Roe and the Original Meaning of the Thirteenth Amendment

• Author: Kurt T. Lash
• Position: E. Claiborne Robins Distinguished Professor of Law, University of Richmond School of Law
• Pages: 131-147

ARTICLES

Roe and the Original Meaning of the Thirteenth

Amendment

KURT T. LASH*

TABLE OF CONTENTS

INTRODUCTION . . . . .. . . . . .. . . . .. . . . .. . . . .. . . . . .. . . . .. . . . .. . 131

I. ANTEBELLUM LAW . .. . . . . .. . . . .. . . . .. . . . .. . . . .. . . . . .. . 133

A. Slavery and Involuntary Servitude.. . . . .. . . . .. . . . .. . . . . 133

B. The Northwest Ordinance, and the Original Constitution. .. . 135

II. THE THIRTEENTH AMENDMENT . . . . . . . .. . . . . .. . . . .. . . . .. . . 138

A. Drafting the Thirteenth Amendment. . . .. . . . .. . . . . .. . . . . 138

B. Ratifying the Thirteenth Amendment . . .. . . . .. . . . .. . . . .. 140

C. The Civil Rights Bill and the Fourteenth Amendment . . . . . . . 143

III. PROHIBITIONS ON ABORTION AND THE THIRTEENTH AMENDMENT. . 144

CONCLUSION. . .. . . . .. . . . .. . . . .. . . . .. . . . . .. . . . .. . . . .. . . . .. . 146

INTRODUCTION

The current debate over Roe v. Wade as a substantive due process right has

prompted scholars to investigate alternative sources for a constitutional right to

abortion. One approach argues that the Thirteenth Amendment’s prohibition on

“slavery” and “involuntary servitude” prohibits the government from denying

women the right to terminate a pregnancy.

1

Scholars making this argument con-

cede that the right to abortion was not the expected application of the Thirteenth

Amendment but insist that a forced continued pregnancy falls within the original

meaning of the Amendment’s terms.

2

*E. Claiborne Robins Distinguished Professor of Law, University of Richmond School of Law.

© 2023, Kurt T. Lash.

1.U.S. CONST. amend. XIII, § 1 (“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.”).

2.See, e.g., Andrew Koppelman, Originalism, Abortion and the Thirteenth Amendment, 112 COLUM.

L. REV. 1917 (2012); Sandy Levinson, Fishkin on dissent: The Transcendent Importance of the

131

Thirteenth Amendment, BALKINIZATION (May 13, 2022), https://balkin.blogspot.com/2022/05/ [https://

perma.cc/BHV5-AQ8V].

This essay explores the history behind the adoption of the Thirteenth

Amendment and conclude the pro-Roe reading of the Thirteenth Amendment is

incorrect. The original meaning of the Thirteenth Amendment is defined by the

text upon which it was based and defended: The 1787 Northwest Ordinance. The

framers of the Amendment intentionally used this text precisely because it was

well known and had a narrow historical meaning. As used in the Ordinance, the

terms “slavery and involuntary servitude” referred to a specific and legally codi-

fied “private economical relation” between a “master” and a “servant.” Under

slavery—the most severe form of “involuntary servitude”—both the woman and

the unborn child were considered property, equally subject to dismemberment or

destruction. The Thirteenth Amendment applied the prohibitions of the

Ordinance throughout the United States and forever abolished the idea that one

could hold “property in man.” However, nothing in the Amendment (or the

Ordinance) affected laws restricting the termination of a pregnancy—laws that

were common throughout antebellum America.

In Part I, I trace the Founding era understanding of “slavery” and “involuntary

servitude” and the prohibition of both in the 1787 Northwest Ordinance. When

paired, these terms referred to a legally codified relationship between a “master”

and a “slave” or “servant.” Next, I explore the role of the Northwest Ordinance in

antebellum debates over slavery. The Ordinance’s prohibition of “slavery []or

involuntary servitude” played a key role in antebellum abolitionist arguments.

The Ordinance established that the Founders opposed slavery and that they

believed they had the power to ban slavery in the territories—contra the Supreme

Court’s opinion in Dred Scott. By the time of the Civil War, abolitionist political

parties, including the Republican Party, publicly declared their fealty to the prin-

ciples of the Northwest Ordinance and used the document to broaden public sup-

port for the abolition of slavery.

Part II of this essay explores the drafting and ratification of the Thirteenth

Amendment. Having already used the language of the Northwest Ordinance in

statutes banning slavery in the territories and in the District of Columbia,

Congress then adopted the same language for the proposed Thirteenth

Amendment. This allowed Republicans to claim that the Amendment was in fur-

therance of principles traceable to the Founding. Relying on the well-known lan-

guage of the Ordinance also supported the Republican claims that the proposed

amendment did nothing more than abolish the formal institution of chattel slavery

and its counterpart, lifetime involuntary service of a servant to a master. During

ratification, no one argued that the amendment went beyond the abolition of the

formal institution of chattel slavery. The only major debate involved the potential

scope of congressional power under Section Two of the amendment. After

President Andrew Johnson publicly assured the southern states that Section Two

could not be used to justify congressional regulation of state-level civil rights,

132 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:131