University of Virginia Legal Working Paper Series
University of Virginia Public Law and Legal Theory Working Paper Series
The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment
Abstract
The Civil Rights Cases, decided in the aftermath of Reconstruction, declared the Civil Rights Act of 1875 unconstitutional, holding that its prohibitions against private discrimination exceeded the powers of Congress under both the Thirteenth and the Fourteen Amendments. Eighty-five years later, Jones v. Alfred H. Mayer Co., reached nearly the opposite conclusion, interpreting the Civil Rights Act of 1866 to prohibit private discrimination and upholding the act as so interpreted under the Thirteenth Amendment. These decisions agreed in their common use of the phrase "badges and incidents of slavery" to determine the scope of congressional power under the Thirteenth Amendment, but they did not agree on what this phrase meant or on how it was to be applied. The Civil Rights Cases drastically limited congressional power to prohibit private discrimination under the Thirteenth Amendment, while Jones v. Mayer greatly expanded it. How could one phrase bear such different meanings and justify such inconsistent conclusions? This essay offers an answer to this question by analyzing the literal and figurative senses that were given to the "badges and incidents of slavery" in political and legal discourse. Part I traces the origins of this phrase and how it would have been understood by the framers of the Thirteenth Amendment. Part II examines how it entered into the canon of constitutional interpretation despite its absence from the text of the Thirteenth Amendment and, almost entirely, from its legislative history. Part III considers the appearance of the phrase in judicial opinions and how it was transformed from a restrictive to an expansive test of congressional power. The inherent ambiguity of the "badges and incidents of slavery" is the key to understanding its role, initially in political thought and then in constitutional interpretation.
Subject Area
Civil Rights, Legal History, Public Law and Legal Theory
Recommended Citation
George Rutherglen,
"The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment"
(June 2007).
University of Virginia Legal Working Paper Series.
University of Virginia Public Law and Legal Theory Working Paper Series.
Working Paper 68.
http://law.bepress.com/uvalwps/uva_publiclaw/art68
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