Gender discrimination and the Thirteenth Amendment

Columbia Law Review

Volumn 112, Issue 9, 2012, Pages 1641-1696

  Tsesis, Alexander ^a  

^a LOYOLA UNIVERSITY CHICAGO   (United States)

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EID: 84878199352     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (523)

1. The Thirteenth Amendment contains two sections. Section 1 states, 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, while Section 2 states, Congress shall have power to enforce this article by appropriate legislation. U.S. Const. amend. XIII.
2. Key articles on the subject to date have been Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480-484 (1990) (When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the thirteenth amendment.).
3. Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 Yale J.L. & Feminism 207-210 (1992) (This article demonstrates that some battered women are held in involuntary servitude and suggests that a civil constitutional claim as well as a criminal constitutional claim could be brought against the batterer.).
4. Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. Pa. L. Rev. 1097, 1144-45 (1998) ([M]odern violence against women is a badge and incident of nineteenth-century slavery and of the nineteenth-century involuntary servitude of coverture.).
5. See United States v. Virginia, 518 U.S. 515-558 (1996) (holding Virginia Military Institute's categorical refusal to accept female applicants unconstitutional under Equal Protection Clause).
6. Craig v. Boren, 429 U.S. 190-210 (1976) (striking down Oklahoma law on equal protection grounds for arbitrarily differentiating between males and females).
7. Reed v. Reed, 404 U.S. 71, 76-77 (1971) (ruling that law distinguishing between male and female administrators of estates violated Equal Protection Clause).
8. See Tennessee v. Lane, 541 U.S. 509, 533-34 (2004) (holding Title II of Americans with Disabilities Act to be valid exercise of Congress's Fourteenth Amendment authority).
9. See Lawrence v. Texas, 539 U.S. 558-578 (2003) (holding Texas antisodomy law violated Due Process Clause).
10. Romer v. Evans, 517 U.S. 620-635 (1996) (finding Colorado constitutional amendment that prevented municipalities from providing special protections to persons based on their sexuality violated Equal Protection Clause).
11. See Jones v. Alfred H. Mayer Co., 392 U.S. 409-441 n.78 (1968) (The Thirteenth Amendment authorizes Congress not only to outlaw all forms of slavery and involuntary servitude but also to eradicate the last vestiges and incidents of a society half slave and half free.).
12. The Fourteenth Amendment impliedly tolerated female disenfranchisement.
13. See U.S. Const. amend. XIV, § 2 (providing for reduction of states' representation in House of Representatives only when the right to vote... is denied to any of the male inhabitants of such State).
14. The Supreme Court has interpreted the Fourteenth Amendment to only apply to state actions. Writing for the majority in the Civil Rights Cases.
15. Justice Joseph P. Bradley proclaimed that the Fourteenth pertains only to public forms of discrimination. 109 U.S. 3-11 (1883) (It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.).
16. See Alexander Tsesis, We Shall Overcome: A History of Civil Rights and the Law 143-44 (2008) [hereinafter Tsesis, We Shall Overcome] (examining intersection between women's rights and abolitionist movements).
17. There were three congressional debates on the merits of passing the proposed Thirteenth Amendment. The Senate passed the proposal on the first vote in 1864.
18. See Cong. Globe, 38th Cong., 1st Sess. 1490 (1864).
19. But it took the House of Representatives two votes before reaching the supermajority on January 31, 1865.
20. See Cong. Globe, 38th Cong., 2d Sess. 531 (1865) (noting two-thirds of House voted to pass proposal).
21. Cong. Globe, 38th Cong., 1st Sess. 2995 (1864) (providing record of unsuccessful vote in House).
22. Cong. Globe, 38th Cong., 1st Sess. 1443 (1864) (statement of Sen. John P. Hale). Despite Hale's ardent abolitionism and support for women's education, he opposed women's suffrage.
23. John P. Hale on Women's Rights, N.Y. Times, July 17, 1858, at 2.
24. Cong. Globe, 38th Cong., 1st Sess. 2989 (1864) (statement of Rep. Ebon Ingersoll).
25. Id. at 1461 (statement of Sen. John Henderson).
26. See also Jules Lobel, Success Without Victory 91 (2003) (observing Senator Henderson was a moderate Republican senator who had argued for the inclusion of women's rights in the Fourteenth Amendment).
27. Cong. Globe, 38th Cong., 1st Sess. 1424 (1864) (statement of Sen. Reverdy Johnson).
28. The Twelfth Amendment was ratified on June 15, 1804, and the Thirteenth Amendment on December 6, 1865.
29. Nat'l Archives & Records Admin., Constitution of the United States: Amendments 11-27, available at http://www.archives.gov/exhib-its/charters/constitution_amendments_11-27 .html (last visited Sept. 12, 2012) (on file with the Columbia Law Review).
30. What It Means, Lowell Daily Citizen & News, Dec. 8, 1865, at 2 (quoting U.S. Const. amend. XIII, § 2 (Congress shall have power to enforce this article by appropriate legislation.)).
31. U.S. Const. art. I, § 8, cl. 18.
32. Cong. Globe, 39th Cong., 1st Sess. 1118 (1866) (statement of Rep. James F. Wilson) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)).
33. See Jones v. Alfred H. Mayer Co., 392 U.S. 409-443 (1968) (quoting approvingly statement of Representative James Wilson, who urg[ed] that Congress had ample authority to pass the pending bill and recalled the celebrated words of Chief Justice Marshall in McCulloch).
34. See Alexander Tsesis, The Thirteenth Amendment and American Freedom 39 (2004) (examining three extensive debates surrounding passage of Thirteenth Amendment, one in Senate and two in House, which provide great detail about framers' expectations).
35. Cong. Globe, 38th Cong., 1st Sess. 1424 (1864) (statement of Sen. Reverdy Johnson).
36. After states had ratified the Thirteenth Amendment, Senator Lyman Trumbull stated, [T]he liberty to which every citizen is entitled.
37. That is the liberty which was intended to be secured by the Declaration of Independence and the Constitution of the United States originally, and more especially by the amendment which has recently been adopted.
38. Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (statement of Sen. Lyman Trumbull). Another prominent Congressman, Iowa Representative James Wilson, declared, [C]itizens of the United States, as such, are entitled to certain rights.
39. And... being entitled to those rights it is the duty of the Government to protect citizens in the perfect enjoyment of them. The citizen is entitled to life, liberty, and the right to property.
40. Id. at 1294 (statement of Rep. James F. Wilson).
41. Cong. Globe, 38th Cong., 1st Sess. 1324 (1864) (statement of Rep. James F. Wilson).
42. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 450-51 (1857), superseded by constitutional amendment, U.S. Const. amend. XIV.
43. The first sentence of the Civil Rights Act of 1866 states, [A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.
44. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27.
45. The Act was enacted pursuant to Congress's Section 2 authority, the clearest sign that Section 2 was a protection of U.S. citizens' rights.
46. See Alexander Tsesis, Principled Governance: The American Creed and Congressional Authority, 41 Conn. L. Rev. 679-715 (2009) (noting how Congress enacted Civil Rights Act under Section 2 authority even before ratification of Fourteenth Amendment).
47. See also Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801-1816 (2010) (The Citizenship Clause of the Fourteenth Amendment confirmed the declaration made in the 1866 Civil Rights Act and placed this declaration of citizenship in the Constitution.).
48. The floor leader of the Bill, Senator Lyman Trumbull, took it as a given that even the bill's opponents recognized that it was intended to secur[e] equal civil rights to all persons.
49. Cong. Globe, 39th Cong., 1st Sess. 605 (1866) (statement Sen. Lyman Trumbull).
50. See also id. at 1152 (statement of Rep. Martin Thayer) ([B]y virtue of the second section of the [Thirteenth A]mendment of the Constitution Congress has express power to pass laws which will guaranty and insure these great rights and immunities of citizenship).
51. See George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367-1381 (2008) [hereinafter Rutherglen, State Action] (Matters that previously had been the exclusive domain of the states were now subject to federal regulation that could, under the Supremacy Clause, displace state law.).
52. Cong. Globe, 38th Cong., 1st Sess. 1324 (1864) (statement of Rep. James F. Wilson).
53. Id. at 521 (statement of Sen. Charles Sumner) (proposing to add following amendment to Constitution: Everywhere within the limits of the United States, and of each State or Territory thereof, all persons are equal before the law).
54. id. at 1483 (moving to amend proposed Thirteenth Amendment to insert: All persons are equal before the law, so that no person can hold another as a slave.
55. and the Congress may make all laws necessary and proper to carry this article into effect everywhere within the United States and the jurisdiction thereof.).
56. See, e.g., id. at 1488 (statement of Sen. Jacob Howard) (calling Senator Sumner's amendment insignificant and meaningless).
57. Id. at 1489.
58. The Senate Committee of the Judiciary adapted the first clause of the Thirteenth Amendment from the Northwest Ordinance of 1787.
59. See Horace White, The Life of Lyman Trumbull 224 (1913) (discussing history of Thirteenth Amendment).
60. The Ordinance's legacy is not without blemish. Along with a prohibition on slavery, it also contained a fugitive slave clause: There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted: [p]rovided always, [t]hat any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or services as aforesaid.
61. Northwest Ordinance of 1787, art. VI, 1 Stat. 51 n.(a).
62. Cong. Globe, 38th Cong., 1st Sess. 1488 (1864) (statement of Sen. Jacob Howard).
63. See Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 56-59 (2001) (discussing how both Republicans and Democrats were opposed to language of Senator Sumner's proposal).
64. The final Senate vote for the passage of the proposed Thirteenth Amendment included six senators either affiliated with the Democrats or the Unionist party. Cong. Globe, 38th Cong., 1st Sess. 1490 (1864) (providing list of senators who voted for and against Amendment).
65. See George M. Stroud, A Sketch of the Laws Relating to Slavery in the Several States of the United States of America 22 (1827) (stating that study of slave laws only provided partial picture of incidents of slavery because none of slaveholding states have adopted entire written codes).
66. The term incidents of slavery was widely used for a broad range of legal and extralegal behaviors long before the Supreme Court adopted it.
67. See, e.g., Wilson Armistead, A Cloud of Witnesses Against Slavery and Oppression 59 (1853) (documenting testimony of Reverend John Thorpe referencing incidents of slavery to challenge plantation owner's descriptions of slavery system).
68. Horace Mann, Speech Delivered in the United States House of Representatives on the Subject of Slavery in the Territories, and the Consequences of a Dissolution of the Union (Feb. 15, 1850), in Slavery: Letters and Speeches 180, 198 (1851) (The inference is inevitable, that if inhabitants of the fifteen slave states can carry slaves into California by virtue of the laws of their representative states, then they must carry all the incidents of slavery known to their respective codes.).
69. Thomas Price, Slavery in America: With Notices of the Present State of Slavery and the Slave Trade Throughout the World 26-27 (1837) (That gentleman had been surrounded from earliest infancy with all the appalling incidents of slavery, and was well qualified to bear testimony to its true character.).
70. Duty of Promoting the Immediate and Complete Abolition of Slavery, 23 Evangelical Mag. & Missionary Chron. 676-677 (1845) (It is unnecessary to dwell upon the incidents of slavery---its oppressive cruelties---the awful degradation it inflicts on innocent human beings.).
71. See, e.g., Book Review, 19 Critical Rev. 291-294 (1765) ([I]f freedom be the power of doing every thing which the law does not forbid, a privilege against the restraint of law inflicts a badge of slavery and all its consequences upon all those to whom it is not extended, and destroys at once our so much boasted constitution.).
72. Charles Hammond, A Sermon on the Life and Character of Abraham Lincoln, Preached at Monson, at the United Service of the Congregational and Methodist Churches, on the Occasion of the National Fast, June 1, 1865, at 19 (1865).
73. Letter from Synod in Scotland to the Synod of the Reformed Presbyterian Church in America (1865), in 3 The Reformed Presbyterian and Covenanter 250-251 (Thomas Sproull & Jas. M. Willson eds., 1865).
74. Frank L. Robbins, A Discourse on the Death of Abraham Lincoln 7 (Phila., Henry B. Ashmead 1865).
75. Warren Randolph, The Fallen: A Discourse Preached at the Harvard Street Baptist Church in Boston 19 (Boston, J.M. Hewes 1865).
76. Sign of the Times, 30 Advoc. & Fam. Guardian 142 (1864).
77. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-41 (1968) (Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational one.).
78. The Civil Rights Cases, 109 U.S. 3-20 (1883) ([I]t is assumed, that the power vested in Congress to enforce the... [Thirteenth Amendment] by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States).
79. For a historical discussion of the term badges and incidents of slavery, see.
80. 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, 164-67 (Alexander Tsesis ed., 2010).
81. George M. Stroud, Southern Slavery and the Christian Religion, North Am. and U.S. Gazette, Sept. 15, 1863, at 1 (stating that legal incidents of Southern slavery included keeping slave wholly under the dominion of his master, subject to be bought and sold... fed and clothed much or little, as his master may prescribe, and that slave could be forbidden from reading and acquiring a knowledge of his religious duties, [rendered] incapable of a lawful marriage[,] denied all authority over those who are admitted to be his natural offspring, and more).
82. The Reconstruction of Society in Louisiana, 37 Spectator 258 (1864).
83. See Berta Esperanza Herna ́ndez-Truyol, Out of the Shadows: Traversing the Imaginary of Sameness, Difference, and Relationalism, A Human Rights Proposal, 17 Wis. Women's L.J. 111-155 (2002) (noting purpose of Fourteenth Amendment was to eliminate racial discrimination).
84. Cong. Globe, 39th Cong., 1st Sess. 474 (1866).
85. See Baher Azmy, Unshackling the Thirteenth Amendment: Modern Slavery and a Reconstructed Civil Rights Agenda, 71 Fordham L. Rev. 981, 1017-18 (2002) (discussing debates surrounding reliance on Section 2 of Thirteenth Amendment to pass Civil Rights Act of 1866).
86. Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (1866) (codified as amended at 18 U.S.C. § 242 and 42 U.S.C. §§ 1981-1982).
87. The Act guaranteed the rights to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property.
88. Id. § 1.
89. It further provided citizens with the full and equal benefit of all laws and proceedings for the security of person and property ... any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. The statute prohibited both public and private discriminations.
90. See id.
91. A penalty section provided federal courts with the authority to levy a $1,000 fine and sentence offenders to one year in jail.
92. Id. § 2.
93. The Act guaranteed persons of all races full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.
94. Id. § 1.
95. Cong. Globe, 39th Cong., 1st Sess. 1152 (1866).
96. Besides positive legal impediments to black freedom, widespread violence prevented freedpeople from choosing where to live and for whom to work. White supremacists engaged in whippings and lynchings.
97. Of the five hundred whites charged with murdering blacks in Texas between 1865 and 1866, all five hundred were acquitted by white juries. Cong. Globe, 39th Cong., 1st Sess. 95 (1865) (providing eyewitness reports of contemporary violence).
98. Eric Foner, A Short History of Reconstruction 189-90 (1990) (detailing violence and extent of vigilante authority of private militias like Ku Klux Klan).
99. Herbert Shapiro, White Violence and Black Response: From Reconstruction to Montgomery 5 (1988) (describing Ku Klux Klan violence).
100. For an extensive description of how racial discrimination is similar to the exclusionary conduct of an economic cartel, see.
101. 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, 1023-25 (2008).
102. Shortly after the ratification of the Thirteenth Amendment several states enacted a variety of laws to prevent Blacks from enjoying the same freedoms as white citizens. For example, child apprenticeship laws bound black children to terms of service meant to prevent families from moving away from their former slaveholders.
103. Peter Kolchin, American Slavery, 1619-1877, at 220-21 (1993).
104. Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery 191, 237-38 (Vintage Books 1980) (1979).
105. Black Codes were even more prevalent impediments on freedpeople's ability to exercise their status as United States citizens. These codes prevented Blacks from traveling freely, bargaining with employers, or purchasing real estate.
106. See Donald G. Nieman, To Set the Law in Motion: The Freedmen's Bureau and the Legal Rights of Blacks, 1865-1868, at 98 (1979) (The legislatures... had enacted true black codes-harsh systems of law which applied exclusively to blacks.).
107. Charles Sumner, The National Security and the National Faith: Guaranties for the National Freedman and the National Creditor (Sept. 14, 1865), in 9 The Works of Charles Sumner 437, 442-43 (1874) (The Black Code is the incident of Slavery, and as such it must fall with the principal. Unless this is accomplished, you will keep the word of promise to the ear and break it to the sense).
108. Andrew E. Taslitz, Slaves No More!: The Implications of the Informed Citizen Ideal for Discovery Before Fourth Amendment Suppression Hearings, 15 Ga. St. U. L. Rev. 709, 746-47 (1999) (The Codes... sought to repress Black freedom of movement, privacy, and property as an expression of an intolerable idea of equality.).
109. Congress enacted the Civil Rights Act of 1866 in large part to provide a federal cause of action to persons subject to Black Codes.
110. Rutherglen, State Action, supra note 26, at 1397 ([T]he Civil Rights Act of 1866 identified several badges and incidents of slavery recreated by the 'Black Codes' passed by southern states to deny full legal capacity to the newly freed slaves.).
111. This use of unfreedom is analogous to Amartya Sen's, although unlike his work, this Essay does not consider the extent to which poverty diminished the enjoyment of lib erty.
112. See Amartya Sen, Development as Freedom 3, 15-87 (1999) (discussing how poverty restricts access to basic goods and services and thereby limits freedom and individual capabilities).
113. Unfreedom in this Essay deals with forms of interference with individual freedoms that impede individuals from exercising their lawful rights to enjoy the general welfare and their unique pursuits.
114. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27.
115. Cong. Globe, 39th Cong., 1st Sess. 1159 (1866) (statement of Rep. William Windom).
116. See infra Part II.C (discussing modern Supreme Court's expanded reading of Fourteenth Amendment to ban both genderand race-based inequality).
117. For the text of Johnson's veto message, see Cong. Globe, 39th Cong., 1st Sess. 1857-60 (1866).
118. Elizabeth Cady Stanton, a leading feminist, summarized the argument of political pragmatists: It is all very well for the privileged order to look down complacently and tell us, 'This is the negro's hour; do not clog his way; do not embarrass the Republican party with any new issue; be generous and magnanimous; the negro once safe, the woman comes next.'
119. Letter from Elizabeth Cady Stanton to the Editor of the National AntiSlavery Standard (Dec. 26, 1865), in The Concise History of Woman Suffrage 219-219 n.(Mari Jo Buhle & Paul Buhle eds., 1978).
120. Stanton rejected this idea: [T]he disfranchised all make the same demand, and the same logic and justice that secures suffrage to one class gives it to all.
121. Other feminists like Lucy Stone, Wendell Phillips, and Frederick Douglass agreed with the serial approach of seeking black suffrage and then securing voting rights for women.
122. See Tsesis, We Shall Overcome, supra note 9, at 144-45, 150-51 (illustrating debate between those urging for immediate woman suffrage and those arguing that black suffrage should take precedence).
123. The Republican Party was ideologically committed to black suffrage but believed that to combine woman's suffrage with this... plank would be to invite ruin.
124. Ida M. Tarbell, The American Woman, 70 Am. Mag. 64 (1910).
125. Cong. Globe, 39th Cong., 1st Sess. 1152 (1866) (statement of Rep. Martin Thayer).
126. Id. (referring interchangeably to this class of persons and freemen).
127. Declaration of Sentiments, Seneca Falls Convention (1848), in 1 History of Woman Suffrage 70-71 (Arno & The New York Times 1969) (1881).
128. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27-27.
129. Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary Abolitionism Through the Thirteenth Amendment, 39 U.C. Davis L. Rev. 1773, 1779-80 (2006) (explaining how abolitionist notions of liberty traced their origin to ideology of American Revolution).
130. See infra Part II.A (discussing analogies drawn between social status of women and slaves).
131. He derived his natural theory of government from a variety of established sources. For instance, Trumbull deduced that the Thirteenth Amendment granted Congress the power to warrant privileges of citizenship identified in Justice Bushrod Washington's circuit court dictum to Corfield v. Coryell, including: [T]he enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety;... [t]he right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise. 6 F.
132. Cas. 546, 551-52 (Washington, Circuit Justice, C.C.E.D. Pa. 1823) (No. 3230).
133. For Senator Trumbull's discussion of Corfield in reference to Congress's authority to pass the Civil Right Act of 1866 to protect natural rights.
134. see Cong. Globe, 39th Cong., 1st Sess. 474-75 (1866).
135. Trumbull's reliance on Corfield has been discussed elsewhere.
136. See Robert J. Kaczorowski, The Supreme Court and Congress's Power to Enforce Constitutional Rights: An Overlooked Moral Anomaly, 73 Fordham L. Rev. 153-218 (2004) (observing Trumbull's reliance on Corfield to promote fundamental rights under Civil Rights Act).
137. Kurt T. Lash, The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment, 99 Geo. L.J. 329-361 (2011) (noting Trumbull cited Corfield's language on fundamental rights of free men to support passage of Civil Rights Act).
138. Cong. Globe, 39th Cong., 1st Sess. 474-75 (1866) (statement of Sen. Lyman Trumbull). Quoting William Blackstone's classic commentaries on law, Trumbull asserted that 'Civil liberty [...] is no other than natural liberty, so far restrained by human laws and no further, as is necessary and expedient for the general advantage of the public.
139. Id. at 474 (alterations in original) (quoting 1 William Blackstone, Commentaries 125).
140. Id. at 599.
141. Trumbull rebuffed an opponent's claims by stating: The bill is applicable exclusively to civil rights. It does not propose to regulate the political rights of individuals; it has nothing to do with the right to suffrage or any other political right; but is simply intended to carry out a constitutional provision, and guaranty to every person of every color the same civil rights But, says the Senator, it breaks down the local legislation of all the States; it consolidates the power of the States in the Federal Government.
142. Why, sir, if the State of Kentucky makes no discrimination in civil rights between its citizens, this bill has no operation whatever in the State of Kentucky The bill draws to the Federal Government no power whatever if the States will perform their constitutional obligations.
143. Id. at 599-600.
144. Id. at 600.
145. See William M. Carter Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311-1358 (2007) (noting application of 42 U.S.C. §§ 1981 and 1982 to whites only in circumstances where they had been injured not because of their race, but because of their association with blacks).
146. Jeannette Cox, Disability Stigma and Intraclass Discrimination, 62 Fla. L. Rev. 429-440 n.42 (2010) (noting Title VII prohibits discrimination on basis of race, national origin, and color, unlike Civil Rights Act, which focuses only on race).
147. Cox, supra note 74, at 440 n.42.
148. For other articles assuming that § 1981 only deals with race-based claims, see.
149. Douglas B. Kauffman, Is It Affirmative Action or Discrimination?, 65 Ala. Law. 395-400 (2004) (noting that § 1981 prohibit[s] race discrimination regardless of whether the affected employee is African-American or white).
150. Gary L. Sasso et al., Defense Against Class Certification, in Class Action Litigation 2006: Prosecution and Defense Strategies 389-474 (PLI Litig. & Admin. Prac., Course Handbook Ser. No. 744, 2006), available at 744 PLI/Lit 389 (Westlaw) (on file with the Columbia Law Review) (providing race discrimination as only § 1981 ground for class certification).
151. See, e.g., Jeffrey D. Dillman, New Strategies for Old Problems: The Fair Housing Act at 40-57 Clev. St. L. Rev. 197, 197 n.2 (2009) (observing that §§ 1981 and 1982 only prohibit racial discrimination).
152. Florence Wagman Roisman, The Impact of the Civil Rights Act of 1866 on Racially Discriminatory Donative Transfers, 53 Ala. L. Rev. 463-466 (2002) (citing § 1981 as statute outlawing discrimination on basis of race).
153. In Shaare Tefila Congregation v. Cobb, the Supreme Court found that ethnic groups, like Jews, were among the peoples then considered to be distinct races and hence within the protection of the statute.
154. 481 U.S. 615, 617-18 (1987).
155. See also Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604-613 (1987) (holding Arabs are also protected under statute).
156. U.S. Const. amend. XV, § 1 (The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.).
157. Mark R. Bandsuch, Dressing Up Title VII's Analysis of Workplace Appearance Policies, 40 Colum. Hum. Rts. L. Rev. 287-308 (2009).
158. 79.42 U.S.C. § 1981(a) (2006).
159. Woman's Nat'l Loyal League, Mammoth Petition, in 2 History of Woman Suffrage, supra note 65, at 50-57 (emphasis added).
160. Letter from Elizabeth Cady Stanton to Wendell Phillips (May 25, 1865) [hereinafter Stanton-Phillips Letter], in 2 Elizabeth Cady Stanton as Revealed in Her Letters, Diary and Reminiscences 104, 104-05 (Theodore Stanton & Harriot Stanton Blatch eds., 1922) [hereinafter Stanton as Revealed].
161. 82.42 U.S.C. § 1981(a). In McDonald v. Santa Fe Trail Transp. Co., the Supreme Court analogously dismissed the claim that the phrase as is enjoyed by white citizens meant that § 1981 did not protect whites.
162. 427 U.S. 273-287 (1976).
163. Instead, the Court interpreted the statute's use of [a]ll persons to indicate that it protected persons of all races, including whites, from racial discrimination.
164. 83.42 U.S.C. § 1982.
165. See infra notes 196-215 and accompanying text (tracking expansion of scope of Fourteenth Amendment under modern-day Supreme Court jurisprudence).
166. 85.404 U.S. 71 (1971).
167. Angelina Grimké Weld, Address at the National Convention of the Woman's National Loyal League in New York (May 14, 1863), in 2 History of Woman Suffrage, supra note 65, at 54-60.
168. Elisabeth Griffith, In Her Own Right: The Life of Elizabeth Cady Stanton 112 (1984). Members of the League included Elizabeth Cady Stanton.
169. Susan B. Anthony, Angelina Grimké Weld, Antoinette Brown Blackwell, Lucy Stone, and Ernestine Rose. Wendy Hamand Venet, Neither Ballots nor Bullets: Women Abolitionists and the Civil War 120 (1991).
170. Sumner began presenting the petitions even before the League had completed its canvass.
171. By February 1864, the Woman's National Loyal League had gathered and sent Sumner 100,000 signatures compiled on 6,000 petition forms.
172. 89.2 Great American Political Thinkers 116-17 (Bernard E. Brown ed., 1983).
173. Emma Goldman, The Tragedy of Woman's Emancipation, in Anarchism and Other Essays 213-214 (Dover Publ'ns 1969) (1910).
174. Goldman called for [l]iberty and equality for woman! What hopes and aspirations these words awakened when they were first uttered by some of the noblest and bravest souls.
175. Id. at 215.
176. Amy Swerdlow, Abolition's Conservative Sisters: The Ladies' New York City AntiSlavery Societies, 1834-1840, in The Abolitionist Sisterhood: Women's Political Culture in Antebellum America 31-32 n.4 (Jean Fagan Yellin & John C. Van Horne eds., 1994).
177. Blanche Glassman Hersh, The Slavery of Sex: Feminist-Abolitionists in America 196 (1978).
178. The analogy of sex slavery was developed as early as late seventeenth-century England. Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country 220 (1995).
179. Alice Stone Blackwell, Lucy Stone: Pioneer of Woman's Rights 30 (Univ. of Va. Press 2001) (1930).
180. Angelina S. Grimké, An Appeal to the Women of the Nominally Free States, Issued by an Anti-Slavery Convention of American Women 36 (1838).
181. Letter from Angelina Grimké to Sarah M. Douglass, in Letters of Theodore Dwight Weld, Angelina Grimké Weld and Sarah Grimké, 1822-1844, at 572, 574 (Gilbert H. Barnes & Dwight L. Dumond eds., 1934).
182. The Women!, Liberator, Sept. 1, 1837, at 142.
183. See Françoise Basch, Women's Rights and the Wrongs of Marriage in MidNineteenth-Century America, Hist. Workshop J., Autumn 1986, at 18, 22-23 (examining some legal handicaps that nineteenth-century feminists related to slavery).
184. See supra text accompanying notes 48-49 (discussing how Civil Rights Act of 1866 protected individual rights that were previously only regulated by states).
185. Jean Fagan Yellin, Women and Sisters: The Antislavery Feminists in American Culture 29 (1989).
186. S.E.P., For the Emancipator, The Emancipator, Dec. 6, 1838, at 130.
187. See Kim Shayo Buchanan, Impunity: Sexual Abuse in Women's Prisons, 42 Harv. C.R.-C.L. L. Rev. 45-62 (2007) (A husband's beating of his wife was private; a master's beating of his slave, however severe and unprovoked, was not a crime at all.).
188. Reva B. Siegel, The Rule of Love: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2129-30 (1996) (finding that by 1870s, husband's right to chastise his wife had been repudiated but still inadequately punished).
189. The earliest instance of British colonial domestic violence law appears in the Massachusetts Body of Liberties in 1641.
190. Elizabeth Pleck, Domestic Tyranny: The Making of Social Policy Against Family Violence from Colonial Times to the Present 21-22 (1987).
191. But the extent of its enforcement is unclear. It is difficult to ascertain whether the fact that few cases were brought under it indicates abuse was uncommon or, what is far more likely, endured when not life endangering for lack of any reliable means of obtaining police redress.
192. Id. at 21-31.
193. Multiple examples of social disapprobation for domestic violence can be gleaned from earlyto mid-nineteenth-century sources. The impression these accounts create, however, is that short of perpetrating life-endangering violence, domestic violence was frowned upon but not subject to criminal sanctions.
194. See Henderson v. Stringer, 32 Ky. (2 Dana) 291-292 (1834) (stating that husband was liable for wife's board if he had driven her off by beating her, or by other treatment which she could not be reasonably required to endure).
195. Bedell v. Bedell, 1 Johns. Ch. 604-604 (N.Y. Ch. 1815) (describing successful divorce case in which wife accused husband of the habitual practice of beating her).
196. Pennsylvania v. Michael M'Garvey, in 4 The American Annual Register for the Years 1827-8-9, pt. 2, at 58, 63-67 (1830) (transcribing testimony at trial resulting in husband's conviction for murder in second degree for whipping his wife on head and throwing her out window).
197. William Waller Hening, Surety for the Peace, in The New Virginia Justice, Comprising the Office and Authority of a Justice of the Peace 429-430 (Richmond, T. Nicholson 1795) (It is certain that a wife may demand surety for the peace against her husband, threatening to beat her outrageously, and that a husband may also have it against his wife.).
198. 1 William Oldnall Russell, A Treatise of Crimes and Misdemeanors 637 (London, Joseph Butterworth & Son 1819) (describing case where husbands caused wife great bodily harm resulting in her death).
199. Vincent's Semi-Annual United States Register-Events Transpiring Between the 1st of January and 1st of July, 1860, at 95 (Philadelphia, Francis Vincent 1860) (describing drunken husband's shocking murder of his wife by beating her in a most inhuman manner with a club or poker).
200. Clarissa David and John M'Donald's Cases, in 3 The New-York City-Hall Recorder 45-46 (Daniel Rogers ed., 1818) (documenting evidence at 1818 trial of husband charged with murdering his wife after long history of abuse).
201. Horrid Murder!, The Lady's Miscellany, June 16, 1810, at 125 (One of the most aggravated species of murder was... committed by a man named Phillips, in the county of Champaign, (Ohio,) on the person of his wife.).
202. Lydia Maria Child, Coincidences, National Anti-Slavery Standard, Oct. 6, 1842, at 70.
203. Letter from Elizabeth Cady Stanton to Lucy Stone, National Woman's Rights Convention (Nov. 24, 1856) [hereinafter Stanton-Stone Letter], in 1 History of Woman Suffrage, supra note 65, at 860-860.
204. McCurry, supra note 92, at 216 (The legitimacy of male authority over women within the household was a cornerstone of the slavery edifice.).
205. See, e.g., Judge Harper, Memoir on Slavery, in 4 S. Literary Messenger 609-611 (1838) (warning that claims for equality of blacks will result in efforts to politicize women and withdraw them from nature which their Creator has impressed upon them).
206. Benjamin M. Palmer, The Family in its Civil and Churchly Aspects 10-12, 15, 35-36, 50, 69 (Richmond, Presbyterian Comm. of Publ'n 1876).
207. George Fitzhugh, Sociology for the South or the Failure of Free Society 205 (Richmond, A. Morris 1854).
208. Lydia Maria Child, The African Race, National Anti-Slavery Standard, Apr. 27, 1843, at 187 (The comparison between women and the colored race as classes is striking... both are kept in subjection by physical force, and considered rather in the light of property, than as individual.).
209. Elizabeth Cady Stanton pointed out that [a] man in marrying gives up no right; but a woman, every right, even the most sacred of all-the right to her own person. There will be no response among women to our demands until we have first aroused in them a sense of personal dignity and independence.
210. Letter from Elizabeth Cady Stanton to Susan B. Anthony (July 20, 1857), in 2 Stanton as Revealed, supra note 81, at 69-70.
211. Some feminists argued that the insufficient wages women received from employers forced them to be subservient to their husbands for fear of destitution or prostitution.
212. See, e.g., Caroline H. Dall, The College, the Market and the Court 135 (1868) (asserting necessity for women to have untrammelled access to all fields of labor).
213. Harriot K. Hunt, Glances and Glimpses 201-384 (1856) (stating that because dollars and a home come to woman through man she is often driven into legal and illegal prostitution for lack of just remuneration for her labor).
214. Report in City Journal from National Convention at Cincinnati, Ohio (Oct. 17-18, 1855), in 1 History of Woman Suffrage, supra note 65, at 163-166 (asserting that society... keeps woman at home-a dependent because while [t]he flour-merchant, the house-builder, and the postman charge us no less on account of our sex; but when we endeavor to earn money to pay all these, then, indeed, we find the difference).
215. Stanton-Stone Letter, supra note 104, at, 860.
216. 1 William Blackstone, Commentaries,442.
217. Abby H. Price, Address to the Woman's Rights Convention at Worcester (Oct. 24, 1850), in The Proceedings of the Woman's Rights Convention, Held at Worcester, October 23 & 24, 1850, at 20-31 (1851).
218. Although Price provides no attribution for this statement, Sarah Grimké had said the same thing fourteen years before.
219. Letter from Sarah Grimké to Angelina Grimké (Sept. 6, 1837), in Letters on the Equality of the Sexes and the Condition of Woman 74-75 (1838) [hereinafter Letter from Sarah Grimké] (stating that the very being of a woman, like that of a slave, is absorbed in her master. All contracts made with her, like those made with slaves by their owners, are a mere nullity).
220. Letter from Sarah Grimké, supra note 113, at 75.
221. Editor's Notes, The Una: A Paper Devoted to the Elevation of Woman 254 (Mar. 17, 1854).
222. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 64 (2000).
223. For some nineteenth-century examples of intestate succession, see Webb v. Webb, 40 Tenn. (3 Head) 68-70 (1859) (granting wife entire intestate estate).
224. Eleanor Miot Boatwright, Status of Women in Georgia, 1783-1860, at 52 (1994) (discussing wives' rights to dower and ways that inheritance laws affected women in Georgia).
225. Dower Act of Dec. 22, 1812, in Acts Passed at the Second Session of the Seventh General Assembly of the Mississippi Territory 115-115 (1812).
226. Stanton-Stone Letter, supra note 104, at 860-860.
227. See generally, e.g., Mary Ann Mason, From Father's Property to Children's Rights: The History of Child Custody in the United States 49-84 (1994) (charting evolution of child custody in nineteenth century).
228. 1 R.S. Donnison Roper, A Treatise of the Law of Property Arising from the Relation Between Husband and Wife (Edward Jacob ed., London, Joseph Butterworth & Son, 2d ed. 1826) (examining impact of marriage on husband and wife's property rights).
229. Jill E. Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373, 1382-412 (2000) (discussing nineteenth-century understanding and application of marital rape exemption).
230. Editor's Notes, supra note 115, at 254 (relating example of husband who, by will, granted custody of his child to relatives and denied it to his widow).
231. Jean Fagan Yellin provides an excellent analysis of the differences between white and black women abolitionist perspectives on gender discrimination.
232. Yellin, supra note 99, at 77-96 (1989) (discussing perspectives of Sojourner Truth and Harriet Jacobs as black women abolitionists who had been slaves).
233. Frederick Douglass was an abolitionist who, like Truth, had escaped from slavery, but he believed it was too much to use the word slavery for women's condition. He argued: Slavery must be regarded as something different.
234. It must be regarded as one man holding property in another, subjected to the destroying of all the higher qualities of his nature, deprived of his own body, his own soul. A slave is one who is to all intents and purposes a marketable commodity-common goods and chattels.
235. Frederick Douglass, International Moral Force Can Destroy Slavery: An Address Delivered in Paisley, Scotland (Mar. 17, 1846), in 1 Frederick Douglass Papers 183, 183-85 (John W. Blassingame, ed., 1979).
236. Douglass was a lifelong supporter of women's equality, but during Reconstruction, he decided that ending racial discrimination was the most urgent task.
237. See Frederick Douglass, The Woman Question, New Nat'l Era, May 12, 1870, reprinted in Frederick Douglass on Women's Rights 90, 90-92 (Philip S. Foner ed., Da Capo Press 1992) (1976) (discussing Douglass's decision to first press for black voting rights and then continue his work on behalf of women's suffrage). Three months after the ratification of the Fifteenth Amendment, Douglass turned his attention back to women's rights, writing a newspaper column encouraging efforts to press on with women's suffrage.
238. That same year, he used his newly founded New National Era newspaper to campaign on behalf of women's suffrage.
239. Gary L. Lemons, Womanist Forefathers: Frederick Douglass and W.E.B. Du Bois 42 (2009).
240. Douglass explained his support for enfranchising Blacks before women: I do not see how any one can pretend that there is the same urgency in giving the ballot to woman as to the negro.
241. With us, the matter is a question of life and death When women, because they are women, are hunted down... when they are dragged from their houses and hung upon lamp-posts; when their children are torn from their arms...; when they are the objects of insult and outrage at every turn; when they are in danger of having their homes burnt down over their heads; when their children are not allowed to enter schools; then they will have an urgency to obtain the ballot equal to our own.
242. Debates at the American Equal Rights Association Meeting (May 12-14, 1869), in The Concise History of Woman Suffrage, supra note 61, at 257-258.
243. In her response to Douglass, Lucy Stone acknowledged African American sufferings, but she believed he had failed to comprehend that women suffered from Ku-Kluxes... in the North in the shape of men, [who] take away the children from the mother, and separate them as completely as if done on the block of the auctioneer.
244. Id. at 260.
245. Stone's statement referred to state laws that granted fathers exclusive custody rights of their children in case of the spouses' legal separation.
246. See Mary Ann Mason, Motherhood v. Equal Treatment, 29 J. Fam. L. 1-3 (1990-91) (In the event of legal separation the father assumed custody of the children.).
247. Sojourner Truth, 14 Unity 434, 434 (1885).
248. Truth eventually broke with Anthony and Stanton over their resort to racism and abandonment of black male suffrage. Instead, she allied herself with Lucy Stone's American Woman's Suffrage Association.
249. Nell Irvin Painter, Voices of Suffrage: Sojourner Truth, Frances Watkins Harper, and the Struggle for Woman Suffrage, in Votes for Women: The Struggle for Suffrage Revisited 42, 50-52 (Jean H. Baker ed., 2002).
250. Sojourner Truth, Address to the First Annual Meeting of the American Equal Rights Association, New York City (May 9, 1867), in The Concise History of Woman Suffrage, supra note 61, at 234-235.
251. Susan B. Anthony, Address at United States Centennial Celebration and the Declaration of Rights: Declaration of Rights for Women by the National Woman Suffrage Association (July 4, 1876), in The Concise History of Woman Suffrage, supra note 61, at 300-302 (Universal manhood suffrage, by establishing an aristocracy of sex, imposes upon the women of this nation a more absolute and cruel depotism [sic] than monarchy; in that, woman finds a political master in her father, husband, brother, [and] son.).
252. The Work in California, 10 Woman's J. 385-388 (1879).
253. Elizabeth Pleck, Feminist Responses to Crimes Against Women, 1868-1896, 8 Signs 451-455 (1983) (discussing Mill's influence on women's rights movement).
254. John Stuart Mill, The Subjection of Women 18, 23, 29 (Edward Alexander ed., Transaction Publishers 2001) (1869).
255. See Mary Lyndon Shanley, Marital Slavery and Friendship: John Stuart Mill's The Subjection of Women, 9 Pol. Theory 229, 230-35 (1981) (explaining Mill's view that married women were treated like their husband's chattel slaves rather than individuals).
256. Elizabeth Cady Stanton, On Marriage and Divorce (1871), available at http://gos.sbc.edu/s/stantoncady3.html (on file with the Columbia Law Review) (last visited Sept. 8, 2012).
257. see also Elizabeth B. Clark, Matrimonial Bonds: Slavery and Divorce in Nineteenth-Century America, 8 Law & Hist. Rev. 25, 46-48 (1990) (discussing Stanton's push for disaggregation of family unit).
258. See Jack M. Balkin, How Social Movements Change (or Fail To Change) the Constitution: The Case of the New Departure, 39 Suffolk U. L. Rev. 27-56 (2005) ([T]he New Departure's arguments for woman suffrage took positions about how the Fourteenth Amendment trumped state law that were virtually guaranteed not to appeal to a wide spectrum of political and judicial elites.).
259. Rayne L. Hammond, Comment, Trial and Tribulation: The Story of United States v. Anthony, 48 Buff. L. Rev. 981-998 (2000) (stating that Susan B. Anthony and her supporters hoped to adopt the Fourteenth Amendment's seeming support of a nationalistic approach... in bringing women's suffrage to the political forefront).
260. Minor v. Happersett, 88 U.S. (21 Wall.) 162, 174-75 (1874) (holding Fourteenth Amendment is no bar against state voting qualifications that only permit males to vote).
261. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 140-41 (1873) (rejecting claim that Fourteenth Amendment prohibits states from setting barriers to women practicing lawful professions).
262. United States v. Virginia, 518 U.S. 515, 534 (1996) (finding Virginia Military Institute's bar against women's admission invalid under Equal Protection Clause of Fourteenth Amendment).
263. Craig v. Boren, 429 U.S. 190-210 (1976) (striking down state gender-based age differential for alcohol sales on Equal Protection grounds).
264. George Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. Rev. 1895, 1903-04 (1999).
265. Although the text of Section 2 refers only to male voters, under current standards of equal protection analysis, attempt-ing to justify the denial of the franchise to women by invoking the text of Section 2 would be laughed out of court.
266. Compare Steven G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 Tex. L. Rev. 1-47 (2011) (arguing that framers' expectations about how judges would apply Fourteenth Amendment to facts is not controlling).
267. Jack M. Balkin, Living Originalism 11-12 (2011) (suggesting Amendment was not expected to apply to women).
268. David A. Strauss, The Living Constitution 13 (Geoffrey R. Stone ed., 2010) ([N]o one in 1868, when the Fourteenth Amendment was adopted, thought that the amendment outlawed discrimination against women.).
269. Calabresi & Rickert, supra note 134, at 49 ([A] consensus emerged that... [should] inform our understanding of the original meaning of the Amendment and how it should affect laws that discriminate on the basis of sex. Lawmakers ... agreed [that] ... [i]f sex discrimination were similar to race discrimination, then sex discrimination would be prohibited by the Amendment.).
270. Id. at 50.
271. Id. at 19-20.
272. Id. at 101 (The original public meaning of the Fourteenth Amendment, when read in light of the Nineteenth Amendment, renders sex discrimination as to civil rights unconstitutional.).
273. Id. at 27.
274. Id. at 15.
275. Id. at 11.
276. See infra text accompanying notes 172-215 (describing early attempts to secure women's suffrage and Supreme Court's adoption of intermediate scrutiny standard).
277. See, e.g., Calabresi & Rickert, supra note 134, at 56-60.
278. See id. at 58-59 (quoting Elizabeth Cady Stanton, Address to the National Woman Suffrage Convention (Jan. 19, 1869), in The Concise History of Woman Suffrage, supra note 61, at 249, 251-52).
279. id. at 59-60 (quoting Matilda Joslyn Gage, Preceding Causes (1881), reprinted in The Concise History of Woman Suffrage, supra note 61, at 51, 52).
280. Insofar as Calabresi and Rickert examine such things as contemporary understanding and states' legislative discussions of the Fourteenth Amendment's meaning, they demonstrate the common understanding that the change to the Constitution would end official sanctions of Blacks' lower status.
281. Id. at 35-41.
282. They admit both that there is a sparse record of state debates and that [d]iscussions of the Amendment in state legislative journals sometimes raise more questions than they answer.
283. Id. at 40.
284. But they are unable to show that in ordinary discourse, outside feminist circles, ending caste privilege also meant ending gender discrimination. Their argument that the contemporary understanding of caste must inform our understanding of the Fourteenth Amendment's antidiscrimination principles is more in line with living constitutionalism than original meaning theory on which Calabresi and Rickert rely.
285. See Hernández-Truyol, supra note 46, at 155 (2002) ([T]he Fourteenth Amendment, in which sex/gender equality rights are now grounded, was intended to eliminate race, not sex, discrimination; so it originally did not provide women any equality rights.).
286. See supra text accompanying notes 86-88 (detailing magnitude of support to abolish slavery garnered by women's movement).
287. There were several notable bills introduced for such purposes, but they inevitably sought to protect the rights of women residing only in the District of Columbia rather than nationwide.
288. For instance, Representative William E. Niblack introduced a bill to protect married women's property rights. H.R. 72, 41st Cong. (1869).
289. Samuel M. Arnell in a similar bill to protect the right of married women to acquire, possess, and alienate property. H.R. 1761, 40th Cong. (1869).
290. These initiatives relied on the Seat of Government Clause of the Constitution rather than on the Reconstruction powers.
291. U.S. Const. art. I, § 8, cl. 17 (providing Congress with power to exercise exclusive Legislation over nation's capital).
292. In their zeal to shun the Republicans, Susan B. Anthony and Elizabeth Cady Stanton made the calculated decision to seek Democratic support, which included the financing of an avowed opponent of black manhood suffrage and proponent of white woman suffrage.
293. See Painter, supra note 122, at 50 (noting they joined with Democrats willing to back woman suffrage in order to stymie black male enfranchisement).
294. Ross Evans Paulson, Liberty, Equality, and Justice: Civil Rights, Women's Rights, and the Regulation of Business, 1865-1932, at 44 (1997) (discussing their reliance on an eccentric racist).
295. See U.S. Const. amend. XIV, § 2 ([W]hen the right to vote ... is denied to any of the male inhabitants[,] ... the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens).
296. Carrie Chapman Catt & Nettie Rogers Shuler, Woman Suffrage and Politics: The Inner Story of the Suffrage Movement 37-38 (1926).
297. See Catt & Shuler, supra note 150, at 38-39.
298. Elizabeth Cady Stanton & Susan B. Anthony, Address to Congress (May 10, 1866), in 2 The Life and Work of Susan B. Anthony 968, 971 (Ida Husted Harper ed., 1898).
299. See U.S. Const. amend. XIV, § 1 (establishing protections for [a]ll persons born or naturalized in the United States).
300. Catt & Shuler, supra note 150, at 38-39.
301. U.S. Const. amend. XIV, § 2.
302. Several members of the New Departure Movement testified before the United States House Judiciary Committee.
303. Victoria Claflin Woodhull, The Human Body the Temple of God 316 (1890).
304. Hearing the Women, Daily Evening Bulletin, Jan. 12, 1871, at 1.
305. Woman Suffrage, Cleveland Morning Herald, Jan. 12, 1871, at 1.
306. The House committee voted down the New Departure claim that argued for woman suffrage.
307. The Woman Suffrage Question, Milwaukee Sentinel, Jan. 14, 1871, at 1.
308. Cong. Globe, 39th Cong., 1st Sess. 2767 (1866) (statement of Sen. Jacob Howard) ([B]y [natural] law women and children were not regarded as the equals of men.).
309. Id. at 536 (statement of Rep. Thaddeus Stevens).
310. See id. at 536-37 (asking rhetorically, Is my friend [Representative Schenck] as much afraid of ... [women's] rivalry as the ... [Democrats] are afraid of the rivalry of the negro?).
311. Id. at 537.
312. See Calabresi & Rickert, supra note 134, at 47 (noting framers of Fourteenth Amendment did not expect to change women's legal status by including male in Section 2).
313. Cong. Globe, 39th Cong., 1st Sess. 951 (1866) (statement of Sen. John B. Henderson) (reading Fitzhugh's petition).
314. Senator John B. Henderson sought to enter the petition into the record in Fitzhugh's name, whose prayer was joined by twenty-seven other ladies of the United States, the most of them from the State of New York.
315. Id. at 952 (statements of Sen. Willard Saulsbury, Sr., Sen. John B. Henderson, Sen. Richard Yates, Sen. Charles Sumner, Sen. Lafayette S. Foster & President Pro Tempore).
316. Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869, at 61 (1978) [hereinafter DuBois, Feminism] (quoting Letter from Elizabeth Cady Stanton to Gerrit Smith (Jan. 1, 1866)).
317. Wendell Phillips, Speech at the Thirty-Second Anniversary of the American AntiSlavery Society (May 9, 1865), National Anti-Slavery Standard, May 13, 1865, at 2 [hereinafter Phillips, Thirty-Second Anniversary Speech].
318. In 1898, the National American Woman Suffrage Association published preand post-Reconstruction speeches Phillips made on behalf of women's rights.
319. E.g., Wendell Phillips, Speech at the Convention Held at Worcester (Oct. 15 & 16, 1851), in Wendell Phillips et al., Woman's Rights Tracts 1-21 (Boston, Robert F. Wallcut 1854).
320. Wendell Phillips, Speeches on Rights of Women (Philadelphia, Press of Alfred J. Ferris 1898).
321. Phillips, Thirty-Second Anniversary Speech, supra note 164.
322. Phillips, Thirty-Second Anniversary Speech, supra note 164.
323. Stanton-Phillips Letter, supra note 81, at 104, 104-05.
324. DuBois, Feminism, supra note 163, at 60-61 (quoting Letter from Frances Gage, National Anti-Slavery Standard, Nov. 25, 1865, at 3).
325. Eleanor Flexner & Ellen Fitzpatrick, Century of Struggle: The Woman's Rights Movement in the United States 141 (enlarged ed. 1996) (stating Stanton and Anthony failed to see including word sex in Fourteenth Amendment was still far ahead of practical political possibilities).
326. During the Reconstruction period, there were several examples of this stereotypical attitude. For instance, during debates on the District of Columbia franchise bill, Senator Frederick Frelinghuysen confessed a little surprise at those who believed that there was no difference between granting the right to women and blacks.
327. Cong. Globe, 39th Cong., 2d Sess. 65-66 (1866) (statement of Sen. Frederick Frelinghuysen).
328. [T]he women of America[,] he believed, vote by faithful and true representatives, their husbands, their brothers, their sons; and no true man will go to the polls and deposit his ballot without remembering the true and loving constituency that he has at home.
329. Id. At 66.
330. Senator John Sherman also expressed his concern that allowing women to vote and hold elective offices was likely to introduce disturbing elements into the family circle.
331. Cong. Globe, 42d Cong., 2d Sess. 845 (1872) (statement of Sen. John Sherman). Representative Robert S. Hale held a similar presumption about married women's lack of property rights, which he took to be intrinsic to the marital relationship.
332. Cong. Globe, 39th Cong., 1st Sess. 1064 (1866) (statement of Rep. Robert S. Hale) ([T]here is not today a State in the Union where there is not a distinction between the rights of married women, as to property, and the rights of femmes sole and men.).
333. This idea is drawn from John Stuart Mill's statement in 1869: [F]rom the very earliest twilight of human society, every woman ... was found in a state of bondage to some man, although that state for women was gradually changed into a milder form of dependence.
334. But this dependence, as it exists at present, is not an original institution, taking a fresh start from considerations of justice and social expedience-it is the primitive state of slavery lasting through successive mitigations and modifications.
335. Mill, supra note 127, at 8-9.
336. See Ellen Carol DuBois, Taking the Law into Our Own Hands, Bradwell, Minor, and Suffrage Militance in the 1870s [hereinafter DuBois, Taking the Law], in Visible Women: New Essays on American Activism 19, 22 (Nancy A. Hewitt & Suzanne Lebsock eds., 1993) (discussing Francis and Virginia Minor's elaborate and elegant interpretation of the Constitution on basis of Fourteenth Amendment).
337. Rebecca J. Mead, How the Vote Was Won: Woman Suffrage in the Western United States, 1868-1914, at 37 (2004) (relating Minors' role in New Departure movement for seeking woman suffrage through Fourteenth Amendment authority).
338. Rogers M. Smith, Civic Ideals 338 (1997) (indicating importance of Virginia and Francis Minor to formulation of Fourteenth Amendment argument for enfranchising women).
339. 2 History of Woman Suffrage, supra note 65, at 407-10.
340. Victoria C. Woodhull, Address to the House Judiciary Committee (Jan. 11, 1871).
341. In 2 History of Woman Suffrage, supra note 65, at 444-48.
342. Congressional recognition of and order to print her speech appear at Cong. Globe, 41st Cong., 3d Sess. 838 (1871).
343. While Woodhull made the speech to the House Judiciary Committee on January 11, 1871, Representative George W. Julian introduced her written memorial in the House to the Committee of the Whole on December 21, 1870.
344. Id. at 272.
345. The same day, Senator John S. Harris introduced the memorial to the Senate.
346. Id. at 218.
347. The memorial requested that Congress pass necessary and proper laws to protect women's citizenship right to vote under the Fourteenth and Fifteenth Amendments.
348. Id. at 272.
349. Amanda Frisken, Victoria Woodhull's Sexual Revolution: Political Theater and the Popular Press in Nineteenth-Century America 28 (2004). Woodhull also argued that the Fifteenth Amendment applied to women because, while it did not explicitly protect their right to vote, it could be said to include women as members of races.
350. Allison L. Sneider, Suffragists in an Imperial Age: U.S. Expansion and the Woman Question, 18701929, at 44 (2008). The Fourteenth Amendment argument seems stronger because Section 1 contains neutral language; the Fifteenth Amendment, on the other hand, very clearly includes only specific classes and does not name women.
351. See Ellen Carol DuBois, Taking the Law, supra note 172, at 26-27 (summarizing content of Woodhull's memorial before Congress).
352. John Bingham, Report of the Committee on the Judiciary of the House of Representatives, reprinted in A Hand-Book of Politics for 1872, at 108, 108-09 (Edward McPherson ed., 5th ed. 1872).
353. Id. at 110-15. Representative William Loughridge submitted the minority report.
354. Memorial from the National Woman Suffrage and Educational Committee to the Senate Judiciary Committee (1872), in 2 History of Woman Suffrage, supra note 65, at 493, 497.
355. 88 U.S. (21 Wall.) 162, 174-75 (1874).
356. In his dissent to the Slaughter-House Cases, Justice Noah Swayne argued that the Reconstruction Amendments were a new departure from antebellum federalism because they recognized rights common to all American citizens. 83 U.S. (16 Wall.) 36, 125, 128-29 (1873) (Swayne, J., dissenting). In a separate dissent to the same decision, Justice Joseph P. Bradley also believed that the Fourteenth Amendment's recognition of national citizenship implicitly created federally recognized rights.
357. Id. at 113 (Bradley, J., dissenting).
358. 83 U.S. (16 Wall.) 130 (1873).
359. George W. Gale, Myra Bradwell: The First Woman Lawyer, 39 A.B.A. J. 1080, 1080 (1953). The conclusion of the story, however, was a happy one for Mrs. Bradwell. In 1890, the Illinois Supreme Court granted her admission on its own motion
360. Bradwell, 83 U.S. (16 Wall.) at 135-37.
361. Id. at 139.
362. Id. at 141 (Bradley, J., concurring).
363. See id. ("The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.").
364. See supra Part II.A (examining comparison by women's rights activists of woman's degraded position in society to status of slaves).
365. Bradwell, 83 U.S. (16 Wall.) at 142 (Chase, C.J., dissenting).
366. B. Zorina Khan, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920, at 163 n.4 (2005).
367. See The Civil Rights Cases, 109 U.S. 3, 18-19, 23-24 (1883) (holding racial segregation violated neither Equal Protection nor Due Process Clauses of Fourteenth Amendment).
368. See Alexander Tsesis, We Shall Overcome, supra note 9, at 166-71 (providing state-by-state account of achievements and failures of women's suffrage movement).
369. See The Civil Rights Cases, 109 U.S. at 27 ("What we have to decide is, whether such plenary power has been conferred upon congress by the fourteenth amendment, and, in our judgment, it has not.").
370. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36-80 (1872) ([W]e are of opinion that the rights claimed ... are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration.).
371. For accounts of how the feminist movement turned to the Fourteenth Amendment in the latter half of the twentieth century, see Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 123-54 (2010) (discussing Justice Ginsburg's role in development and evolution of antistereotyping doctrine).
372. Barry Friedman, Reconstructing Reconstruction: Some Problems for Originalists (and Everyone Else, Too), 11 U. Pa. J. Const. L. 1201, 1220 (2009) (noting Court's reliance on Fourteenth Amendment in gender discrimination cases, even while country was rejecting Equal Rights Amendment).
373. Neomi Rao, Gender, Race, and Individual Dignity: Evaluating Justice Ginsburg's Equality Jurisprudence, 70 Ohio St. L.J. 1053, 1059-70 (2009) (examining Justice Ginsburg's focus on formal equality and antidiscrimination in gender equality cases).
374. 404 U.S. 71 (1971).
375. The key point here is that history is relevant to constitutional interpretation but need not be determinant. Where exclusionary norms dominated culture at the time of ratification-as did cultural chauvinism when the Fourteenth Amendment was ratifiedinterpretations of principles, like those intrinsic to the Equal Protection Clause, should disavow the errors of the framers. This is too pregnant a concept to unpack here and will require a separate article.
376. See Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857, 901-02 (2009) (describing importance of genderneutral text to interpreting Fourteenth Amendment, irrespective of framers' intents).
377. See Minor v. Happersett, 88 U.S. (21 Wall.) 162, 174-75 (1874) (holding Section 2 of Fourteenth Amendment does not guarantee right to vote to all citizens).
378. Like Minor, Bradwell's narrow ruling on the Privileges and Immunities Clause continues to be widely criticized.
379. See Dale Carpenter, Unanimously Wrong, 2006 Cato Sup. Ct. Rev. 217, 217 n.2 (citing Bradwell as example of unanimous but widely criticized decision).
380. Mary Anne Case, The Very Stereotype the Law Condemns: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1469 (2000) (noting modern Court's strong disapproval of Bradwell for depriving female citizens of lawful employment even in absence of express legislation). Both Minor and Bradwell, nevertheless, remain good law.
381. Family Medical Leave Act (FMLA) of 1993, Pub. L. No. 103-3, 107 Stat. 6.
382. Codified at 2 U.S.C. § 60 and 29 U.S.C. §§ 2601, 2611-2619, 2631-2636, 2651-2654).
383. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003).
384. Lower courts have also recognized that because sex-based classifications may be based on outdated stereotypes of the nature of males and females, courts must be particularly sensitive to the possibility of invidious discrimination in evaluating them. Brenden v. Indep. Sch. Dist., 477 F.2d 1292-1300 (8th Cir. 1973).
385. see also Hibbs v. Dep't of Human Res., 273 F.3d 844, 871 (9th Cir. 2001) (finding the stereotypical assumption that women are marginal workers whose fundamental responsibilities are in the home to be illegitimate).
386. Aff'd, 538 U.S. 721 (2003).
387. Faulkner v. Jones, 10 F.3d 226-231 (4th Cir. 1993) (holding that while legislative distinctions based on sex may be upheld for important governmental interests, gender stereotypes could not overcome intermediate scrutiny requirement).
388. Hibbs, 538 U.S. at 727-35 (holding that Congress had properly abrogated state sovereign immunity through its Fourteenth Amendment Section 5 power).
389. see also 29 U.S.C. §§ 2612(a)(1)(C), 2617(a)(2) (2006) (allowing actions in federal and state courts to recover relief against employers, including state employers, for interfering with rights).
390. See Hibbs, 538 U.S. at 740 (Souter, J., concurring) (agreeing with Court that passage of FMLA was legitimate use of Section 5 Fourteenth Amendment authority and arguing that majority's rationale about abrogating sovereign immunity should extend to federal disability and age discrimination).
391. See Christopher A. Bracey, Adjudication, Antisubordination, and the Jazz Connection, 54 Ala. L. Rev. 853, 869 (2003) ([T]he principle of antisubordination embodied in the Equal Protection Clause of the Fourteenth Amendment was likewise reflected in the Due Process Clause of the Fifth Amendment.).
392. Kenneth L. Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 UCLA L. Rev. 99, 102 (2007) (drawing attention to the ways in which equal citizenship's antisubordination values have contributed to individual liberties, as those liberties are embodied in the Fourteenth Amendment's Due Process Clause).
393. Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470-1477 (2004) ("Antisubordination values are not foreign to the modern equal protection tradition, but a founding part of it, deeply tempered by other values, including the need to have a Constitution that speaks to all.")
394. For a well-worded contrast between the antisubordination and anticlassification models of equal protection. see Helen Norton, The Supreme Court's Post-Racial Turn Towards a Zero-Sum Understanding of Equality, 52 Wm. & Mary L. Rev. 197, 206-07 (2010) (describing [a]ntisubordination advocates as those who urge that the Equal Protection Clause should be understood to bar those government actions that have the intent or the effect of perpetuating traditional patterns of hierarchy, whereas anticlassification advocates take the view that the Constitution prohibits government from differentiating based on racial categorization).
395. Reed v. Reed, 404 U.S. 71-74 (1971) ([A]rbitrary preference established in favor of males by ... the Idaho Code cannot stand in the face of the Fourteenth Amendment's command that no State deny the equal protection of the laws to any person within its jurisdiction.). In dicta, the Court stated that the paternalistic desire to help avoid intrafamily controversy is not a legitimate reason to grant sex preferences.
396. Id. at 76-77.
397. See supra Part II.A (discussing various ways in which nineteenth-century feminists analogized sex discrimination to slavery).
398. 458 U.S. 718 (1982).
399. Id. at 729.
400. Indicative of the general caution of avoiding talk of women's rights to gain sufficient congressional votes for the proposed Fourteenth Amendment was an exchange between Representatives Robert S. Hale and Thaddeus Stevens. Discussing an early draft of the Fourteenth Amendment, Hale asked whether the proposed Equal Protection Clause would grant Congress the power to supersede state marital property laws that treated wives differently than husbands. Cong. Globe, 39th Cong., 1st Sess. 1064 (1866) (statement of Rep. Robert S. Hale).
401. Stevens remonstrated that the Amendment would prohibit distinctions between two classes of married women or two classes of unmarried women, but [w]hen a distinction is made between two married people or two femmes sole, then it is unequal legislation."
402. Id. (statement of Rep. Thaddeus Stevens). To Hale's mind, that response was specious because, he warned, [t]he language of the section under consideration gives to all persons equal protection.
403. Id. (statement of Rep. Robert S. Hale).
404. Stevens did not respond to this charge, perhaps because he wanted to keep open the question of how women's equality issues would be treated in the future. In order to gain the supermajority needed to pass the amendment to the states for ratification, Stevens was unwilling to risk losing support for racial justice by overreaching to the protection of women's rights. Similar caution had also been demonstrated during debates on the Civil Rights Act of 1866, which members of Congress believed the Fourteenth Amendment would make more secure against statutory reversal.
405. For instance, Senator Edgar Cowan raised concerns about federal overreaching. Cong. Globe, 39th Cong., 1st Sess. 1782 (1866) (statement of Sen. Edgar Cowan). He asserted that Congress was trying to meddle with states' ability to differentiate based on domestic gender classifications.
406. He warned that Congress intended to create a new order that would grant upon married women, upon minors, upon idiots, upon lunatics, and upon everybody native born in all the States, the right to make and enforce contracts, because there is no qualification in the bill, and the very object of the bill is to override the qualifications that are upon those rights in the States.
407. Comments of this type are few, but all indicate an unwillingness to antagonize members of Congress by seeking their protection against sex discrimination. Professor Catharine A. MacKinnon has pointed out that the dearth of comments about women's equality during debates on the Fourteenth Amendment is indicative that few seriously contemplated that 'equal protection of the laws' might apply to sex.
408. Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1283 n.12 (1991) (quoting U.S. Const. amend. XIV, § 1).
409. 518 U.S. 515 (1996).
410. Id. at 555-56.
411. Id. at 531.
412. Id. at 568-69 (Scalia, J., dissenting) ("But in my view the function of this Court is to preserve our society's values regarding (among other things) equal protection, not to revise them. to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees.).
413. Francis H. Smith, VMI's superintendent from 1839 through 1889, incorporated a defense of slavery into the curriculum.
414. Bradford Alexander Wineman, Francis H. Smith: Architect of Antebellum Southern Military Schools and Educational Reform 1, 199 (Aug. 2006) (unpublished Ph.D. dissertation, Texas A&M University), available at http://repository.tamu.edu/bitstream/handle/1969.1/4344/etd-tamu2006B-Hi ST-Wineman-Copyright.pdf?sequence=1 (on file with the Columbia Law Review).
415. Slavery was so accepted at VMI before the Civil War that the institution rented a slave from Thomas J. Stonewall Jackson, who was for a time a professor at VMI and eventually a Confederate general.
416. William L. Richter, Historical Dictionary of the Old South 187 (2006). A sister, public military institution, the Citadel of South Carolina, shared VMI's tradition. The Citadel opened in 1842 to guard against slave uprisings.
417. Neal R. Peirce, The Deep South States of America: People, Politics, and Power in the Seven Deep South States 386 (1974).
418. A Citadel cadet is reported to have fired the first shot of the Civil War against United States forces. W. Scott Poole, South Carolina's Civil War: A Narrative History 26 (2005). Following the Civil War, Lieutenant Colonel Augustus G. Bennett's Twenty-First United States Colored Regiment was headquartered at the Citadel, where Emancipation celebrations were held after the abolition of slavery.
419. Alexander Macaulay, Marching in Step: Masculinity, Citizenship, and The Citadel in Post-World War II America 11 (2009). The histories and traditions of these military institutions are more disturbing than Justice Scalia may have realized.
420. See Philip Katcher, The Complete Civil War: The Definitive Fact File of the Campaigns, Weapons, Tactics, Armies and Key Figures 231 (1998) (providing graduation figures of VMI prior to Civil War).
421. See 1 Laurence H. Tribe, American Constitutional Law 926-27 (3d ed. 2000) ("Seemingly, Congress is free, within the broad limits of reason, to recognize whatever rights it wishes, define the infringement of those rights as a form of domination or subordination and thus an aspect of slavery, and proscribe such infringement as a violation of the Thirteenth Amendment.).
422. 392 U.S. 409-440 (1968).
423. Id. at 443.
424. Approvingly quoting from McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), to explain power vested in Congress by Thirteenth Amendment.
425. Justice Stewart quotes this passage from a congressional speech made by Representative James Wilson, the House leader of the Civil Rights Bill of 1866. Cong. Globe, 39th Cong., 1st Sess. 1118 (1866) (statement of Rep. James F. Wilson).
426. Quoting McCulloch, 17 U.S. (4 Wheat.) at 421.
427. Jones, 392 U.S. at 443.
428. Laurence H. Tribe, supra note 216, at 927.
429. 521 U.S. 507-533 (1997) (requiring congruence and proportionality between means and ends for Congress to exercise its Section 5 authority).
430. For an expositive differentiation between the Boerne congruence and proportionality test and Jones rational basis review, see United States v. Beebe, 807 F. Supp. 2d 1045, 1048-49 (D.N.M. 2011).
431. Alexander Tsesis, Congressional Authority to Interpret the Thirteenth Amendment, 71 Md. L. Rev. 40, 51--59 (2011) [hereinafter Tsesis, Congressional Authority].
432. 109 U.S. 3 (1883).
433. Id. at 11.
434. Id. at 20.
435. See, e.g., 42 U.S.C. § 1981(a)-(b) (2006) (giving all persons within jurisdiction of United States right to make and enforce contracts, which includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship).
436. Landgraf v. USI Film Prods., 511 U.S. 244-251 (1994) (recognizing expansion of § 1981).
437. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-41 (1968) (upholding statutory prohibition against private housing discrimination).
438. See supra text accompanying notes 69-73 (describing history of Civil Rights Act of 1866).
439. Runyon v. McCrary, 427 U.S. 160, 161-62 (1976).
440. Domino's Pizza, Inc. v. McDonald, 546 U.S. 470-474 (2006) (alteration in original).
441. Quoting 42 U.S.C. § 1981(a).
442. CBOCS W., Inc. v. Humphries, 553 U.S. 442-451 (2008).
443. Id. at 1959.
444. See Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 725, 729-32 (2003) (deciding law abrogated state sovereign immunity where congressional record contained evidence of widespread gender discrimination).
445. United States v. Morrison, 529 U.S. 598, 626-27 (2000) (asserting Congress lacked evidence that all states were engaged in sex discrimination and therefore overstepped its Fourteenth Amendment authority).
446. Kimel v. Fla. Bd. of Regents, 528 U.S. 62-90 (2000) (finding insufficient evidence in congressional record to indicate pattern of state discrimination).
447. Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 640-43 (1999) (finding Congress had improperly used its Fourteenth Amendment authority to abrogate state sovereign immunity because legislative record contained no evidence that states routinely infringed patents).
448. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438-39 (1968) (finding Congress's enforcement authority under Section 2 of Thirteenth Amendment includes power to eliminate all racial barriers to the acquisition of real and personal property).
449. This paraphrases language the Court used elsewhere when the Court addressed the Thirteenth Amendment's relevance to civil actions in the context of race discrimination.
450. See Griffin v. Breckenridge, 403 U.S. 88-105 (1971) ("Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men.).
451. See supra notes 230-232 and accompanying text (discussing interpretation of § 1981 in recent Supreme Court decisions).
452. 42 U.S.C. § 1981(a) (2006).
453. Cong. Globe, 39th Cong., 1st Sess. 599 (1866) (statement of Sen. Lyman Trumbull).
454. Id. at 475.
455. 42 U.S.C. § 2000e(b) ("The term 'employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person).
456. 42 U.S.C. § 1981(a).
457. See Bryant v. U.S. Steel Corp., 428 F. App'x 895-897 (11th Cir. 2011) ("Bryant's § 1981 retaliation claims are not subject to the administrative exhaustion requirement applicable to Title VII claims.
458. Citing Caldwell v. Nat'l Brewing Co., 443 F.2d 1044-1046 (5th Cir. 1971).
459. The catchall four-year statute of limitations governs § 1981 claims for all causes of action arising after December 1, 1990. 28 U.S.C. § 1658(a) (2006).
460. But see 42 U.S.C. § 2000e-5(e)(1) (limiting statute of limitations on Title VII claims to either 180 or 300 days after allegedly unlawful employment conduct).
461. 42 U.S.C. § 1981a(b) (setting cap on Title VII damages).
462. see also Swinton v. Potomac Corp., 270 F.3d 794-820 (9th Cir. 2001) ("Congress has not seen fit to impose any recovery caps in cases under § 1981 (or § 1983), although it has had ample opportunity to do so since the 1991 amendments to Title VII.).
463. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541-2551 (2011) (stating Title VII may be violated by hiring and promotion criteria that result in disparate impact).
464. Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 389 (1982) (holding § 1981 claims require proof of purposeful discrimination).
465. See, e.g., Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 13-14 (1st Cir. 1999) (allowing private contractor's claim under § 1981 where Title VII claim was unavailable).
466. Danielle Tarantolo, Note, From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce, 116 Yale L.J. 170-201 (2006) (discussing private contractor's § 1981 claims that survived summary judgment phase).
467. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464-1466.
468. Codified at 22 U.S.C. §§ 7101-7110.
469. see also 18 U.S.C. §§ 1589-1594 (2006) (dealing with forced labor).
470. While there is no way to be certain about the scope of the problem, all information indicates it is grave. According to the U.S. State Department, As many as 17,500 people are trafficked to the United States each year.
471. Alison Siskin & Liana Sun Wyler, Cong. Research Serv., RL34317, Trafficking in Persons: U.S. Policy and Issues for Congress 20 (2010).
472. 22 U.S.C. § 7102 (8)(A) (including commercial sex demands in definition of human trafficking).
473. Id. § 7102 (8)(B) (including coercive labor in definition of human trafficking).
474. Office on Women's Health, U.S. Dep't of Health and Human Servs., Violence Against Women: Human Trafficking, womenshealth.gov, http://www.womenshealth.gov/violence-against-women/types-of-violence/hum an-trafficking.cfm (on file with the Columbia Law Review) (last updated May 18, 2011).
475. 18 U.S.C. §§ 1589-1591 (Supp. II 2008).
476. Martina Pomeroy, Left Out in the Cold: Trafficking Victims, Gender, and Misinterpretation of the Refugee Convention's Nexus Requirement, 16 Mich. J. Gender & L., 453-460 (2010). The Human Trafficking Prosecution Unit of the Criminal Section of the Department of Justice's Civil Rights Division specializes in bringing these cases.
477. Office of Legal Policy, U.S. Dept. of Justice, Attorney General's Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in Persons 62 (2010) [hereinafter DOJ 2010 Trafficking Report].
478. 18 U.S.C. § 1595.
479. See infra text accompanying notes 259-263 (discussing Supreme Court case rejecting private cause of action due to state action requirement of Fourteenth Amendment).
480. DOJ 2010 Trafficking Report, supra note 254, at 3.
481. Id. at 4-5, 14-15.
482. Civil Rights Remedies for Gender-Motivated Violence Act, Pub. L. No. 103-322, § 40302, 108 Stat. 1796, 1941-42 (1994).
483. Codified as amended at 42 U.S.C. § 13981 (2006).
484. Human Trafficking Prosecution Unit, U.S. Dep't of Justice, http://www.justice.gov/crt/about/crm/htpu.php (on file with the Columbia Law Review) (last visited Sept. 8, 2012).
485. Pub. L. No. 103-322, § 40302(b), 108 Stat. at 1941-42 (codified as amended at 42 U.S.C. § 13981(b)).
486. Justice Souter's dissent in Morrison cites a variety of congressional reports and hearings with revealing statistics: Sexual assault and domestic violence caused a loss of $3 billion in 1990 and $5 to $10 billion in 1993.
487. about 75% of women are so concerned about being the victims of rape that they do not go to the movies by themselves after dark and 50% avoid being alone in public transit after dark.
488. and thirty-eight state attorneys general urged Congress to enact the Civil Rights Remedy, representing that 'the current system for dealing with violence against women is inadequate.' United States v. Morrison, 529 U.S. 598, 632-35, 653 (2000) (Souter, J., dissenting).
489. see also Brief of Amici Law Professors Filed Pursuant to Rule 29 of Federal Rules of Appellate Procedure in Support of the Constitutionality of the Violence Against Women Act at 20-21.
490. Brzonkala v. Va. Polytechnic Inst. & State Univ., 132 F.3d 949 (4th Cir. 1997) (No. 96-1814).
491. 1996 WL 33414283, at 20-*21 (recounting congressional findings of how state condoned or over looked private acts of violence against women).
492. The earliest analyses this author is aware of on the relevance of the Thirteenth Amendment to the constitutionality of a civil remedy under VAWA were Joyce E. McConnell, supra note 2.
493. Marcellene Elizabeth Hearn, supra note 2. Space does not allow for a thorough critique of those articles, but they differ from this author's approach because both authors read the terms of the Thirteenth Amendment more literally. For instance, Hearn's argument that violent acts experienced by women today are the same violent acts experienced by slave women and chastised wives in the nineteenth century is unconvincing.
494. Marcellene Elizabeth Hearn, supra note 2, at 1163.
495. McConnell's description of cases where domestic violence is used as a means of coercion and control is more compelling. Joyce E. McConnell, supra note 2, at 229-34.
496. The nuance of the latter argument is particularly helpful but needs to be updated because the article was published eight years before the key decision striking down the Violence Against Women Act. Morrison, 529 U.S. at 627.
497. 529 U.S. at 627 (holding Congress overstepped its Commerce Clause and Fourteenth Amendment authority by passing VAWA).
498. See supra text accompanying notes 47-55 (discussing Congress's authority to protect civil rights from private violations under Thirteenth Amendment).
499. 42 U.S.C. § 1985 (2006).
500. see United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825-832 (1983) (recognizing Congress's power to pass § 1985 was based on Thirteenth Amendment).
501. For a discussion of the Reconstruction Congress's efforts to regulate vigilante violence and state discriminations, see Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction 28-59 (2011).
502. Pub. L. No. 111-84, §§ 4701-4713, 123 Stat. 2835, 2835-44 (2009).
503. 18 U.S.C. § 249(a)(2)(B) (Supp. III 2007).
504. Thirty-seven states' attorneys general signed a letter to Congress asserting that: [T]he current system for dealing with violence against women is inadequate. Our experience as Attorneys General strengthens our belief that the problem of violence against women is a national one, requiring federal attention, federal leadership, and federal funds. [VAWA] would begin to meet those needs by ... creating a specific federal civil rights remedy for victims of gender-based crimes Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 103d Cong. 35 (1993).
505. See supra text accompanying notes 79-84 (arguing § 1981 and § 1982 of Civil Rights Act apply to [a]ll persons).
506. For an in-depth debate into whether the new Fourteenth Amendment jurisprudence applies to the Thirteenth Amendment field, compare Tsesis, Congressional Authority, supra note 222, at 51-59 (arguing Rehnquist Court's narrow reading of Fourteenth Amendment enforcement power is inapplicable to Thirteenth Amendment).
507. Jennifer Mason McAward, Congressional Authority to Interpret the Thirteenth Amendment: A Response to Professor Tsesis, 71 Md. L. Rev. 60-64 (2011) (arguing that narrow interpretation of Fourteenth Amendment in Boerne also constrains reading of Section 2 of Thirteenth Amendment).
508. United States v. Beebe, 897 F. Supp. 2d 1045, 1048-51 (D.N.M. 2011) (maintaining rational basis standard of review in context of Thirteenth Amendment legislation and rejecting argument that Boerne applied because of similar wording of Fourteenth Amendment's Enforcement Clause).
509. The Warren Court decided Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
510. While the Burger Court extended the decision to Runyon v. McCrary, 427 U.S. 160, 170 (1976) (adopting Jones test of whether prohibition was within Congress' power under Section 2 of the Thirteenth Amendment 'rationally to determine what are the badges and the incidents of slavery, and ... to translate that determination into effective legislation'.
511. Quoting Jones, 392 U.S. at 440).
512. The Rehnquist Court also reaffirmed Jones in Patterson v. McLean Credit Union, 491 U.S. 164, 175-76 (1989) ("We decline to overrule Runyon and acknowledge that its holding remains the governing law in this area.).
513. Roberts Court did the same in Domino's Pizza, Inc. v. McDonald, 546 U.S. 470-476 (2006) (recognizing Congress's authority to prohibit racial discrimination in contractual dealings).
514. See supra text accompanying notes 216-221 (examining situations that are analogous to badges and incidents of slavery).
515. See Jones, 392 U.S. at 440 ("Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.).
516. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 728 (2003) ([V]alid § 5 legislation must exhibit 'congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'.
517. Quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
518. See United States v. Morrison, 529 U.S. 598, 628-35 (2000) (Souter, J., dissenting) (describing congressional findings about widespread economic effect of violence committed against women).
519. Id. at 613 (majority opinion).
520. Id. at 617-18 (finding gender-motivated violence was not directed at the instrumentalities, channels, or goods involved in interstate commerce).
521. See id. at 614-15 (arguing aggregation of noneconomic activity will completely obliterate the Constitution's distinction between national and local authority"
522. Citing United States v. Lopez, 514 U.S. 549-564 (1995).
523. See supra Part II.A (showing how feminists compared sociopolitical condition and legal status of women in antebellum era to slavery).