The thirteenth amendment and pro-equality speech

Columbia Law Review

Volumn 112, Issue 9, 2012, Pages 1855-1882

  Carter, William M ^a  

^a UNIVERSITY OF PITTSBURGH   (United States)

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EID: 84878299756     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (123)

1. See, e.g., Alexander Tsesis, Dignity and Speech: The Regulation of Hate Speech in a Democracy, 44 Wake Forest L. Rev. 497, 499 (2009) (arguing "[h]ate speakers seek to intimidate targeted groups from participating in the deliberative process[,]" and "[d]iminished political participation because of safety concerns, in turn, stymies policy and legislative debates")
2. James Forman. Jr., Note, Driving Dixie Down: Removing the Confederate Flag from Southern State Capitals, 101 Yale L.J. 505, 515 (1991) (arguing "[t]he selection of an exclusionary symbol to fly above the state capitol is harmful in part because of the effect it may have on the desire and ability of the excluded to participate in the political and legal processes").
3. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968) (holding Thirteenth Amendment empowers Congress to "'pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States'" (emphasis added by Jones) (quoting The Civil Rights Cases, 109 U.S. 3, 20 (1883))).
4. See infra Part I (discussing legal and societal sanctioning of slavery).
5. See Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359, 1384 n.106 (1992) ("Because of the Thirteenth Amendment's special association with the liberation of blacks, mainstream constitutionalists may have overlooked it as a source of universal generative principles. The dominant subconscious sees the Amendment as black...."). This Essay does not, of course, intend to minimize or disregard the fact that blacks were the primary victims of the slave system.
6. Cong. Globe, 38th Cong., 2d Sess. 139 (1865) (statement of Rep. James Ashley).
7. "The idea of a southern 'Slave Power' that dominated national politics... emerged in the 1830's and became part of the nation's political discourse in the years leading up to the Civil War." Sandra L. Rierson, The Thirteenth Amendment as a Model for Revolution, 35 Vt. L. Rev. 765, 801 (2011). This Essay uses the term "Slave Power" in the sense in which the members of the Reconstruction Congresses understood it, that is, as connoting the entire system of slavery in all of its public and private incidents and manifestations. The legal institution of chattel slavery was the most profound manifestation of the Slave Power, of course, but not the only one.
8. See Sumi Cho, Post-Racialism, 94 Iowa L. Rev. 1589, 1594 (2009) (characterizing postracialism as "ideology that reflects a belief that due to the significant racial progress that has been made, the state need not engage in race-based decision-making or adopt race-based remedies, and that civil society should eschew race as a central organizing principle of social action").
9. To be clear, the fact that overt expressions of racism have diminished does not mean that racism has vanished. Indeed, a large body of literature suggests that rather than disappearing, racism has instead been sublimated: Racial bias continues to influence our actions, but it does so subconsciously. See, e.g., Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460 (2001) (arguing "[c]ognitive bias, structures of decisionmaking, and patterns of interaction have replaced deliberate racism and sexism as the frontier of much continued inequality").
10. For further discussion of the role of in-group pressure in shaping racial attitudes, see infra Part IV.
11. Charles R. Lawrence III, Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy), 114 Yale L.J. 1353, 1382 (2005).
12. See, e.g., Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 646 (1842) (holding Fugitive Slave Act was valid exercise of Congress's power to enforce constitutional rights-specifically, "property" rights of slave owners to recapture escaped slaves).
13. For example, slaves (and free blacks in most states) were denied "the rights to enforce contracts, sue, give evidence in court, inherit, and purchase, lease, hold, and convey real property." Alexander Tsesis, The Thirteenth Amendment and American Freedom: A Legal History 45 (2004) (citing Cong. Globe, 39th Cong., 1st Sess. 1151 (1866) (statement of Rep. Martin Thayer)).
14. They were also denied parental and familial rights, deprived of personal liberty, and denied the ability to receive an education. 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, 1324 nn.33-34 and accompanying text (2007) [hereinafter Carter, Race].
15. Thus, "any judicial protection of the slave would trigger further challenges to the legitimacy of the dehumanized status of blacks and slaves" because viewing slaves as rightsholders would erode the view that they were less than full human beings. A. Leon Higginbotham, Jr., In the Matter of Color: Race and the American Legal Process: The Colonial Period 8 (1978).
16. See, e.g., William Goodell, The American Slave Code in Theory and Practice: Its Distinctive Features Shown by Its Statutes, Judicial Decisions, and Illustrative Facts 319-23 (1853) (discussing penalties for violating antebellum prohibitions against educating slaves)
17. Russel B. Nye, Fettered Freedom: Civil Liberties and the Slavery Controversy 1830-1860, at 70-71 (1949) (noting by 1830s and 1840s, most Southern states had laws prohibiting education of all blacks, while others "depended [instead] upon the pressure of public opinion" to effectively forbid it, and "[t]o most Southerners, a slave who could read was potentially dangerous," since they "'would have placed in their hands [materials] inculcating insubordination and rebellion'" (quoting S. Presbyterian, Ought Our Slaves Be Taught To Read?, 18 De Bow's Rev. 52, 52 (1855))).
18. See, e.g., Nye, supra note 14, at 19 (stating proslavery forces argued that slavery provided "the best and safest way of life for the childlike and irresponsible Negro [because] it provided for him greater protection than any other system").
19. See David Brion Davis, The Rocky Road to Freedom: Crucial Barriers to Abolition in the Antebellum Years, Foreword to The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment, at xvi (Alexander Tsesis ed., 2010) (noting cruel irony that "a nation conceived in liberty and dedicated to equal rights happened also to be the nation, by the mid-nineteenth century, with the largest number of slaves in the Western Hemisphere").
20. White women, of course, were also denied the full range of rights that Enlightenment philosophy would presumably entitle them to, yet they were not treated as "less than human" in the same sense that African slaves were. See, e.g., Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 Yale J.L. & Feminism 207, 207-08 (1992) ("[T]he metaphor 'women are slaves'... suggested that white women shared... a similar legal and social status of non-identity and disability [with African Americans].... [However,] even though there were significant... restraints on white women, they did not as a class suffer in the way that African Americans did under slavery.").
21. Nye, supra note 14, at 100.
22. Id. at 99; see also David Brion Davis, Should You Have Been an Abolitionist?, N.Y. Rev. Books, June 21, 2012, at 56-57 (noting "the defenders of slavery... led countless mobs attacking and stoning the abolitionists, burning their literature, and destroying their printing presses.... [and] [a]s a result, antebellum abolitionists... were able to link their aims with freedom of speech, the press, association, and petitioning").
23. One well-known and particularly brutal example is the Colfax Massacre, in which armed white men slaughtered dozens of blacks in the wake of a disputed election in Grant Parish, Louisiana in 1873. See Josh Blackman, The Supreme Court's New Battlefield, 90 Tex. L. Rev. 1207, 1221 (2012) (book review).
24. When a group of armed black men refused demands to disarm and evacuate the courthouse, "'over 300 whites armed with rifles'... brought out a cannon, raided the building, and set it afire, resulting in the death of 150 blacks." Id. (quoting Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America 143-44 (2011)). It has been well documented that private and state violence were used as tools for dominating the enslaved. See, e.g., Orlando Patterson, Slavery and Social Death: A Comparative Study 1-14 (1982) (defining slavery as "the permanent, violent domination of natally alienated and generally dishonored persons").
25. See Nye, supra note 14, at 139 (noting "[i]t was imperative, after the beginnings of the aggressive phase of abolition [in the early 1830s], for the dominant slaveholding group to prevent the dissemination of abolition doctrines").
26. Michael Kent Curtis, The Klan, the Congress, and the Court: Congressional Enforcement of the Fourteenth and Fifteenth Amendments & The State Action Syllogism, A Brief Historical Overview, 11 U. Pa. J. Const. L. 1381, 1385 (2009) [hereinafter Curtis, Klan] (footnotes omitted).
27. See Nye, supra note 14, at 35-36 (describing debates leading to adoption of gag rule)
28. Michael Kent Curtis, The 1837 Killing of Elijah Lovejoy by an Anti-Abolition Mob: Free Speech, Mobs, Republican Government, and the Privileges of American Citizens, 44 UCLA L. Rev. 1109, 1122-23 (1997) [hereinafter Curtis, Killing] ("[In response to antislavery petitions,] the House of Representatives passed the resolution known as the gag rule... [which was designed] to suppress discussion of slavery in the House").
29. Indeed, official and private coercion, retaliation, and violence were not always even separable. A member of the House employed moblike measures to silence abolitionist sentiment in the Senate when he beat Senator Charles Sumner into unconsciousness in response to Sumner's "Crime Against Kansas" speech, in which Sumner argued against the expansion of slavery.
30. See generally Williamjames Hull Hoffer, The Caning of Charles Sumner: Honor, Idealism, and the Origins of the Civil War 1-4 (2010) (describing Sumner's speech and attack).
31. Sumner's speech also personally impugned individual congressmen and the South more generally for their support of slavery. The assault was therefore characterized in some quarters as a response to an attack on Southern "honor" rather than (or in addition to) an attempt to silence antislavery sentiment in Congress. Id. at 3.
32. As Representative James Wilson noted in the early congressional debates in 1864 that led to the Thirteenth Amendment, "[l]egislatures, courts, [e]xecutives, almost every person holding political or social power and position in the southern States[] were all arrayed on the side of slavery, and what they could not accomplish was turned over to the mob, which, without law... did its work with fearful accuracy and terrible exactness." Cong. Globe, 38th Cong., 1st Sess. 1202 (1864) (statement of Rep. James F. Wilson) (emphasis added).
33. Nye, supra note 14, at 141.
34. See Curtis, Klan, supra note 22, at 1385-86 (describing these tactics).
35. See Curtis, Killing, supra note 23, at 1110-11 (describing Lovejoy's murder).
36. Cong. Globe, 38th Cong., 1st Sess. 1202-03 (1864) (statement of Rep. James F. Wilson).
37. Cong. Globe, 36th Cong., 1st Sess. 1861 (1860) (statement of Rep. John Bingham).
38. Bingham noted in the same speech that "Southern mobs punished those who attended Republican national conventions and dispersed a Republican meeting in Virginia."
39. Curtis, Klan, supra note 22, at 1385.
40. Cong. Globe, 38th Cong., 1st Sess. 1439 (1864) (statement of Sen. James Harlan).
41. Harold M. Hyman & William M. Wiecek, Equal Justice Under Law: Constitutional Development 1835-1875, at 393 (1982).
42. George C. Rable, But There Was No Peace: The Role of Violence in the Politics of Reconstruction 73 (1984).
43. See sources cited supra notes 20-23 (discussing retaliatory measures by both state officials and private actors).
44. See supra text accompanying notes 28-30 (recounting statements of congressmen linking suppression of pro-equality speech to desire to perpetuate slavery).
45. See infra Part II.B.
46. See infra Parts II.B & C (discussing limits of current retaliation doctrine).
47. 42 U.S.C. § 12203(a) (2006) ("No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter....").
48. 29 U.S.C. § 623(d) (2006) ("It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment... because such individual... has opposed any practice made unlawful by this section...").
49. Id. § 2615(a)(2) ("It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.").
50. See 42 U.S.C. § 1981(a) (providing "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and against discrimination in private employment on the basis of race." (citations omitted)). But since it applies beyond that context, it is discussed here rather than in Part II.B, infra, which deals with protections against retaliation in the employment context.
51. See CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446-52 (2008) (holding § 1981 encompasses retaliation claims, because it had long been interpreted similarly to § 1982, which provides for such claims).
52. The FHA provides that "[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of [rights secured by the FHA] or... on account of his having aided or encouraged any other person in the exercise or enjoyment of [rights secured by the FHA]." 42 U.S.C. § 3617. However, the scope of that protection and the situations in which it applies remain unclear. For example, the FHA has been construed as prohibiting retaliation against real estate agents or apartment managers who refused to follow their superiors' orders to engage in discrimination in violation of the FHA.
53. See Robert G. Schwemm, Neighbor-on-Neighbor Harassment: Does the Fair Housing Act Make a Federal Case out of It?, 61 Case W. Res. L. Rev. 865, 897-99 (2011) (discussing cases and Department of Housing and Urban Development regulation which construe FHA to prohibit "'adverse employment actions' against employees and agents for assisting others in obtaining housing free from discrimination").
54. It is unclear, however, whether a neighbor who was not himself the victim of discrimination, but who opposed his neighbors' discrimination against others and consequently suffered retaliation, would have a claim under the FHA. See id. at 901-05 (describing split in cases involving this scenario).
55. See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969) (stating § 1982 prohibits retaliation because allowing white man to be "punished for trying to vindicate the rights of minorities protected by § 1982... would give impetus to the perpetuation of racial restrictions on property").
56. Title II provides that "[n]o person shall... intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by [Title II]." 42 U.S.C. § 2000a-2(b). The Voting Rights Act similarly provides that "[n]o person... shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote...." 42 U.S.C. § 1973i(b). Neither provision has well-developed case law, but both are textually more akin to provisions of other statutes that prohibit retaliating against an individual who seeks to exercise his own rights to be free from discrimination than to provisions that prohibit retaliating against one who advocates for the rights of others to be free from discrimination.
57. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) ("Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private cause of action.").
58. 42 U.S.C. § 2000e-2(a) ("It shall be an unlawful employment practice for an employer... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate... because of such individual's race, color, religion, sex, or national origin...").
59. Id. § 2000e-3(a).
60. See, e.g., id. (stating Title VII's opposition clause prohibits retaliation against employee who "has opposed any practice made an unlawful employment practice by this subchapter").
61. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (rejecting employee's retaliation claim because "[n]o reasonable person could have believed" there was Title VII violation); Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 322 (3d Cir. 2008) ("The employee must have an 'objectively reasonable' belief that the activity s/he opposes constitutes unlawful discrimination under Title VII... [I]f no reasonable person could have believed that the underlying incident complained about constituted unlawful discrimination, then the complaint is not protected." (citing Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006))).
62. See supra Part I (explaining nature of Slave Power and framers' view of suppression of abolitionist speech as evil of slave system).
63. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (holding that for sexual harassment to be actionable under Title VII, "it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" (alteration in original) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982))).
64. Professor Lawrence D. Rosenthal explained that, although the Supreme Court in Breeden declined to resolve the issue, lower federal courts "have come to require a showing that the plaintiff's belief that he was opposing an unlawful employment practice was objectively reasonable. A plaintiff's good-faith, but unreasonable, belief of an unlawful employment practice is no longer protected, as it had been in some jurisdictions prior to Breeden."
65. Lawrence D. Rosenthal, Reading Too Much into What the Court Doesn't Write: How Some Federal Courts Have Limited Title VII's Participation Clause's Protections After Clark County School District v. Breeden, 83 Wash. L. Rev. 345, 349 (2008) (footnotes omitted).
66. See, e.g., Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, 114 (1993) ("'[M]ere utterance of an... epithet which engenders offensive feelings in an employee' does not sufficiently affect the conditions of employment to implicate Title VII." (citation omitted) (quoting Meritor Sav. Bank, 477 U.S. at 67)).
67. Deborah Brake, The Limits of Title VII as a Rights-Claiming System, Pitt L. Mag. (Spring 2007), available at http://www.law.pitt.edu/magazine/spring-2007/the-limits-oftitle-vii-as-a -rights-claiming-system (on file with the Columbia Law Review).
68. Professor Brake's example involved Jordan v. Alternative Resource Co., 458 F.3d 332 (4th Cir. 2006), a case in which the complaining employee was an African American who complained about a racially offensive remark made in his presence and was subsequently fired. Id. at 336. The court held that it was unreasonable for him to believe that an isolated offensive remark created a racially hostile work environment, and therefore concluded that his complaints received no protection against retaliation. Id. at 341. Presumably, courts following similar reasoning would similarly find no protection under the opposition clause for a nonminority employee who complained about such a remark in similar circumstances.
69. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (stating that recognizing liability under Title VII for same-sex harassment would not improperly transform Title VII into "general civility code for the American workplace").
70. See Ahern v. Shinseki, 629 F.3d 49, 54-55 (1st Cir. 2010) (holding that, although female plaintiffs alleged their employer "engaged in a pro-male pattern of discriminatory hiring," they could not establish prima facie gender discrimination claim because "[n]one of them applied-let alone applied unsuccessfully-for any open position [and therefore], none of them can maintain a failure-to-hire claim").
71. See supra Part I (discussing Thirteenth Amendment's framers' views regarding suppression of antislavery speech).
72. Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1180-81 (7th Cir. 1998)
73. See also Childress v. City of Richmond, 134 F.3d 1205, 1209 (4th Cir. 1998) (Luttig, J., concurring) (stating "because the white male plaintiffs in the present case assert only the rights of third-parties to be free from race or sex-based discrimination in the workplace, they have not stated a cause of action under Title VII")
74. Patee v. Pac. Nw. Bell Tel. Co., 803 F.2d 476, 478 (9th Cir. 1986) ("The male workers do not claim that they have been discriminated against because they are men... [T]he male workers cannot assert the right of their female co-workers to be free from discrimination based on their sex.").
75. Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 186 n.5 (2d Cir. 2001) (citing Clayton v. White Hall Sch. Dist., 875 F.2d 676, 679-80 (8th Cir. 1989) (finding white plaintiff had standing to pursue Title VII claim based upon discrimination against black coworker due to "lost benefits of associating with persons of other racial groups" and protectable "interest in a work environment free of racial discrimination")
76. EEOC v. Miss. Coll., 626 F.2d 477, 483 (5th Cir. 1980) (holding white woman "may charge a [Title VII] violation of her own personal right to work in an environment unaffected by racial discrimination"); Waters v. Heublein, Inc., 547 F.2d 466, 469 (9th Cir. 1976).
77. This scenario is analogous to that in Powers v. Ohio, 499 U.S. 400 (1991), wherein the Court extended the Batson test to hold that a white defendant had standing to object to a prosecutor's use of peremptory challenges to strike black jurors.
78. 138 F.3d 1176 (7th Cir. 1998).
79. 875 F.2d 676 (8th Cir. 1989).
80. Bermudez, 138 F.3d at 1180.
81. Id. at 1177-80.
82. Id. at 1180.
83. Id. (quoting Stewart v. Hannon, 675 F.2d 846, 850 (7th Cir. 1982)).
84. Clayton v. White Hall Sch. Dist., 875 F.2d 676, 678 (8th Cir. 1989).
85. Id. at 679 (emphasis added).
86. Id. at 678.
87. 409 U.S. 205 (1972).
88. Clayton, 875 F.2d at 680 (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984)). There are two important caveats regarding Clayton. First, Clayton was decided prior to the Supreme Court's decisions beginning with Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), in which the Court narrowed standing doctrine. Second, although the Clayton court did find that the plaintiff had standing to pursue her claims, it ruled against her on the merits, holding that the single incident of discrimination was insufficient as a matter of law to establish a hostile work environment claim. Clayton, 875 F.2d at 680.
89. See supra notes 59-60 and accompanying text (discussing standing under Title VII for claim of denial of "benefits of interracial association").
90. Warth v. Seldin, 422 U.S. 490, 499 (1975).
91. Id. at 500 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973)) (citing Sierra Club v. Morton, 405 U.S. 727, 732 (1972)).
92. Id. at 501.
93. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) ("Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.").
94. U.S. Const. amend. XIII.
95. This author has argued elsewhere, however, that Section 1 of the Thirteenth Amendment does indeed authorize a judicial cause of action to remedy the badges and incidents of slavery, even in the absence of legislation enacted pursuant to Section 2. See, e.g., Carter, Race, supra note 12
96. William M. Carter Jr., A Thirteenth Amendment Framework for Combating Racial Profiling, 39 Harv. C.R.-C.L. L. Rev. 17 (2004) [hereinafter Carter, Racial Profiling].
97. 392 U.S. 409, 439 (1968) (stating Section 2 authorizes Congress to "'pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.'" (quoting The Civil Rights Cases, 109 U.S. 3, 20 (1883))).
98. 521 U.S. 507, 520 (1997) (adopting narrow "congruence and proportionality" test for assessing validity of Congress's exercise of its power to enforce Fourteenth Amendment, in contrast with broader "rationality review" applied by Jones).
99. See Jennifer Mason McAward, McCulloch and the Thirteenth Amendment, 112 Colum. L. Rev. 1769, 1796 (2012) (discussing Court's assertion of "interpretive supremacy" in Boerne)
100. Alexander Tsesis, Gender Discrimination and the Thirteenth Amendment, 112 Colum. L. Rev. 1641, 1693-94 (2012) (discussing impact of Fourteenth Amendment cases on Thirteenth Amendment).
101. See supra note 6 (defining "Slave Power").
102. See supra notes 28-30 and accompanying text (discussing framers' views that suppression of such speech was badge or incident of slavery).
103. See supra Part I (discussing history of suppression of abolitionist speech before Civil War and suppression of pro-equality and Unionist speech even thereafter).
104. See supra notes 28-30 and accompanying text (discussing framers' views).
105. See generally William M. Carter Jr., Judicial Review of Thirteenth Amendment Legislation: "Congruence and Proportionality" or "Necessary and Proper"?, 38 U. Tol. L. Rev. 973 (2007) (arguing Boerne's congruence and proportionality test is wrong even in Fourteenth Amendment context where it developed, and that, for a variety of reasons, it should not be extended to Thirteenth Amendment).
106. This Essay therefore operates on the assumption that the rationality review standard of Katzenbach v. Morgan, 384 U.S. 641 (1966), provides the appropriate standard for assessing Thirteenth Amendment legislation. Even if Boerne applies to Thirteenth Amendment legislation, however, the author believes that legislative remedies for the private suppression of pro-equality speech would fall well within the scope of the Thirteenth Amendment and would satisfy the congruence and proportionality standard.
107. Cf. Shannon Gilreath, "Tell Your Faggot Friend He Owes Me $500 For My Broken Hand": Thoughts on a Substantive Equality Theory of Free Speech, 44 Wake Forest L. Rev. 557, 570-71 (2009) ("The Fourteenth Amendment marked a seismic shift in the ground on which First Amendment tradition rests... [B]oth the right to speak... and the negative right to be free from speech that dehumanizes you [promote equality].").
108. See supra Part I and note 58 (discussing framers' views on right to be free from retaliatory conduct).
109. See supra Part I and note 58 (discussing framers' concerns about suppression of abolitionist and Unionist speech).
110. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993) ("[The Court's] cases reject the 'view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea.'" (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968))).
111. See id. at 490 (holding state hate crimes law that enhanced penalty for aggravated battery when defendant intentionally selected victim because of victim's membership in protected class was consistent with First Amendment); Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (rejecting First Amendment challenge to Title VII of Civil Rights Act of 1964 and stating "'[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections'" (quoting Norwood v. Harrison, 413 U.S. 455, 470 (1973))).
112. Derrick A. Bell Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 525 (1980).
113. Deborah L. Brake, When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law, 46 Wm. & Mary L. Rev. 513, 579 (2004)
114. Dov Fox & Christopher L. Griffin Jr., Disability-Selective Abortion and the Americans with Disabilities Act, 2009 Utah L. Rev. 845, 858 (finding "expressivist changes to social customs and attitudes can emerge without knowledge of a specific law but still because of the law's existence").
115. See Robert E. Scott, The Limits of Behavioral Theories of Law and Social Norms, 86 Va. L. Rev. 1603, 1603-04, 1616 (2000) (explaining that laws influence behavior both directly (by sanctioning or rewarding certain behavior) and indirectly, by establishing or reinforcing norms that empower other members of community to informally discourage undesirable behavior through shaming, reporting such behavior, or providing those seeking to enforce laws with arguments).
116. Dan M. Kahan, Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem, 67 U. Chi. L. Rev. 607, 614 (2000) (footnote omitted).
117. See, e.g., David E. Pozen, We Are All Entrepreneurs Now, 43 Wake Forest L. Rev. 283, 305-10 (2008) (surveying literature of norm entrepreneurship).
118. Cass R. Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903, 929 (1996).
119. See supra note 6 (defining "Slave Power").
120. See supra Introduction and Part I (discussing Slave Power's effects upon whites who engaged in pro-equality speech).
121. Deborah L. Brake, Retaliation, 90 Minn. L. Rev. 18, 20 (2005) (footnote omitted).
122. Id. at 22.
123. See, Carter, Racial Profiling, supra note 85, at 60-70 (2004) (discussing theories of racial profiling as Thirteenth Amendment injury).