Today in Supreme Court History

Today in Supreme Court History: December 6, 1865

|The Volokh Conspiracy |

12/6/1865: The 13th Amendment is ratified.


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  1. In case you’re not familiar with the text of the amendment.

    Amendment XIII

    Section 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.

    Section 2.
    Congress shall have power to enforce this article by appropriate legislation.

    1. Fun fact: The authors of the 13th Amendment were neo-Confederates.

      Proof: The amendment refers to the United States in the plural – “any place subject to *their* jurisdiction” [emphasis added]

  2. You can’t credit the Supreme Court for this one.

    1. Except for allowing conscription.

      1. Wouldn’t it be a stretch to think this ended that? It mentions nothing about altering Congress’ power to raise armies.

        1. Amendments … amend … the Constitution. Whatever government slavery was enabled by the power to raise armies was amended by the 80-years-later amendment.

          Wasn’t there a lot of fuss over Lincoln’s conscription, and later fuss over FDR’s peacetime conscription?

          1. When you look at the legislative record of debate, did the ratifiers mean to preclude the draft?

            1. When you look at the original Constitution, did the framers mean to allow a draft?

          2. Amendments amend…and the intent was clear: deal with slavert, not sneakily change to something else clearly not intended at the time, via motivated sophistry a century later.

            We do not allow this, because the process is to stop government accumulating new powers at its whim, rather than the peoples’, or the states’.

            See, history doesn’t work out so well when the power hungry can add to their power at their whim. Hence the iron-girded process that should not change government power without getting buy in from most, not just a transient simple majority.

            1. They could have added “nothing in this amendment shall be construed as altering Congress’power to raise armies”, but that was so out there it may not have crossed anybody’s mind. Which does not help your case any, sneaky-sophistry-wise.

              I’m ready to be proven wrong in their contemporary discussions.

              1. I’m not sure what side you are taking, because banning conscription isn’t adding powers, it is removing them.

                How about you show me where the framers intended to allow conscription in the original unamended Constitution? Or are you saying the original Constitution did not allow conscription, but the 13th amendment sneakily allowed conscription by only banning slavery?

                1. Raising and supporting armies meant conscription.

  3. Again, this might be a day in history, but in what way is this Supreme court history?

    1. Yeah, I saw *Lincoln* – there was nothing in there about the Supreme Court helping pass the 13th Amendment.

    2. Since when do ads have to make sense?

  4. One of my crackpot theories is that the 13th Amendment not only freed the slaves, it freed the Commerce Clause. Under much current Commerce Clause doctrine — I know, lots of you don’t like current Commerce Clause doctrine, but that’s a subject for another day — Congress could severely cripple, though perhaps not entirely abolish, slavery. And the practical destruction of slavery as a means of production would probably mean the eventual death of whatever residual aspects of slavery might be thought beyond Congress’s power to end directly. During slavery days, much of the argument for a narrowly-construed Commerce Clause was explicitly concerned with denying Congress the power to interfere with slavery in the states. Once that was off the table, the Commerce Clause was liberated.

    1. It’s an interesting claim, but I think what really freed the Commerce Clause is just the change in society from a local economy to a national one. I don’t even really think it’s Wickard that did it- Wickard concerned an extreme set of facts and it would have done little harm to anything had the case come out the other way. (Same with Raich.)

      But the reality is that if you bought some good- say, some fruit- in 1787 or even throughout the 19th Century, it would have been picked from a local farm, grown from local seeds with no commercial pesticides, and been transported on some local road to the local market where you purchased it.

      If you buy fruit now, it was probably picked in a different state or a foreign country, the seeds and fertilizer that produced it traveled through interstate or foreign commerce, the pesticides did as well, and the market you buy it from is often a large corporation which does business in numerous states.

      That’s what liberated the Commerce Clause. What was once a regulatory power to govern a few transactions that were actually made across state lines became a broad government power to regulate almost all the economic activity of the country.

      And libertarians and some conservatives have just never come to grips with that. Sure, Wickard was a stupid decision, but the basic notion that we now have a far, far, far broader commerce power than we used to is a basic product of changes in the United States economy, and unless you advocate imposing severe restrictions which basically prohibit goods and services from being provided across state lines or national borders, we’re going to have a super-broad Commerce Clause.

  5. To what extent (if any) does Section 2 curtail the power of the courts to rule on the extent and limits of the 13th Amendment?

    If Congress were to pass a law forbidding, say, mandatory school attendance on the grounds that it was “involuntary servitude” how strong would the argument be that the courts could not overturn this without themselves violating Section 2?

    1. Courts would apply the City of Boerne v. Flores test.

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