by Keren Wang
This essay was originally featured on the Penn State Civic & Community Engagement (CIVCOM) website, responding to this year’s Constitution Day theme: “The U.S. Constitution & ‘The Dangerous Thirteenth Amendment’.”
Please visit and share with your students this link http://civcm.psu.edu/
The Constitution of the United States – Article XIII (Amendment 13 – Slavery and Involuntary Servitude)
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.
It is sometimes tempting to overlook the Thirteenth Amendment as an anachronistic keepsake from the Reconstruction Era. It has been more than one hundred and fifty years since the Congress ratified Thirteenth Amendment. The abolition of slavery, once the most divisive issue haunting our nation, has since became saturated in our political and ethical world view. The notion that “neither slavery nor involuntary servitude… shall exist” had effectively became a sacred emblem not only for the United States, but also for the civilized world as we know it.
Paradoxically, the historical-thickness and totemic embeddedness of our Thirteenth Amendment is also what make this amendment feel forgettable. We are reminded of our constitutional tenets via explicit challenges (e.g. freedom of speech) and public debates (e.g. the right to bear Arms), and the issue of slavery and involuntary servitude just seem so “settled” in this day and age.
Or is it?
Of course many of the formal elements of race-based chattel slavery are no longer present, but what about the “underlying evils” of slavery? Consider, for example, the 1873 Supreme Court decision in the Slaughter-House Cases (83 U.S. 72). On the surface, the Slaughter-House Cases had little to do with the issue of slavery, as these cases mainly dealt with economic conflicts between government-owned slaughterhouse operation and local slaughterhouses.1 However, the SCOTUS ruled in the Slaughter-House Cases that the Thirteenth Amendment indeed applies to a broad range of economically discriminatory actions. Justice John Archibald Campbell, who delivered the majority opinion of the Court, held the following interpretation of the Thirteenth Amendment:
Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. …And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it.
The Slaughter-House Cases, 83 U.S., at 72 (1873)
As evidenced by the above passage, even in the years shortly after its ratification, the SCOTUS has made clear that the Thirteenth Amendment offers broad protection against exploitative and discriminatory labor practices. The language of the Thirteenth Amendment never made “slavery” the exclusive signifier for race-based chattel slavery of the American south. In fact, Justice Campbell explicitly stated in the Slaughter-Case decision that practices such as “Mexican peonage” and “Chinese coolie labor system” were also slavery in terms of the injustices they effectively inflicted. Thus, the SCOTUS made clear in the Slaughter-House Case that the Thirteenth Amendment protects not only against historical forms of slavery, but also against emergent forms of discriminatory practices that share the “pervading spirit” of slavery.
What precisely are the “pervading spirit” and “evil” of slavery mentioned in the Slaughter-House Cases? To get something closer to a concrete answer, we shall take a look at the 1968 landmark Supreme Court case Jones v. Alfred H. Mayer Co. (392 U.S. 409), where the SCOTUS held that:
“Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery … this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery – its ‘burdens and disabilities’ – included restraints upon ‘those fundamental rights which are the essence of civil freedom.’ […] And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.”
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)
In Jones v. Alfred, the SCOTUS made an updated interpretation to the Thirteenth Amendment, effectively extending the “Slaughter-House principle” to include not only exploitative labor systems, but also other economic injustices that inherit the burdens and disabilities of slavery.
Hopefully, the judicial interpretations highlighted hereinabove could serve as timely reminders of an amendment that sometimes feels all too forgettable. The SCOTUS decisions also remind us that while the historical forms of slavery may no longer exist, their rhetorical and material overtones do sustain into our present conditions.
1 The disputes of the Slaughter-House Cases revolves around the effort by the New Orleans city government to create a government-owned meat processing plant, for the purpose of monopolizing all slaughterhouse operations of the city. The local slaughterhouses brought several suits against the city government, and these cases were eventually consolidated into one and brought before the SCOTUS.