The Abolition of Food Oppression

• Author: Etienne C. Toussaint
• Position: Assistant Professor of Law, University of South Carolina School of Law
• Pages: 1043-1123

The Abolition of Food Oppression

ETIENNE C. TOUSSAINT*

Public health experts trace the heightened risk of mortality from

COVID-19 among historically marginalized populations to their high rates

of diabetes, asthma, and hypertension, among other diet-related comorbid-

ities. However, food justice activists call attention to structural oppression

in global food systems, perhaps best illuminated by the prevalence of

unhealthy fast-food restaurants (and the lack of healthy alternatives) in low-

income Black and Hispanic/Latinx neighborhoods nationwide. In response,

local governments have begun to prioritize local food production to reduce

food insecurity. Yet, even well-intentioned food justice initiatives, such as

urban farming programs, can perpetuate structural inequities by glorifying

entrepreneurialism or privatization as effective solutions to poverty. Further

still, when lawmakers propose targeted relief programs for food insecure

communities, such as the Biden Administration’s federal debt relief program

for socially disadvantaged farmers, they are routinely challenged on consti-

tutional grounds for preferencing non-White racial and ethnic groups. Thus,

food insecurity in the urban ghettos and rural towns of America persists.

To defeat this impasse, this Article advocates an abolition constitutional-

ist framing of food insecurity in the United States. Specifically, it argues

that framing the problem of food insecurity in historically marginalized

communities as a badge of the antebellum system of chattel slavery invokes

the legislative potential of the Thirteenth Amendment’s Enforcement

Clause. Although the Supreme Court has empowered Congress to pass

laws necessary for abolishing all badges and incidents of slavery, there

remains a lack of clarity on the scope of material conditions or forms

of discrimination that constitute such lingering harms, leading some

lower courts to limit the Amendment’s enforcement to literal slavery or

involuntary servitude. Accordingly, this Article proposes a dignity-

* Assistant Professor of Law, University of South Carolina School of Law; Massachusetts Institute of

Technology, B.S.; The Johns Hopkins University, M.S.E.; Harvard Law School, J.D.; The George

Washington University Law School, LL.M. © 2023, Etienne C. Toussaint. I thank the many people who

provided helpful comments and constructive feedback on drafts of this Article, including Anthony

Schutz, Andrea Freeman, Sarah Morath, Martin Sybblis, Mekonnen Ayano, and Alexander Tsesis. I also

benefited tremendously from critical feedback during faculty workshops at the University of Nebraska

College of Law; the University of Houston Law Center; the University of Utah, S.J. Quinney College of

Law; and during presentations at the 2022 AALS Annual Meeting, New Voices in Agriculture & Food

Law; the 2021 John Mercer Langston Conference; the 2021 AALS Section on Poverty Law, Summer

Poverty Law Workshop; and the Sixth Annual ACS Constitutional Law Scholars Forum. I also thank

Sabrin Qadi, Whitney Barnes, Danielle Miller, and Molly Keegan for research assistance, and Ashley

Alvarado and Vanessa McQuinn for editing assistance. I am especially grateful to the editors of The

Georgetown Law Journal for exceptional editing and support during the publication process. Finally, I

thank Ebony, Etienne, Edward, and Erwin—I am, because we are. Any errors or omissions contained in

this Article are my own.

1043

based normative framework to assess the nature of injuries or material

conditions that are proximately traceable to the political economic sys-

tem of American slavery. Using the problem of food insecurity as a

guiding explanatory thread, this framework reveals how modern

badges of slavery can inflict: (i) equality-based; (ii) liberty-based; and

(iii) integrity-based dignitary harms. These dignitary harms, individu-

ally and collectively, can perpetuate the types of oppression levied by

chattel slavery; in this instance, the exploitative, marginalizing, and

violent harms of food oppression. Whether modern-day food oppression

is animated by state action (or inaction) or by private actors, it not

only hinders public health and degrades democracy, but most impor-

tantly, it also violates the spirit and letter of the Thirteenth Amendment.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045

I. SLAVERY, FOOD OPPRESSION, AND RECONSTRUCTION . . . . . . . . . . . . . . . . 1056

A. FOOD OPPRESSION DURING SLAVERY . . . . . . . . . . . . . . . . . . . . . . . . . 1059

1. Food Rationing as Exploitation . . . . . . . . . . . . . . . . . . . 1059

2. Food Disease as Violence . . . . . . . . . . . . . . . . . . . . . . . . 1062

3. Food Access as Marginalization. . . . . . . . . . . . . . . . . . . 1064

B. THE THIRTEENTH AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067

1. The Labor Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069

2. The Equal Rights Theory . . . . . . . . . . . . . . . . . . . . . . . . 1072

C. THE LIMITS OF ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077

II. FOOD INSECURITY AS A VESTIGE OF SLAVERY . . . . . . . . . . . . . . . . . . . . . . 1081

A. FOOD INSECURITY IN THE JIM CROW ERA. . . . . . . . . . . . . . . . . . . . . . 1082

B. FOOD INSECURITY AFTER CIVIL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . 1089

C. THE RISE OF FAST-FOOD OPPRESSION . . . . . . . . . . . . . . . . . . . . . . . . . 1093

III. ABOLISHING FOOD OPPRESSION TODAY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1099

A. EQUALITY-BASED DIGNITARY HARMS . . . . . . . . . . . . . . . . . . . . . . . . . 1101

1. The Source of Belonging . . . . . . . . . . . . . . . . . . . . . . . . 1101

2. Conditions of Unbelonging . . . . . . . . . . . . . . . . . . . . . . 1105

1044 THE GEORGETOWN LAW JOURNAL [Vol. 111:1043

B. LIBERTY-BASED DIGNITARY HARMS . . . . . . . . . . . . . . . . . . . . . . . . . . 1108

1. The Source of Freedom . . . . . . . . . . . . . . . . . . . . . . . . . 1108

2. Conditions of Unfreedom . . . . . . . . . . . . . . . . . . . . . . . . 1113

C. INTEGRITY-BASED DIGNITARY HARMS . . . . . . . . . . . . . . . . . . . . . . . . 1115

1. The Source of Recognition. . . . . . . . . . . . . . . . . . . . . . . 1115

2. Conditions of Unrecognition . . . . . . . . . . . . . . . . . . . . . 1120

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122

“Born sinner, the opposite of a winner

Remember when I used to eat sardines for dinner?”

— Notorious B.I.G.

1

“I have often been so pinched with hunger,

that I have fought with the dog . . . .”

— Frederick Douglass

2

INTRODUCTION

A middle-aged Black man stands in front of a window with a smile.

3

See TheClassicSports, 1999 – White Castle Has “What You Crave,” YOUTUBE (July 14, 2016),

https://www.youtube.com/watch?v=93-jPvmQkl4.

“Hello,” he

says with bouncing shoulders while pointing toward the glass pane. “Do you look

good? Do you look good?” As the camera pans out, a young Black girl emerges

next to him on the television screen, visibly embarrassed as the anxious man contin-

ues to speak to something or someone beyond the crystalline barrier. The girl utters

in a hushed voice, “Daaaad,” as she listens to her father employ a tone of speech

commonly associated with infants. “Yes, you do. Yeees yooou dooo,” the man sings

before plucking his lips playfully while uttering cooing sounds. One presumes that

the father and daughter are both peering through the window of a hospital nursery,

until the camera pans out further still and several rows of miniature hamburger

sliders come into view, each neatly organized upon a restaurant counter. A White

man adorning a chef’s apron and a coy smirk packages the burgers one by one into

small cardboard boxes and the commercial ends abruptly with the company’s logo

and slogan plastered across the screen: White Castle. What you crave.

Growing up in the South Bronx, I spent several years obsessed with White

Castle hamburger sliders. It became a weekly tradition, a cheap and savory

reprieve from the monotony of Sunday afternoons before the sound of my

1. NOTORIOUS B.I.G., Juicy, on THE NOTORIOUS B.I.G.: GREATEST HITS, at 00:52 (Bad Boy Records 2007).

2. FREDERICK DOUGLASS, MY BONDAGE AND MY FREEDOM 75 (1855).

3.

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