Cornell Law Review Online Vol. 104

The Thirteenth Amendment and Self-Determination

Seth Davis, Professor of Law, University of California, Berkeley School of Law.

15 Sep 2019

Slavery in the American South was a system of government that denied self-determination to Black communities. The Thirteenth Amendment to the U.S. Constitution promised that “[n]either slavery nor involuntary servitude . . . shall exist within the United States.”1 U.S. CONST. amend. XIII, § 1. Today, Black communities and other subordinated communities are demanding self- determination and community control of the laws and policies that affect them. The Movement for Black Lives, for example, has demanded “a world where those most impacted in our communities control the laws, institutions, and policies that are meant to serve us.”2 THE MOVEMENT FOR BLACK LIVES, Community Control, https://policy.m4bl.org/about/ [https://www.perma.cc/S3H6-SPKH] (last accessed Jan. 26, 2019). The Movement for Black Lives was organized “[i]n response to the sustained and increasingly visible violence against Black communities in the U.S. and globally” and is a “collective of more than 50 organizations representing thousands of Black people from across [the United States].” THE MOVEMENT FOR BLACK LIVES, Platform, https://policy.m4bl.org/platform/ [https://www.perma.cc/2P45-PFYL] (last accessed Jan. 26, 2019); see Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. REV. 405, 408 (2018) (“The [Movement for Black Lives] is focused on shifting power into Black and other marginalized communities.”). The Movement’s “intersectionally sensitive”3 Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 GEO. L.J. 1479, 1481 n.5 (2016). and “hyper-local”4 Mark Winston Griffith, Black Love Matters, THE NATION (July 28, 2015), https://www.thenation.com/article/black-love-matters/  [https://www.perma.cc/8JHY-EBF4]. platform “signals the revitalization of alternative forms of participatory democracy”5Cf. Veryl Pow, Rebellious Social Movement Lawyering Against Traffic Court Debt, 64 UCLA L. REV. 1770, 1772 (2017) (discussing Black Lives Matter movements generally); Akbar, supra note 2, at 407 n.3 (noting that Movement for Black Lives includes chapter-based Black Lives Matter organization). that entail not simply rights or votes, but also powers to decide.

This Essay considers whether the Thirteenth Amendment might support or reflect this type of demand for collective self-determination. The Supreme Court has read the Thirteenth Amendment to the U.S. Constitution to abolish chattel slavery and other forms of compulsory labor that deny an individual right to liberty.6United States v. Kozminski, 487 U.S. 931, 942–44 (1988). It has further held that Section 2 of the Amendment authorizes Congress to legislate to eliminate the “badges and incidents of slavery,”7The Civil Rights Cases, 109 U.S. 3, 20 (1883). which includes the authority to protect the right to buy and sell property against racial discrimination.8See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 412, 421–22 (1968) (holding that Congress had constitutional authority to enact 42 U.S.C. § 1982, which provides that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property”). Whether the Thirteenth Amendment goes further still to protect collective self-determination is an open question.

My aim in this Essay is to explore a story of racial equality that connects demands for community control and collective self-determination with the Thirteenth Amendment’s promise to abolish slavery.9U.S. CONST. amend. XIII, § 1. Looking to the Thirteenth Amendment opens up possibilities not envisioned in the canonical Carolene Products approach to the Fourteenth Amendment’s equal protection guarantee, which focuses upon judicial protection of the rights of “discrete and insular minorities,”10United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). or, in modern parlance, “suspect” and “quasi-suspect” classes.11Russell K. Robinson, Unequal Protection, 68 STAN. L. REV. 151, 164 n.89 (2016) (“Rather than refer to discrete and insular minorities, the Court now speaks of ‘suspect’ or ‘quasi-suspect’ classes.”).

This Essay does not attempt a complete exploration of the questions it raises. Rather, taking criminal justice as its primary example, this Essay sketches the Thirteenth Amendment’s potential to support or at least reflect a “demosprudence”12Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward A Demosprudence of Law and Social Movements, 123 YALE L.J. 2740, 2749 (2014) (“Whereas jurisprudence examines the extent to which the rights of ‘discrete and insular’ minorities are protected by judges interpreting ordinary legal and constitutional doctrine, demosprudence explores the ways that political, economic, or social minorities cannot simply rely on judicial decisions as the solution to their problems.”)(footnote omitted). of equality and self-determination.

The following three Parts consider the possibility of—and some challenges to—this interpretation of the Thirteenth Amendment.13The italicized reference is to Ava DuVernay’s 13th, a documentary that explores the Thirteenth Amendment’s fraught relationship with mass incarceration in light of the Amendment’s Exception Clause, which permits slavery or involuntary servitude “as a punishment for crime whereof the party shall have been duly convicted.” U.S. CONST. amend. XIII, § 2. See 13TH, Directed by Ava DuVernay (Netflix 2016), https://www.netflix.com/watch/80091741 [https://perma.cc/55NR-35L7]; infra Part III (discussing the Exceptions Clause). Part I discusses community control and collective self-determination as components of demands for racial equality. Part II connects this type of demand with the Thirteenth Amendment. Part III draws upon Kimberlé Crenshaw’s work on intersectionality14See Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1242 (1991) [hereinafter Crenshaw, Margins]; Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 140. and Angela Harris’s work on essentialism15See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 585 (1990). to identify some of the ways in which a Thirteenth Amendment analysis might take the complexities of collective self-determination into account by making visible myriad forms of domination.16Cf. ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM: A LEGAL HISTORY 108 (2004) (“The Thirteenth Amendment provides Congress with the power to end any private or state-sponsored domination that prevents individuals from participating in civil society as rational, autonomous agents.”); Jack M. Balkin & Sanford Levinson, The Dangerous Thirteenth Amendment, 112 COLUM. L. REV. 1459, 1470 (2012) (arguing that Thirteenth Amendment has been neglected because taking it seriously might mean “embarking on the project of ending domination in social life”); Rebecca E. Zietlow, Free at Last! Anti-Subordination and The Thirteenth Amendment, 90 B.U. L. REV. 255, 268 (2010) (developing vision of Thirteenth Amendment that “takes into account the fact that racial, gender, and economic subordination are interconnected”).

This Essay is concerned with communities in particular places and spaces rather than a singular community. It takes as a premise that the relationships among race, community, and identity are complex.17Race, as Ian Haney López has argued, “is in fact closely tied to the construction of personal identities and communities,” but is nevertheless distinguishable from specific communities, “often geographically defined,” that are based upon shared experiences and “can serve as mediums linking race to identity and back again.” Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 54 (1994). Regina Austin has argued that a singular “‘black community’ . . . is more of an idea, or an ideal, than a reality,” while nevertheless seeking to revitalize the ideal of community as part of a pursuit of freedom for “real black communities.”18Regina Austin, “The Black Community,” Its Lawbreakers, and a Politics of Identification, 65 S. CAL. L. REV. 1769, 1769, 1817 (1992). Thus, while Parts I and II explore an idea of collective self-determination for communities, Part III acknowledges how this idea can make invisible “those at the margins” of communities.19See Robinson, supra note 11, at 211 (looking to “insights of intersectionality” in order “to make visible those at the margins of racial and sexual minority communities”).

To read more, click here: The Thirteenth Amendment and Self-Determination.

References   [ + ]

1.  U.S. CONST. amend. XIII, § 1.
2.  THE MOVEMENT FOR BLACK LIVES, Community Control, https://policy.m4bl.org/about/ [https://www.perma.cc/S3H6-SPKH] (last accessed Jan. 26, 2019). The Movement for Black Lives was organized “[i]n response to the sustained and increasingly visible violence against Black communities in the U.S. and globally” and is a “collective of more than 50 organizations representing thousands of Black people from across [the United States].” THE MOVEMENT FOR BLACK LIVES, Platform, https://policy.m4bl.org/platform/ [https://www.perma.cc/2P45-PFYL] (last accessed Jan. 26, 2019); see Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. REV. 405, 408 (2018) (“The [Movement for Black Lives] is focused on shifting power into Black and other marginalized communities.”).
3.  Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 GEO. L.J. 1479, 1481 n.5 (2016).
4.  Mark Winston Griffith, Black Love Matters, THE NATION (July 28, 2015), https://www.thenation.com/article/black-love-matters/  [https://www.perma.cc/8JHY-EBF4].
5. Cf. Veryl Pow, Rebellious Social Movement Lawyering Against Traffic Court Debt, 64 UCLA L. REV. 1770, 1772 (2017) (discussing Black Lives Matter movements generally); Akbar, supra note 2, at 407 n.3 (noting that Movement for Black Lives includes chapter-based Black Lives Matter organization).
6. United States v. Kozminski, 487 U.S. 931, 942–44 (1988).
7. The Civil Rights Cases, 109 U.S. 3, 20 (1883).
8. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 412, 421–22 (1968) (holding that Congress had constitutional authority to enact 42 U.S.C. § 1982, which provides that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property”).
9. U.S. CONST. amend. XIII, § 1.
10. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
11. Russell K. Robinson, Unequal Protection, 68 STAN. L. REV. 151, 164 n.89 (2016) (“Rather than refer to discrete and insular minorities, the Court now speaks of ‘suspect’ or ‘quasi-suspect’ classes.”).
12. Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward A Demosprudence of Law and Social Movements, 123 YALE L.J. 2740, 2749 (2014) (“Whereas jurisprudence examines the extent to which the rights of ‘discrete and insular’ minorities are protected by judges interpreting ordinary legal and constitutional doctrine, demosprudence explores the ways that political, economic, or social minorities cannot simply rely on judicial decisions as the solution to their problems.”)(footnote omitted).
13. The italicized reference is to Ava DuVernay’s 13th, a documentary that explores the Thirteenth Amendment’s fraught relationship with mass incarceration in light of the Amendment’s Exception Clause, which permits slavery or involuntary servitude “as a punishment for crime whereof the party shall have been duly convicted.” U.S. CONST. amend. XIII, § 2. See 13TH, Directed by Ava DuVernay (Netflix 2016), https://www.netflix.com/watch/80091741 [https://perma.cc/55NR-35L7]; infra Part III (discussing the Exceptions Clause).
14. See Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1242 (1991) [hereinafter Crenshaw, Margins]; Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 140.
15. See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 585 (1990).
16. Cf. ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM: A LEGAL HISTORY 108 (2004) (“The Thirteenth Amendment provides Congress with the power to end any private or state-sponsored domination that prevents individuals from participating in civil society as rational, autonomous agents.”); Jack M. Balkin & Sanford Levinson, The Dangerous Thirteenth Amendment, 112 COLUM. L. REV. 1459, 1470 (2012) (arguing that Thirteenth Amendment has been neglected because taking it seriously might mean “embarking on the project of ending domination in social life”); Rebecca E. Zietlow, Free at Last! Anti-Subordination and The Thirteenth Amendment, 90 B.U. L. REV. 255, 268 (2010) (developing vision of Thirteenth Amendment that “takes into account the fact that racial, gender, and economic subordination are interconnected”).
17. Race, as Ian Haney López has argued, “is in fact closely tied to the construction of personal identities and communities,” but is nevertheless distinguishable from specific communities, “often geographically defined,” that are based upon shared experiences and “can serve as mediums linking race to identity and back again.” Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 54 (1994).
18. Regina Austin, “The Black Community,” Its Lawbreakers, and a Politics of Identification, 65 S. CAL. L. REV. 1769, 1769, 1817 (1992).
19. See Robinson, supra note 11, at 211 (looking to “insights of intersectionality” in order “to make visible those at the margins of racial and sexual minority communities”).

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