The Constitution and Slavery Overseas

• Publication year: 2016

SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 3, SPRING 2016

The Constitution and Slavery Overseas

George Rutherglen(fn*)

CONTENTS

INTRODUCTION.....................................................................................695

I. ENACTMENT AND INTERPRETATION OF THE THIRTEENTH AMENDMENT ..............................................................................................................697

II. COMMERCE, TREATIES, AND VIOLATIONS OF INTERNATIONAL LAW ..............................................................................................................702

A. The Power to Regulate "Commerce with Foreign Nations".......702

B. The Power "To Make Treaties"...................................................706

C. "To Define and Punish"..............................................................709

D. "Due Process of Law"................................................................711

III. SLAVERY AND LABOR RIGHTS........................................................714

A. Federal Law.................................................................................714

B. International Law.........................................................................717

C. Actual Effects and Pragmatic Constraints...................................720

CONCLUSION.........................................................................................725

INTRODUCTION

From the beginning, American slavery was essentially international, a product of the Atlantic slave trade; and so, too, was the abolitionist movement, with its roots in Great Britain. It therefore comes as a surprise that the Thirteenth Amendment is jurisdictionally restricted to abolishing slavery "within the United States, or any place subject to their jurisdiction."(fn1) The self-executing provisions of the Amendment, found in Section 1, do not extend overseas.(fn2) That leaves the possibility that the enforcement provisions in Section 2, giving Congress the "power to enforce this article by appropriate legislation," authorize extraterritorial legislation.(fn3) Yet this conclusion by no means follows from the language of the Amendment, which authorizes legislation under Section 2 as a means for achieving the ends defined in Section 1. How can the geographical scope of enforcement possibly exceed the prohibition to be enforced?(fn4) This question involves more than explicating the text of two clauses in the Constitution. And it requires approaches more persuasive than simply updating the Constitution by editing out disturbing language with modern interpretive techniques.

Congress might decide to regulate or punish slavery overseas for a number of reasons, and it has enacted surprisingly broad prohibitions to this effect. Because of competition with domestic products and services, slavery overseas could undermine the entire regime of free labor that the Thirteenth Amendment sought to constitutionalize. Slave labor in other countries has the potential to drive employers of free labor in this country out of business. Free labor in the United States also faces the threat of competition from slave labor brought into this country through human trafficking. International enforcement of prohibitions against slavery and trafficking remains, practically and morally, a necessary condition of safeguarding free labor in this country. This is not to say that national abolition must await worldwide abolition, which remains a disturbingly distant goal. Nonetheless, neither the transnational effects of the global economy, nor the universal imperatives of human rights-of which freedom from slavery constitutes the most salient example-can be ignored.

This Article examines the resources available under American law to address the issues raised by extraterritorial enforcement of one of the most widely recognized human rights-to be free from physical coercion and the loss of liberty. Part I reviews the history of adoption, interpretation, and enforcement of the Thirteenth Amendment. The scope of the Amendment gradually expanded through the joint efforts of Congress and the Supreme Court, resulting in a prohibition that now goes beyond involuntary servitude to all forms of peonage, whether supported by state or private action. Part II then looks to other sources of congressional power-the Commerce Clause, the Define and Punish Clause, and the Treaty Power-and analyzes how these clauses interact with the power to enforce the Thirteenth Amendment. These sources of congressional power are subject, at most, to the minimal constraint that any resulting law regulate activity that has something to do with the United States-that American law have something to do with actions or effects within this country, as seemingly required by the Due Process Clause of the Fifth Amendment. Taken together, the powers of Congress give it ample scope to enact any law realistically designed to prevent or remedy slavery overseas. Part III then looks at slavery in the modern world and examines how far it extends beyond historic forms of chattel slavery to other coercive and oppressive conditions of employment. As periodic reports by international organizations make clear, these now include a variety of forms of forced labor and human trafficking.(fn5) Whether prohibitions against slavery should extend further to reach labor conditions that would not be tolerated in this country turns out to be a practical question of law enforcement and foreign relations, rather than a question of congressional power. The Article concludes with a brief discussion of the choice between narrower and broader efforts to enforce prohibitions against slavery overseas.

I. ENACTMENT AND INTERPRETATION OF THE THIRTEENTH AMENDMENT

The geographical limit expressed in the Thirteenth Amendment derives, as does the Amendment itself, from the Northwest Ordinance. The ordinance dates from the founding era, when it was enacted by the Continental Congress and then reenacted by the First Congress under the Constitution. It provided that "[t]here shall be neither slavery nor involuntary servitude in the said territory," referring to the Northwest Territory comprising what are now the states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota.(fn6) Later legislation, such as the Missouri Compromise(fn7) and the Kansas-Nebraska Act,(fn8) also incorporated geographical restrictions as a result of compromises between the free states and the slave states. The same pattern continued during the Civil War in statutes prohibiting slavery within the District of Columbia and in the Territories.(fn9) The Emancipation Proclamation also had geographical restrictions, mainly designed to maintain the allegiance of the border states.(fn10) Those restrictions derived from the exigencies of war and the related limits on the power of the President as Commander in Chief, which meant that abolition could only be achieved in areas of the South controlled by the Union Army.(fn11)

As the Civil War came to a close, the Thirteenth Amendment came up for consideration by Congress, which deliberately chose to model the Amendment on the terms of the Northwest Ordinance. Congress simply substituted the phrase "within the United States, or any place subject to their jurisdiction" for the phrase in the ordinance, "within said territory." Confining the geographical scope of the Amendment fit the temper of the times and prevailing notions of sovereignty. Nation states with exclusive territorial jurisdiction formed the unquestioned basis for international law and raised few problems in foreign relations. The leading treatise on private international law, Joseph Story's Commentaries on the Conflict of Laws, took as fundamental the mutually exclusive territorial allocation of national power.(fn12) As paraphrased in the well-known decision in Pennoyer v. Neff,(fn13) handed down only a few years after ratification of the Thirteenth Amendment, "the laws of one State have no operation outside of its territory, except so far as is allowed by comity."(fn14) Over the course of the twentieth century, the principle of exclusive territorial sovereignty steadily eroded as protection for human rights expanded. Other grounds for asserting extraterritorial jurisdiction expanded at the same time, such as "passive personality jurisdiction" over crimes against state citizens committed overseas.(fn15) Nations assumed obligations under international law to their own citizens, which made them vulnerable to enforcement actions by other nations or by international institutions.(fn16) The question before us in the twenty-first century is how strictly we should follow the principle of territorial sovereignty from the nineteenth century.

In other respects, the Thirteenth Amendment has received expansive interpretations endorsed by both Congress and the Supreme Court, which might also support expanded geographical coverage. Beginning with the Civil Rights Act of 1866,(fn17) Congress interpreted its powers under Section 2 of the Amendment to extend well beyond imposing penalties for slavery. The Act purported to confer citizenship on the newly freed slaves and to give them the same civil rights as "enjoyed by white citizens."(fn18) Although the constitutionality of this Act came into question, the issue was resolved by passage of the Fourteenth Amendment, which followed the Act in granting citizenship to former slaves...