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Student Blogger - #13Amend Live Blog: Panel I: Promises of Liberty

Risa Goluboff, "The Thirteenth Amendment and a New Deal for Civil Rights": She began by noting that she will not talking about the origins of the Amendment or how it can be used today. She will focus on how it was used in the 1940s. During the Lochner Era, many thought about the 13^th Amendment in terms of liberty of contract. In 1939, Roosevelt created the Civil Rights Section in the Department of Justice. There were three ways that the New Deal changed the way that these lawyers thought about the 13^th amendment. 1) The New Deal changed the way that people thought about the government. The New Deal created "a federally secured right to be free from bondage." This is in opposition to the earlier reality, and view, that the government would, and should, only get involved to settle disputes between private individuals. One example of this transition can be found in a case form WWII. A large number of black teenagers were enslaved by a sugar corporation. The investigation, at first, was focused on whether or not these teenagers owed a debt to the company. This was a major part of the Peonage Act analysis. Eventually, the lawyers decided to switch to a 13^th Amendment analysis, which would not allow a defense for indebtedness and focused on the involuntary nature of the work. 2)Labor rights were protected by the New Deal and the Civil Rights Section tried to extend these rights to black workers. There is a connection between involuntary solitude and labor rights; the existence of free, or artificially cheap, labor. This allowed the DOJ to go after southern laws that allowed for involuntary servitude. The conception of involuntary servitude grew to include the acceptance of adverse work conditions. 3) Blacks were excluded from many of the social programs that the New Deal provided. The DOJ lawyers hoped the 13^th Amendment would be a powerful tool to expand these rights. One important facet of the Amendment is because its application, unlike the 14^th Amendment, is not limited to state action.

Alex Tsesis, "The Thirteenth Amendment's Revolutionary Aims": The radical Republicans expected the Amendment to expand Congress' ability to protect civil rights. Radical reconstruction was rooted in a dedication to equality. Tsesis notes the inconsistency in the Founding era of likening the colonist's position to slavery while holding slaves themselves. It appeared to many, during the revolutionary era, that slavery in America was coming to an end. Even unrepentant slave owners, like Patrick Henry, spoke about the incompatibility of slavery and many of the revolutions' aims. Many of the radical abolitionists tied their views to Declaration of Independence. In the debates leading to the ratification, abolitionists appealed to natural rights. Many of the abolitionists were of the view that Congress' power should extend to the protection of all men in their inalienable rights. The passage of the 13^th Amendment was meant to break down the discrepancy between the spirit of our founding documents and practice of slavery. Tsesis again asserts the power of the Amendment in its ability to target private, as well as state, action. The Amendments opponents recognized that it would alter the structure of federal power. For the first time, since independence, the national government had a mechanism for enforcing fundamental rights.

Paul Finkelman, "Emancipation, Slavery, and the Central Meaning of the Civil War: Understanding Who Freed the Slaves": The question of "Who freed the slaves?" is a popular one with many different answers. He will argue that the question has multiple answers, none of which being the but-for cause of emancipation. The first answer is Lincoln, out of his strong hatred of slavery. However, he correctly, believed that it was not in his power to end it. Finkelman invites us to imagine if he had died moments after his inauguration in 1864. Johnson probably would have ended the war without ending slavery. However, if Congress hadn't passed the Amendment, Lincoln would have been on his own opposing slavery. Similarly, it is hard to imagine that slavery would have ended if the north had not prevailed in the Civil War. Finkelman does not believe that emancipation was a desperate attempt to end the war (the addition of black soldiers were probably did not make a huge military difference), but that the war was necessary to end slavery. He goes on to discuss Benjamin Butler, a lawyer and politician from Massachusetts, who brought his law books along to the front in the Civil War. He argued that the Union Army could capture slaves, as contraband of war, and refuse to return them, freeing them instead. This was the beginning of emancipation. He then discusses the Congressional contribution, the passage of the Amendment. Black self liberation was also a major factor in the emancipation, but this was not feasible for most slaves who were not close enough to the Union Army to gain its protection. The question is not, "Who freed the slaves?", but, "How did the slaves become free?" And the answer is that it was a combination of intertwined factors.

Darrell Miller, "White Cartels and the Civil Rights Act of 1866": He begins with a discussion of US v. Lopez, which challenged the constitutionality of the Gun-Free School Zones Act. The lawyer defending the act was asked by Justice O'Connor what the limitations of congressional commerce power were. He lost the case because he could not answer this question. His question is how expansive the 13^th Amendment should be read to be. There must be some limitation to its application, just like there must be a limitation to the application of the Commerce Clause. Miller went on to discuss Jones v. Mayer which held that Congress could regulate the sale of private property in order to prevent racial discrimination. Some have argued that this goes way too far. One of the reasons for passing the Civil Rights Act was that there will be an understanding between former slaveholders that they will not hire each other's former slaves, leaving them tied to the land where they were previously enslaved. How does this help us determine the scope of the 13^th Amendment and the Civil Rights Act? Miller argues that this could be extended beyond the exclusion of black from purchasing real estate, beyond Jones. We can imagine a graph, with the type of behavior, based on its resemblance to slavery, following the x-axis and the category of person, based on their history of slavery and/or discrimination in the country, following the y-axis. The origin of the graph would be chattel slavery on the x-axis and blacks on the y-axis. The closer to the center a given action is, the more likely it is to be within the proper scope of the 13^th Amendment and the Civil Rights Act.

William E. Forbath comments: "An Auto-critique of Redemptive History." Both the left and the right make use of redemptive history. The right wing historians work on the lost promise of cases like Lochner, to protect the rights of blacks. He will now speak from the perspective of a left wing redemptive historian, pointing out the strengths and weakness of this position. Redemptive historians want context and text, change and continuity. One problem here is the false sufficiency of historical evidence. Forbath argues that most people on the left will not agree to an Originalist interpretation of text when a better, more morally desirable, interpretation is available. The liberal Originalist, however, will argue that the conservative Originalist has gotten the history wrong. He moves on to the view of the Living Constitution and its place in redemptive history. Risa Goluboff, shows us an older view of the Amendment that would be desirable today. Here, Forbath points out that we still need to figure out why a particular older view is the one that we should revive. There is also tension in the history in that slavery was used to promote the equality and freedom of free white men.

Eric Slauter comments: Today's papers raise a set of related questions about the 13^th Amendment: What is its legitimate scope? Which section is more important? How should we tell the story of its origin and ratification? He will address the earlier proposed 13^th Amendment which would have irrevocably prevented the abolition of slavery. This amendment was defended by claims about the importance of the unification of the country. The idea is that the country cannot stand together without the respect of the rights and privileges of all (white male) citizens. President Lincoln had implied that this would not change the present constitutional structure, because the federal government has no authority to interfere with the domestic institutions of the states. Most historians agree that the Civil War robbed this amendment of its supporters, because unity was no longer a real possibility. What is the promise of the 13^th Amendment? Slauter goes through the papers presented at the panel boiling them down to their most important questions. This discovery can be informed by comparing the actual 13^th Amendment with what it could have been.

Geoffrey Stone comments: He will play devil's advocate. Many of the papers today have argued that the 13^th Amendment guarantees "truth, justice and the American way." Stone argues that this is not the case, even though he does believe that the courts should aggressively interpret the constitution when the rights of historically oppressed groups are at issue. However, this interpretive process should be faithful. This means that when there is an appropriate justification for an open-ended construction this should be done. But the limits of one's authority should also be respected and when judges fail to do this the Rule of Law violated. There are certain constitutional provisions, like age requirements, that do not welcome open-ended interpretation. These are provisions that deal with a particular problem and do so clearly. There are other provisions that are aspirational and these should be interpreted expansively. "Due process" and "cruel and unusual punishment" are of this sort. Stone argues that the 13^th Amendment falls into the former category. Its goal was to end slavery simpliciter. Many of today's papers assert that the 13^th Amendment prohibits slavery by private actors. There are a number of arguments that can be made so support this claim, including textual arguments comparing it to the 14^th Amendment. Stone points out that since the 13^th Amendment pre-dates the 14^th, this comparison is inapt. The correct basis for comparison is the Bill of Rights which limits government, not private actors. This supports the view that the text does not specify solely state action because this was so obviously the case. Many of today's papers argued that the 13^th Amendment can be used to protect a wide variety of rights. Some of these arguments refer to the Amendment's second section and its uniqueness. However, Stone argues that this is because the previous constitutional amendments applied only to the federal government, not because Congress intended the Amendment to be expansively interpreted. He closed his comments by criticizing Jones v. Mayer for intellectual dishonesty. The Warren Court reached the opinion it wanted to reach, ignoring its responsibility to be faithful to the Constitution. The Harlan concurrence is more faithful, in his opinion.

Dennis Hutchinson comments: The 19^th Century mind contemplated multiple types of equality: social, political, etc. It was not the unitary concept that we have today. This is important in understanding the Civil Rights Act. It was seen to promote social equality and other not any of these other varieties.

Full post as published by The University of Chicago Law School Faculty Blog on April 17, 2009 (boomark / email).