Faculty Publications - The Dangerous Thirteenth Amendment

Professor Jack Balkin
December 18, 2012

What's dangerous about the Thirteenth Amendment's bar of slavery and involuntary servitude? In a Columbia Law Review essay YLS Prof. Jack Balkin and UT's Sanford Levinson argue that at the time of its prohibition in the Northwest Ordinance (from which the 13th Amendment is an almost verbatim copy) and as understood by the founders, "slavery" commonly referred not only to chattel slavery but encompased a broad range of forms of social domination. And unlike the 14th Amendenment, the 13th included no state action requirement. Dear lawyers, think of the possibilities!

In their review of why the 13th Amendment has come to be read more narrowly than the 14th Amendment and Bill of Rights, Balkin and Levinson discuss how the concept of slavery was limited during abolition to avoid comparisons to economic and political domination. Once chattel slavery was abolished, defenders of the status quo declared society "free" so that even today, labelling an injustice "slavery" is viewed as off the wall and even insulting to the memory of African-American slaves. The authors conclude by asking how our history might have been different if we hadn't lost the founding generation's conception of "slavery." 

Further reading:

Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (1998).

Eric Foner, Nothing But Freedom: Emancipation and Its Legacy (1983).

Jack M. Balkin, Corporations and the Thirteenth Amendment, Balkinization (Jan. 28, 2012).

Jack M. Balkin, More on Corporations as Slaves, Balkinization (Jan. 29, 2012).



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