Teaching an Old Dog New Tricks: a Thirteenth Amendment Framework for Challenging Racial Discrimination in Policing

• Publication year: 2018
• Author: By Steven Demarest

TEACHING AN OLD DOG NEW TRICKS: A THIRTEENTH AMENDMENT FRAMEWORK FOR CHALLENGING RACIAL DISCRIMINATION IN POLICING

By Steven Demarest^*

Introduction

Dissenting vigorously in the Civil Rights Cases¹ in 1883, Justice Harlan declared, "The Thirteenth Amendment did something more than to prohibit slavery as an institution, resting upon distinctions of race, and upheld by positive law. . . . [I]t established and decreed universal civil freedom throughout the United States."²

Reading Justice Harlan's words, one would hardly expect that they refer to an amendment rarely at the forefront of civil rights litigation. The Thirteenth Amendment has long taken a backseat to its younger Reconstruction siblings as a tool for advancement in this field. This need not be so. The Thirteenth Amendment can reemerge on the legal stage as an important tool for social justice in general and for tackling one serious social ill in particular: racially discriminatory policing.

This paper proposes that the Thirteenth Amendment is best understood as prohibiting not just slavery itself, but also slavery's badges and incidents; that racially discriminatory police conduct constitutes one of these badges and incidents; and that racially discriminatory police conduct should thus give rise to legal claims on that basis. Part I reviews the history of the Thirteenth Amendment, from its inspiring early days to its brief revival by the Warren Court. Part II surveys the evolution of American policing and its relationship with the institution of slavery. Part III examines judicial enforcement of the Thirteenth Amendment. Part IV concludes by considering the application of this proposed framework to police stop-and-frisk practices.

I. The Evolution of the Thirteenth Amendment

A. The Broad Vision of the Thirteenth

In dissenting in the Civil Rights Cases, Justice Harlan wrote at a time when Reconstruction had been brought to a violent end, the shackles of bondage had been restored by the Southern "Redeemers" to the fullest extent possible, and the Reconstruction Amendments would fall into disuse for nearly a century. Yet less than twenty years earlier, the framers of the Thirteenth Amendment had drafted it with a radical vision of what it would accomplish.³ Republican Congressman E.C. Ingersoll, arguing in support of the Amendment, spoke of how it would "secure to the oppressed slave his natural and God-given rights," including "a right to till the soil, to earn his bread by the sweat of his brow and enjoy the rewards of his own labor . . . a right to the endearments and enjoyment of family ties."⁴ The Amendment, as Ingersoll understood it, would "mean that the rights of mankind, without regard to color or race, are respected and protected."⁵ Congressman Godlove Ortho described the effect of the Thirteenth Amendment as not merely prohibiting slavery, but also acting as "a practical application of that self-evident truth, 'that all men are created equal,'"⁶ and granting to freedmen "equal protection under the law."⁷

Similarly, Republican Senator James Harlan of Iowa spoke of the Thirteenth Amendment's abolition of slavery as the abolition of slavery's "necessary incidents."⁸ These necessary incidents included the undermining of conjugal and parental relationships, the inability to hold property, the deprivation of legal status, the suppression of freedom of speech and freedom of the press, and the denial of education.⁹

Certainly Republican Senator Lyman Trumbull, the chairman of the Senate Judiciary Committee and an author of the Thirteenth Amendment, understood the Amendment to go well beyond a prohibition on chattel slavery. When Senator Charles Sumner unsuccessfully proposed that the Thirteenth Amendment state "[a]ll persons are equal before the law,"¹⁰ Trumbull responded that the Amendment would indeed accomplish this even under the language ultimately adopted.¹¹ Discussing the validity of the Freedman's Bureau two years later, Trumbull stated the purpose of Congress in passing the Amendment was not just the destruction of slavery, but also the destruction of its badges and incidents.¹² Trumbull noted numerous forms of racial discrimination, distinct from the institution of slavery yet tied to it, that the Thirteenth Amendment wiped out:

Those laws that prevented the colored man from going from home, that did not allow him to buy or to sell, or to make contracts; that did not allow him to own property; that did not allow him to enforce rights; that did not allow him to be educated, were all badges of servitude made in the interest of slavery and as a part of slavery. They never would have been thought of or enacted anywhere but for slavery, and when slavery falls they fall also.¹³

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As far as Trumbull was concerned, such discrimination was directly prohibited by the Thirteenth Amendment.¹⁴

This understanding of the Thirteenth Amendment was not limited to its supporters. Democratic Congressman Chilton Allen White argued against the Amendment on the grounds that it would "make [African Americans] our equals before the law."¹⁵ Democratic Congressman Elijah Ward characterized the Amendment in a similar manner, saying that Congress had been called upon "to amend the Constitution so that all persons shall be equal under the law."¹⁶ These remarks by the Amendment's supporters and opponents reflected a widespread Congressional understanding of the meaning of the Thirteenth Amendment at the time of its crafting.¹⁷

As Justice Harlan would later declare, the Thirteenth Amendment was not intended just to "forbid one man from owning another as property" or "simply to destroy the institution" of slavery while "allow[ing] discriminations against [African Americans], as such, in the enjoyment of those fundamental rights which by universal concession, that inhere in a state of freedom."¹⁸ Rather, that the Thirteenth Amendment could be utilized "for the eradication, not simply of the institution [of slavery], but of its badges and incidents . . . ought to be deemed indisputable."¹⁹

B. The Rollback of the Vision

The erosion of the Thirteenth Amendment began shortly after its passage and ratification. Opponents of the 1866 Freedman's Bureau and Civil Rights bills, seeking to undermine the bills' validity under Section 2 of the Thirteenth Amendment, began opportunistically advocating a significantly more limited interpretation of the Thirteenth Amendment.²⁰ The understanding that the Thirteenth Amendment went well beyond the abolition of chattel slavery suddenly became a hotly contested issue, much more so than at the time of its passage.²¹ The Supreme Court itself would later note this strikingly self-serving inconsistency.²² In 1883, however, the Court joined in this defanging of the Thirteenth Amendment as a tool for racial justice in the Civil Rights Cases.²³

The Civil Rights Cases consolidated five cases dealing with the constitutionality with the Civil Rights Act of 1875.²⁴ The Act barred racial discrimination in numerous private settings,²⁵ and the individuals involved in the cases challenged indictments they had received for violating the Act by arguing that it lacked constitutional authorization.

Although the government's primary argument for the Act's constitutionality rested on Section 5 of the Fourteenth Amendment,²⁶ the government argued alternatively that the Act was valid under Section 2 of the Thirteenth Amendment.²⁷ Considering this argument, the Court agreed that the Amendment "clothe[d] Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States."²⁸ This language warrants a closer examination. "Incidents of slavery" did not originate as a concept following abolition, but rather finds its roots in antebellum courts.²⁹ Courts used the term to refer to aspects of slave ownership embedded within the property relationship.³⁰ Courts also used the term to refer to specific characteristics of the condition of slavery.³¹ This term found similar use in contemporary academic literature as well.³²

"Badges of slavery" was less popular in the antebellum era, but gained popularity in the legal world during the latter half of the 19th century.³³ Justices Swayne, Bradley, and Woods contributed to this, regularly invoking the term to describe political, civil, and legal disadvantages imposed on African Americans.³⁴ Riding circuit in United States v. Rhodes,³⁵ Justice Swayne wrote of how "[t]he shadow of the evil [of slavery] fell upon the free blacks. They had but few civil and no political rights in the slave states. Many of the badges of the bondman's degradation were fastened upon them."³⁶ Justice Bradley, joined by Justice Swayne, invoked the term a few years later in Blyew v. United States,³⁷ dissenting that "[t]o deprive a whole class of the community of this right [to testify in a criminal case], to refuse their evidence and their sworn complaints, is to brand them with a badge of slavery."³⁸ Riding circuit in United States v. Cruikshank,³⁹ Justice Bradley again noted, "disability to be a citizen and enjoy equal rights was deemed one form or badge of servitude."⁴⁰

Nonetheless, and perhaps influenced by its own racial prejudices,⁴¹ the Supreme Court in the Civil Rights Cases held that "[m]ere discriminations on account of race or color [should not be] regarded as badges of slavery"⁴² and struck down as unconstitutional the relevant portions of the Act.⁴³

It is not entirely clear that the Court's ruling in the Civil Rights Cases logically followed from its interpretation of the Thirteenth Amendment. The Court described the Thirteenth Amendment as, "[b]y its own unaided force," not just "abolish[ing] slavery" but also "establish[ing] universal freedom."⁴⁴ Similarly, the Court characterized the Amendment as "establishing and decreeing universal civil and political freedom throughout the United States."⁴⁵ One wonders what kind of "universal freedom"⁴⁶ or "civil and political freedom"⁴⁷ exists when...