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Journal Articles

Slavery

2013

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Mcculloch And The Thirteenth Amendment, Jennifer Mason Mcaward Jan 2013

Mcculloch And The Thirteenth Amendment, Jennifer Mason Mcaward

Journal Articles

Section 2 of the Thirteenth Amendment gives Congress the “power to enforce” the ban on slavery and involuntary servitude “by appropriate legislation.” The conventional view of Section 2 regards this language as an allusion to McCulloch v. Maryland’s explication of Congress’s executory powers, and holds that Congress has substantial, and largely unreviewable, power to determine both the ends and the means of Section 2 legislation. This Essay argues that the conventional view departs from the original meaning of Section 2. It demonstrates that McCulloch preserved a role for judicial review with respect to both the ends and means of federal …