Georgetown Center for the Constitution

Explaining what the original meaning of the Thirteenth Amendment reveals about Congress’s powers under the Commerce, Necessary and Proper, and the Privileges or Immunities Clauses. Arguing that the Thirteenth Amendment provides strong evidence that progressives’ originalist claims regarding the breadth of Congress’s power are false. 

Arguing that the original meaning of the Thirteenth Amendment offered little protection for laborers.  Examining the speeches of Senator Henry Wilson and Representative James Ashley in light of claims made about their “pro-labor vision” and concluding that these claims lack foundation.

Arguing that the Thirteenth Amendment’s crime exception has implications regarding the influence of abolitionists’ radical understanding of due process. Contending that the evidence supports an understanding of due process that is focused on procedure, rather than substance, because “duly” refers to the manner of conviction, not its substantive reasonableness. Looking to how “duly convicted” was understood in 1866 to understand what “due process of law” means in the Fourteenth Amendment.

Discussing James Ashley’s political life and speeches regarding slavery. Arguing that they lend support to arguments that the Thirteenth Amendment encompassed more than the end of slavery and involuntary servitude. Contending that the Amendment provides a broader source of liberty and equality rights based on this historical evidence.

Describing the congressional origins of the Thirteenth Amendment and citing the speeches of Founding-Era congressmen on the need for the Amendment.

Arguing that the phrase “neither slavery nor involuntary servitude shall exist” has a meaning prior to the Thirteenth Amendment that is worthy of exploration. Reviewing that evidence, including the Northwest Ordinance of 1787 and the organic laws of the states. Concluding that the language originated in the natural-rights principles of the Declaration, that slavery and involuntary servitude are distinct but overlap, and that the Amendment only legally eradicated slavery, rather than actual “badges” of it, among other conclusions.

Arguing that the free labor ideology of Senator Henry Wilson–an architect of the Thirteenth Amendment–informs its meaning. Delving into Wilson’s speeches and legislative agenda to conclude that, beyond just eradicating slavery, the Thirteenth Amendment also exists to eliminate other hierarchical and racial distinctions for oppressed workers.

Arguing that the current understanding of the Thirteenth Amendment has the potential to undercut the state action doctrine. Employing textualist originalism to interpret the Thirteenth Amendment. Critiquing the idea that the Thirteenth Amendment is an exception to the state action doctrine and applies only to private conduct and arguing that the private conduct understanding has no basis in the text or history of the Amendment.

Arguing that the contemporary association of “slavery” with a limited set of historical practices is anachronistic and should be revised. Examining Founding-Era evidence to conclude that the definition of slavery at that time was broader and encompassed other forms of domination and oppression. Contending that this makes the Amendment “dangerous” insofar as its focus might relate to transforming society as a whole.

Examining speeches about antislavery constitutionalism before the enactment of the Thirteenth Amendment as keys to understanding the original meaning of the Thirteenth Amendment. Attending particularly to the speeches of John Ashley, a member of the Reconstruction Congress, who led the effort to enact the Amendment. Arguing that the Amendment gave Congress broad power to define freedom.

Arguing that Jones v. Alfred H. Mayer Co. sets forth too expansive a notion of Congressional power and that it should be reconsidered after City of Boerne v. Flores. Analyzing the text, history, and structural applications of Section 2 of the Thirteenth Amendment. Looking to the ratification debates in Congress and the States, debates over the Civil Rights Act of 1866, debates over the Fourteenth Amendment, and judicial approaches to the power. Ultimately arguing that the Amendment’s original meaning counsels an understanding of it as a prophylactic power to prevent the reemergence of slavery.

Analyzing the original public meaning of the Slavery as Punishment Clause and contending that it must be considered when deciding constitutional limits on punishment. Also challenging the view that originalism will not lead to bad results but arguing that it is still the most legitimate theory in interpreting the constitution.

Discussing a different Thirteenth Amendment adopted in 1861 that helps shed light on the original meaning of the one eventually passed in 1865. Looking to legislative history to analyze the intent of the drafters, including the Corwin Resolution.