The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Another Judge on the Acela Corridor Takes The Thirteenth Amendment Seriously

Judge Matey's concurrence sketches out the original meaning of "involuntary servitude."


Apparently, not all judges along I-95 are lost. Today the Third Circuit decided Burrell v. Staff. The plaintiffs argued that violations of labor laws amounted to involuntary servitude, in violation of the Thirteenth Amendment. The majority opinion rejected those claims in light of modern precedent.

From Zavala we derive the principle that using an otherwise legal process for a purpose for which it was not created or intended to be used is not, on its own, sufficient to constitute the threat of legal sanction necessary to find a Thirteenth Amendment violation. Here, restricting access to the work release program and threatening plaintiffs with serving the entirety of their otherwise legal contempt sentences is akin to the threats of deportation in Zavala. Because plaintiffs do not sufficiently allege involuntary servitude, they fail to state a Thirteenth Amendment § 1983 claim on which relief can be granted, and we will affirm the District Court's dismissal of those claims.

Judge Matey concurred, and included a lengthy footnote concerning the original meaning of the Thirteenth Amendment.

After an abhorrent chapter in our Nation's history, the Thirteenth Amendment confirmed the natural rights of all persons through "a practical application of that self-evident truth, 'that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.'" Jacobus tenBroek, Thirteenth Amendment to the Constitution of the United States: Consummation to Abolition and Key to the Fourteenth Amendment, 39 Calif. L. Rev. 171, 178 (1951) (quoting Cong. Globe, 38th Cong., 2d Sess. 142 (1865) (statement of Rep. Godlove S. Orth)). The Amendment reiterated the natural law that supports our Constitution, making slavery irreconcilable "with the fundamental principles upon which our government rests." Joel Tiffany, A Treatise on the Unconstitutionality of American Slavery (1849), reprinted in 2 The Reconstruction Amendments: The Essential Documents 237, 237–38 (Kurt T. Lash ed., 2021) ("All men are possessed of the same natural rights, secured by the same natural guarantys—held by the same tenure—their title is derived from the same source. . . . Deny these truths, and you destroy the foundation upon which society is based. Violate them, and you are at war with yourself, with Man and God."). The Amendment, rooted in "our ancient faith [that] the just powers of governments are derived from the consent of the governed," recognized that slavery's existence was "a total violation of this principle . . . [of] self government." Abraham Lincoln, Speech at Peoria, Illinois (Oct. 16, 1854), reprinted in 2 The Collected Works of Abraham Lincoln 247, 265–66 (Roy Basler ed., 1953). "By the law of nature all men are born free and equal, and man has no jus dominii in man. . . . [F]or freedom is the natural right of every man, and slavery is abridgment by positive law." Slavery and the Incoming Administration, in 2 Brownson's Quarterly Review 65, 109 (1857). See also Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 624 (1857) (Curtis, J., dissenting) ("Slavery, being contrary to natural right, is created only by municipal law."). The Thirteenth Amendment codified the truth that slavery could be treated as constitutional "only by disregarding the plain and common-sense reading of the Constitution itself." Frederick Douglass, The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery? (1860), reprinted in 2 The Reconstruction Amendments: The Essential Documents 303, 308. See also Peter C. Myers, Seed-Time and Harvest-Time: Natural Law and Rational Hopefulness in Frederick Douglass's Life and Times, 99 J. Afr. Am. Hist. 56 (2014), reprinted in A Political Companion to Frederick Douglass 285, 287 (Neil Roberts ed., 2018) ("Douglass frequently invoked the law of nature both because he was convinced of its profound truth and also by virtue of its utility in various practical applications.").

Matey concluded that the plaintiffs' constitutional claims have no merit.

None of Plaintiffs' claims approach a violation of the natural principles guarded in the Reconstruction Amendments, nor could the nature of their work approach the atrocities the Thirteenth Amendment protects against. Calling what amounts to a wage and hour dispute a violation of these laws would be a most remarkable departure from the Amendment's original meaning and disrespectful to that historic achievement.

DOJ, take note for your brief.