Academic

Student Blogger - #13Amend Live Blog: The Slave Power Undead

Andrew Taslitz "The Slave Power Undead: Criminal Justice Successes and Failures of the Thirteenth Amendment": Lawyers use history as moral inspiration in making constitutional arguments. Taslitz is most interested in the criminal justice system. His argument has two basic premises. Section 2 of the 13^th Amendment gives Congress has more power than it has used to draft laws regulating criminal justice. For example, it has been used to challenge forced physical labor, but not psychological coercion. Taslitz argues that Section 2 was meant to get rid of the remnants of Slave Power, if they survived the abolition of slavery itself. "Slave Power" describes the antebellum Southern culture that Northerners hated and feared. They viewed it as anti-Republican and they saw slavery as incompatible with free labor. Taslitz argues that the badges and incidents of slavery, at which Section 2 is aimed, were the props that the culture of Slave Power used to subordinate blacks. These were violence, expressive racial subordination, coercion of labor and commodification. To the extent that the criminal justice system uses these props in certain combinations, Congress' Section 2 power allows it to put an end to these practices. Taslitz goes on to point out that the view that he is advancing would prevent Congress from using Section 2 powers to prevent any practice or institution that does not involve any of these props. Additionally, the combination of these props, with the exception of commodification, which should be seen as a clear violation of Section 1 on its own, would have to be so egregious as to be reminiscent of Slave Power. Further, any remedial measures would have to actually improve the situation it is meant to address. Taslitz closes by urging Congress to kill the modern slave powers of our time. He states, "It has the power. It only lacks the political will."

Full post as published by The University of Chicago Law School Faculty Blog on April 18, 2009 (boomark / email).