The University of Chicago Law School Faculty Blog

Student Blogger - #13Amend Live Blog: Racial Profiling

Professor Robert Gooding-Williams provided critiques of the four papers of the last panel; I will focus on his critique of Professor Carter's presentation. Carter relies on two propositions: that unconscious biases exist and that they exemplify historical stigmatization. For the first proposition, Gooding-Williams contended that Carter needed more psychological evidence; an alternative assumption, which Gooding-Williams proposes but does not defend, is that racial profilers believe that race is an accurate statistical predictor of criminality. Thus, it could be conscious rationality at work rather than unconscious biases. For the second proposition, some mechanism is needed to show why discrimination now stems from slavery about 150 years ago. I do not think that the second problem is decisive; discrimination now seems to extend from a line of mistreatment stretching back to our history of slavery, so some mechanism must surely exist.

Student Blogger - #13Amend Live Blog: The Dangers of Analogy

Jane Dailey comments: This panel's title suggests a call for action. Many of the papers we have heard suggest that the 13^th Amendment can be used for social and political reform, but is this feasible, or even desirable (even if we assume that the social and political reform itself is desirable)? Undergirding the claim for an expansive view of the Amendment, particularly Section2, is the idea that Congress is, and should be, a progressive body. However, Congress is no more inherently progressive than the courts may be. Dailey notes that many of the papers in this panel use analogy to argue that Congress can, and should, make various laws protecting the rights of individuals. She worries that this might be dangerous because analogical argument can go both ways. The best example of this is that if the Northerners had accepted the analogizing of wages labor to slavery, we may not have had the Civil War and abolition. Contracts can always be seen to restrict freedom, leaving all contracts vulnerable to these same arguments if pushed too far.

Student Blogger - #13Amend Live Blog: Antisubordination

Many speakers have sought to imbue the Thirteenth Amendment with a broad underlying principle, and Professor Rebecca Zietlow identified antisubordination as that principle. She focused on the precedents set forth by Congress, rather than by the courts. In this particular context, Professor Zietlow argued, legislative precedent has value because the Thirteenth Amendment was the first amendment to use an enforcement clause (§ 2) and because the framers of that amendment envisioned a broad grant of power. Congress acted then and since to effectuate an antisubordination principle. She gave several examples, of which I will list only a few. The Reconstruction Congress tried to help freed slaves enforce their rights, not only to remove slavery. The Anti-Peonage Act of 1867 acted against involuntary servitude regardless of race. Members of the New Deal Congress made arguments analogizing labor rights to freedom from slavery. And even in 2000, Congress passed the Trafficking Victims Protection Act.

Student Blogger - #13Amend Live Blog: The Slave Power Undead

Andrew Taslitz "The Slave Power Undead: Criminal Justice Successes and Failures of the Thirteenth Amendment": Lawyers use history as moral inspiration in making constitutional arguments. Taslitz is most interested in the criminal justice system. His argument has two basic premises. Section 2 of the 13^th Amendment gives Congress has more power than it has used to draft laws regulating criminal justice. For example, it has been used to challenge forced physical labor, but not psychological coercion. Taslitz argues that Section 2 was meant to get rid of the remnants of Slave Power, if they survived the abolition of slavery itself. "Slave Power" describes the antebellum Southern culture that Northerners hated and feared. They viewed it as anti-Republican and they saw slavery as incompatible with free labor. Taslitz argues that the badges and incidents of slavery, at which Section 2 is aimed, were the props that the culture of Slave Power used to subordinate blacks. These were violence, expressive racial subordination, coercion of labor and commodification. To the extent that the criminal justice system uses these props in certain combinations, Congress' Section 2 power allows it to put an end to these practices. Taslitz goes on to point out that the view that he is advancing would prevent Congress from using Section 2 powers to prevent any practice or institution that does not involve any of these props. Additionally, the combination of these props, with the exception of commodification, which should be seen as a clear violation of Section 1 on its own, would have to be so egregious as to be reminiscent of Slave Power. Further, any remedial measures would have to actually improve the situation it is meant to address. Taslitz closes by urging Congress to kill the modern slave powers of our time. He states, "It has the power. It only lacks the political will."

Student Blogger - #13Amend Live Blog: Toward a Thirteenth Amendment Exclusionary Rule as a Remedy for Racial Profiling

William Carter, ""Toward a Thirteenth Amendment Exclusionary Rule as a Remedy for Racial Profiling": The thesis of this paper is that racial profiling is a badge and incident of slavery and therefore evidence obtained as a result should be excluded. There are three parts to this argument: 1) The 13^th Amendment was understood to abolish more than chattel slavery; it also applies to the badges and incidents of slavery. 2) Racial profiling is a badge and incident of slavery. 3) The appropriate remedy is to exclude the evidence obtained through racial profiling.

Student Blogger - #13Amend Live Blog: Slave Labor and Immigrant Labor

Professor Gerald Neuman, in his article The Lost Century of American Immigration Law (1776-1875), referred to slavery as our first immigration system. Professor Maria Ontiveros identified the connections between slavery and our current treatment of immigrant workers, particularly guest workers and undocumented workers. One primary similarity is the inability to quit working. Guest-worker visas tie the worker to a single employer; if the worker quits or is fired, she will be deported, which is a strong disincentive to report rights abuses. Undocumented workers are subject to deportation if discovered, which again disincentivizes the worker from reporting abuses. These abuses by employers with the knowledge that they are unlikely to be reported could be considered "involuntary servitude." Other similarities include the separation of the worker from the greater body of society and the lack of access to the courts to vindicate rights. These connections reveal current "badges and incidents of slavery."

Student Blogger - Why Death Isn't So Bad (At Least Until We Discover Warp Drive)

Professor Martha Nussbaum on the Rationality of Fearing Death

Nearly everyone fears death. Is this a rational response, or just something irrational, perhaps created by culture or biology? Unsurprisingly, this is one of the oldest questions in philosophy. Epicurus famously argued that this fear is irrational, because death cannot be good or bad for someone who is, after all, dead. Philosophers ever since have considered this argument, and many have claimed that it is incorrect or incomplete in some way. Professor Martha Nussbaum is among those who have thought and written about this issue, and she presented her recent work, titled “The Damage of Death: Incomplete Arguments and False Consolations” at this week's Works in Progress (WiP) talk at the law school. In the paper, Prof. Nussbaum does argue that Epicurus has missed something, and offers two “false” consolations before identifying a more appealing one that has its own roots in classical philosophy. Discussions at the WiP talk focused on Prof. Nussbaum's direct responses to the Epicurean position, though the paper delved further into the implications of its incompleteness.

Student Blogger - #13Amend Live Blog: “Social Equality”

Rebecca Scott questioned the panel, pointing out that the term "social equality" was used during Reconstruction as a term of opprobrium; it was always "forced" or "thrust" upon society. Eric Foner seconded that point. I saw this as evidence that politics then was not so different than politics now. People today never say that "judicial activism" is good; everyone agrees that "socialism" is bad. People apply these terms only to opponents' points. The users seem to view the terms as descriptions rather than as insults, even though the use functions to insult. This practice only serves to distract from what is being discussed.

Student Blogger - #13Amend Live Blog: How Much Is Marriage Like Slavery?

Christine Stansell comments: She is here to debate the past and will leave it to the lawyers to determine the utility of the arguments made. She was a student of David Brion Davis, who allowed encouraged students to express arguments and ideas while they are still inchoate in incomplete. In that spirit, these remarks should be seen as subject to revision. Stansell is uncomfortable with the arguments of Koppelman and Nussbaum, asserting the applicability of the 13^th Amendment to women in the context of family. One worry is the historical impotence of the Amendment in women's rights litigation. And potentially more disturbing, the people who live closest to the link, black women, have not been drawn to the association of women's subjugation and slavery. We might worry that these arguments serve to alienate and exclude them from the discourse. It has been argued that the status of women exists in a separate context which is related to slavery, but is undeniably different. There are substantial cultural, ideological, political and legal links between marriage and slavery, but this linkage has been largely rhetorical and has always been so. At its passage, free women saw nothing for themselves in the 13^th Amendment, because it did nothing for them; they needed the vote, not freedom. In many cases, the analogy of marriage to slavery was made without any real knowledge of slavery. However, the abolitionist feminist movement changed this. The political engagement in abolition brought forth the view that male mastery was something other than circumstantial and it highlighted the physical nature of both types of domination. As Sarah Grimké said, "All I ask of our bretheren is that they will take their feet from off our necks and permit us to stand upright on the ground which God intended us to occupy." But this way of arguing ended with the passage of the 13^th Amendment, which highlighted that marriage was not slavery in the eyes of the public. Many of the women who lived at the site of the linkage, women who had been slaves and were now wives, saw family as a powerful and positive institution. For these reasons Stansell is both interested and skeptical of arguments that assert the connection of slavery to the status of women.

Student Blogger - #13Amend Live Blog: History and Legal History

Legal historians focus almost exclusively on original intent, particularly by focusing on the statements of legislators. Professor Eric Foner described himself as merely a historian who sometimes poses as a legal historian. As a pure historian, he thinks this focus is decontextualized. The national changes leading to the Thirteenth Amendment did not stop in 1865; they continued forward through the whole of Reconstruction. Taking a conservative reading of these acts goes against the tenor of the times. Passing the Thirteenth Amendment was not a conservative measure; a newspaper at the time viewed the passage of the Amendment by the Senate as a rebuke to the less aggressive actions put forward by the Lincoln Administration. The Amendment operated immediately and nationwide and said nothing about colonization of former slaves to Africa or a period of apprenticeship for the freemen. Furthermore, the abolition movement envisioned a national state with single citizenship, and free labor ideology fed into the movements at the time as well. A multiplicity of views emerged outside of the halls of Congress. The Thirteenth Amendment seems like a promising area of research because it has not been narrowed by subsequent conservative legal history and interpretation.