Notes on a Theory…

Thoughts on politics, law, & social science

Thirteenth Amendment and the Normalization of Coercion

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The other day I linked to Balkin and Levinson’s excellent new piece, The Dangerous Thirteenth Amendment.  The basic idea is that, because the 13th Amendment lacks a state action component*, and because coercive relations are exceedingly common outside the context of chattel slavery, a broader understanding had the potential to seriously disturb that status quo (especially racial and gender hierarchies).

Discussing why the North turned against Reconstruction and the cause of equal rights for black (men), Balkin and Levinson noted:

Northern white elites increasingly feared what they perceived as the threat of “socialism”—demands by freed blacks and their white sympathizers for redistributive programs. Elites feared that newly empowered majorities would be led astray by “[w]eak-minded sentimentalists or corrupt demagogues” who would stir up discontent among the masses.  Benedict tellingly quotes a now-forgotten reformer, Abram S. Hewitt, who wrote that “[t]he problem . . . . is to make men who are equal . . . in political rights and . . . entitled to the [formal right of] ownership of property content with that inequality in its distribution which must inevitably result from the application of the law of justice.” (citations omitted)

One might think that it was generations of forced labor, rather than efforts to correct that, were ‘redistribution’.  (This quote is also an important reminder that ‘socialism’ typically means ‘failing to reinforce inequality and hierarchy.’)

There’s a lot to this argument.  But Balkin and Levinson frame the discussion around a choice between 1) understanding the term ‘slavery’ as simply applying to chattel slavery, which they argue was largely how it was meant at the time of the framing of the 13th Amendment or 2) understanding the term more broadly as “the project of ending domination in social life, and securing self-rule and self-sufficiency,” which is closer to how it was understood earlier in history and by later movements that sought to draw on it (like the labor and Civil Rights movements).  But the text itself counsel against this, barring “slavery [or] involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted.”  Focusing on that, as well as understanding, as the court long has (as the authors discuss as well), that this extends to “badges and incidents of slavery,” suggests a far wider scope for the 13th Amendment without reaching back into history for alternate meanings. It’s also worth pointing out that the amendment contemplates primarily legislative enforcement, again, like the 14th and 15th Amendments, something that’s been largely ignored but flows logically from both history and text.

That said, when one adds together things like the Preamble, the Bill of Rights, and the 13th and 14th Amendments, I think you get to a fairly radical place, one which does at least question domination in social life.  These provisions all embody the notion of  equal personhood.  There are parallels to be made between chattel slavery and other institutions, and it’s worth engaging these questions.  Breathing life into the 13th would advance this project, which is one more reason why this piece is so important. It reminds us to take seriously the deep resonance between various forms of oppression and various movements of liberation.  Challenging the normalization of coercion, tying together its different forms, is the best sort of politicization, something that is sorely needed.

*I actually think too much has been made of this when it comes to the 14th Amendment.  The Equal Protection Clause requires states to provide the protections of law equally. (It’s easier to notice what it’s saying when you disentangle the words used).  What are the protections of law for? Protecting us from others, especially private actors.  I believe this was the way the clause was understood when it was adopted but that it was rewritten as about government discrimination for the same reasons – a broader understanding was and remains ‘dangerous.’

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Written by David Kaib

August 2, 2012 at 12:28 am

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