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Articles 1 - 11 of 11

Full-Text Articles in Law

Freedom, Democracy, And The Right To Education, Derek W. Black Jan 2022

Freedom, Democracy, And The Right To Education, Derek W. Black

Faculty Publications

While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction.

At that time, education was first and foremost about freedom. The South had criminalized education to maintain a racialized hierarchy that preserved slavery. Many African Americans, seeing education as the means to both mental and physical freedom, made …


Class As Caste: The Thirteenth Amendment’S Applicability To Class-Based Subordination, William M. Carter Jr. Jan 2016

Class As Caste: The Thirteenth Amendment’S Applicability To Class-Based Subordination, William M. Carter Jr.

Articles

As part of a symposium marking the sesquicentennial of the Thirteenth Amendment, this Article briefly explores whether the Thirteenth Amendment applies to class-based subordination. While recognizing that the increasingly rigid class-based stratification of our society, rampant discrimination against the poor, increasing income inequality, and the concentration of enormous wealth in the hands of so few are all pressing social challenges that the legal system must address, this Article concludes that generalized class-based discrimination likely would not fall within the scope of the “badges and incidents of slavery” that the Amendment prohibits.

This Article argues, however, that the Thirteenth Amendment's prohibition …


Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr. Jan 2016

Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.

Articles

This article is adapted from remarks presented at CWRU Law School's symposium marking the 20th anniversary of Whren v. United States. The article critiques Whren’s constitutional methodology and evident willful blindness to issues of social psychology, unconscious bias, and the lengthy American history of racialized conceptions of crime and criminalized conceptions of race. The article concludes by suggesting a possible path forward: reconceptualizing racially motivated pretextual police encounters as a badge or incident of slavery under the Thirteenth Amendment issue rather than as abstract Fourth or Fourteenth Amendment issues.


The Thirteenth Amendment And Constitutional Change, William M. Carter Jr. Jan 2014

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

Articles

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 …


Defining The Badges And Incidents Of Slavery, Jennifer Mason Mcaward Nov 2013

Defining The Badges And Incidents Of Slavery, Jennifer Mason Mcaward

Jennifer Mason McAward

Most agree that Section Two of the Thirteenth Amendment empowers Congress to legislate regarding the “badges and incidents of slavery.” Few, however, have explored in depth the precise meaning of this concept. The goal of this Article is to provide a historical and conceptual framework for interpreting and identifying the badges and incidents of slavery. It examines the original public meaning of the terms “badge of slavery” and “incident of slavery” as well as how the “badges and incidents” concept has been incorporated into and used in Thirteenth Amendment jurisprudence. It considers several analytical variables from historical, jurisprudential, and policy …


The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr. Jan 2013

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

Articles

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.


Defining The Badges And Incidents Of Slavery, Jennifer Mason Mcaward Jan 2012

Defining The Badges And Incidents Of Slavery, Jennifer Mason Mcaward

Journal Articles

Most agree that Section Two of the Thirteenth Amendment empowers Congress to legislate regarding the “badges and incidents of slavery.” Few, however, have explored in depth the precise meaning of this concept. The goal of this Article is to provide a historical and conceptual framework for interpreting and identifying the badges and incidents of slavery. It examines the original public meaning of the terms “badge of slavery” and “incident of slavery” as well as how the “badges and incidents” concept has been incorporated into and used in Thirteenth Amendment jurisprudence. It considers several analytical variables from historical, jurisprudential, and policy …


The Thirteenth Amendment And Interest Convergence, William M. Carter Jr. Jan 2011

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

Articles

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. Jan 2007

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

Articles

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 …


Race, Rights, And The Thirteenth Amendment: Defining The Badges And Incidents Of Slavery, William M. Carter Jr. Jan 2007

Race, Rights, And The Thirteenth Amendment: Defining The Badges And Incidents Of Slavery, William M. Carter Jr.

Articles

The Supreme Court has held that the Thirteenth Amendment prohibits slavery or involuntary servitude and also empowers Congress to end any lingering "badges and incidents of slavery." The Court, however, has failed to provide any guidance as to defining the badges and incidents of slavery when Congress has failed to identify a condition or form of discrimination as such. This has led the lower courts to conclude that the judiciary's role under the Thirteenth Amendment is limited to enforcing only the Amendment's prohibition of literal enslavement.

This article has two primary objectives. First, it offers an interpretive framework for defining …


A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr. Jan 2004

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 …