Class as Caste: the Thirteenth Amendment's Applicability to Class-based Subordination

• Publication year: 2016

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

Class as Caste: The Thirteenth Amendment's Applicability to Class-Based Subordination

William M. Carter, Jr.(fn*)

CONTENTS

INTRODUCTION ..................................................................................... 813

I. THE THIRTEENTH AMENDMENT'S CURRENT SCOPE AND APPLICABILITY ...................................................................................... 816

A. The Thirteenth Amendment's History and Context ...................... 816

B. The Thirteenth Amendment's Framers and Their Understanding of the Relationship Between Slavery, Race, and "Class" .................... 820

C. The Thirteenth Amendment as Applied by the Courts and Congress .......................................................................................................... 822

II. CLASS AS CASTE: THE PERSISTENT EFFECTS OF MASS INCARCERATION ................................................................................... 825

CONCLUSION ......................................................................................... 827

INTRODUCTION

The Thirteenth Amendment currently enjoys a robust renaissance among legal scholars who contend that it provides a judicial remedy for and congressional authority to proscribe the "badges and incidents of slavery."(fn1) As discussed below, this interpretation, although not selfevident from the Amendment's bare text, is well supported by the Amendment's history and context, the Framers' explicit intentions, the legislative debates in Congress leading to the Amendment's adoption, and the contemporaneous legal understanding of the ways in which the Slave Power that had come to dominate and distort American society.

This Article briefly explores whether the Thirteenth Amendment applies to class-based subordination and concludes that it generally does not, at least not in such broad terms. The Amendment's text, history, context, and intent do not support an interpretation of the Amendment as generally prohibiting discrimination or subordination based on social class distinctions per se that are completely detached from the legacy of chattel slavery or involuntary servitude. Rather, this Article argues, it is only when class-based distinctions are so impermeable and of such magnitude as to transform class into caste, thus constituting a near-total alienation from civil society akin to that characteristic of the system of slavery, that the Thirteenth Amendment would apply.

To be clear from the outset: in arguing that the Thirteenth Amendment does not reach generalized class-based subordination, this Article does not contend that these issues are unimportant. To the contrary, the increasingly rigid class-based stratification of our society,(fn2) rampant discrimination against the poor,(fn3) increasing income inequality,(fn4) and the concentration of enormous wealth in the hands of so few(fn5) are pressing social challenges that must be addressed, and the legal system has a role in addressing these challenges. This Article argues, however, that the Thirteenth Amendment is not the most appropriate tool to address these challenges because subordination or discrimination based on class or poverty does not, at a generalized level, amount to a badge or incident of slavery. Moreover, the Thirteenth Amendment's intent, context, and history make clear that its Framers were concerned with specific forms of class-based subordination connected with or arising out of the system of slavery: examples of such subordination include the de jure or de facto economic subjugation of laborers via the extraction of their uncompensated labor through state or private action, the creation of conditions that effectively prohibited laborers' free choice of their employer and working conditions, and the maintenance of a labor system wherein the compensation and conditions of certain groups of workers were artificially suppressed through the exploitation of an even less empowered group of workers (i.e., slaves). In sum, this Article's skepticism regarding whether the Thirteenth Amendment can be fairly construed to prohibit class-based subordination is limited to class-based subordination in its broadest form, not in its particulars.

Regardless of whether the Thirteenth Amendment could be fairly construed to prohibit class-based subordination in general (which this Article argues against) or in the particulars (which very well may be the case, as discussed above), there is currently very little reason to believe that the Amendment will be so construed by the courts and policymakers charged with interpreting and enforcing it. As discussed in Part II.C, infra, there are significant reasons to be highly skeptical that the doctrinal groundwork has yet been laid for such a theory of the Thirteenth Amendment to take root; the federal courts (in particular, the Supreme Court) are therefore exceedingly unlikely to extend current doctrine in a single leap in order to incorporate such a theory.

After describing a defensible theoretical frame for when the Thirteenth Amendment's command to rid the country of the vestiges of the slave system applies to class-based subordination, this Article concludes by briefly sketching the outline of one such scenario: the insurmountable caste system created by mass incarceration. This caste system is created by the interlocking and mutually reinforcing effects of mass incarceration, such as felony disenfranchisement, barriers to employment, and widespread reincarceration due to inability to pay fines. These effects result in the near-complete alienation of former prisoners (particularly persons of color) from civil society.

I. THE THIRTEENTH AMENDMENT'S CURRENT SCOPE AND APPLICABILITY

A. The Thirteenth Amendment's History and Context

The Thirteenth Amendment was the culmination of a decades-long campaign by social movement and political actors to abolish slavery in the United States.(fn6) It was also in significant part a reaction to the specific cultural, legal, political, and economic structures that supported slavery or developed because of it. Understanding the Thirteenth Amendment therefore requires understanding the system of slavery the Amendment was designed to abolish and the forces its Framers were reacting against. Although a comprehensive examination of the nature of slavery and abolition is obviously beyond the scope of this Article, it is nonetheless worthwhile to review briefly the contemporaneous context in which the Amendment was adopted with an eye toward discerning the legal, historical, and social structures it was designed to abolish along with abolishing slavery itself.

Initially, slavery in the "new world" colonies followed the then-prevalent model of time-limited indentures or uncompensated labor for a finite (albeit often very lengthy) term of years.(fn7) As American slavery evolved in response to changing social and economic needs,(fn8) however, it became a system of perpetual, inheritable, race-based subjugation, under which the slaves were treated as property, and all blacks, even if free, were subject to the same stigmatization. The American slave regime, which existed as a matter of law for approximately 250 years,(fn9) both depended upon and gave rise to several mutually reinforcing legal, social, political, religious, and economic justifications and conditions. As is well known, the legal system formally legitimized the institution of slavery by defining slaves as "property" and by protecting the interests of slave owners in that property.(fn10) The legal system also further dehumanized blacks in a myriad of other ways, denying them the civil rights to which they would presumably be entitled were they considered to be full human beings and citizens of the United States.(fn11) Such denial of legal rights and civil status to both slaves and free blacks initially served primarily instrumental purposes, including: giving the owner the legal right to profit from the slave's labor without providing compensation; permitting and immunizing from prosecution or civil recourse the violence and coercion necessary to compel such labor; granting the master the legal right to purchase, lease, leverage, and dispose of slaves (and their children) without even the rudimentary labor protections afforded to non slaves at the time; and, as with other chattel, giving the owner the legal right to dispose of it when its utility had ended.(fn12)

As slavery became fully entrenched, several factors became perceived as real threats to the economic and social order of the slaveholding South. Those factors included the growing black populations in slaveholding states, the concomitant fear of slave rebellions, and the abolitionist movement- which was tentative at first, then expressed with increasing vigor and virulence. Slavery thus became an ideological battle, and law and custom evolved in defense of slavery. Thus, while the panoply of laws and customs discussed above continued to serve their original instrumental purposes, they also served the expressive purpose of dehumanizing slaves (and by extension, all blacks) as completely undeserving of either civil rights or moral empathy.(fn13) This expressive function was important in relieving the tension always inherent in American slavery, that "a nation conceived in liberty and dedicated to equal rights happened also to be the nation...