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.