The Scope of Federal Power Under the Thirteenth Amendment

My wife Alison Somin and University of San Diego law professor Gail Heriot have published a short article in Engage criticizing recent claims that the Thirteenth Amendment, which bans “slavery” and “involuntary servitude,” and authorizes Congress to pass “appropriate” enforcement legislation, actually gives Congress broad authority to legislate on a wide range of other issues:

[W]hen one of the authors of this essay told a friend that she was going to an all-day academic conference on contemporary applications of the Thirteenth Amendment, he expressed shock that there could be any need to discuss this subject and inquired if he had missed a campaign proposal by Newt Gingrich to revive chattel slavery.

He was joking—obviously. Hardly anyone is foolish enough to believe that chattel slavery is in danger of making an imminent or not-so-imminent comeback in America…. Nevertheless, there has been a growing movement in both academia and the halls of Congress to use the Thirteenth Amendment’s Section 2 to address a variety of social ills thought to be in some way traceable back to slavery. This movement has had its greatest recent success with the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA). In passing that law, Congress relied solely on its Section 2 constitutional authority for its ban on crimes motivated by race and color….

The HCPA is not the only effort to make use of Section 2 in light of the breadth of the Jones decision. Scholarly articles argue that Section 2 authorizes hate-speech regulation; bans on housing discrimination based on sexual orientation; federal civil remedies for victims of domestic violence; federal child labor bans; bans on racial profiling; minimum-wage laws like the Fair Labor Standards Act; federal regulation of the mail-order bride industry; bans on race-based jury peremptory challenges; regulation of racial disparities in capital punishment; regulation of environmental problems in African-American communities; state laws like Colorado’s Amendment 2 that prohibit states and localities from passing bans on sexual orientation discrimination; regulation of the use of the Confederate battle flag; laws that aim to protect employees’ privacy and autonomy; federally funded job-training programs for the urban underclass; federal guarantees of public education; a federal ban on rape; anti-sexual harassment laws; legislation protecting “reproductive freedom”; bans on payday lending; and even changes to our nation’s “malapportioned, undemocratic presidential election system” because of its adoption on the alleged basis of “appeasement to southern slaveholding interests.” [footnotes omitted].

The Thirteenth Amendment is an attractive vehicle for advocates of nearly unlimited federal power because a broad interpretation of it would enable Congress to circumvent the limits the Supreme Court placed on Congress’ powers under the Commerce Clause and the Fourteenth Amendment in cases such as United States v. Lopez, United States v. Morrison, and NFIB v. Sebelius. Unlike a law authorized by the Commerce Clause, a law authorized by the Thirteenth Amendment need not have any connection to interstate commerce or “economic activity.” Unlike most parts of the Fourteenth Amendment, the Thirteenth Amendment is also not limited to regulating action undertaken by state governments, since it bans even purely private slavery and involuntary servitude.

The broad vision of the Thirteenth Amendment relies on nineteenth century precedent claiming that the Amendment was meant to ban the “badges and incidents” of slavery as well as slavery itself. But Gail and Alison effectively argue that these concepts were originally understood to be fairly narrowly construed. I would add that a broad interpretation of “badges and incidents” is inconsistent with the text of the Amendment itself, which bans “involuntary servitude,” as well as slavery. If the Amendment’s ban on slavery also covers anything even remotely connected to slavery as a “badge” or “incident” thereof, then there would be no need to include a separate ban on “involuntary servitude.” After all, such a broad theory of badges and incidents would surely make the ban on involuntary servitude completely superfluous. If anything qualifies as a badge or incident of slavery, involuntary servitude does.

So far, the broad interpretation of the Thirteenth Amendment has been primarily advanced by liberals. But, as Gail and Alison note, conservatives are starting to get in on the act as well, including in recent efforts to enact a federal law banning sex-selective and race-selective abortions.