James Ashley's Thirteenth Amendment

Columbia Law Review

Volumn 112, Issue 9, 2012, Pages 1697-1732

  Zietlow, Rebecca E ^a  

^a UNIVERSITY OF TOLEDO   (United States)

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EID: 84878195831     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (276)

1. Cong. Globe, 38th Cong., 2nd Sess. 531 (1865). The Senate had voted in favor of the Amendment the previous spring.
2. Id. at 530-31.
3. See infra notes 24-33 and accompanying text (discussing Supreme Court's narrow view of Thirteenth Amendment in Hodges v. United States and Reconstruction Congress's broader free labor view).
4. infra notes 52-58 and accompanying text (discussing potential implications of Pollock rule for broad free labor theory as well as equal rights theory of Thirteenth Amendment).
5. Cong. Globe, 39th Cong., 1st Sess. 504 (1866) (statement of Sen. Jacob Howard).
6. See, e.g., William E. Forbath, The New Deal Constitution in Exile, 51 Duke L.J. 165-166 (2001) (revisiting New Deal-era constitutional ideals, including rights to obtain decent work and organize labor unions).
7. James Gray Pope, Labor's Constitution of Freedom, 106 Yale L.J. 941-944 (1997) [hereinafter Pope, Labor's Constitution] (analyzing constitutional insurgencies where activists, such as those in labor unions, develop their own constitutional ideas).
8. Lea S. Vander Velde, The Labor Vision of the Thirteenth Amendment, 138 U. Pa. L. Rev. 437, 438-40 (1989) [hereinafter VanderVelde, Labor Vision] (relying on Reconstruction-era debates to argue that purpose of Amendment was to constitutionally mandate worker protection).
9. See, e.g., William M. Carter, Jr., Race, Rights and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311-1318 (2007) [hereinafter Carter, Race] ([B]ecause the institution of slavery was about the interaction of race, power, and group status, the Thirteenth Amendment should be expressly construed in terms of race, power, and group status. (footnote omitted)).
10. Darrell A.H. Miller, White Cartels, the Civil Rights Act of 1866 and the History of Jones v. Alfred H. Mayer Co., 77 Fordham L. Rev. 999, 999-1000 (2008) (analyzing recognition of government's power under Thirteenth Amendment to regulate economic relationships in order to combat racial discrimination and how similar theories can be applied to antitrust movements in nineteenth and twentieth centuries).
11. Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary Abolitionism Through the Thirteenth Amendment, 39 U.C. Davis L. Rev. 1773-1777 (2006) (focusing on often neglected ways to use Thirteenth Amendment to craft statutes for advancement of civil liberties).
12. Notable exceptions to this pattern include James Gray Pope's discussion of race and involuntary servitude in James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of Involuntary Servitude, 119 Yale L.J. 1474, 1493-1500 (2010) [hereinafter Pope, Contract, Race, and Freedom], and Maria Ontiveros's analysis of the relationship between race and class in the subordination of migrant workers.
13. see, e.g., Maria L. Ontiveros, Immigrant Workers and the Thirteenth Amendment [hereinafter Ontiveros, Immigrant Workers], in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 279-279 (Alexander Tsesis ed., 2010) (arguing U.S. labor and immigration laws have created a caste of workers of color below floor created for free labor by Thirteenth Amendment).
14. Maria Ontiveros, Immigrant Workers' Rights in a Post-Hoffman World-Organizing Around the Thirteenth Amendment, 18 Geo. Immigr. L.J. 651, 651-52 (2004) (arguing that a tiered system of labor rights violates... the language and the spirit of the Thirteenth Amendment and that response to Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), could serve as the vehicle for creating a social movement that takes into account class, race, citizenship and workplace rights).
15. Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 14 (2004).
16. Rebecca E. Zietlow, Free at Last! Anti-Subordination and the Thirteenth Amendment, 90 B.U. L. Rev. 255-263 (2010) [hereinafter Zietlow, Free at Last!] (During the twentieth century, the Jim Crow system enabled exploitation of black workers in the South.).
17. Risa Goluboff, The Lost Promise of Civil Rights 10 (2007).
18. 347 U.S. 483-495 (1954).
19. See Mario L. Barnes, Erwin Chemerinsky & Trina Jones, A Post-Race Equal Protection?, 98 Geo. L.J. 967, 983-92 (2010) (focusing on racial disparities in six areas: poverty, income and wealth, homeownership, employment, education, and criminal justice).
20. U.S. Const. amend. XIII, § 1 (Neither slavery nor involuntary servitude... shall exist).
21. See Vander Velde, Labor Vision, supra note 4, at 476 (noting also Cowan was only senator to express this position).
22. See id. at 448 (As a whole, the Reconstruction debates reflect a desire to improve all workers' status by recognizing the dignity of labor, guaranteeing workers a wide range of opportunities for advancement, and raising the floor of legal rights accorded all working men.).
23. see also Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War 18 (1970) [hereinafter Foner, Free Soil].
24. See Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (codified as amended at 42 U.S.C. §§ 1981-1983).
25. Cong. Globe, 39th Cong., 1st Sess. 499 (1866) (statement of Sen. Edgar Cowan).
26. Vander Velde, Labor Vision, supra note 4, at 477 (citing Cong. Globe, 39th Cong., 1st Sess. 1784 (1866)).
27. Cong. Globe, 39th Cong., 1st Sess. 476 (1866) (statement of Sen. Willard Saulsbury).
28. See U.S. Const. amend. XIII, § 1 (Neither slavery nor involuntary servitude shall exist).
29. See infra Part I.B (describing prevailing, broader free labor view).
30. 83 U.S. (16 Wall.) 36 (1872).
31. 203 U.S. 1 (1906), overruled by Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1967).
32. 83 U.S. (16 Wall.) at 67-69.
33. Id. at 69.
34. 203 U.S. at 10. The case was brought under recodified provisions of the 1871 Enforcement Act, which criminalized conspiracies to deprive any individual of any right or privilege secured to him by the Constitution or laws. Civil Rights Act of 1871, ch. 22, §§ 1, 3, 17 Stat. 13, 13-14 (codified as amended at 42 U.S.C. §§ 1983, 1985).
35. 203 U.S. at 9.
36. Id. at 19-20.
37. Id. at 16-17.
38. The government argued that one of the indicia of slavery was the inability to make or perform contracts, so preventing the victims from performing their contracts reduced them to a condition of slavery.
39. Id. at 17-20.
40. The Court rejected this argument as creating a slippery slope: It argued that the government's position would have the effect of transferring the protection of all individual rights from the states to Congress.
41. Id. at 17-18.
42. The Court has not always been consistent in its interpretation of the scope of the Thirteenth Amendment's protections against involuntary servitude.
43. Id. at 17.
44. In the 1944 case of Pollock v. Williams, the Court interpreted the Amendment broadly, consistent with the broader labor vision of the Thirteenth Amendment. 322 U.S. 4, 24-25 (1944) ([The State] may not directly or indirectly command involuntary servitude, even if it was voluntarily contracted for.).
45. see also infra notes 47-54 and accompanying text (discussing Pollock and Pollock Court's expression of broad free labor interpretation of Thirteenth Amendment).
46. Cong. Globe, 39th Cong., 1st Sess. 343 (1866) (statement of Sen. Henry Wilson).
47. see also Vander Velde, Labor Vision, supra note 4, at 440 (explaining that Senator Wilson's position typified those of speakers who focused on labor conditions).
48. Cong Globe, 34th Cong., 3d. Sess. app. at 140 (1857) (statement of Rep. John Bingham).
49. see also VanderVelde, Labor Vision, supra note 4, at 461-62 (noting Bingham argued that the laborer was entitled to a fair return for his efforts).
50. Foner, Free Soil, supra note 13, at 11 (arguing [t]he concept of 'free labor' lay at the heart of Republican ideology).
51. See id. at 47 (Generally, Republicans blamed the lack of educational opportunities and the degradation of labor in slave society for the position of the poor whites.).
52. VanderVelde, Labor Vision, supra note 4, at 448.
53. See Anti-Peonage Act, ch. 187, 14 Stat. 546 (1867) (codified as amended at 18 U.S.C. § 1581 and 42 U.S.C. § 1994), amended by Act of June 28, 1948, Pub. L. No. 80-772, 62 Stat. 683, 772 (codified as amended at 18 U.S.C. § 1581) (amending original Act by replacing slave trade with involuntary servitude and criminalizing involuntary servitude regardless of existence of any debt).
54. see also Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, div. A, § 1, 114 Stat. 1466, 1466-67 (codified as amended at 22 U.S.C. §§ 7101-7112) (clarifying that psychological coercion is sufficient to make servitude involuntary).
55. See Rebecca E. Zietlow, Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights 75 (2006) [hereinafter Zietlow, Enforcing Equality] (noting proponents of pro-labor legislation advanced constitutional vision of their own, one rooted in labor's constitution of freedom).
56. Zietlow, Free at Last!, supra note 7, at 290-94 (describing Reconstruction-era legislation enforcing Thirteenth Amendment to protect rights of workers).
57. id. at 294-300 (describing such measures during New Deal era)
58. id. at 306-11 (describing Trafficking Victims Protection Act of 2000, most recent legislation protecting workers to be enacted pursuant to Thirteenth Amendment enforcement power).
59. See Zietlow, Enforcing Equality, supra note 36, at 75 (outlining positions of various stakeholders in workers' rights debate).
60. See, e.g., Lochner v. New York, 198 U.S. 45-56 (1905) (explaining any exercise of state police power limiting freedom to contract must be fair, reasonable and appropriate).
61. See William E. Forbath, Law and the Shaping of the American Labor Movement 11 (1991) [hereinafter Forbath, American Labor Movement] (describing conflicts between unions and courts over whether workers had right to strike in late nineteenth and early twentieth century).
62. See Pope, Labor's Constitution, supra note 4, at 943 (explaining unionists believed only way to combat coercive employers was through collective bargaining). Yet still, courts often struck down measures enacted to aid workers, invoking their own vision of liberty-the freedom of contract protected by the Due Process Clause of the Fourteenth Amendment.
63. See Forbath, American Labor Movement, supra note 39, at 38. These conflicting conceptions of workers' liberty were ultimately resolved during the New Deal era, when members of Congress sided with the unions' vision of liberty.
64. See Zietlow, Enforcing Equality, supra note 36, at 76-77 (discussing circumstances surrounding passage of Wagner Act).
65. National Labor Relations (Wagner) Act, ch. 372, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151-166).
66. See Zietlow, Enforcing Equality, supra note 36, at 79-80 (noting some union officials urged New York Senator Robert Wagner to rely on Thirteenth Amendment to support passing of Wagner Act).
67. See Goluboff, supra note 8, at 36 (discussing exclusion of domestic and agricultural workers from New Deal-era protections).
68. See Zietlow, Enforcing Equality, supra note 36, at 94-95 (noting how supporters of New Deal legislation and Wagner Act often subordinated interests of workers of color to those of white workers).
69. Interestingly, and not coincidentally, the Court's broad reading of involuntariness in Pollock v. Williams, 322 U.S. 4 (1944), arguably held significantly more promise for low-income workers of color than did the legislation enacted by Congress. Southern sharecroppers and domestic workers were often employed under conditions that strained the definition of voluntariness.
70. See Goluboff, supra note 8, at 58 (pointing out that sharecroppers and tenant farmers lived like peons).
71. 322 U.S. at 12-18.
72. Id. at 25.
73. Id. at 18.
74. See Pope, Contract, Race, and Freedom, supra note 6, at 1520 (arguing Pollock standard provides guidance for determining extent of Thirteenth Amendment's protections for free labor).
75. See infra notes 167-168 and accompanying text (discussing how Pollock model of labor rights could address intersectionality of class and race).
76. In 2000, Congress expanded the coverage of the Anti-Peonage Act with the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (codified as amended at 22 U.S.C. § 7101).
77. see Rebecca E. Zietlow, Free at Last!, supra note 7, at 306-11 (discussing history of Act's passage as Congress's effort to address gender and economic subordination that accompanies problem of human trafficking).
78. Cong. Globe, 38th Cong. 1st Sess. 521 (1864) (statement of Sen. Charles Sumner).
79. see Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 51 (2001) (discussing Sumner's efforts to include his language in Amendment).
80. See Eric Foner, Reconstruction: America's Unfinished Revolution 504-05 (1988) [hereinafter Foner, Reconstruction] (noting Sumner proposed civil rights measure that would have given blacks equal access to churches, public accommodations, jury service, public schools, and cemeteries).
81. See U.S. Const. amend. XIV, § 1 (Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.).
82. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968) (quoting The Civil Rights Cases, 108 U.S. 3, 20 (1883)).
83. See Vorenberg, supra note 55, at 55 (noting how two members on committee that rejected Sumner's language actually believed adopted language guaranteed legal equality).
84. Hans L. Trefousse, The Radical Republicans: Lincoln's Vanguard for Racial Justice 28 (1969). Many others believed that blacks were inferior to whites.
85. Id. at 31.
86. Id. at 5.
87. See supra note 56 (discussing Sumner's proposed civil rights measure).
88. See Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (statement of Rep. Trumbull) (proposing bill prohibiting discrimination in civil rights or immunities of all persons of African descent born in the United States).
89. Civil Rights Act of 1866, Pub. L. No. 39-26, 14 Stat. 27 (codified as amended at 42 U.S.C. §§ 1981-1983).
90. See Zietlow, Enforcing Equality, supra note 36, at 47-48 (explaining how Republican supporters of 1866 Act maintained it reflected accurate interpretation of Thirteenth Amendment).
91. While the vast majority of members of that Congress believed the Act fell within congressional power to enforce the Thirteenth Amendment, the doubts of its constitutionality that were held by moderate Representative John Bingham contributed to the effort to enact the Fourteenth Amendment, which expressly contains that guarantee of equality in its Equal Protection Clause. U.S. Const. amend. XIV, § 1.
92. see Zietlow, Enforcing Equality, supra note 36, at 48-49 (noting how Fourteenth Amendment was enacted only two months later as effort to protect 1866 Act).
93. See Foner, Reconstruction, supra note 56, at 533 (noting Sumner's tireless advocacy of Civil Rights Act of 1875).
94. Civil Rights Act of 1875, ch. 108, 18 Stat. 335.
95. The Civil Rights Cases, 109 U.S. 3 (1883).
96. See 392 U.S. 409-439 (1968) (finding Congress very clearly had power to eliminate all racial barriers to the acquisition of real and personal property).
97. Fair Housing Act, Pub. L. 90-284, § 804, 82 Stat. 83, 83 (1968) (codified as amended at 42 U.S.C. § 3604(e)).
98. Civil Rights Act, Pub. L. 90-284, § 101(a), 82 Stat. 73, 73-74 (1968) (codified as amended at 18 U.S.C. § 245). For a discussion of congressional debates over these provisions.
99. see Zietlow, Free at Last!, supra note 7, at 303-06.
100. Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. 111-84, div. E, § 4707, 123 Stat. 2835, 2838-39 (2009) (codified at 18 U.S.C. § 249).
101. See Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 Harv. L. Rev. 124, 155 (1992) (arguing why certain types of racially motivated hate speech could be prohibited if considered symbols of slavery).
102. Carter, Race, supra note 5, at 1313 (discussing applicability of Thirteenth Amendment to religiously motivated hate crimes).
103. Alexander Tsesis, The Problem of Confederate Symbols: A Thirteenth Amendment Approach, 75 Temp. L. Rev. 539-556 (2002) (arguing state use of Confederate symbols violates Thirteenth Amendment because it brands blacks as outsiders of the dominant narrative).
104. See William M. Carter, Jr., A Thirteenth Amendment Framework for Combating Racial Profiling, 39 Harv. C.R.-C.L. L. Rev. 17-18 (2004) (arguing the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment).
105. See Miller, supra note 5, at 1045 (arguing congressional action is appropriate to prevent African Americans in aggregate from being denied certain opportunities).
106. See Michael D. Pierson, Gender and Party Ideologies: The Constitutional Thought of Women and Men in American Anti-Slavery Politics, Slavery & Abolition: A Journal of Slave and Post-Slave Studies, Dec. 1998, at 46, 46-47 (explaining bifurcated discourse of men's and women's interpretations of the Constitution in antislavery political movements).
107. Jennifer Rycenga, A Greater Awakening: Women's Intellect as a Factor in Early Abolitionist Movements, 1824-1834, J. Feminist Stud. Religion, Fall 2005, at 31.
108. Nina Silber, The Female Heart of American Reform, 62 Historian 851, 851 (2000) (book review) (noting efforts of Northern women to engage in political causes through fundraisers and other means).
109. Pierson, supra note 76, at 55-57 (detailing Swisshelm and Nichols' appeal for reliance on Higher Law). Salmon Chase's plan included abolishing support for slavery at the national level, while allowing it to remain at the local level, particularly in the states where it was already legal.
110. Id. at 47.
111. Id. at 57-58.
112. Both women critiqued the sexual assault of female slaves by their white masters. Nichols specifically remarked that she equated slavery with baby stealing and promiscuousness.
113. Id. at 58.
114. See id. at 61 (noting division of slave families centrality to plot).
115. see also Harriet Beecher Stowe, Uncle Tom's Cabin 14-18 (Penguin Books 1981) (1852) (describing fictional dialogue between slave trader and owner regarding sale of enslaved children).
116. Pierson, supra note 76, at 62.
117. See Alexander Tsesis, Gender Discrimination and the Thirteenth Amendment, 112 Colum. L. Rev. 1641, 1644-45 (2012) [hereinafter Tsesis, Gender].
118. Id. at 1660-61.
119. Id. at 1662-63.
120. Id. (noting both white women and slaves were exposed to physical and sexual abuse at hands of their male spouses).
121. See Trefousse, supra note 60, at 23 (noting that supporters of women's suffrage included George Julian, James Ashley, Horace Greely, and Henry Wilson).
122. See U.S. Const. amend. XIV, § 2.
123. see also Tsesis, Gender, supra note 81, at 1668-69 (discussing how Section 2 applied exclusively to men).
124. See Tsesis, Gender, supra note 81, at 1652-54 (explaining Act protected rights to contract and testify at trial, among others, and contained no gender limitation).
125. For example, Andrew Koppelman has argued that forcing women to bear children without the right to an abortion violates the Thirteenth Amendment because forced pregnancy and childbirth subjects them to involuntary servitude.
126. See Andrew Koppelman, Forced Labor Revisited: The Thirteenth Amendment and Abortion, in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment, supra note 6, at 226-227.
127. Others have argued that the Thirteenth Amendment enforcement power could be used to reenact the Civil Rights remedy of the Violence Against Women's Act.
128. See Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. Pa. L. Rev. 1097, 1098-100 (1998).
129. Tsesis, Gender, supra note 81, at 1692-95. Still others argue that the Amendment could end the exploitation of mail order brides.
130. See Suzanne H. Jackson, Marriages of Convenience: International Marriage Brokers, Mail Order Brides, and Domestic Servitude, 38 U. Tol. L. Rev. 895, 915-919 (2007) (arguing Thirteenth Amendment is broad enough to prohibit many types of involuntary servitude). Similar arguments have been made on behalf of victims of child abuse.
131. See Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359, 1360 (1992) ([W]e hope to establish... that the [Thirteenth] Amendment speaks to the horror of child abuse with remarkable directness.).
132. Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, div. A, § 1, 114 Stat. 1466, 1466-67 (codified as amended at 22 U.S.C. §§ 7101-7112).
133. see also Zietlow, Free at Last!, supra note 7, at 309 (By enacting the TVPA, members of Congress recognized the link between gender and economic based exploitation that occurs not just within America, but throughout the world.).
134. James M. Ashley, Closing Portion of Stump Speech Delivered in the Grove Near Montpelier, Williams County, Ohio (Sept. 1856) [hereinafter, Ashley, Montpelier Speech], in Duplicate Copy of the Souvenir from the Afro-American League of Tennessee to Hon. James M. Ashley of Ohio 601, 613 (Benjamin W. Arnett ed., Philadelphia, Publishing House of the A.M.E. Church 1894) [hereinafter Ashley Souvenir].
135. James Ashley, Address Delivered at Charloe, Ohio (Jan. 31, 1859) [hereinafter Ashley, Address at Charloe], in Ashley Souvenir, supra note 90, at 22-29.
136. Id. at 28.
137. See Robert F. Horowitz, The Great Impeacher: A Political Biography of James M. Ashley 18 (1979) (describing opposition amongst future Republicans to Kansas-Nebraska Bill, of which popular sovereignty was a centerpiece).
138. Id. at 18-19 (discussing how party founders were unified in their opposition to bills supporting popular sovereignty).
139. Ashley, Address at Charloe, supra note 91, at 25.
140. Id. at 26.
141. Id. at 25.
142. James M. Ashley, Speech in the House of Representatives: On the Constitutional Amendment for the Abolition of Slavery (Jan. 6, 1865) [hereinafter Ashley, House Speech], in Ashley Souvenir, supra note 90, at 333-336.
143. Ashley, Montpelier Speech, supra note 90, at 622.
144. Ashley, House Speech, supra note 99, at 337.
145. Id. at 353.
146. Many of his congressional colleagues at the time agreed that the Amendment protected a broad spectrum of individual rights.
147. See Jacobus ten Broek, The Antislavery Origins of the Fourteenth Amendment 144-47 (1951) (detailing views of Thirteenth Amendment proponents during congressional debates).
148. For example, Ebon C. Ingersoll of Illinois argued that the Thirteenth Amendment would secure to the oppressed slave his natural and God-given rights, including a right to live, and live in a state of freedom, a right to till the soil, to earn his bread by the sweat of his brow, and enjoy the rewards of his own labor, and a right to the endearments and enjoyment of family ties.
149. Cong. Globe, 38th Cong., 1st Sess. 2990 (1864) (statement of Ebon C. Ingersoll). Godlove Orth claimed that the Thirteenth Amendment embodied the natural law principles of the Declaration of Independence.
150. Cong. Globe, 38th Cong., 2d Sess. 142-43 (1865) (statement of Rep. Godlove S. Orth).
151. James F. Wilson argued that the Amendment would protect the sacred rights of human nature [and] the hallowed family relations of husband and wife, parent and child. Cong. Globe, 38th Cong., 1st Sess. 1324 (1864) (statement of Rep. James F. Wilson).
152. For a more detailed discussion of James Ashley and antislavery constitutionalism, see generally Rebecca E. Zietlow, The Ideological Origins of the Thirteenth Amendment, 49 Hous. L. Rev. 393 (2012) [hereinafter Zietlow, Ideological Origins].
153. Cong. Globe, 38th Cong., 1st Sess. 2985 (statement of Rep. William Kelley).
154. See Vorenberg, supra note 55, at 235 (maintaining Amendment was intended to protect natural rights, including right to the fruit of one's labor).
155. See, e.g., ten Broek, supra note 102, at 153 (recounting speech made by Ashley on natural rights). This view placed Ashley among the most radical of the opponents of slavery. Many of Ashley's Republican colleagues believed that slavery was illegal in the ter-ritories but that it could not be abolished in the states.
156. Id. at 152-54 (discussing split be-tween abolitionists regarding constitutionality of slavery in states).
157. Ashley, Address at Charloe, supra note 91, at 24.
158. Speaking of the Framers, Ashley argued, [W]hile demanding liberty for themselves, and proclaiming to the world the inalienable right of all men to life, liberty, and the pursuit of happiness, they were not guilty of the infamy of making a Constitution which, by any fair rules of construction, can be interpreted into a denial of liberty, happiness, and justice to an entire race. Cong. Globe, 38th Cong., 2d Sess. 138 (1865) (statement of Rep. James M. Ashley).
159. See infra notes 140-145 and accompanying text (describing Ashley's belief that all people were entitled to equal protection and legislative efforts to this end). 110. U.S. Const. art. IV, § 4 (The United States shall guarantee to every State in this Union a Republican Form of Government).
160. see Cong. Globe, 39th Cong., 1st Sess. 2881 (1866) (statement of Rep. James M. Ashley) (arguing all citizens, white or black, were entitled to vote by virtue of citizenship).
161. James M. Ashley, Speech to the U.S. House of Representatives (Jan. 17, 1861), in Ashley Souvenir, supra note 90, at 116-127.
162. Id. at 127.
163. James M. Ashley, Extract from Speech at Gilead, Wood County, Ohio (1865), in Ashley Souvenir, supra note 90, at 634-636 (In the coming battle for the enfranchisement of the black man, I need not tell you that I shall not rest until he is clothed by constitutional provision, with an American citizen's cleanest and purest weapon-the ballot.).
164. See Michael Les Benedict, A Compromise of Principle 22 (describing Reconstruction-era disputes over suffrage rights for freed slaves).
165. See Horowitz, supra note 94, at 36 (In the year 1856, this was as radical a statement as an orator dared to make.).
166. Cong. Globe, 36th Cong., 1st Sess. app. at 374 (1860) (statement of Rep. James M. Ashley).
167. James M. Ashley, House Speech, supra note 99, at 352.
168. Id. at 353.
169. Cong. Globe, 38th Cong., 1st Sess. 2990 (1864) (statement of Rep. Ebon C. Ingersoll).
170. Cong. Globe, 39th Cong., 1st Sess. 111 (1866) (statement of Sen. Henry Wilson).
171. Cong. Globe, 38th Cong., 1st Sess. 2944 (1864) (statement of Rep. William Higby).
172. See Pope, Contract, Race, and Freedom, supra note 6, at 1517 (describing negative goal of obliterating involuntary servitude as being intertwined with positive goal of maintaining system of free labor).
173. Lea Vander Velde, The Thirteenth Amendment of Our Aspirations, 38 U. Tol. L. Rev. 855, 875-76 (2007) (arguing affirmative legal response is required after abolition of slavery).
174. Pope, Contract, Race, and Freedom, supra note 6, at 1517 (The workers' power and the employers' incentive are generated not at the individual level, between a particular laborer and employer, but in the aggregate, through the workings of the free labor system.).
175. Ashley, Montpelier Speech, supra note 90, at 622.
176. Id. at 621-22.
177. James M. Ashley, Address at German Township, Fulton County, Ohio (Nov. 1, 1859), in Ashley Souvenir, supra note 90, at 31-35.
178. James M. Ashley, Letter on President Lincoln's Emancipation Proclamation (Jan. 1, 1863), in Ashley Souvenir, supra note 90, at 240, 241-42.
179. See Horowitz, supra note 94, at 158.
180. Id. at 159.
181. Id. at 161. Ashley also called for a free public school system which would be open to all races.
182. Id. at 162.
183. Id. at 167.
184. Id. at 167-68.
185. See Draft Memoir of James Ashley 18 (1896) [hereinafter Ashley Memoir] (unpublished manuscript) (on file in Box 1, Folder 6, John M. Morgan Papers Relating to James Ashley, Ward M. Canaday Center Manuscript Collection, University of Toledo Libraries).
186. Ashley, Montpelier Speech, supra note 90, at 606-07.
187. Ashley, Address at Charloe, supra note 91, at 25.
188. Ashley, Montpelier Speech, supra note 90, at 606, 610-11.
189. See Foner, Free Soil, supra note 13, at 9 (Republicans also believed in the existence of a conspiratorial 'Slave Power' which had seized control of the federal government and was attempting to pervert the Constitution for its own purposes.).
190. Ashley, House Speech, supra note 99, at 337.
191. Ashley, Montpelier Speech, supra note 90, at 620.
192. Cong. Globe, 38th Cong., 1st Sess. 20 (1863) (statement of Rep. James M. Ashley).
193. Cong. Globe, 38th Cong., 2d Sess. 281 (1866) (statement of Rep. James M. Ashley).
194. See Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27 (codified as amended at 42 U.S.C. §§ 1981-1983) (All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.).
195. Zietlow, Free at Last!, supra note 7, at 281 (describing language used in Act).
196. Horowitz, supra note 94, at 161.
197. See Ashley, Montpelier Speech, supra note 90, at 614.
198. Id. at 623.
199. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), superseded by constitutional amendment, U.S. Const. amend. XIV.
200. See Zietlow, Enforcing Equality, supra note 36, at 47 (noting criticism of Dred Scott decision).
201. Cong. Globe, 39th Cong., 1st Sess. 1116 (1866) (statement of Rep. James F. Wilson).
202. Id. at 1263 (statement of Rep. James M. Broomall).
203. See Vorenberg, supra note 55, at 50 (describing Ashley's proposed measures). Ashley may have believed that an enforcement clause was not necessary, given the Court's broad reading of congressional power to enforce the Fugitive Slave Clause, which lacked an enforcement clause, in Prigg v. Pennsylvania, 41 U.S. 539, 541-42 (1842); see Zietlow, Ideological Origins, supra note 103, at 414-43 (discussing rationale behind Ashley's antislavery policy).
204. Horowitz, supra note 94, at 67. The bill would have abolished all slave laws in conquered territories, prohibited the new territorial governments from establishing slavery, and installed congressional control over those territories. All loyal inhabitants (including freed slaves) would have been entitled to seize land from the disloyal.
205. Blacks would have been allowed to vote and serve on juries, and the legislation would have established public schools and limited the work day to twelve hours. Draft Reconstruction Act, H.R. 356, 37th Cong. (1862).
206. Margaret Ashley, An Ohio Congressman in Reconstruction 361 (1919) (unpublished M.A. thesis, Columbia University) (on file with the Columbia Law Review).
207. See Manning Marable, The Problematics of Ethnic Studies, in Dispatches from the Ebony Tower: Intellectuals Confront the African American Experience 243-258 (Manning Marable ed., 2000) (explaining origins of Brazilian phrase that signifies ascen-sion of scale of whiteness by acquiring material wealth).
208. See Barnes et al., supra note 10, at 983-86 (describing gap between whites and people of color in terms of income and wealth).
209. Some unions actively engaged in race discrimination and exclusion of black workers.
210. See David E. Bernstein, Only One Place of Redress: African Americans, Labor Relations and the Courts from Reconstruction to the New Deal 6 (2001) (arguing unions used power under National Industrial Recovery Act to exclude black laborers from unions and certain industries). Others actively campaigned for civil rights.
211. See Martha Biondi, To Stand and To Fight: The Struggle for Civil Rights in Postwar New York City 17 (2003) (describing role labor leaders played in nascent civil rights movement in New York City in 1940s).
212. Lizabeth Cohen, Making a New Deal: Industrial Workers in Chicago, 1919-1939, at 337 (1990) (describing campaign for racial justice led by Congress of Industrial Organizations (CIO) in 1930s).
213. Melvin Dubofsky, The State and Labor in Modern America 223 (1994) (describing CIO campaign in 1930s and alliance between UAW and NAACP in Detroit as evidence the labor movement and the civil rights movement [became] closely linked).
214. Goluboff, supra note 8, at 16.
215. Id. at 5.
216. See id. at 114 (Thirteenth Amendment cases offered the government lawyers the chance to work out the integration of the rights they had inherited and the rights they hoped to vindicate.).
217. In the 1940s, the NAACP also considered variations of a work-based notion of civil rights.
218. Id. at 207.
219. Id. at 170-71.
220. Id. at 150.
221. 322 U.S. 4 (1944).
222. See Pope, Contract, Race, and Freedom, supra note 6, at 1478 (arguing Pollock ruling provides workable standard for interpreting involuntary servitude Clause).
223. see also Archibold Cox, Strikes, Picketing and the Constitution, 4 Vand. L. Rev. 574, 576-77 (1951) (same).
224. 322 U.S. at 18.
225. See Peggie R. Smith, Regulating Paid Household Work: Class, Gender, Race, and Agendas of Reform, 48 Am. U. L. Rev. 851, 877-78 (1999) (explaining domestic service was lowest rung of legitimate employment and describing efforts white domestic workers made to disassociate their work from that of slaves).
226. Ontiveros, Immigrant Workers, supra note 6, at 281-82 (discussing legal regimes that fail to protect immigrant workers in these areas).
227. Goluboff, supra note 8, at 156-57 (quoting Francis Biddle, Civil Rights and the Federal Law, in Carl L. Becker et al., Safeguarding Civil Liberty Today 109, 137-138 (1945)).
228. See Pope, Contract, Race, and Freedom, supra note 6, at 1479.
229. 347 U.S. 483 (1954).
230. See Goluboff, supra note 8, at 248 (arguing pivotal moment defining civil rights doctrine is Court's decision in Brown).
231. Id. at 219-22.
232. 163 U.S. 537 (1896).
233. See Goluboff, supra note 8, at 243-34 (arguing NAACP chose to focus on dignitary harm of segregation, instead of economic impact on black workers).
234. Sophia Lee contests this characterization of NAACP strategy, instead asserting that local branches of the NAACP continued a worker-focused campaign through the early 1960s.
235. See Sophia Z. Lee, Hotspots in a Cold War: The NAACP's Postwar Workplace Constitutionalism, 1948-1964, 26 Law & Hist. Rev. 327, 327-30 (2008).
236. See Goluboff, supra note 8, at 239 (arguing Brown consolidated a critical shift... toward a more equal protection-based approach within the [Office of the Solicitor General]).
237. See Rebecca E. Zietlow, To Secure These Rights: Congress, Courts and the 1964 Civil Rights Act, 57 Rutgers L. Rev. 945, 990 (2005) (The 1964 Civil Rights Act thus represents a paradigm for congressional action to protect rights of belonging.).
238. See Barnes et al., supra note 10, at 983 (Indeed, at no point since 1959 has the poverty rate for African Americans been less than double the rate for whites.).
239. Goluboff, supra note 8, at 251.
240. On the other hand, it is also true that the limitations on the mobility of their customers enabled some African American business owners to profit from segregation.
241. Id. at 176 (arguing black professionals suffered from segregation in their personal lives but profited from it in their professional lives).
242. Civil Rights Act of 1964, Pub. L. No. 88-352, § 703, 78 Stat. 241-255 (codified as amended at 42 U.S.C. § 2000e-2(a)-(f)) (barring discrimination on basis of race by employers, employment agencies, labor organizations, and training programs).
243. See Barnes et al., supra note 10, at 983-86 (describing gap between whites and people of color in terms of income and wealth).
244. For a more detailed discussion of rights of belonging.
245. see Zietlow, Enforcing Equality, supra note 36, at 6-8.
246. See Washington v. Davis, 426 U.S. 229, 238-45 (1976) (requiring showing of discriminatory intent for courts to impose heightened scrutiny for race-based classifications).
247. The Civil Rights Cases, 109 U.S. 3, 11-13 (1883) (imposing state action requirement).
248. See Zietlow, Enforcing Equality, supra note 36, at 162-64 (discussing relationship between rights of belonging, community moral values, and legislative process).
249. See generally Kimberle 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 (discussing interplay of race and sex, as well as other identities in legal doctrine).
250. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990) (same).
251. Darren Lenard Hutchinson, Identity Crisis: Intersectionality, Multidimensionality, and the Development of an Adequate Theory of Subordination, 6 Mich. J. Race & L. 285 (2001) (same).
252. Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L. J. 1079 (same). For a recent thoughtful discussion of intersectionality in critical race theory, see
253. Richard Delgado, Rodrigo's Reconsideration: Intersectionality and the Future of Critical Race Theory, 96 Iowa L. Rev. 1247 (2011).
254. Ashley, Montpelier Speech, supra note 90, at 606-07 (I find here in the North, as in the South, that the hatred of the negro is not that he is black or of mixed blood, but because he is a slave. It is the hatred born of the spirit of caste, and not the hatred of color.).
255. Id. (Wherever the negro is free and is educated and owns property, you will find him respected and treated with consideration.).
256. Goluboff, supra note 8, at 267 (citing Paul G. Kauper, Constitutional Law: Cases and Materials, at vxiii-xxiii, 530-32, 778 (4th ed. 1972).
257. Paul G. Kauper, Constitutional Law: Cases and Materials, at xx, 869-71 (3d ed. 1966).
258. Paul G. Kauper, Constitutional Law: Cases and Materials, at xxi-xxiii (2d ed. 1960).
259. Paul G. Kauper, Constitutional Law: Cases and Materials, at xiv-xvi (1954)).
260. See Zietlow, Enforcing Equality, supra note 36, at 145 (discussing role of courts and legislature in protecting rights of belonging).
261. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion) (finding familiar right of association).
262. Roe v. Wade, 410 U.S. 113 (1973) (finding reproductive right of privacy).
263. Griswold v. Connecticut, 381 U.S. 479 (1965) (recognizing marital right of privacy).
264. See Jack M. Balkin & Sanford Levinson, The Dangerous Thirteenth Amendment, 112 Colum. L. Rev. 1459, 1463-69 (2012) (discussing role of Court in interpreting Thirteenth Amendment).
265. Rebecca E. Zietlow, The Political Thirteenth Amendment, 71 Md. L. Rev. 283 (2011) (same).
266. For a detailed discussion of congressional protection of rights of belonging, see generally
267. Zietlow, Enforcing Equality, supra note 36.
268. See Zietlow, Free at Last!, supra note 7, at 275-77 (discussing congressional enforcement power).
269. See Pollock v. Williams, 322 U.S. 4, 18 (1944) (coining terms power below and harsh overlordship).
270. See Zietlow, Enforcing Equality, supra note 36, at 93 (discussing empowerment of union members).
271. One such measure is the proposed Employee Free Choice Act, which would make it easier for employees to unionize and would enhance penalties for employers who interfere with organization efforts.
272. The Employee Free Choice Act was introduced in the 111th Congress as H.R. 1409 and S. 560. It has been introduced in the past four Congresses. During the 110th Congress, the measure passed the House by a vote of 241 to 185 but fell short of the sixty-vote margin needed to overcome a filibuster in the Senate.
273. See Jon O. Shimabukuro, Cong. Research Serv., RS 21887, The Employee Free Choice Act, at Summary (2011), available at http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1788&context=key_workplace(on file with the Columbia Law Review).
274. See Ontiveros, Immigrant Workers, supra note 6, at 279.
275. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 103, 110 Stat. 2105, 2134 (codified as amended at 42 U.S.C. § 1305).
276. Id. § 103, 110 Stat. at 2129.