The Slave Power Undead: Criminal Justice Successes and Failures of the Thirteenth Amendment

Criminal justice legislation expressly rooted in, or inspired by, the Thirteenth Amendment to the United States Constitution has tended to be narrow in scope. Such legislation aims primarily at preventing the unwilling from being physically compelled to labor for little, if any, compensation at hard jobs. This book chapter argues that Section 2 of that amendment, empowering Congress to pass appropriate legislation to enforce the amendment, authorizes somewhat broader legislation. Section 2 must be understood as aiming not only at slavery and its close cousin, involuntary servitude, but more directly at the anti-republican culture it spawned. More specifically, this chapter identifies four hallmarks of a core concept of chattel slavery, the presence of any one of which was an important prop for the Slave Power and thus potentially an appropriate subject of legislative assault. These props give more meat to the ambiguous "badges and incidents" concept that has defined Congress's Section 2 power. The four props are: (1) violence that (2) is expressive of racial subordination (3) used to coerce labor or (4) treat humans more as commodities than as persons. Current doctrine requires the conjunction of props 1 and 3, while the chapter argues that prop 4 alone can be the subject of legislation, as can prop 1 in conjunction with either prop 2 or 3. Moreover, properly understood, props 2 and 3 significantly broaden the currently accepted scope of Section 2's reach. The chapter ends with illustrations of criminal justice legislation that could be authorized under this new reading of Section 2, including outlawing racially-motivated low-level violence interfering with the housing market and outlawing certain types of purely psychological manipulation, devoid of even the threat of physical violence, to compel labor.