The University of Chicago Law School Faculty Blog

Student Blogger - #13Amend Live Blog: Forced Labor, Revisited

Andrew Koppelman, "Forced Labor, Revisited: The Thirteenth Amendment and Abortion": The 13^th Amendment has been in the news lately, though not directly. It has been argued that restrictions on abortion are unconstitutional because they require women to carry fetuses against their will, though these arguments are generally made citing 14^th Amendment. Koppelman observes that if you want to be taken seriously, you should not make a 13^th Amendment argument for access to abortion. Apparently, in the eyes of much of the opposition, these arguments are so ridiculous that they do not warrant a response. As a law student, Koppelman argued for that the 13^th Amendment is violated by laws preventing abortion. Forced pregnancy and childbirth is equivalent to compelling women to serve fetuses, involuntarily. This argument works even if you accept Prof. Stone's view of the Amendment, that it only applies to state action. It is the state that compels the woman to serve the fetus. This is compatible with the holding of Bailey v. Alabama. Koppelman does not argue that this is of the same degree, but of the same kind, as antebellum slavery. Koppelmen then presents some of the arguments against this position and explains why he believes that they fail. Some have argued that this is an attack on motherhood, which should be seen as a joyous blessing. This, however, only applies to voluntary motherhood. Rape laws do not devalue consensual sex. Arguments for a ban on plantation slavery cannot be refuted by pointing out that many people find gardening to be an extremely pleasant activity. Another potential objection is that implicit in the argument that forced pregnancy requires women to serve the fetuses is the idea that a fetus is a person (with a right to life). This is easily refuted by citing Bailey, which involved servitude to a corporation. The 13^th Amendment has both egalitarian and libertarian aims, both of which are violated by laws prohibiting abortion. It seems that this should be enough. However, Koppelman points out that it is naïve to think that a legal argument made on the basis of well established case law will necessarily be a good one. The 13^th Amendment strikes people as strange and this has limited its application. He also recognizes that the abortion debate will not be resolved with technical legal arguments; however, this application of the 13^th Amendment could do a lot to fix some of the problematic features of Roe v. Wade.

Student Blogger - #13Amend Live Blog: Emancipation and Civic Status

William Wiecek, ""Emancipation and Civic Status: The American Experience, 1865-1915": Prof. Wiecek is involved in a collaborative project investigating the structural racism of the Supreme Court. This paper is closely related to that project. Before the Civil War the laws of the free states and slave slates differed as to the status of a free black person. In the North, the civic status of free blacks included the rights of habeas corpus, jury trials and a unitary criminal process (the same for whites and blacks). It is true that there was discrimination, but much is lost if we ignore the rights of blacks that were recognize. The Northern view was that slavery was odious and therefore could only exist as a creation of positive law. If an individual was able to escape the jurisdiction of positive law, he would also be free of the bonds of slavery. The Southern view was very different, almost a mirror image; blacks had no natural rights. The Dred Scott case, supported this view in holding that black had "no rights and privileges except those given by positive law." The Civil War and Reconstruction marked the victory of the free state view. The Black Codes in the south give blacks some contract rights, the right to marry, but there was still race control and coercive labor. Reconstruction brought the 13^th Amendment, endowing individuals with rights. This was followed by the Civil Rights Act of 1866, which reaffirmed four elements of civic status for blacks: the right to contract, access to the courts as party and witness, the right of property and a general right of equality. The 14^th Amendment guaranteed citizenship, privileges and immunities, due process and equal protection. The promise of these legal successes, however, was stunted during the Era of "Servitude", from 1880-1915. During this era, blacks were systematically stripped of rights. They were victims of de jure segregation, their economic opportunities were severely limited and they were often subjected to acts of violence and terrorism. Wiecek argues that the Supreme Court was complicit, because none of this would have been possible without a series of cases, including Plessy v. Ferguson, which severely limited the application of the 14^th Amendment. How did this happen? The doctrine spoke of positivism and state sovereignty, but Wiecek instead claims that the law was animated by a metadoctrine of racism.

 

Student Blogger - #13Amend Live Blog: Organized Labor and the Thirteenth Amendment

In the early labor movement, unions claimed the right to strike and organize under the Thirteenth Amendment. Professor Jim Pope wants to resurrect this argument, and he argued against historians Bernstein and Moreno, who argue that the Thirteenth Amendment does not support labor rights. Their argument is that collective labor rights operated as white job cartels, which is inconsistent with the racial equality put forth by the Thirteenth Amendment. Professor Pope acknowledged that their argument was historically accurate but unremarkable. Blacks at the time could not exercise labor rights because of a campaign of violence by the KKK. Blacks attempted to organize for a time, but as the KKK gained influence, some white labor leaders despaired that they could not organize blacks for just that reason. One exception was Southern ports, where blacks had some success in organizing. Black unions could collectively scab when white unions struck for discriminatory policies and exert pressure on employers. Another was the Brotherhood of Sleeping Car Porters, which played an important role in the early civil rights movement. Professor Pope argues more broadly that the Thirteenth Amendment sets out a powerful anti-subjugation principle, which, unlike other provisions in the Constitution, cannot easily be turned by elites to their own purposes.

Student Blogger - #13Amend Live Blog: “Badges and Incidents”

A famous phrase from the cases interpreting the Thirteenth Amendment is "the badges and incidents of slavery." Professor George Rutherglen spoke about the two directions the phrase points in. First, "incidents" is a technical legal term for the attributes attaching to a status, and, second, the term "badges" is a wide, figurative phrase for political and social inferiority. Some treatises about slavery published before emancipation use the term "incidents" as the pieces of the bundle of having legal status as a slave, for example, denial of full legal personhood. The term "incidents" was used during the floor debates over the Thirteenth Amendment in that same manner. The term "badges" is a bit fuzzier. Adam Smith referred to the "badges of inferiority of the American Colonies" stemming from unequal trade laws, and the framers of the Thirteenth Amendment surely read this and other similar uses. This term did not enter Thirteenth Amendment jurisprudence until the debates over the Civil Rights Act of 1866, when Senator Trumbull used it while giving an expansive view of congressional authority to enforce the Amendment.

The phrase "badges and incidents" has gained importance in the legal interpretation of the Thirteenth Amendment in two opposing cases, the Civil Rights Cases and Jones v Mayer. The phrase has gained perhaps even more importance, however, in the political realm. The broadness of the phrase helps advocates use the phrase to call attention to the continuing effects of slavery, such as economic inequality and discrimination.

Torture and Reliance on Official Misstatements of Law

Yesterday, while releasing new “torture memos,” President Obama made a statement that many interpret as categorically disclaiming any future prosecutions of CIA personnel for torture. I don’t know what Obama’s intentions are, but it is worth paying attention to what he actually said: “[I]t is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” This statement is quite similar to one Eric Holder made in writing during his confirmation hearings in January (in response to a question from a Republican Senator): "It is, and should be, exceedingly difficult to prosecute those who carry out policies in a reasonable and good faith belief that they are lawful based on assurances from the Department of Justice itself."

Student Blogger - #13Amend Live Blog: Why Are Women Excluded?

One audience member asked the panel what it is about the Civil Rights Act that prevents it from being applied to women. Many participants noted that they were not sure exactly why it has been applied this way, until it was finally exclaimed that Prof. Nussbaum addressed this in her comments: It's not the law; it's the culture!

Student Blogger - #13Amend Live Blog: “One Law for the Lion and the Ox…”

It is inevitable that so much of today's paper's focus on the language of the 13^th Amendment. It is also inevitable that fixing the meaning of the language of the Amendment, we will consult context. This collapses much of the distinction between text and context. Ken Warren, in his comments, mentions Justice Scalia's questionable textualism and Originalism in Domino's Pizza v. McDonald, which in the opinion of many was neither faithful to the text nor the context of 42 U.S.C. § 1981. Warren also discusses the relation of freedom to difference, and equality to difference. As William Blake wrote, "One law for the lion and the ox is oppression." The enduring question is whether we should take note of difference, or treat everyone the same? Warren asks several more questions: Ought we to not run the slavery argument into the ground? Does the abolition of slavery, when taken to its extreme, abolish all legal distinctions between classes of people? It may be the case that maintaining a posture that seeks to do away with legal distinctions will blind us to power differences that ensue from economic inequality.

Student Blogger - #13Amend Live Blog: Slavery Against Women

What does "involuntary servitude" mean for women? Professor Martha Nussbaum explained the prevalence of sexual exploitation of women and girls. There is the case of Josef Fritzl and the acceptance of rape within marriage in Afghanistan (and differential treatment of marital rape within this country). Battered woman syndrome leaves the victim too afraid to leave. In India, the "restitution of conjugal rights" is permitted, where a runaway wife is forcibly returned to the home. Sex trafficking is becoming more common, especially across Eastern Europe. When something happens to men, it is often labeled "slavery," but not when the same act is inflicted upon women. Human rights standards until recently did not include sex-specific abuses such as rape and sexual torture, for example. The categories of genocide do not include violence directed toward women as women. When violence is political, we properly recognize that it is systemic, but violence against women is often seen as isolated acts of pathological individuals. Nussbaum quoted Catherine MacKinnon about mass acts of violence against women: "If it's happening, it's not so bad, and if it's really bad, it isn't happening." All of these acts ought to be seen as "involuntary servitude."

Student Blogger - #13Amend Live Blog: The Relevance of Reconstruction Today

Professor Alison LaCroix commented on some of the unifying themes of the papers presented in the second panel, on "rights." There is a sense in legal history that Reconstruction is its own special time that does not necessarily have relevance for interpreting themes at other points in time. After experiencing the broad principles enunciated during the Civil War, the Reconstruction was all about coalition building and the dirtiness of politics, giving the sense that those principles have been forgotten. These papers show, however, that Reconstruction is in fact continuous with the surrounding history. One can take three different perspectives. First, a normative claim about the Thirteenth Amendment is that it vindicated the principles of the Declaration of Independence. Second, a descriptive claim is that the Amendment is deeply contextual with the surrounding history and concepts of the time. Third, deeply contextual history can be a source of "subversive" history, where the realities of the past can illuminate normative debates today.

Student Blogger - #13Amend Live Blog: Kamehameha

Professor Aviam Soifer argued against the narrowing of the 1866 Civil Rights Act urged by judges including Judge Bybee of the Ninth Circuit. Judge Bybee wrote the dissent in an 8-7 decision about Kamehameha Schools in Hawaii, which are restricted to native Hawaiians. He quoted Jones v Mayer, a case upholding the Civil Rights Act of 1866 (codified at § 1981), but he replaced the phrase "black man" with "[any person]" and focused solely on the contracts aspect of the Act.

The full text is, "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." This Act has been neglected, but it is significantly broader than Bybee seems to give it credit for.