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 13th 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.