McCulloch and the thirteenth amendment

Columbia Law Review

Volumn 112, Issue 9, 2012, Pages 1769-1810

  McAward, Jennifer Mason ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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EID: 84878176812     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (313)

1. U.S. Const. amend. XIII, § 2.
2. 17 U.S. (4 Wheat.) 316, 421 (1819).
3. United States v. Rhodes, 27 F. Cas. 785+792 (Swayne, Circuit Justice, C.C.D. Ky. 1866) (No. 16,151).
4. 109 U.S. 3, 20 (1883).
5. 392 U.S. 409, 440 (1968).
6. See, e.g., Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1816-21 (2010) ("McCulloch teaches us that all means reasonably adapted to achieve [equal citizenship] fall within Congress's power.). But see id. at 1819-21 (noting Justice Harlan's dissent, and not majority opinion of Civil Rights Cases, supports this view).
7. See Matthew Shepard and Byrd Jr. J. Hate Crimes Prevention Act, 18 U.S.C. § 249 (Supp. IV 2011) (defining prohibited hate crimes).
8. See Akhil Reed Amar, The Case of the Missing Amendment: R.A.V. v. City of St. Paul, 106 Harv. L. Rev. 124, 155-160 (1992) (arguing racial hate speech could be considered badge of slavery).
9. See William M. Jr. Carter, A Thirteenth Amendment Framework for Combating Racial Profiling, 39 Harv. C.R.-C.L. L. Rev. 17, 19 (2004) (arguing Thirteenth Amendment provides stronger constitutional basis than Fourteenth for combating racial profiling).
10. See Douglas L. Colbert, Liberating the Thirteenth Amendment, 30 Harv. C.R.C.L. L. Rev. 1, 47-49 (1995) (describing hypothetical Thirteenth Amendment analysis of capital sentencing).
11. See Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. Pa. L. Rev. 1097, 1098 (1998) (arguing Thirteenth Amendment is necessary alternative to Fourteenth Amendment or Commerce Clause as basis for Violence Against Women Act).
12. See Jennifer L. Conn, Sexual Harassment: A Thirteenth Amendment Response, 28 Colum. J.L. & Soc. Probs. 519-521 (1995) (contending Thirteenth Amendment gives courts the power to overcome the free speech obstacles to regulating sexually-harassing behavior).
13. See Pamela D. Bridgewater, Reproductive Freedom as Civil Freedom: The Thirteenth Amendment's Role in the Struggle for Reproductive Rights, 3 J. Gender Race & Just. 401-403 (2000) (suggesting Thirteenth Amendment can be used to protect against modern reproductive abuses... via the history of slave breeding).
14. Cf. Sarah C. Courtman, Comment, Sweet Land of Liberty: The Case Against the Federal Marriage Amendment, 24 Pace L. Rev. 301+328 (2003) (arguing prohibitions on same-sex marriage put homosexuals... in the same position as freed slaves after the civil war: free in name only and shackled in the eyes of the state).
15. 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, 142-47 (2010) [hereinafter McAward, Scope] (rejecting expansive view that Thirteenth Amendment gives Congress power to define and address badges and incidents of slavery, subject only to rational basis review)
16. see also Jennifer Mason McAward, Congressional Authority to Interpret the Thirteenth Amendment: A Response to Professor Tsesis, 71 Md. L. Rev. 60, 63-64 (2011) (criticizing expansive view from perspectives of history, separation of powers, and federalism).
17. See Jennifer Mason McAward, Defining the Badges and Incidents of Slavery, 14 U. Pa. J. Const. L. 561+606 (2012) [hereinafter McAward, Defining] (arguing concept of badges and incidents of slavery refers to widespread discriminatory conduct that poses risk of de facto return of slavery).
18. McAward, Scope, supra note 15, at 117.
19. McCulloch V. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).
20. Id. at 419.
21. 41 U.S. (16 Pet.) 539 (1842).
22. See infra note 158 (noting Representative James F. Wilson used Prigg to argue Congress has power to protect natural rights of citizens).
23. See 41 U.S. (16 Pet.) at 539-42 (reviewing extent of power Constitution grants Congress relating to fugitive slaves).
24. See infra notes 143-154 and accompanying text (recounting legislative history of Civil Rights Act of 1866).
25. See infra notes 142, 151-154, 158 and accompanying text (describing invocations of McCulloch and Prigg).
26. See infra notes 143-145 and accompanying text (noting Act's supporters agreed with critics that Constitution defined ends of Thirteenth Amendment).
27. See infra notes 141-152 (recounting legislative history of Civil Rights Act of 1866).
28. See infra Part II.C (describing consistent methodology in Court's evaluation of Section 2 legislation until major shift with Jones).
29. See, e.g., text accompanying note 215.
30. See McAward, Scope, supra note 15, at 142 ([T]o constitute an adequate limitation on Congress's power, the 'badges and incidents of slavery' must be understood as a term of art with a finite range of meaning that is tied closely to the core aspects of the slave system and its aftermath.).
31. See John Marshall, Marshall's A Friend to the Union Essays [hereinafter Marshall, Union], in John Marshall's Defense of McCulloch v. Maryland 91, 100 (Gerald Gunther ed., 1969) ([W]hen [the Court] uses 'conducive to,' that word is associated with others plainly showing that no remote, no distant conduciveness to the object, is in the mind of the court.).
32. See Jamal Greene, Thirteenth Amendment Optimism, 112 Colum. L. Rev. 1733+1735 (2012) (defining Thirteenth Amendment optimists as those who argu[e] that the Amendment prohibits... practices that one opposes but that do not in any obvious way constitute either chattel slavery or involuntary servitude).
33. 17 U.S. (4 Wheat.) 316 (1819).
34. See, e.g., Jones V. Alfred H. Mayer Co., 392 U.S. 409, 443-44 (1968) (holding Civil Rights Act of 1866 was appropriate legislation as described in McCulloch).
35. See H. Jefferson Powell, The Regrettable Clause: United States v. Comstock and the Powers of Congress, 48 San Diego L. Rev. 713+759 (2011) (arguing Court adopted nationalist position-that legislation is constitutional so long as it falls within scope of Congress's powers-during New Deal era)
36. see also Keith E. Whittington, Judicial Review of Congress Before the Civil War, 97 Geo. L.J. 1257, 1257 (2009) [hereinafter Whittington, Judicial Review] (noting that before Civil War [j]udicial review of Congress was exceptional and idiosyncratic). But see United States v. Comstock, 130 S. Ct. 1949, 1965 (2010) (articulating five considerations relevant to determining whether statute is necessary and proper means of exercising federal authority).
37. See Jones, 392 U.S. at 440 (Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and incidents of slavery, and the authority to translate the determination into effective legislation.); The Civil Rights Cases, 109 U.S. 3, 20 (1883).
38. E.g., Thomas Jefferson, Opinion on the Constitutionality of the Bill to Establish a National Bank (Feb. 15, 1791), in Contexts of the Constitution 540+542 (Neil H. Cogan ed., 1999).
39. 37. James Madison, Opinion on the Constitutionality of the Bill to Establish a National Bank (Feb. 2, 1791), in Contexts of the Constitution, supra note 36, at 527+531.
40. E.g., Alexander Hamilton, Opinion on the Constitutionality of the Bill to Establish a National Bank (Feb. 23, 1791), in Contexts of the Constitution, supra note 36, at 544, 548.
41. Id. at 545+548.
42. See Daniel A. Farber, The Story of McCulloch: Banking on National Power, in Constitutional Law Stories 33, 44 (Michael C. Dorf ed., 2d ed. 2009) (By agreement between the state attorney general and federal officials, [McCulloch] became a test case on the constitutionality of the bank.).
43. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 410 (1819).
44. Id. at 413.
45. Id. at 413-14.
46. Id. at 423.
47. Id. at 421.
48. Evan Caminker, Appropriate Means-Ends Constraints on Section 5 Powers, 53 Stan. L. Rev. 1127, 1136 (2001)
49. see also Steven A. Engel, Note, The McCulloch Theory of the Fourteenth Amendment: City of Boerne v. Flores and the Original Understanding of Section 5, 109 Yale L.J. 115, 136 (1999) (arguing McCulloch standard invite[s] substantial deference to Congress's choice of means in the pursuit of ends recognized by the Constitution).
50. Caminker, supra note 46, at 1137
51. see also Burroughs V. United States, 290 U.S. 534+548 (1934) ([T]he closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.).
52. 48. McCulloch, 17 U.S. (4 Wheat.) at 421
53. see also Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566+2592 (2012) (opinion of Roberts, C.J.) (noting responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution because such laws are not proper)
54. Gary Lawson & Patricia B. Granger, The Proper Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267+271 (1993) (arguing judiciary must ensure legislation is not only necessary but proper, that is, consistent with federalism, separation of powers, and individual rights).
55. McCulloch, 17 U.S. (4 Wheat.) at 423. Different commentators have assessed McCulloch's suggestion of pretext review differently. Some view it as merely a teas[e] which can be satisfied upon showing that the law is really calculated to effect a constitutional end. Caminker, supra note 46, at 1136. Others caution that Marshall's reference to pretext should not be confused with an investigation of the subjective motives of the legislators.
56. J. Randy Beck, The New Jurisprudence of the Necessary and Proper Clause, 2002 U. Ill. L. Rev. 581+607 (2002) [hereinafter Beck, New Jurisprudence]. Rather, the 'pretext' inquiry involves an objective consideration of the nature of the means-end relationship alleged to undergird a statute. Id.
57. See J. Randy Beck, The Heart of Federalism: Pretext Review of Means-End Relationships, 36 U.C. Davis L. Rev. 407+427 (2003) [hereinafter Beck, Heart of Federalism] (Under McCulloch, courts must accept certain legislative ends as constitutional and reject others as beyond the limits of congressional power.).
58. McCulloch, 17 U.S. (4 Wheat.) at 423.
59. Id. at 421.
60. Id. at 423.
61. Id. at 419.
62. David P. Currie, The Constitution in the Supreme Court: State and Congressional Powers, 1801-1835, 49 U. Chi. L. Rev. 887, 932 (1982)
63. see also Stephen Gardbaum, Rethinking Constitutional Federalism, 74 Tex. L. Rev. 795, 815-817 (1996) (noting these inquiries invite judicial review of the congressional choice of means as a whole)
64. cf. Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183+209 (2003) (arguing Necessary and Proper Clause is mandatory and, like all other mandatory provisions, is presumptively enforceable by... the courts).
65. Beck, New Jurisprudence, supra note 49, at 612. Beck suggests that Congress build a legislative record that mak[es] the means-end relationship plain. Beck, Heart of Federalism, supra note 50, at 445.
66. Whittington, Judicial Review, supra note 34, at 1294 (quoting Engel, supra note 46, at 118).
67. Id. at 1294.
68. Keith E. Whittington, The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions, 63 J. Pol. 365+371 (2001).
69. Id. at 372.
70. Marshall, Union, supra note 30, at 100.
71. See John Marshall, Marshall's A Friend of the Constitution Essays [hereinafter Marshall, Constitution], in John Marshall's Defense of McCulloch v. Maryland, supra note 30, at 184+186-87 (In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the constitution.).
72. Marshall, Union, supra note 30, at 100.
73. See also Barnett, supra note 56, at 211-14 (describing early historical understanding of Clause as rejecting notion that Congress was the sole judge of a measure's necessity and propriety) id. at 206-07 ([A] showing of 'necessity' should neither be so 'strict' that no statute can pass muster nor so lenient that any statute can pass.).
74. Whittington, Judicial Review, supra note 34, at 1325.
75. Id. Whittington suggests that this might well be due less to the text of McCulloch itself than to the political ascendancy of Jeffersonians and Jacksonians, which rendered McCulloch politically dead and ineffectual until it was cited and revived by nationalists after the Civil War. Id. at 1296. Whatever the Court's motives, however, its practice certainly informed public understanding of the relative roles of the Court and Congress.
76. 41 U.S. (16 Pet.) 539 (1842).
77. See Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26+85 (2000) [hereinafter Amar, Document] (describing Prigg's view of sweeping Congressional power and Reconstruction Amendments framers' reliance on that view)
78. Robert J. Kaczorowski, The Supreme Court and Congress's Power to Enforce Constitutional Rights: An Overlooked Moral Anomaly, 73 Fordham L. Rev. 153, 176 (2005) (describing Prigg as similar to McCulloch in that both are deferential to Congress and the legislation it enacts in implementing specific provisions of the Constitution.).
79. U.S. Const. art. IV, § 2, cl. 3.
80. Kaczorowski, supra note 69, at 161
81. see also Akhil Reed Amar, America's Constitution: A Biography 261 (2005) ("Article IV pointedly withheld any general authority to implement the 'Service or Labour' clause in free states.).
82. Kaczorowski, supra note 69, at 163.
83. See id. at 162-163 ([T]his view would be the most consistent with the state action interpretation of the Fourteenth Amendment... which limit[s] Congress's legislative powers to remedying the prohibited state action.).
84. Id. at 163.
85. Act of Feb. 12, 1793 (Fugitive Slave Act of 1793), ch. 7, § 3-4, 1 Stat. 302, 302-05 (repealed 1864).
86. Kaczorowski, supra note 69, at 164. But
87. see Paul Finkelman, Sorting Out Prigg v. Pennsylvania, 24 Rutgers L.J. 605+620-621 (1993) (arguing existence of state fugitive slave laws at time of framing shows the Fugitive Slave Clause was merely an admonition to the states to return fugitive slaves).
88. Prigg V. Pennsylvania, 41 U.S. (16 Pet.) 539+613 (1842).
89. Id. at 610.
90. Id. at 616+619.
91. Id. at 620. The Court also held that Congress's power to enforce the right of recaption was exclusive, and not concurrent with the states. See id. at 623 (right of recaption is uncontrolled and uncontrollable by state sovereignty or state legislation).
92. "Standard in the sense of being typical types of remedies. Obviously, the subject matter of these particular remedies-the rendition of human beings into slavery-is anything but ordinary.
93. See supra note 75 and accompanying text (describing extradition and rendition procedures and remedies available to slaveholders under Act)
94. see also Tennessee v. Lane, 541 U.S. 509, 559 (2004) (Scalia, J., dissenting) (noting one way to enforce constitutional rights is to create a cause of action through which the citizen may vindicate those rights).
95. Prigg, 41 U.S. (16 Pet.) at 622.
96. Id. ([W]ith the exception of that part which confers authority upon state magistrates, [the Act is] free from reasonable doubt and difficulty, upon the grounds already stated.).
97. Id. at 615-616.
98. Id. at 623 ([T]he natural, if not the necessary, conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments... to carry into effect all the rights and duties imposed upon it by the constitution.). This portion of the opinion engendered several separate opinions.
99. See, e.g., id. at 627-629 (Taney, C.J., dissenting) ([I]t never has been suggested, that the states could not uphold and maintain [constitutional rights] On the contrary, it has always been held to be [states'] duty... to enforce them; and the action of the general government has never been deemed necessary, except to... prevent their violation.).
100. The Fugitive Slave Act of 1850 adopted a more draconian enforcement apparatus than the 1793 Act. See Fugitive Slave Act of 1850, ch. 60, § 6-10, 9 Stat. 462+463, 465 (repealed 1864) (establishing enforcement procedures for recapturing fugitive slaves and criminal penalties for noncompliance). The Court upheld the 1850 Act in Ableman v. Booth, 62 U.S. 506, 526 (1859)
101. See, e.g., Prigg K, 41 U.S. (16 Pet.) at 622-623 (But we do not wish to rest our present opinion upon the ground either of contemporaneous exposition, or long acquiescence, or even practical action On the contrary, our judgment would be the same, if the question were entirely new, and the act of congress were of recent enactment.).
102. See infra Part II.B (describing use of McCulloch and Prigg in debates over 1866 Civil Rights Act).
103. Amar, Document, supra note 69, at 85.
104. Kaczorowski, supra note 69, at 179.
105. Id. at 184.
106. Id. at 210-211.
107. See id. at 184 (stating that Congress has plenary power to enforce [constitutionally secured rights] and to remedy all violations, even when the constitutional recognition of a right is in the form of a prohibition against the states from interfering with it).
108. See Prigg V. Pennsylvania, 41 U.S. (16 Pet.) 539+622 (1842) ([T]he right to seize and retake fugitive slaves, and the duty to deliver them up... and of course the corresponding power in Congress to use the appropriate means to enforce the right and duty, derive their whole validity and obligation exclusively from the Constitution.)
109. See id. at 619 ("The end being required, it has been deemed a just and necessary implication, that the means to accomplish it are given also; or, in other words, that the power flows as a necessary means to accomplish the end.).
110. See Black's Law Dictionary 1273 (9th ed. 2009) (Full; complete; entire.); Oxford English Dictionary 1093 (1989) (Complete, entire, perfect; not deficient in any element or respect.).
111. See Prigg, 41 U.S. (16 Pet.) at 620 (rejecting limited construction of the Constitution and noting Congress has, on various occasions, exercised powers which were necessary and proper means to carry into effect rights expressly given, and duties expressly enjoined thereby").
112. See id. ("These cases are... to show that the rule of interpretation, insisted upon at the argument, is quite too narrow to provide for the ordinary exigencies of the national government, in cases where rights are intended to be absolutely secured, and duties are positively enjoined by the Constitution.).
113. Kaczorowski, supra note 69, at 211.
114. See Amar, Document, supra note 69, at 108 (observing Congress's power to enforce the Reconstruction Amendments is not plenary-wholly plenary power is hard to reconcile with the basic structure of enumerated power that the Reconstruction Amendments accept rather than repudiate).
115. Id. at 71.
116. See McAward, Defining, supra note 16, at 625-626 (critiquing Civil Rights Cases and arguing that Civil Rights Act of 1875 was valid under Section 2).
117. Indeed, Professor Amar's Prigg argument has focused primarily on Congress's power to enforce the Fourteenth Amendment's Citizenship Clause. See Amar, Document, supra note 69, at 71+105 (suggesting Citizenship Clause gave Congress power to enact certain laws designed to affirm that blacks were equal citizens, worthy of respect and dignity).
118. Although the main argument of this Article focuses on the original public meaning of Section 2, most originalist Thirteenth Amendment scholarship has focused primarily on the congressional debates. See, e.g., Kaczorowski, supra note 69, at 201-211 (discussing Senator Trumbull's explanation of Thirteenth Amendment). In order to evaluate this scholarship, and because the debates are at least relevant to determining original public meaning, this section focuses on those same debates.
119. U.S. Const. amend. XIII, § 1; accord Northwest Ordinance of 1787, art. VI, 1 Stat. 51 n.(a) (There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes, whereof the party shall have been duly convicted.); Cong. Globe, 38th Cong., 1st Sess. 1488 (1864) (noting extent to which proposed amendment tracked Jeffersonian ordinance).
120. U.S. Const. amend. 12, § 2.
121. McCulloch. Maryland, 17 U.S. (4 Wheat.) 316+410 (1819). 110. Cong. Globe, 38th Cong., 1st Sess. 21 (1863).
122. See Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 53 (Christopher Tomlins ed., 2001) (It is difficult to reconstruct the committee's deliberations because no record of them survives.).
123. Cong. Globe, 38th Cong., 1st Sess. 553 (1864) (statement of Sen. Lyman Trumbull).
124. Id. at 1313.
125. 17 U.S. (4 Wheat.) at 423 (using appropriate to describe scope of Congress's power under Necessary and Proper Clause) see supra notes 62-65 and accompanying text (describing McCulloch).
126. See, e.g., Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 825 n.299 (1999) [hereinafter Amar, Intratextualism] (describing how Representative Wilson quoted verbatim Section 2 of the Thirteenth Amendment and then explicitly link[ed] its wording to the key words from McCulloch)
127. Balkin, supra note 6, at 1810 (When Congress adopted the Reconstruction Amendments, it was generally accepted that grants of congressional power in Article I were subject to the test of McCulloch v. Maryland)
128. Caminker, supra note 46, at 1159-1165 (describing how framing debates indicate Section 2's use of appropriate was selected with the McCulloch standard in mind).
129. See, e.g., Kaczorowski, supra note 69, at 212 (describing Senator Trumbull's view that Congress had to have the same plenary power to enforce the constitutional rights that inhere in a state of freedom as it had to enforce the constitutional rights of slave owners).
130. See McAward, Scope, supra note 15, at 103 ([Q]uestions regarding... the extent of Congress's power under Section 2 generally received scant analysis.).
131. Vorenberg, supra note 111, at 218 (citing William H. Green, Speech on the Proposed Amendment of the Federal Constitution, Abolishing Slavery 9 (1865))
132. see also id. (noting detractors in Ohio and Indiana claimed Congress would use its Section 2 pow-ers to rewrite state constitutions or abolish state courts and state legislatures).
133. Id. at 230 (quoting Mississippi's objection that Section 2 provided dangerous grant of power").
134. Alexander Tsesis, The Thirteenth Amendment and American Freedom 48 (2004).
135. Vorenberg, supra note 111, at 229 (quoting Message from the President of the United States, S. Exec. Doc. No. 39-26, at 198 (1866)).
136. Id. at 230 (citing 2 U.S. Dep't of State, Documentary History of the Constitution of the United States of America 1787-1870, at 606 (1894)).
137. See Herman Belz, A New Birth of Freedom 159 (2d ed. 2000) (listing states that declared Congress had no power to legislate on political status or civil relations of former slaves).
138. For an elaboration on the history of the Civil Rights Act of 1866, see McAward, Scope, supra note 15, at 108-114 (describing debates over Section 2 power to counteract Black Codes in certain states).
139. See id. (noting Act took direct aim at the southern Black Codes).
140. Id. at 108.
141. See Cong. Globe, 39th Cong., 1st Sess. 39 (1866) (describing variety of state Black Codes)
142. see also Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, at 199 (2002) ("[The Black Codes'] centerpiece was the attempt to stabilize the black work force and limit its economic options apart from plantation labor.).
143. See Foner, supra note 127, at 200 (describing Black Codes).
144. Id. at 199 (quoting Letter from Benjamin F. Flanders to Henry C. Warmoth (Nov. 23, 1865), in Henry Clay Warmoth Papers, 1798-1953, microformed on Collection No. 00752, The Wilson Library, University of North Carolina at Chapel Hill (S. Historical Collection)).
145. Cong. Globe, 39th Cong., 1st Sess. 129 (1866).
146. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27. 132. Id. § 2.
147. Cong. Globe, 39th Cong., 1st Sess. 475 (1866).
148. Id. at 476 (statement of Sen. Willard Saulsbury, Sr.).
149. Id. at 499 (statement of Sen. Edgar Cowan).
150. Id. at 476 (statement of Sen. Willard Saulsbury, Sr.).
151. Id. at 429-430 (statement of Rep. John Bingham).
152. Id. at 1293.
153. See id. at 1367.
154. See id. at 1291-1293 (I should remedy [discrimination] not by an arbitrary assumption of power, but by amending the Constitution of the United States, expressly prohibiting the States from any such abuse of power in the future.).
155. See, e.g., id. at 1117-1118 (statement of Rep. James F. Wilson) (noting it is not the object of this bill to establish new rights, but to protect and enforce those which already belong to every citizen and contending Congress decides necessity of enforcement measures under McCulloch).
156. Id. at app. 157 (statement of Rep. James F. Wilson).
157. Id. at 1118.
158. Id. at 474 (statement of Sen. Lyman Trumbull).
159. Id. at 1118 (statement of Rep. James F. Wilson)
160. see also id. at 475 (statement of Sen. Lyman Trumbull) (noting end in view is to secure freedom to all people in the United States).
161. Id. at 474 (statement of Sen. Lyman Trumbull).
162. Id. at 475.
163. See id. (describing how various discriminatory state laws violated rights of free men).
164. Id. at 1118 (statement of Rep. James F. Wilson)
165. see also id. (claiming Section 2 is sufficient basis for Act insofar as it protects citizens who may be in danger of being subjected to slavery or involuntary servitude)
166. id. at 503-504 (statement of Sen. Jacob Howard) (arguing it would make mockery of emancipation to leave Congress without power to assist those who had been denied family,... property,... [and] the right to acquire or use any instrumentalities of carrying on the industry of which he may be capable).
167. Id. at 475 (statement of Sen. Lyman Trumbull).
168. Id. at 43. Trumbull also acknowledged limits to this proposition, repeatedly disclaiming the intention (and implicitly the power) to legislate with respect to the political rights or status of parties.
169. Id. at 476. Wilson, too, disclaimed the right of Congress to legislate regarding suffrage, jury service, or the right to attend racially integrated schools.
170. Id. at 1117 (statement of Rep. James F. Wilson).
171. Id. at 1118.
172. See id. (prefacing natural citizenship rights argument with acknowledgment that this bill may have a broader application... which would reach the cases of persons designed to be protected by the [Amendment]).
173. 6 F. Cas. 546 (Washington, Circuit Justice, C.C.E.D. Pa. 1823) (No. 3230).
174. See Cong. Globe, 39th Cong., 1st Sess. 474-475 (statement of Sen. Lyman Trumbull) (exploring sources defining natural liberty). The Act's supporters also articulated several theories in support of the citizenship provision of the Act. For example, Trumbull himself argued both that this provision was either declaratory of the status of persons born in the United States
175. see id. at 527, or a valid action under the Naturalization Clause
176. see id. at 475. But opponents in Congress disagreed
177. see id. at 497+504 (statements of Sen. Peter Van Winkle & Sen. Reverdy Johnson) (arguing only additional constitutional amendment could make persons of the negro race citizens).
178. Id. at 1118+2512 (statements of Rep. James F. Wilson) (declaring McCulloch provides Congress discretion to choose means and Prigg declared that the possession of the right carries with it the power to provide a remedy).
179. Professor Kaczorowski argues that the first section of the Act demonstrates that the Thirty-Ninth Congress understood Section 2 to empower Congress to define and confer civil rights as well as to enforce and protect them. Kaczorowski, supra note 69, at 225 (noting Wilson's statement that the right to exercise this power [to pass the Civil Rights Act]... runs with the rights it is designed to protect (emphasis omitted)). However, this argument conflates the Section 2 defense of the bill with the natural rights defense of the bill. Wilson and Trumbull did not use Section 2 to justify their substantive efforts to define the rights of citizens.
180. See infra notes 162-183 and accompanying text (discussing Court's treatment of Section 2 legislation until mid-twentieth century).
181. See infra notes 183-189 and accompanying text (recounting change in Court jurisprudence with Jones).
182. F. Cas. 785 (Swayne, Circuit Justice, C.C.D. Ky. 1866) (No. 16,151).
183. Id. at 792.
184. Id. at 793.
185. Cf. United States v. Cruikshank, 25 F. Cas. 707 (Bradley, Circuit Justice, C.C.D. La. 1874) (No. 14,897) (holding Enforcement Act of 1870 was not valid under Section 2 because it protected all persons against certain conspiracies, whereas Section 1 permitted only legislation on behalf of colored citizens), aff'd on other grounds, 92 U.S. 542 (1876).
186. Rhodes, 27 F. Cas. at 764. The Supreme Court in fact did hold that Congress lacked power to pass the 1866 Act in Hodges v. United States, 203 U.S. 1, 16, 19-20 (1906), but that ruling was overruled by Jones v. Alfred H. Mayer Co., 329 U.S. 409 (1963)
187. 106 U.S. 629 (1883).
188. Ch. 22, § 2, 17 Stat. 13, 13.
189. Harris, 106 U.S. at 635-636.
190. Id. at 640.
191. Id. at 641.
192. 109 U.S. 3 (1883).
193. Ch. 114, § 1, 18 Stat. 335+336.
194. The Civil Rights Cases, 109 U.S. at 26.
195. Id. at 20.
196. Id.; see also id. at 21 (stating under Section 2, Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery).
197. See McAward, Defining, supra note 16, at 570 (noting first use of term in Civil Rights Cases).
198. The Civil Rights Cases, 109 U.S. at 25. Justice Bradley stated that the aim of the Thirteenth Amendment was to eliminate legal restraints on those fundamental rights which appertain to the essence of citizenship, including compulsory service, restraint of movement, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities.
199. Id. at 22. He also stated that [i]t would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make."
200. Id. at 24.
201. Id. at 29 (Harlan, J., dissenting).
202. Id. at 35
203. cf. id. at 36 (recognizing Congress may not define and regulate the entire body of the civil rights which citizens enjoy).
204. Id. at 36.
205. Id. at 51.
206. See id. (arguing Congress's role is to decide whether legislation is best adapted to the end to be attained).
207. See, e.g., supra note 171 and accompanying text (noting Court's rationale in striking down 1871 Civil Rights Act as beyond scope of Section 2 power because it covered whites and blacks who were never slaves).
208. 392 U.S. 409 (1968).
209. Id. at 439-440.
210. Id. at 439 (quoting The Civil Rights Cases, 109 U.S. at 20 (majority opinion)).
211. Id. at 440.
212. Id. The Court endorsed Congress's finding that the property developer's racebased refusal to sell property was a badge and incident of slavery, and that banning such conduct was a rational way to address that relic of slavery. Id. at 442-443.
213. See United States v. Beebe, 807 F. Supp. 2d 1045+1049 (D.N.M. 2011) (Jones remains the controlling relevant precedent in interpreting Section Two of the Thirteenth Amendment.").
214. Compare U.S. Const. amend. XIV, § 5 (The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.), with id. amend. XIII, § 2 (Congress shall have power to enforce this article by appropriate legislation.).
215. 521 U.S. 507+519 (1997).
216. Id. at 520.
217. See, e.g., Caminker, supra note 46, at 1133 ([W]hile Boerne itself... might be explicable on narrow grounds, the other statutory provisions invalidated in Boerne's wake should have been upheld)
218. Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153+165 (1997) (arguing Boerne limited Congress to enforcing the Fourteenth Amendment as construed by the Court)
219. Marci A. Hamilton & David A. Schoenbrod, The Reaffirmation of Proportionality Analysis Under Section 5 of the Fourteenth Amendment, 21 Cardozo L. Rev. 469+470 (1999)
220. see also Beck, Heart of Federalism, supra note 50, at 409 (arguing Boerne's analytical framework implements McCulloch's promise to strike down pretextual exercises of Congressional power)
221. Ronald D. Rotunda, The Powers of Congress Under Section 5 of the Fourteenth Amendment After City of Boerne v. Flores, 32 Ind. L. Rev. 163+190 (1998) (praising Boerne as proof that limits exist on Congress's Section 5 power). 196. Admittedly, the Court did not frame its analysis in these terms but rather examined the ratification history of the Fourteenth Amendment for evidence of intent to expand Congress's substantive interpretive power.
222. See Boerne, 521 U.S. at 520-524 (reading legislative history as confirming remedial, rather than substantive, nature of Section 5)
223. But see Engel, supra note 46, at 117 (questioning majority's reading of legislative history).
224. Boerne, 521 U.S. at 519-520.
225. See supra notes Parts I.A, II.A, and II.B (describing earlier understanding of McCulloch).
226. See, e.g., Amar, Intratextualism, supra note 115, at 822-823 (noting inconsistency between Boerne and Jones and rejecting argument that Jones should be disregarded in Boerne's favor)
227. Lawrence G. Sager, Commentary, A Letter to the Supreme Court Regarding the Missing Argument in Brzonkala v. Morrison, 75 N.Y.U. L. Rev. 150+152 (2000) (arguing Jones may be understood after Boerne as exercise of Congress's remedial authority and that Congress has authority to address enduring 'relics' of slavery)
228. But see McAward, Scope, supra note 15, at 79-81 (noting tension and stating Jones is arguably a remnant of the past).
229. See, e.g., Sager, supra note 199, at 152-153 (arguing Violence Against Women Act is valid because discrimination against women is enduring, pervasive, and tentacular, similar to badges, incidents, and relics of slavery (internal quotations omitted)).
230. Compare Shelby County v. Holder, 811 F. SUPPL. 424+449 (D.D.C. 2011) (holding Boerne provides proper standard for review of Fifteenth Amendment legislation), with United States v. Beebe, 807 F. Supp. 2d 1045, 1048-51 (D.N.M. 2011) (holding Jones is applicable to Thirteenth Amendment legislation even after Boerne).
231. U.S. Const. amend. 12, § 2.
232. Tennessee V. Lane, 541 U.S. 509+559 (2004) (Scalia, J., dissenting).
233. U.S. Const. amend. 12, § 1.
234. See supra Parts I, II.A (discussing McCulloch, Prigg, and legislative history of Section 2)
235. see Balkin, supra note 6, at 1823 (arguing Reconstruction Amendments presumed that Congress and the courts were coequal partners in interpreting and enforcing these provisions).
236. See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539+622 (1842) (holding 1793 Fugitive Slave Act was clearly constitutional).
237. See Joseph E. Worcester, A Dictionary of the English Language 1314, 1352 (1860) (defining slavery as servitude; bondage and servitude as slavery; bondage). 208.487 U.S. 931, 944 (1988)
238. see also Plessy v. Ferguson, 163 U.S. 537+542 (1896) (Slavery implies.. 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.).
239. The Slaughter-House Cases, 83 U.S. (1 Wall.) 36+69 (1872).
240. 109 U.S. 3, 20 (1883).
241. See id. at 20-25 (holding refusal by private inn owner to serve black patrons has nothing to do with slavery or involuntary servitude).
242. Jones v. Alfred H. Mayer Co., 392 U.S. 409+439 (1968).
243. Plessy, 163 U.S. at 555 (Harlan, J., dissenting)
244. see also Bailey v. Alabama, 219 U.S. 219+241 (1911) (The words involuntary servitude have 'A larger meaning than slavery.'. The plain intention was to abolish slavery of whatever name and form and all of its badges and incidents. (quoting The Slaughter-House Cases, 83 U.S. (1 Wall.) at 69)).
245. Jones, 392 U.S. at 439 (quoting The Civil Rights Cases, 109 U.S. at 20).
246. See supra notes 175-189 and accompanying text (discussing Court's analysis of scope of Section 2 power in Civil Rights Cases and Jones).
247. See George A. Rutherglen, The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment, in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 163, 172 (Alexander Tsesis ed., 2010).
248. U.S. Const. amend. 12, § 1 (Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.).
249. See supra Part II.B (discussing legislative history of Civil Rights Act of 1866).
250. See supra notes 134, 144-146 and accompanying text (noting agreement between Act's supporters and critics regarding proper end of Section 2 legislation).
251. Jones, 392 U.S. at 439.
252. See The Civil Rights Cases, 109 U.S. 3+20 (1883) ([The Thirteenth Amendment] clothes Congress with power to pass all laws necessary and proper for abolishing badges and incidents of slavery in the United States.).
253. See supra notes 143-150 and accompanying text (describing arguments of supporters of 1866 Civil Rights Act).
254. Cong. Globe, 39th Cong., 1st Sess. 1118 (1866) (statement of Rep. James F. Wilson).
255. 521 U.S. 507+519 (1997)
256. Id. at 518-520.
257. See The Civil Rights Cases, 109 U.S. at 25 (invalidating Civil Rights Act of 1875, which regulated private conduct).
258. See William J. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311, 1350 (2007) (describing Jones Court's analysis that private housing discrimination was unconstitutional as badge and incident of slavery).
259. See G. Sidney Buchanan, The Thirteenth Amendment and the Badge of Slavery Concept: A Projection of Congressional Power, in The Quest for Freedom: A Legal History of the Thirteenth Amendment 175, 177 (1976) (The badge of slavery concept should be held to include only that prejudice which is arbitrary. [based on] factors that have no rational bearing upon such person's ability to discharge the function sought.).
260. McAward, Defining, supra note 16, at 570.
261. Id. at 630. One can understand the last part of this definition, which requires a causal link between the regulated conduct and a violation of Section 1, as simply another way of articulating the need for judicial monitoring of the basic means-ends fit of Section 2 legislation. See infra Part III.C (discussing judicial review of congressional determination of means in Section 2 legislation).
262. Buchanan, supra note 228, at 177.
263. Cf. Balkin, supra note 6, at 1820 (Just as the denial of equal civil rights was a badge and incident of slavery [redressable under Section 2 of the Thirteenth
264. Amendment], the enjoyment of equal civil rights was a badge and incident of citizenship [enforceable under Section 5 of the Fourteenth Amendment].).
265. Others are more sanguine on this point. See, e.g., Amar, Intratextualism, supra note 115, at 824 (noting concept of badges and incidents of slavery identifies desirable middle ground where Congress has less than plenary and more than remedial power). However, Jones does not cabin Congress's substantive or remedial discretion in any meaningful way.
266. See supra Part II (discussing influence of McCulloch and Prigg on early understanding of Congress's Section 2 Power).
267. See McCulloch V. Maryland, 17 U.S. (4 Wheat.) 316+421 (1819) (We admit, as all must admit, that the powers of government are limited).
268. See McAward, Defining, supra note 16, at 570-582 (discussing legal and popular uses of terms badge and incident predating Thirteenth Amendment and Civil Rights Cases).
269. McCulloch, 17 U.S. (4 Wheat.) at 423.
270. Id. at 419+421
271. see also Marshall, onstitution, supra note 63, at 186-87 (justifying and explaining Court's opinion in McCulloch)Marshall, Union, supra note 30, at 100 (same).
272. See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539+568 (1842) (discussing Congress's chosen method of enforcing Fugitive Slave Clause)
273. see also supra notes 77-87 (discussing Prigg Court's review and selective approval of Fugitive Slave Act of 1793).
274. 130 S. Ct. 1949, 1956 (2010).
275. Id. at 1965.
276. See id. at 1975 & n.7 (Thomas, J., dissenting) (criticizing Court for skipping McCulloch's first step of determining whether end is legitimate).
277. See id. at 1966-1967 (Kennedy, J., concurring in the judgment) (arguing Court should use more than rational basis scrutiny in evaluating means-ends fit)
278. id. at 1970 (Alito, J., concurring in the judgment) (The Necessary and Proper Clause does not give Congress carte blanche.).
279. 514 U.S. 549, 567-568 (1995)
280. 529 U.S. 598+627 (2000).
281. It is not entirely clear that Lopez and Morrison mark a distinct new era in Commerce Clause jurisprudence. See Gonzales V. Raich, 545 U.S. 1+23 (2005) (referring to larger context of modern-era Commerce Clause jurisprudence beyond Lopez and Morrison).
282. 514 U.S. at 563.
283. Butcf. Raich, 545 U.S. at 21 ([W]hile we will consider congressional findings in our analysis when they are available, the absence of particularized findings does not call into question Congress' authority to legislate.).
284. See Lopez, 514 U.S. at 563-567 ([P]ossession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.)
285. see also Morrison, 529 U.S. at 609-613 (summarizing Lopez); cf. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2646 (2012) (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) ([T]he Commerce Clause, even when supplemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce.).
286. City of Boerne v. Flores, 521 U.S. 507+520 (1997).
287. Id. at 519 (noting congruence and proportionality standard draws line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law).
288. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721+729 (2003).
289. Tennessee v. Lane, 541 U.S. 509+530 (2004). The Court has held that a number of civil rights statutes fail to satisfy the congruence and proportionality standard
290. See, e.g., Coleman v. Court of Appeals, 132 S. Ct. 1327 (2012) (holding Congress did not validly abrogate states' sovereign immunity in self-care provision of Family and Medical Leave Act)
291. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (holding Title I of Americans With Disabilities Act exceeds Congress's power under Section 5 of Fourteenth Amendment)
292. United States v. Morrison, 529 U.S. 598 (2000) (Violence Against Women Act)
293. Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (Age Discrimination in Employment Act).
294. See Gonzales v. Raich, 545 U.S. 1+52 (2005) (O'Connor, J., dissenting) (expressing concern that unless Congress proffers more than mere assertion in favor of its regulation, the Necessary and Proper Clause will always be a back door for unconstitutional federal regulation)
295. cf. Printz v. United States, 521 U.S. 898+923 (1997) (describing Necessary and Proper Clause as the last, best hope of those who defend ultra vires congressional action).
296. See Caminker, supra note 46, at 1147 (arguing Boerne clearly deviated from the Court's longstanding articulation and application of the more deferential McCulloch means-ends standard)
297. Powell, supra note 34, at 750-751 (arguing Comstock evinces a belief in the constitutional propriety of subjecting congressional choices to close judicial examination that is fundamentally alien to McCulloch). In United States v. Morrison, for example, the Court struck down a provision of the Violence Against Women Act even though there was an extensive congressional record documenting the link between gender-motivated violence and interstate commerce. 529 U.S. at 615 (rejecting Congress's findings linking violent crime to interstate commerce as attenuated and unworkable)
298. contra id. at 634 (Souter, J., dissenting) (defending rationality of Congress's judgment in view of the data amassed).
299. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316+419 (1819).
300. Marshall, Union, supra note 30, at 100.
301. Morrison, 529 U.S. at 663 (Breyer, J., dissenting) (collecting sources).
302. See supra notes 151-154 and accompanying text (describing defense of congressional power by Trumbull and Wilson).
303. See supra Part II.B (evaluating Senator Trumbull and Representative Wilson's invocations of McCulloch and Prigg).
304. Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249 (SUPPL. IV 2011).
305. Id. § 249 note. 262. Id.
306. See Constitutionality of the Matthew Shepard Hate Crimes Act, 33 Op. O.L.C. (June 16, 2009) (release at 2-5), available at http://www.justice.gov/olc/2009/shepardhate-crimes.pdf (on file with the Columbia Law Review) ([W]e believe Congress has authority under section 2 of the Thirteenth Amendment to punish racially motivated violence as part of a reasonable legislative effort to extinguish the relics, badges and incidents of slavery.
307. See, e.g., 18 U.S.C. § 1581 (2006) (criminalizing peonage)
308. id. § 1584 (criminalizing involuntary servitude)
309. id. §§ 1585-1588 (criminalizing slave trade)
310. id. § 1589 (criminalizing forced labor)
311. id. § 1590 (criminalizing human trafficking)
312. id. § 1591 (criminalizing sex trafficking).
313. See supra notes 6-14 and accompanying text (detailing scholars' use of Thirteenth Amendment to address various social problems).