment)
155. David Segal, Law School Economics: Ka-Ching!, N.Y. Times, July 17, 2011, at BU1 (characterizing law schools as businesses that are not delivering on their promises)
156. David Segal, What They Don't Teach Law Students: Lawyering, N.Y. Times, Nov. 20, 2011, at 1 (arguing [l]aw schools have long emphasized the theoretical over the useful)
157. see also Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34, 34 (1992) (arguing law schools have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship).
158. See generally Brian Z. Tamanaha, Failing Law Schools ix-xiii (2012) (diagnosing numerous pathologies of modern legal education).
159. See Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth)
160. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (explaining fighting words have such slight social value as a step to truth)
161. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) (explaining Founders believed that freedom to think as you will and to speak as you think are means indispensible to the discovery and spread of political truth)
162. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (explaining theory of our Constitution is that the best test of truth is the power of the thought to get itself accepted in the competition of the market)
163. see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (opinion of Powell, J.) (Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.).
164. See David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 888 (1996) (acknowledging common law's resistance to change).
165. In 1991 Warren Burger called the argument for grounding opposition to gun control in the Second Amendment one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I have ever seen in my lifetime, MacNeil/Lehrer Newshour: First Freedoms (PBS television broadcast Dec. 16, 1991), and in 1989 Robert Bork said all state gun-control laws were probably constitutional,
166. see Claudia Luther, Lectures at UCI With Rose Bird: Bork Says State Gun Laws Constitutional, L.A. Times (Mar. 15, 1989), http://articles.latimes.com/1989-03-15/local/me-587_1_state-gun-laws-constitutional (on file with the Columbia Law Review).
167. Cf. McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010) (holding Second Amendment is fully applicable to states)
168. District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (holding Second Amendment confers individual right to keep and bear arms).
169. The term nomoi is borrowed from Robert Cover. See Cover, supra note 18, at 4 (defining nomos as normative universe).
170. See Pope, Thirteenth Amendment Versus Commerce Clause, supra note 24, at 18-22 (discussing arguments made in both contexts).
171. Id. at 22-25 (discussing unionists' belief that differential treatment of capital and labor was constitutionally compelled).
172. See Risa L. Goluboff, The Thirteenth Amendment and the Lost Origins of Civil Rights, 50 Duke L.J. 1609, 1647-1668 (2001).
173. Kramer, supra note 23, at 980. Koppelman writes, At the time the [abortion] article was written, not much had been done with the Thirteenth Amendment by anyone in the legal academy. It had been a potent source of law as recently as the 1970s, but it had since gone out of fashion, and arguments that tried to invoke it as a major premise tended to be ruled out of order without a hearing, simply because that kind of thing is not done [But] [t]here is an increasing appreciation that the Thirteenth Amendment has potent current applications.
174. Koppelman, Forced Labor Revisited, supra note 22, at 238.
175. See Goluboff, supra note 114, at 1612 ([D]uring World War II and the years that followed,.. 'civil rights' did not refer to a unified, coherent category the content of the term was open, changing, and contradictory, carrying resonances of the past as well as of several possible contending futures.).
176. 379 U.S. 294, 305 (1964) (upholding public accommodations provisions of Civil Rights Act of 1964 as applied to restaurant near interstate highway).
177. 379 U.S. 241, 261 (1964) (upholding public accommodations provisions of Civil Rights Act of 1964 as applied to Georgia hotel).
178. Goluboff, supra note 114, at 1613.
179. See Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353, 358 (1981) (arguing substantive due process proponents believe the constitution is essentially perfect in aligning its guarantees of equality and personal autonomy with those which the commentators think a twentieth century Western liberal democratic government ought to guarantee to its citizens).
180. Kozinski and Volokh have also argued, Following the lengthening shadows of constitutional provisions as they recede ever further from the source is something to be undertaken cautiously, with a constant regard to the consequences. No matter how tempting or righteous the desired result may be, one must always be ready to recognize when the reading has become too tenuous, the proposed doctrine too vague, the implications too risky.
181. Kozinski & Volokh, supra note 66, at 1657.
182. Monaghan, supra note 120, at 396 (To be sure, the constitution embodies an ideology, but it is a limited one.).
183. The virtual cottage industry in originalist defenses of Brown v. Board of Education, 347 U.S. 483 (1954), provides the most obvious example.
184. See Bork, Tempting America, supra note 19, at 76 (explaining the result in Brown is consistent with, indeed is compelled by, the original understanding of the fourteenth amendment's equal protection clause)
185. John Harrison, Equality, Race Discrimination, and the Fourteenth Amendment, 13 Const. Comment. 243, 243-244 (1996) (arguing if Fourteenth Amendment does indeed yield some kind of ban on race discrimination, its text is most plausibly read as a ban on all such distinctions, with no exception for symmetrical discrimination)
186. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 1140 (1995) (showing school segregation was understood during Reconstruction to violate the principles of equality of the Fourteenth Amendment).
187. Originalist Steven Calabresi has a long history of refusing to bite the bullet on unattractive constitutional outcomes.
188. See Steven G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 Tex. L. Rev. 1, 101 (2011) (The original public meaning of the Fourteenth Amendment, when read in light of the Nineteenth Amendment, renders sex discrimination as to civil rights unconstitutional.)
189. Steven G. Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke, 57 Ala. L. Rev. 635, 655 n.138 (2006) (asserting Brown was correct from originalist perspective)
190. id. at 656 (arguing that originalism can explain Loving v. Virginia, 388 U.S. 1 (1967)).
191. Robin West, Progressive and Conservative Constitutionalism, 88 Mich. L. Rev. 641, 714 (1989) (describing adjudicative law as something that courts enforce as law against unwilling parties).
192. These observations point up a broader issue worthy of attention in future work. The conclusion that Thirteenth Amendment optimism entails conceptually plausible but nonetheless off-the-wall arguments is not simply a judgment about political viability
193. Thirteenth Amendment optimism also frequently violates what we might call second-order conditions for constitutional legitimacy. First-order conditions specify the form a constitutional argument must take in order to count as such. A claim about constitutional meaning that does not proceed from historical understanding, constitutional text or structure, precedent, prudential or policy argument, perhaps ethical argument or natural law, or some combination of these may be perfectly persuasive within some domain, but does not likely count as constitutional argument and would not be understood as such by most constitutional lawyers.
194. See Philip Bobbitt, Constitutional Fate 3-119 (1982) (exploring these arguments)
195. Richard H. Fallon Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1189-1190, 1194-1209 (1987) (explaining the relevance of at least five kinds of arguments in constitutional debate). Less explored are the limitations particular to a given style of constitutional claim. It may be that constitutional argument need not only conform to a recognized first-order modality but must also attend to the relationship between form and function. Certain doctrinal claims may simply fail to fit with certain modalities.
196. Thus, arguments that emphasize the generativity of language may not be compatible with originalism, which (by convention) seeks above all to constrain. See Jamal Greene, Fourteenth Amendment Originalism, 71 Md. L. Rev. 978, 981 (2012) (arguing originalism binds interpretation to a fixed and knowable set of meanings, so as to impede the indeterminacy and opportunity associated with open-textured constitutional construction).
197. But see Jack M. Balkin, Living Originalism (2011) (defending dynamic, generative version of originalism). Because they must, at best, inspire politics, Thirteenth Amendment arguments must concede, indeed celebrate, the open-ended nature of the constitutional mandates they describe. Section 1, and especially originalist claims about Section 1, resist such concessions.
198. See City of Memphis v. Greene, 451 U.S. 100, 128-129 (1981) (reserving judgment on scope of Section 1)
199. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968) (same).
200. See William M. Carter Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311, 1314-1316 (2007) (arguing that Court's refusal to say whether badges and incidents formulation applies to Section 1 has sown confusion).
201. See supra note 124 and accompanying text (explaining progressive understanding of constitutional law).
202. See supra note 112 and accompanying text (discussing unions' use of Amendment in fighting for legislation before New Deal era).
203. See Pope, Thirteenth Amendment Versus Commerce Clause, supra note 24, at 34-35 (explaining bill implemented the Thirteenth Amendment's principle that labor power could not be property).
204. Id. at 47 (noting Furuseth wrote Robert Wagner a twelve page letter in which he urged Wagner to ground his labor disputes bill on Section 2 of the Thirteenth Amendment).
205. See id. at 48 (noting Wagner's argument that government enforcement of the right to organize would bestow upon workers emancipation from economic slavery (internal quotation marks omitted)).
206. See id. at 48 & n.227 (mentioning and quoting language of bill proponents who spoke in terms of slavery, freedom, and inherent rights).
207. See id. at 32-34 (noting Furuseth and his allies counted more on Congress than on the courts to move constitutional interpretation forward).
208. William E. Forbath, The New Deal Constitution in Exile, 51 Duke L.J. 165, 179 (2001).
209. See Pope, Thirteenth Amendment Versus Commerce Clause, supra note 24, at 45-46, 49.
210. See Forbath, supra note 135, at 190-193 (describing Frankfurter's substitute bill as a thorough and well-crafted set of hedges against the labor injunction, imposing detailed limits on the jurisdiction of federal courts to issue injunctions in labor disputes and declaring yellow-dog contracts void and unenforceable in federal courts as against public policy)
211. Pope, Thirteenth Amendment Versus Commerce Clause, supra note 24, at 40-42 (describing Frankfurter's objections to bill's Thirteenth Amendment theory).
212. See Forbath, supra note 135, at 170, 203-209 (describing southern Democratic support and demands that, among other things, the New Deal social provision and labor standards respect states' rights [and]... exclude the main categories of southern labor).
213. Siegel, Text in Contest, supra note 18, at 299.
214. See 392 U.S. 409, 413 (1968).
215. See Shelley v. Kraemer, 334 U.S. 1, 14 (1948) (concluding that state court enforcement of racially restrictive covenants qualifies as state action)
216. See Katzenbach v. McClung, 379 U.S. 294, 305 (1964) (finding [t]he Civil Rights Act of 1964... plainly appropriate in the resolution of what the Congress found to be a national commercial problem)
217. Heart of Atlanta Motel v. United States, 379 U.S. 241, 261 (1964) (noting that while Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination, Civil Rights Act of 1964 was within the power granted [Congress] by the Commerce Clause).
218. United States v. Price, 383 U.S. 787, 799-800 (1966) (finding the participation by law enforcement officers... clearly state action)
219. United States v. Guest, 383 U.S. 745, 756 (1966) (finding express allegation of state involvement sufficient at pleading stage).
220. See 383 U.S. at 762 (Clark, J., concurring) (explaining that there now can be no doubt that the specific language of § 5 empowers the Congress to enact laws punishing all conspiracies-with or without state action-that interfere with Fourteenth Amendment rights)
221. id. at 774, 777 (Brennan, J., concurring in part and dissenting in part) (arguing conspiracy to interfere with the right to equal utilization of state facilities [violates the statute] without regard to whether state officers participated in the alleged conspiracy).
222. 379 F.2d 33, 42 (8th Cir. 1967), rev'd, 392 U.S. 409.
223. The Fair Housing Act, which was based on the Commerce Clause and on Section 5 of the Fourteenth Amendment, was broader than § 1982, as it prohibited discrimination on a range of grounds that extended beyond just race and included an enforcement mechanism in cases of private discrimination. Fair Housing Act of 1967: Hearings Before the Subcomm. on Hous. & Urban Affairs of the S. Comm. On Banking & Currency, 90th Cong. 6-14, 23-24 (1967) (statement of Ramsey Clark, Att'y Gen. of the United States).
224. Casper, supra note 32, at 132.
225. Liberman is here referring to limitations on Section 5 authority suggested in dictum in Hurd v. Hodge, 334 U.S. 24 (1948). The Court in Hurd, a companion case to Shelley, held that the courts of the District of Columbia may not enforce restrictive racial covenants in real estate transactions. In the course of so holding, however, Chief Justice Vinson indicated, in dicta, that the Civil Rights Act of 1866 does not invalidate private restrictive agreements so long as the purposes of those agreements are achieved by the parties through voluntary adherence to the terms rather than, for example, by seeking court intervention against a seller who wishes to contract with a black purchaser.
226. Id. at 31
227. Oral Argument at 11+22, Jones, 392 U.S. 409 (No. 645), available at http://www.oyez.org/cases/1960-1969/1967/1967_645#argument-1 (on file with the Columbia Law Review).
228. Justices Stewart, Harlan, and White were the only three members of the Guest Court not to assert that Congress could reach private action via the Fourteenth Amendment.
229. See United States v. Guest, 383 U.S. 774, 782, 782 & n.6 (1966) (Brennan, J., concurring in part and dissenting in part) (explaining that majority expresses the view today that § 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy but noting [t]he opinion of Mr. Justice Stewart construes § 241... to require proof of active participation by state officers... and... does not purport to deal with this question)
230. see also supra note 144 and accompanying text (quoting opinions of Justice Clark and Justice Brennan).
231. Jones, 392 U.S. at 450 (Harlan, J., dissenting) (explaining the political processes of our own era have... given birth to a civil rights statute embodying 'fair housing' provisions which would... [provide] the type of relief which the petitioners... seek).
232. 427 U.S. 160, 179 (1976) (concluding Section 1981 [of the Civil Rights Act of 1866], as applied to the [private school] conduct at issue here, constitutes an exercise of federal legislative power under § 2 of the Thirteenth Amendment fully consistent with Meyer, Pierce, and the cases that followed in their wake).
233. 403 U.S. 88, 105 (1971)
234. see also 42 U.S.C. § 1985(3) (2006) (creating civil cause of action against individuals who conspire or go in disguise for purposes of depriving... any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws).
235. 341 U.S. 651 (1951).
236. Griffin, 403 U.S. at 95-96.
237. Id. at 90-92.
238. 403 U.S. 217, 226 (1971).
239. 451 U.S. 100, 129 (1981).
240. Id. at 942 (quoting Butler v. Perry, 240 U.S. 328, 332-33 (1916)) (internal quotation marks omitted).
241. See supra notes 140-145 and accompanying text (describing state action doctrine around time Jones was decided).
242. 514 U.S. 549, 551 (1995) (holding Gun-Free School Zones Act of 1991 exceeds the authority of Congress to regulate commerce... among the several states (quoting U.S. Const. art. 1, § 8, cl. 3) (internal quotation marks omitted)).
243. 295 U.S. 495, 507 (1935) (finding minimum wage and maximum hour provisions of the [Live Poultry] code... beyond the purview of the commerce clause).
244. 298 U.S. 238, 252 (1936) (rejecting argument that the commerce clause was in-tended to confer upon the Federal Government the power to control the essential eco-nomic activities of the States and of the people through a determination of the prices at which they might sell what they produced).
245. 301 U.S. 1, 43 (1937) (finding Congress had constitutional authority to safeguard the right of... employees to self-organization and freedom in the choice of representatives for collective bargaining under Commerce Clause).
246. We can tell a parallel story about the role of Thirteenth Amendment arguments in the failed Child Labor Amendment and the Fair Labor Standards Act, which was upheld as valid Commerce Clause legislation in United States v. Darby, 312 U.S. 100, 125 (1941).
247. See A Mishra, supra note 4, at 73-107 (explaining circumstances and reasons why Thirteenth Amendment was rejected in anti-child-labor movement).
248. Pope, Thirteenth Amendment Versus Commerce Clause, supra note 24, at 40 (quoting Letter from Felix Frankfurter, Professor, Harvard Law Sch., to Roger N. Baldwin, Dir., ACLU (Dec. 9, 1931)).
249. The Act broadened the NLRA's definition of unfair labor practices to include certain labor-side collective actions, authorized right-to-work legislation in states, and permitted the president to authorize anti-labor injunctions under certain circumstances.
250. See Labor Relations Act of 1947, 29 U.S.C. §§ 158-161 (2006).
251. It is telling that, apart from cases involving peonage, quasi-peonage, or literal servitude, Section 1 of the Thirteenth Amendment has never, standing alone, been applied by the Supreme Court to invalidate any practice. For examples of the Court's treatment of Section 1
252. see Pollock v. Williams, 322 U.S. 4, 25 (1944) (invalidating Florida law that made failure to perform service prima facie evidence of fraudulent securing of property on promise to perform)
253. Taylor v. Georgia, 315 U.S. 25, 29 (1942) (invalidating Georgia law that bound individuals who received advances on contracts for services to perform or face penal sanction)
254. Butler v. Perry, 240 U.S. 328, 333 (1916) (dismissing Thirteenth Amendment challenge to forcing work on public highways)
255. United States v. Reynolds, 235 U.S. 133, 150 (1914) (holding that Alabama's peonage system violated Thirteenth Amendment).
256. See James Gray Pope, What's Different About the Thirteenth Amendment, and Why Does It Matter?, 71 Md. L. Rev. 189, 194-196 (2011) (arguing the Thirteenth Amendment directly commands the government to undertake the project of social transformation).
257. See Jamal Greene, How Constitutional Theory Matters, 72 Ohio St. L.J. 1183, 1195-1196 (2011) (The progressive posture, generally, is... either purely defensive or oriented towards a vision that does not... require constitutional validation.).
258. The Hyde Amendment restricts the use of Medicaid funds for abortion services, Pub. L. No. 94-439, § 209, 90 Stat. 1418, 1434 (1976) (prohibiting federal funds for abortions except in cases of life endangerment, rape, or incest), and Title X, which provides federal funding for family planning services, cannot be used directly to fund abortions, 42 U.S.C. § 300a-6 (2006). Other indirect limitations on funding of abortions frequently occur, ad hoc, through the appropriations process.
259. See, e.g., Robin Fretwell Wilson, Empowering Private Protection of Conscience, 9 Ave Maria L. Rev. 101, 109 n.43 (2010) (discussing appropriations riders that prohibit funding of government entities that discriminate against health care providers who refuse to provide abortions). Moreover, the recent Patient Protection and Affordable Care Act includes a number of provisions designed to prevent indirect public funding of abortions.
260. See James Comstock & Sloane Kuney Rosenthal, Health Care Access: Access After Health Care Reform, 12 Geo. J. Gender & L. 667, 675-676 (2011) (explaining [n]o federal funds may used [sic] to pay for abortions beyond those permitted by the Hyde Amendments and other guarantees on abortion). Only seventeen states permit the use of state funds for all or most medically necessary abortions.
261. See State Funding of Abortion Under Medicaid, Guttmacher Inst. (Aug. 1, 2012), available at http://www.guttmacher.org/pubs/spib_SFAM.pdf (on file with the Columbia Law Review).
262. See Siegel, supra note 95, Rule of Love, at 2197 (explaining critics [of Violence Against Women Act] argued that creating a federal cause of action to vindicate such injuries usurped a traditional regulatory interest of the states).
263. See Amar, Missing Amendments, supra note 3, at 157 n.181 (noting the Equal Protection Clause creates monumental state action hurdles for anti-hate-speech position).
264. See generally Samuel Walker, Hate Speech: The History of an American Controversy 2 (1994) (explaining strong tradition of free speech resulted from a series of choices... by advocacy groups).
265. Amar raises this possibility.
266. See Amar, Missing Amendments, supra note 3, at 159-160 (noting the Thirteenth Amendment approach raises an interesting possibility not easily visible through a conventional First Amendment lens: openly asymmetrical regulation of racial hate speech may be less, rather than more, constitutionally troubling).
267. Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, Pub. L. No. 111-84 div. E, 123 Stat. 2835 (2009) (codified as amended in scattered sections of 18, 28, and 42 U.S.C.).
268. See supra notes 97, 103-104 and accompanying text (describing testimony).
269. It might be argued, then, that the Supreme Court's jurisprudence regarding the scope of congressional enforcement provisions undermines the argument that the best outlet for Thirteenth Amendment optimism runs through Section 2. The dichotomy this Essay suggests between the relative narrowness of Section 1 and the relative generativity of Section 2 may be one that the Court refuses to appreciate.
270. But even apart from the unsettled application of City of Boerne v. Flores to the Thirteenth Amendment, see Jennifer Mason McAward, The Scope of Congress's Thirteenth Amendment Enforcement Power After City of Boerne v. Flores, 88 Wash. U. L. Rev. 77, 82 (2010) (explaining the proper scope of Congress' Section 2 enforcement power... by considering how the structural concerns that motivated the Court in City of Boerne might play out in the Section 2 context)
271. Sager, supra note 16, at 152 (exploring whether Jones can be explained as an exercise of Congress's remedial authority as that authority is understood in Boerne), I do not view Flores and its progeny as a significant hindrance to this Essay's claims for two reasons. First, the Essay's chief claim, again, is not that legislation should formally be premised on the Thirteenth Amendment or that judges will or should revitalize Section 2 jurisprudence
272. it is rather that such argument can provide a constitutional frame to claims involving positive rights, and thereby invigorate legislative advocacy. The jurisdictional hooks, or lack thereof, that motivate members of Congress do not constrain either federal judges or the Office of the Solicitor General. Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819) (upholding constitutionality of Bank of the United States without reference to any jurisdictional bases mentioned in statute of incorporation).
273. But see Florida v. Dep't of Health & Human Servs., 648 F.3d 1235, 1313-1320 (11th Cir. 2011) (relying on text and legislative history to determine whether Affordable Care Act's minimum coverage provision is tax or penalty), aff'd in part, rev'd in part sub nom. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
274. Indeed, some of the legislative proposals that Thirteenth Amendment optimism can motivate, such as a relaxation on Title X funding restrictions, require no constitutional justification. Second, even if Thirteenth Amendment Section 2 arguments lose in federal court, a fight that situates progressives as adhering to the will of the people in the face of an activist Supreme Court is one that progressives should, relatively speaking, be willing to have.
275. As of this writing, the Senate and the House of Representatives have passed competing reauthorization bills. See Robert Pear, House Vote Sets Up Battle on Domestic Violence Bill, N.Y. Times, May 17, 2012, at A19 (describing House's vote on Republicansponsored VAWA reauthorization bill).
276. See Press Release, Barbara Boxer, U.S. Senator, Boxer Reintroduces Violence Against Children Act (Sept. 30, 2010), available at http://boxer.senate.gov/en/press/releases/093010b.cfm (on file with the Columbia Law Review).
277. See Violence Against Children Act of 2010, S. 3899, 111th Cong. §§ 101, 201.
278. Ingraham v. Wright, 430 U.S. 651, 683 (1977) (holding [t]he Eighth Amendment's prohibition against cruel and unusual punishment is inapplicable to school paddlings)
279. see Deana Pollard, Banning Child Corporal Punishment, 77 Tul. L. Rev. 575, 576-577 (2003) (reporting that ninety percent of American parents-more than in any other industrialized nation-use some form of corporal punishment).
280. See Lisa A. Fontes & Margarita R. O'Neill-Arana, Assessing for Child Maltreatment in Culturally Diverse Families, in Handbook of Multicultural Assessment: Clinical, Psychological, and Educational Applications 627, 647-648 (Lisa A. Suzuki & Joseph G. Ponterotto eds., 3d ed. 2008).
281. Daniel A. Farber, The Case Against Brilliance, 70 Minn. L. Rev. 917, 927 (1986).