Academic

McAward on the 13th Amendment Enforcement Power

By Lawrence Solum

Jennifer Mason McAward (Notre Dame Law School) has posted The Scope of Congress?s Thirteenth Amendment Enforcement Power after City of Boerne v. Flores on SSRN. Here is the abstract:

In Jones v. Alfred H. Mayer Co., the Supreme Court carved out a broad range of discretion for Congress in seeking to enforce the Thirteenth Amendment and set forth a very deferential standard of judicial review with respect to enforcement measures. By contrast, in City of Boerne v. Flores, the Court offered a substantially more restrictive standard for evaluating congressional enforcement action in the Fourteenth Amendment context. Because the enforcement clauses of the Thirteenth and Fourteenth Amendments are in pari materia, the continued viability of Jones is a question now ripe for debate.

This article examines the proper scope of Congress?s Thirteenth Amendment enforcement power from the perspectives of constitutional text, history, and structure. Although the historical record is not entirely clear, evidence suggests that the power was understood expansively, in line with Congress?s ?necessary and proper? power as explicated in McCulloch v. Maryland. However, separation-of-powers and federalism concerns do indicate the need for judicially-enforceable limits with regard to Congress?s efforts to define the substantive scope of the ?badges and incidents of slavery.? Accordingly, this article suggests that Jones reflects a proper reading of the Thirteenth Amendment power insofar as it permits the federal courts to engage in a robust and realistic assessment as to whether Congress has properly defined the badges and incidents of slavery, i.e., the ?ends? of the legislation, while affording Congress wide latitude in shaping the means by which it will effectuate the amendment?s promise.

Recommended.

Full post as published by Legal Theory Blog on June 16, 2009 (boomark / email).