Law and Race Commons^™

The Second Founding And The First Amendment, William M. Carter Jr.

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Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution …

Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott

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In case after case, prosecutors, judges and juries therefore still struggle to come up with a definition of slavery, looking for some set of criteria or indicia that will enable them to discern whether the phenomenon they are observing constitutes enslavement. In this definitional effort, contemporary jurists may imagine that in the past, surely the question was simpler: someone either was or was not a slave. However, the existence of a set of laws declaring that persons could be owned as property did not, even in the nineteenth century, answer by itself the question of whether a given person was …

The Thirteenth Amendment And Constitutional Change, William M. Carter Jr.

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This article builds upon remarks the author originally delivered at the Nineteenth Annual Derrick Bell Lecture on Race in American Society at NYU Law in November of 2014. The Article describes the history and purpose of the Thirteenth Amendment’s proscription of the badges and incidents of slavery and argues that an understanding of the Amendment's context and its Framers' intent can provide the basis for a more progressive vision for advancing civil rights. The Article discusses how the Thirteenth Amendment could prove to be more effective in addressing persisting forms of inequality that have escaped the reach of the Equal …

The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr.

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This article, an expanded version of the author's remarks at the 2013 Honorable Clifford Scott Green Lecture at the Temple University Beasley School of Law, illuminates the history and the context of the Thirteenth Amendment. This article contends that the full scope of the Thirteenth Amendment has yet to be realized and offers reflections on why it remains an underenforced constitutional norm. Finally, this article demonstrates the relevance of the Thirteenth Amendment to addressing contemporary forms of racial inequality and subordination.

The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.

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The Thirteenth Amendment’s Framers envisioned the Amendment as providing federal authority to eliminate the “badges and incidents of slavery.” The freemen and their descendants are the most likely to be burdened with the effects of stigma, stereotypes, and structural discrimination arising from the slave system. Because African Americans are therefore the most obvious beneficiaries of the Amendment’s promise to eliminate the legacy of slavery, it is often mistakenly assumed that federal power to eradicate the badges and incidents of slavery only permits remedies aimed at redressing the subordination of African Americans. While African Americans were the primary victims of slavery …

The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.

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The Thirteenth Amendment was intended to eliminate the institution of slavery and to eliminate the legacy of slavery. Having accomplished the former, the Amendment has only rarely been extended to the latter. The Thirteenth Amendment’s great promise therefore remains unrealized.

This Article explores the gap between the Thirteenth Amendment’s promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment’s Framers called the “badges and incidents of slavery.” The theory of interest convergence, in its …

Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr.

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The Thirteenth Amendment has relatively recently been rediscovered by scholars and litigants as a source of civil rights protections. Most of the scholarship focuses on judicial enforcement of the Amendment in lawsuits brought by individuals. However, scholars have paid relatively little attention as of late to the proper scope of congressional action enforcing the Amendment. The reason, presumably, is that it is fairly well settled that Congress enjoys very broad authority to determine what constitutes either literal slavery or, to use the language of Jones v. Alfred H. Mayer Co., a "badge or incident of slavery" falling within the Amendment's …

Les Papiers De La Liberté: Une Mère Africaine Et Ses Enfants À L'Époque De La Révolution Haïtienne, Rebecca Scott, Jean M. Hebrard

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During the Louisiana Constitutional Convention of 1867-1868, the young Edouard Tinchant proposed measures to protect the civil rights of women. He suggested that the State adopt legal measures to allow all women, regardless of race or color, to more easily bring complaints in the event of a breach of a marriage promise. He also proposed additional measures to prevent women from being forced into “concubinage” against their will. While that constitutional Convention was open to men of color and guaranteed a number of the rights for which Tinchant and his friends were fighting, the assembly did not adopt his propositions …

A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr.

Articles

Law enforcement officers’ use of race to single persons out for criminal suspicion (“racial profiling”) is the subject of much scrutiny and debate. This Article provides a new understanding of racial profiling. While scholars have correctly concluded that racial profiling should be considered a violation of the Fourth Amendment, the Fourteenth Amendment’s Equal Protection Clause, and existing federal statutes, this Article contends that the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment.

Racial profiling is not only a denial of the right to equal treatment, but …