The Dangerous Thirteenth Amendment

 
By: Jack M. Balkin and Sanford Levinson

 

Through most of its history, the Thirteenth Amendment has been interpreted extremely narrowly, especially when compared to the Fourteenth Amendment and the Bill of Rights. The Thirteenth Amendment has been read in this way because it is “dangerous.” The demand that “neither slavery nor involuntary servitude . . . shall exist within the United States,” taken seriously, potentially calls into question too many different aspects of public and private power, ranging from political governance to market practices to the family itself.

Our contemporary association of “slavery” with a very limited set of historical practices is anachronistic and the result of a long historical process. Yet at the time of the founding, the concept of “slavery” was far broader than currently understood. “Slavery” meant illegitimate domination, political subordination, and the absence of republican government; “chattel slavery” was only the most extreme and visible example of slavery.

The broader, antirepublican concept of slavery was narrowed to avoid awkward comparisons to the economic and political subordination of wage laborers and women. Once chattel slavery was abolished, labor activists and suffragists sought to revive the older, broader concept of “slavery.” But emancipation allowed defenders of the status quo to insist that American society was now “free.” Even today, calling an injustice “slavery” is generally seen as overheated hyperbole and even a presumptuous insult to the memory of the victims of African American chattel slavery. This Essay concludes by asking how our political imagination has been limited as a result of this history.

 

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