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FOREWORD
The Continuing Relevance of the Original Meaning
of the Thirteenth Amendment
RANDY
E.
BARNETT*
ABSTRACT
In this Foreword, I explain why the Thirteenth Amendment was necessary to
abolish slavery notwithstanding the Emancipation Proclamation, and what its
original meaning tells us about the original meaning of both (a) Congress's
powers under the Commerce and Necessary and Proper Clauses, and (b) the
Privileges or Immunities Clause of the FourteenthAmendment.
INTRODUCTION
1.
II.
THE NECESSITY OF THE THIRTEENTH AMENDMENT
WHAT THE THIRTEENTH AMENDMENT TELLS
CONGRESS'S POWERS
III.
1
..........................................
Us
..............
ABOUT THE SCOPE OF
..................................
WHAT THE THIRTEENTH AMENDMENT TELLS
CONSTITUTIONAL RIGHTS
Us
2
3
ABOUT THE SCOPE OF
...............................
5
A.
The Thirteenth Amendment and Economic Liberty ........
5
B.
The Privilegesor Immunities of Citizens of the United
States ...
.....................................
8
CONCLUSION ............................................
10
INTRODUCTION
One hundred fifty years ago, on December 6, 1865, the Thirteenth Amendment was ratified. Section One reads: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject to their
jurisdiction."' Although it seems so straightforward as almost to be boring,
* Carmack Waterhouse Professor of Legal Theory; Director, Georgetown Center for the Constitution. This Foreword was prepared for the "Symposium on the Original Meaning and Continuing
Relevance of the Thirteenth Amendment," which was held at the Georgetown University Law Center
on December 5, 2015. I thank Alexa Gervasi for her assistance in preparing this Foreword. An earlier,
shorter version of this Foreword can be found at Randy E. Barnett, Free at Last, 16 CLAREMONT REV.
BOOKS 59 (2015/16). D 2017, Randy E. Barnett.
1. U.S. CONST. amend. XIII, § 1.
1
2
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there is a lot that most people do not know about the Thirteenth Amendment,
and its significance extends beyond its obvious meaning.
I.
THE NECESSITY OF THE THIRTEENTH AMENDMENT
To begin with, many Americans may believe that the Amendment was largely
redundant of President Abraham Lincoln's Emancipation Proclamation, which
went into effect on January 1, 1863, some two years earlier. Yet Lincoln's
proclamation only applied to slaves in rebel states outside of Union control. 2 It
freed only those who could make it to union lines and exempted slaves in loyal
states or in Tennessee, which were nominally under Union control. 3
True, as James Oakes has recently shown in his masterful book, Freedom
National: The Destruction of Slavery in the United States, 1861-1865, the
Proclamation did more than is commonly acknowledged, as it also encouraged
the enlistment of black soldiers in the Border States, which had the legal effect
of freeing both them and their families.4 And contrary to the belief of many,
Republicans had been freeing slaves almost from the moment they took control
of Congress.
Despite all this, there was good reason for the Republicans to struggle to add
the Thirteenth Amendment to the Constitution. The antislavery activists who
formed the Liberty Party, then the Free Soil Party, and eventually the Republican Party, believed that slavery was a corrupt and economically backward
institution, which only survived because of its expansion into new territories
with more fertile land, and because of the outside support it received from the
federal government.6 Since the Republic's early years, the national government
had been restrained and often directed by what Republicans called the "Slave
Power"-a control that was enabled by several features of the Constitution,
including the clause that gave white Southern voters disproportional representation by counting three-fifths of their slaves towards representation in Congress,
the Electoral College, and, as a result of both these imbalances, also in the
courts.
Unlike abolitionist constitutionalists like Lysander Spooner and Frederick
Douglass, however, Republicans conceded that slavery was constitutional within
the original slave states, and they pledged loudly and often that they would not
touch it there." But Republicans, such as antislavery lawyer (and future Chief
Justice) Salmon Chase, also believed to their core that all it would take to
peacefully end slavery was to erect a "cordon of freedom" around the slave
2. JAMES OAKES, SLAVERY AND FREEDOM: AN INTERPRETATION OF THE OLD SOUTH 189 (1990).
3. Id.
4. JAMES OAKES, FREEDOM NATIONAL: THE DESTRUCTION OF SLAVERY IN THE UNITED STATES, 1861-1865,
at 386-87 (2013).
5. Id. at 144.
6. Id. at 54.
7. Id. at 30, 57.
8. Id. at 27.
2017]
THE CONTINUING RELEVANCE OF THE THIRTEENTH AMENDMENT
3
states. 9 By ensuring its nonextension into the territories, as well as its abolition
in the District of Columbia and other areas under federal control, the South
would soon choke economically on its "peculiar institution." 0 The fact that the
Southern states seceded from the Union before the Republicans could even take
office suggests that they too shared the Republican's assessment.
But this prediction tragically proved wrong. Slavery was far more entrenched
and stable than most every abolitionist believed. The South was able to sustain a
lengthy military campaign against the richer, more populous North;" and until
the very end of hostilities, Northern Democrats were calling for peace based on
"the Union as it was," 1 2 which would have perpetuated slavery. Notwithstanding four years of almost unimaginable bloodshed, once the Southern Democrats
were allowed to rejoin their Northern brethren in Congress, there was nothing to
stop them from reimposing slavery given the view of the Constitution shared by
both Democrats and Republicans. Perhaps those slaves who had been emancipated and declared "forever free" would remain free-or perhaps not. Given
that Lincoln had justified the Proclamation as a war measure, Republicans could
not assume that the courts would find that the effect of military emancipation
survived the end of hostilities for those slaves never actually freed.
Moreover, there were still many slaves in the border states who had been
untouched by the Proclamation. Both Delaware and Kentucky, for example, had
refused to abolish slavery on their own. Many of the technically freed slaves
were still on the plantations and outside the protection of the Union army. What
was stopping the Southern states from continuing slavery once the troops were
withdrawn? Under the Republicans' reading of the Constitution, nothing much
that could be counted on.
In short, even widespread emancipation did not equal abolition. Despite the
Emancipation Proclamation, it was not until the Thirteenth Amendment's adoption that the institution of slavery was actually abolished in the United States.
While that alone makes its adoption a big deal, it still seems to belong solely to
the past. Not so. The Thirteenth Amendment has an important role to play in
understanding the Constitution even today.
II.
WHAT THE THIRTEENTH AMENDMENT TELLS
Us ABOUT
THE SCOPE OF
CONGRESS'S POWERS
Our Republican Constitution limits government power in two ways. The first,
and most important, is by the structural constraints it imposes on the powers of
the national and state governments. The second is by its express prohibitions on
&
9. Id. at 257.
10. "Peculiar institution" was a common euphemism for slavery in the nineteenth century. See, e.g.,
Rebecca E. Zietlow, James Ashley, the Great Strategist of the Thirteenth Amendment, 15 GEO. J.L.
PUB. PoL'Y 265, 302 (2017).
11. See 5 A POPULAR HISTORY OF ENGLAND, FROM THE ACCESSION OF VICTORIA, 1837-1874, at 325
(Madame Guizot de Witt, ed., 1881).
12. See, e.g., JOURNAL OF THE MISSOURI STATE CONVENTION HELD IN JEFFERSON CITY 305-06 (1862).
4
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government powers and its affirmative protections of individual rights. The
Thirteenth Amendment has an important interpretive bearing on each. 13
Let's start with the structural constraints. In addition to its internal checks and
balances, our Constitution originally adopted a federal system that expressly
limited the power of the national government, leaving the states with all other
powers not delegated. The first sentence of Article I reads: "All legislative
powers herein granted shall be vested in a Congress of the United States, which
shall consist of a Senate and House of Representatives." 1 4 This is a clear
statement that any power exercised by Congress must be expressed in the text of
the written Constitution. In contrast, the powers of the President and judiciary
are not so qualified.
In the early twentieth century, when progressives were objecting to Supreme
Court rulings upholding limits on Congress's commerce power, they took to
claiming that "our fathers" had a much more capacious view of national power.
For example, in their 1937 tract, The Power to Govern: The Constitution-Then
and Now, economist Walton Hamilton and historian Douglass Adair smugly
accused the Supreme Court of violating the original meaning of the Constitution: "Commerce was then more than we imply now by business or industry. It
was a name for the economic order, the domain of political economy, the realm
of a comprehensive public policy." 1 5 Commerce, they claimed, "was the only
word which could catch up into a single comprehensive term all activities
directly affecting the wealth of the nation."1 6
Their relatively short book was followed up by University of Chicago law
professor William Croskey's 1953 three-volume magnum opus, Politics and
the Constitution in the History of the United States, in which he made the same
claim. 17 But by this time, having succeeded in completely taking over the
Court, progressives-now calling themselves "liberals"-had embraced the
judge-made "living constitution" and were no longer interested in arguing about
original meaning. So poor Croskey's life's work fell into a much-deserved
obscurity.
The Thirteenth Amendment is important evidence that progressives' originalist claims are false. If, at the founding, Congress really did have power over "all
activities directly affecting the wealth of the nation," it would certainly have
had power over slavery within the several states. While some might have
imagined this-though none that I know of-it was certainly not the prevailing
public meaning of Congress's power over "commerce ... among the several
13. See
E. BARNETT, OUR REPUBLICAN CONSTITUTION: SECURING THE LIBERTY AND SOVEREIGNTY
167-71 (2016).
14. U.S. CONST. art. I, § 1 (emphasis added).
15. WALTON H. HAMILTON & DOUGLASS ADAIR, THE POWER To GOVERN: THE CONSTITUTION-THEN AND
Now 62-63 (1937).
16. Id. at 63.
17. WILLIAM CROSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 77 (1953).
RANDY
OF WE THE PEOPLE
2017]
THE CONTINUING RELEVANCE OF THE THIRTEENTH AMENDMENT
5
states." 8 Neither would it have been viewed as justified under the power of
Congress "to make all Laws which shall be necessary and proper for carrying
into Execution" its power to regulate interstate commerce. 19
Antebellum abolitionists were a veritable font of creative constitutional
arguments against slavery. Yet in my study of "constitutional abolitionists,"
including Theodore Dwight Weld, Alvan Stewart, Charles Dexter Cleveland,
William Goodell, Lysander Spooner, Salmon P. Chase, Benjamin Shaw, James
Birney, Joel Tiffany, Horace Mann, Lewis Tappan, Gerrit Smith, Byron Paine,
and Frederick Douglass, I found not a single one who asserted that the Commerce Clause gave Congress power over slavery within a state.2 0
Section Two of the Thirteenth Amendment is a testimony to these limits on
national power. It established that "Congress shall have power to enforce this
article by appropriate legislation," thereby adding to the legislative powers
"herein granted" by the written Constitution. 21 No such grant would have been
necessary if progressives were right in their historical claims about the original
meaning of the Commerce Clause. For that matter, in the next century, neither
would Section Two of the Eighteenth Amendment have needed to say that
"Congress and the several States shall have concurrent power to enforce" the
prohibition on the manufacture and sale (but not possession) of alcohol "by
appropriate legislation." 22
Progressive law professors still teach that the pre-New Deal Supreme Court
had it completely wrong in how it interpreted the scope of federal power. Yet,
the Thirteenth Amendment stands as a rebuke to those such as Yale Law
professor Jack Balkin, who claims that the original meaning of "commerce"
included all "social interaction." 2 3 If so, then Congress always had the power to
abolish slavery in the states-which not even the most radical abolitionist
thought resided in the Commerce Clause. In short, the need to enact the
Thirteenth Amendment is important evidence against the notion that the preNew Deal Supreme Court was somehow making up the limits on national
power. But that is not all.
III.
WHAT THE THIRTEENTH AMENDMENT TELLS
Us ABOUT
THE SCOPE OF
CONSTITUTIONAL RIGHTS
A. The Thirteenth Amendment and Economic Liberty
Let's turn now to the second limit on government power: the explicit protection of individual liberties. Very early, the progressives sharply criticized the
18. U.S. CONST. art. I, § 8, cl. 3.
19. U.S. CONST. art. I, § 8, cl. 18.
20. For what I did find, see Randy E. Barnett, Whence Comes Section One: The Abolitionist Origins
of the Fourteenth Amendment, 3 J. LEG. ANALYSIS 165 (2011).
21. U.S. CONST. amend. XIII, § 2.
22. U.S. CONST. amend. XVIII, § 2.
23. See JACK M. BALKIN, LIvING ORIGINALISM 138-82 (2011); see also Randy E. Barnett, Jack
Balkin's Interaction Theory of "Commerce," 2012 U. ILL. L. REv. 623 (2011).
6
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Court for its invocation of the Due Process Clause of the Fourteenth Amendment to protect individual liberties such as the freedom of contract.2 4 And this
progressive belief is still popular among many of today's "judicial conservatives." For example, in his dissenting opinion in Obergefell v. Hodges, Chief
Justice John Roberts, quoting Judge Learned Hand, reiterated the progressive
critique of the 1905 case of Lochner v. New York: "By empowering judges to
elevate their own policy judgments to the status of constitutionally protected
'liberty,' the Lochner line of cases left 'no alternative to regarding the court as
a ... legislative chamber."' 2 5
According to Roberts' hoary narrative, Lochner was a wholly "unprincipled"
opinion that elevated what he termed the justices' "naked policy preferences"
above that of the legislature.26 In particular, he disparagingly quotes Justice
Rufus Peckham's affirmation in his majority opinion of "the general right of an
individual to be free in his person and in his power to contract in relation to his
own labor," emphasis added by Chief Justice Roberts.27
Were yesterday's progressives-and some of today's conservatives-correct
that the Court in Lochner was making up the right of freedom of contract? The
Thirteenth Amendment again holds the key.
Even after a punishing war, the legal abolition of slavery did not end the
subordination of freed blacks. Southern states responded with "black codes"
making the freedmen second-class citizens, and local authorities looked the
other way as the freedmen were brutalized and intimidated. 2 8 In response to the
continued legal and extralegal persecution of the free blacks (and white Republicans) in the South, Republicans in Congress enacted the Civil Rights Act of
1866. The act mandated that
such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude . . shall have the same right . . to
make and enforce contracts, to sue, be parties, and give evidence, to inherit,
purchase, lease, sell, hold, and convey real and personal property, and to full
and equal benefit of all laws and proceedings for the security of person and
property, as is enjoyed by white citizens . . any law, statute, ordinance,
regulation, or custom, to the contrary notwithstanding.2 9
Notice how Congress defined the civil rights of all persons, whether white or
black, as including the rights "to make and enforce contracts ... to inherit,
purchase, lease, sell, hold, and convey real and personal property." In other
24. See, e.g., David A. Strauss, Why Was Lochner Wrong?, 70 U. CHI. L. REv. 373, 373-74 (2003).
25. 135 S. Ct. 2584, 2617 (Roberts, C.J., dissenting) (quoting LEARNED HAND, THE BILL OF RIGHTS 42
(1958)).
26. Id. at 2619, 2621.
27. Id. at 2621.
28. See Oakes, supra note 4, at 490.
29. Civil Rights Act of 1866, ch. 31, 14 Stat. 27.
2017]
THE CONTINUING RELEVANCE OF THE THIRTEENTH AMENDMENT
7
words, at the very core of civil rights were the economic rights of contract and
property, though characterizing these rights as "economic" is narrowing and
anachronistic.
Today, the claim that the Thirteenth Amendment empowered Congress to
protect the rights of contract and property from infringement seems strained, but
this is largely because we take the injustice of slavery for granted in ways the
old critics of slavery did not. Though the case against slavery was multifaceted,
at its core was the idea of natural rights, in particular the right of property that
each person has in himself or herself-self-ownership-as well as the liberty of
each person to exchange his or her labor for wages and other mutually agreeable
terms-called "free labor."
The fundamental divide between the Slave Power and abolitionists concerned
the rights of property and contract. Could a person be owned as property and be
denied the right to refrain from laboring except on terms contractually agreed
upon so long as a legislature said so? Or did every person own himself or
herself, with the inherent right to enter into contracts by which they would
acquire property in return, which no legislature could arbitrarily restrict?
That today we think of these rights as "economic" should not be surprising.
After all, slavery was, first and foremost, an economic system designed to
deprive slaves of their economic rights. The key to slavery was labor. Restrictions imposed on what we would consider "personal liberties"-such as the
freedom of slaves to speak or to read-were often instrumental to enabling the
Slave Power to keep blacks working in bondage, and to reinforce the claim that
blacks were inferior beings whose labor could be exploited without their
consent.
The Slave Power considered these "economic" arguments of abolitionists to
be so insidious that Southern states made it a crime for anyone-whether white
or black, free or slave-to publish or speak them. The legal punishment for
communicating the ideas of self-ownership and free labor was whipping or even
death. And mobs meted out their own punishments, including tarring and
feathering.
While today we consider the freedoms of speech, press, and assembly to be
personal, back then these rights were denied specifically when it came to
advocating that enslaved blacks had the right to their own labor, along with the
right to own property and freely enter into contracts. By abolishing slavery and
empowering Congress to pass laws enforcing abolition, the Thirteenth Amendment was thought by congressional Republicans to have ipso facto enabled
Congress to protect the economic liberties that slavery had for so long denied.
The Civil Rights Act's inherent constitutionality can be explained as follows:
The Thirteenth Amendment prohibited slavery, and the opposite of slavery is
liberty. Any unwarranted restrictions on liberty that were imposed on emancipated slaves were simply partial "incidents" of their previous conditions of
servitude. And Section Two of the Thirteenth Amendment empowered Congress
to protect any citizen from such unjust restrictions on their liberty.
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To the dismay of the Republicans in Congress, President Andrew Johnson
vetoed the Civil Rights Act. 30 Johnson, a "War Democrat" from Tennessee,
denied that the power to protect these rights was properly "incident" to Congress's power to enforce the Thirteenth Amendment. "Slavery has been abolished," he wrote, "and at present nowhere exists within the jurisdiction of the
United States; nor has there been, nor is it likely there will be, any attempt to
revive it by the people of the States." 3 1 In response, supermajorities in both the
House and Senate overrode the President's veto. 3 2
B. The Privileges or Immunities of Citizens of the United States
Although it is often claimed that Congress then enacted the Fourteenth
Amendment to constitutionalize the Civil Rights Act, this is an oversimplification. As Garrett Epps explains in his book Democracy Reborn, the initiative in
Congress to protect the rights of free blacks and Southern Republicans by
means of a constitutional amendment began even before the introduction of the
Civil Rights Act and was promoted by different members:
On the one side were those who followed Trumbull and Wilson's theory that
the Thirteenth Amendment gave Congress power to protect a limited set of
nonpolitical "civil rights." On the other were John Bingham and a few others,
whose argument was at once more radical and more conservative. Congress
did not yet have the power to protect civil rights, they insisted; a constitutional amendment was needed.33
But the goal of these parallel initiatives was the same: to protect the liberties of
both the freedmen and Southern Republicans.
While Senator Lyman Trumbull of Illinois devised and promoted the Civil
Rights Act under the auspices of the Thirteenth Amendment, Representative
John Bingham of Ohio was the moving force behind the Fourteenth Amendment. Because the Southern states were eventually going to resume their seats
in Congress, Bingham sought to place these guarantees beyond the power of a
future Congress to repeal. To accomplish this, Bingham proposed the language
that became part of Section One of the Fourteenth Amendment: "No State shall
make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States." 34 But what were these "privileges or immunities"?
30. President Andrew Johnson, Veto of the Civil Rights Bill (1866), available at http://
teachingamericanhistory.org/library/document/veto-of-the-civil-rights-bill/ [https://perma.cc/SL8WM3L5].
3 1. Id.
32. Id.
33. GARRETT Epps, DEMOCRACY REBORN: THE FOURTEENTH AMENDMENT AND THE FIGHT FOR EQUAL
RIGHTS IN POST-CIVILWAR AMERICA 177 (2006).
34. U.S. CONST. amend XIV, § 1.
2017]
THE CONTINUING RELEVANCE OF THE THIRTEENTH AMENDMENT
9
Consider the explanation of Section One offered by Jacob Howard of Michigan, the designated sponsor of the amendment in the Senate, in which he clearly
identified two categories of "privileges or immunities." 35 The first category was
the rights to which the Privileges and Immunities Clause of Article IV referred:
"The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States." 36
To identify these "privileges and immunities of citizens," Senator Howard,
like many others in the House and Senate, quoted a lengthy passage from a
circuit court opinion in the 1823 case of Corfield v. Coryell 37 The opinion was
authored by Supreme Court Justice Bushrod Washington-George Washington's nephew-while he was "riding circuit," as Supreme Court Justices did
back then. In the middle of the lengthy quote, Justice Washington offers this
summary of "privileges and immunities":
What these fundamental principles are it would, perhaps, be more tedious
than difficult to enumerate. They may, however, be all comprehended under
the following general heads: protection by the Government, the enjoyment of
life and liberty, with the right to acquire and possess property of every kind,
and to pursue and obtain happiness and safety; subject nevertheless to such
restraints as the Government may justly prescribe for the general good of the
whole.38
Justice Washington is here merely repeating nearly verbatim the canonical
formulation of natural rights that was penned by George Mason for the Virginia
Declaration of Rights, and which was then replicated in four other state
constitutions, as well as in the Virginia ratification convention's proposed
amendments to the Constitution:
THAT all men are born equally free and independent, and have certain
inherent natural rights, of which they cannot, by any compact, deprive or
divest their posterity; among which are, the enjoyment of life and liberty, with
the means of acquiring and possessing property, and pursuing and obtaining
happiness and safety. 3 9
It was upon this language in the Massachusetts constitution that the Massachusetts Supreme Judicial Court had based its ruling in 1783 that slavery was
35. Senator Jacob Howard, Speech Introducing the Fourteenth Amendment (May 23, 1866), CONG.
GLOBE, 39th Cong., 1st Sess. 2765 (1866).
36. Id. (quoting U.S. CONST. art. IV, § 2, cl. 1).
37. Id.
38. 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,230).
39. The Virginia Declaration of Rights (committee draft May 27, 1776), http://www.gunstonhall.org/
georgemason/human rights/vdr committee draft.html [https://perma.cc/ZF92-XUL8]. For more on the
canonical nature of Mason's formulation, see BARNETT, supra note 13, at 32-34, 66-69.
10
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unconstitutional in that state.40
According to Senator Howard, and the many others in Congress who quoted
Corfield, these very same rights were "privileges or immunities of citizens of
the United States," which no state shall abridge (and which Section Five now
empowered Congress to protect). 4 1 But then to these "Corfield rights" Senator
Howard immediately added another category of privileges or immunities: "To
these privileges and immunities, whatever they may be-for they are not and
cannot be fully defined in their entire extent and precise nature-to these should
be added the personal rights guaranteed and secured by the first eight amendments of the Constitution." 4 2
That the same Congress that enacted the Civil Rights Act of 1866 under the
auspices of the Thirteenth Amendment then proposed Section One of the
Fourteenth Amendment to address the same problems, is strong evidence that
"the privileges or immunities of citizens" was thought to include the economic
liberties "to make and enforce contracts" and "to inherit, purchase, lease, sell,
hold, and convey real and personal property" enumerated in that Act. Were there
any doubt of this, after ratification of the Fourteenth Amendment, Congress
repassed the Civil Rights Act just to be sure.
Therefore, contrary to the progressives-and to modern judicial conservatives like Chief Justice Roberts who learned the progressive catechism in law
school-the Supreme Court in Lochner was hardly imposing its own "naked
policy preferences." It was instead protecting one of the privileges and immunities of Joseph Lochner, an American citizen, who, as part of the "due process of
law," was entitled to his day in court to claim that a law restricting the working
hours of his bakers was beyond the proper power of the state legislature to
enact.
Because the Court in Lochner found that this provision was not a genuine
health and safety law, it held it was not within the police power of the state of
New York.4 3 The Lochner Court was not claiming a judicial power to impose its
own policy preferences, but rather its judicial duty to ascertain whether the
legislature was acting in good faith when it restricted the liberties of the
people.4
CONCLUSION
That the Thirteenth Amendment was vital to finally abolishing slavery in the
United States is reason enough to celebrate its adoption. But the Republicans in
the Thirty-Eighth and Thirty-Ninth Congresses gave us more: they altered our
40. See Jackson v. Phillips, 96 Mass. (14 Allen) 539, 563-64 (1867) (noting that "slavery
was . .
wholly abolished in Massachusetts" by the SJC's 1783 decision Commonwealth v. Jennison);
DAVID BRION DAVIS, THE PROBLEM OF SLAVERY IN THE AGE OF REVOLUTION, 1770-1823, at 318-19 (1999).
41. Supra notes 37-39 and accompanying text.
42. Supra note 36.
43. Lochner v. New York, 198 U.S. 45 (1905).
44. See PHILIP HAMBURGER, LAW AND JUDICIAL DUTY (2008).
2017]
II
THE CONTINUING RELEVANCE OF THE THIRTEENTH AMENDMENT
federalism to empower the sovereign individual to challenge state laws that
irrationally or arbitrarily restrict his or her liberty, whether economic or personal.
On the 150th anniversary of the Thirteenth Amendment being adopted, the
Georgetown Center for the Constitution was very pleased to cosponsor with the
Supreme Court Historical Society its second annual Salmon P. Chase Distinguished Lecture by Eric Foner on the Thirteenth Amendment. And the Center
was also delighted to devote its annual faculty colloquium to the topic, featuring
papers by Pamela Brandwein,4 5 Christopher Green,4 6 James Oakes, 4 7 David
Upham, 4 8 Lea VanderVelde 4 9 and Rebecca Zietlow. 5 0 Their wonderful papers,
along with Professor Foner's marvelous lecture,5' appear in this issue. It is my
hope that this symposium issue will contribute to the current revival of interest
in "The Original Meaning and Continuing Relevance of the Thirteenth
Amendment."
GEO.
J.L.
&
45. Pamela Brandwein, The "Labor Vision" of the ThirteenthAmendment, Revisited, 15
PUB. PoLY
13 (2017).
46. Christopher Green, Duly Convicted: The Thirteenth Amendment as ProceduralDue Process, 15
GEO. J.L. & PUB. PoLY
73 (2017).
47. James Oakes, "The Only Effectual Way": The CongressionalOrigins of the Thirteenth Amendment, 15 GEO. J.L. & PUB. PoLY 115 (2017).
48. David Upham, The Understanding of "Neither Slavery nor Involuntary Servitude Shall Exist"
Before the ThirteenthAmendment, 15 GEO. J.L. & PUB. PoL'Y 137 (2017).
49. Lea VanderVelde, Henry Wilson: The Constitution's Cobbler Strategist of the ThirteenthAmendment's Free LaborPolicy, 15 GEO. J.L. & PUB. PoLY 173 (2017).
50. Rebecca Zietlow, James Ashley, the Great Strategist of the Thirteenth Amendment, 15 GEO. J.L.
& PUB. PoLY 265 (2017).
51. Eric Foner, Abraham Lincoln, the ThirteenthAmendment, and the Problem of Freedom, 15 GEO.
J.L. & PUB. PoLY 59 (2017).