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James Pope on the Relevance of the Thirteenth Amendment

James Pope
James Pope

In its landmark Heller decision, the U.S. Supreme Court held for the first time that the Second Amendment protects an individual right to own a gun. Professor James Gray Pope, in recent articles in the Yale Law Journal and the Maryland Law Review, contends that it’s time to reassess the potential scope of another often “forgotten” amendment – the Thirteenth. The amendment that prohibits slavery and involuntary servitude is widely accepted to protect three labor rights: the rights to quit work, to change employers, and to set the wages for which one is willing to work. Professor Pope proposes that the Amendment supports broader labor protections, most prominently workers’ rights to organize, and suggests that flawed claims about some of its features have limited the development of Thirteenth Amendment doctrine.

Why do you find the Thirteenth Amendment “the noblest and most fascinating of all constitutional provisions”?

Today, we are accustomed to thinking of our Constitution as a fount of justice. Before the Civil War, however, most seekers of justice turned to the Declaration of Independence, not the Constitution. As everybody knows, but few want to recall, the Constitution protected slavery, most famously in the fugitive slave and three-fifths clauses. Not until the Thirteenth Amendment repealed those provisions could justice and constitutionalism truly combine forces. Today, the Thirteenth Amendment is the only constitutional provision that unambiguously calls upon Congress and the courts to identify and enforce unenumerated rights.

How can Congress and the courts tell what rights are protected?

The Amendment guarantees all rights necessary to negate the conditions of slavery and involuntary servitude. In Pollock v. Williams, the Court suggested that the Amendment protects rights necessary to provide workers with “the power below to redress” and employers “the incentive above to relieve” a “harsh overlordship or unwholesome conditions of work.” Applying this standard, the Pollock Court held that the Amendment protects the right to change employers.   

What factors have limited the application of the Thirteenth Amendment?

As in the case of the Second Amendment, courts shied away from applying ordinary methods of constitutional interpretation to the Thirteenth Amendment. The situation improved somewhat during the 1960s, thanks in part to the efforts of Rutgers’ own Arthur Kinoy, but the Amendment still has a long way to go.

Are there current examples of “involuntary servitude” for which the Thirteenth Amendment has relevance?

The most dramatic single example is the phenomenon of “human trafficking.” Congress has already broadened the definition of involuntary servitude to include psychological coercion, and so far the Courts of Appeal have approved. Now that scholars are beginning to look more seriously at the Amendment, a host of additional applications are under discussion including abortion (literally “forced labor”), child abuse, and racial profiling.

Posted 2/21/12