The Thirteenth Amendment, the Power of Congress, and the Shifting Sources of Civil Rights Law

By: George Rutherglen


Most of the recent controversy over the Thirteenth Amendment concerns the possibility of using the Amendment to create rights like those under the Equal Protection and Due Process Clauses, but without the restrictions of the state action doctrine. Revisionists have argued for an expansive interpretation of the Amendment based on analogies to slavery and its consequences, while their opponents have argued for a restrictive interpretation limited to the forms of slavery historically practiced in this country. This Essay argues that both revisionists and their opponents have looked in the wrong place for the wrong type of influence that the Thirteenth Amendment has had, and in all likelihood, will continue to have. They have concentrated on Section 1, which is enforced by judicial review, when they should have emphasized Section 2, which grants enforcement authority to Congress. They have looked at the Amendment in isolation from other constitutional provisions, such as the Fourteenth Amendment and the Commerce Clause, when they should have looked at it in combination with them. They have looked at the immediate effects of legal doctrine on judicial decisions rather than its indirect influence over political controversies and movements, where disputes over slavery—and practices thought to be analogous to it—have been a staple of political arguments since the beginning of the Republic. And they have neglected the role that the political safeguards of federalism play in determining the ultimate scope and meaning of the Amendment.


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