Interpreting the Thirteenth Amendment

Abstract

This article develops a pragmatic proposal for passing federal civil rights statutes pursuant to the Thirteenth Amendment. It begins with an analysis of Supreme Court precedents and turns to the amendment's contemporary applications. I am particularly concerned here with developing a legislative approach that will cautiously build on Supreme Court jurisprudence to identify the scope of congressional enforcement authority.The Thirteenth Amendment provides the federal government with the power to enact legislation that criminalizes certain private acts of discrimination. Congress may pass necessary and proper laws that can reasonably be expected to end subordinating infringements against individual rights. In significant circumstances, several of which are discussed here, the Thirteenth Amendment covers anti-social behavior that is beyond the scope of the Fourteenth Amendment and Commerce Clause, even though these two are more commonly relied on for civil rights enforcement. Given the sparseness of Thirteenth Amendment precedents, broadening its reach is more likely to succeed through incremental policymaking. This step-by-step strategy is analogous to the NAACP’s successful approach to litigation in the Fourteenth Amendment area. If this initial, pragmatic effort succeeds in the courts, Congress can later be more expansive in passing laws against discrimination targeting a range of identifiable groups.