Subtraction by Addition?: The Thirteenth and Fourteenth Amendments

 
By: Mark A. Graber

 

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of the Thirteenth Amendment, which is increasingly in vogue in certain progressive circles, may have been good constitutional law only between 1865 and 1868. For purposes of argument, this Essay assumes that the participants in this Symposium correctly interpret the original Thirteenth Amendment when they construe the constitutional ban on slavery broadly in order to protect a wide variety of fundamental rights. Rather than interpret the Fourteenth Amendment as adding to the Thirteenth, however, this Essay explores the textual and political evidence supporting claims that the Fourteenth Amendment diminished the rights protected by the Thirteenth Amendment or, more accurately, diminished the likelihood that any of the post-Civil War Amendments would be interpreted as protecting rights that might have been protected by a freestanding Thirteenth Amendment. Thirteen plus one, in this case, may be less than thirteen.

 

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