It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law, and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. See 109 U.S. 3 Civil Rights Cases Argued: Decided: October 16th, 1883.
In the late eighteenth century, legislatures began to prescribe imprisonment as punishment, replacing such punishments as public whipping and confinement in stocks. See Sentencing
By its very terms, the Thirteenth Amendment is not given to a neutral reading; indeed, it gives the federal legislature the power to enforce the liberty guarantees of the Declaration of Independence and Preamble to the Constitution in the context of both private and state-sponsored discrimination. Further, the Thirteenth Amendment extends to interstate and intrastate activities, regardless of the impact on commerce. The Amendment thereby recognizes that the arbitrary restriction of freedom is not merely an economic harm, but one which affects society in a more profound way. Furthering American Freedom: Civil Rights and the 13th Amendment….
“Harlan listed the incidents of slavery including the inability to acquire and hold property… Trumbull, used “badges of servitude as a synonym for the “incidents of slavery.” He defined a badge of servitude as “any statute which…..deprives any citizen of civil rights which are secured to other citizens. Id. (“ Congress, in defining badges of slavery, can expand the self executing force of the thirteenth amendment, that is, Congress can define given conduct as constituting a badge of slavery even though such conduct would not be prohibited by the Thirteenth Amendment, unaided by congressional legislation. Congress defined badges and incidents of slavery at H. RES. 194 In the House of Representatives, U.S., July 29, 2008 Resolution
Slavery is upheld by suppressing the testimony of its Victims. “A slave cannot be a witness against a white per son, either in a civil or criminal cause.” (Stroud’s Sketch, p. 65.) “It is an inflexible and universal rule of slave law, founded in one or two States upon usage, in others sanctioned by express legislation, that the testimony of a colored person, whether bond or free, cannot be received against a white person. (lb., p. 27. Same in Wheeler’s Law of Slavery, 193-5.)
Circuit Judge Charles Fahy in the court’s opinion characterized the freedom to go from place to place as a “natural right” Chief Judge Henry W. Edgrton in a concurring opinion stated: “Freedom to leave a country or a hemisphere is as much a part of liberty as freedom to leave a State.” Id. at 944. The Government in its brief in the Kent an Briehl cases adopted both concepts. Mr. Justice Douglas for the Court regarded freedom of movement as a constitutional rather than a natural right. In Allgeyer v. Louisiana, 165 U.S. 578, 589 , 41 S. L. ed. 832, 835, 17 Sup. Ct. Rep. 427, 431, [203 U.S. 1, 36] we said that such liberty ‘means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work when he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.’
The Court in Greene did, however, emphasize the Thirteenth Amendment’s self-executing first section.212 The decision further indicates that, under the right circumstances, the Court might allow a claim directly under section 1, even absent congressional action.213 Memphis had based its argument on Palmer, claiming that absent direct congressional enabling legislation the Court could not hold for the plaintiffs.214 The Court rejected Memphis’s argument and stated that “[p]ursuant to the authority created by § 2 of the Thirteenth Amendment, Congress has enacted legislation to abolish both the conditions of involuntary servitude and the ‘badges and incidents of slavery.’”215 This “exercise of that authority” the Court went on “is not inconsistent with the view that the Amendment has self-executing force.”216 Interestingly, the majority emphasized the possibility that courts have the power to find that section 1 extends beyond the abolition of slavery: A dictum in Greene indicates that, given a justiciable controversy, the judiciary could decide whether a cause of action amounts to a badge or incident of servitude. The Supreme Court has not subsequently returned to clarify this important point. This leaves open the question of whether a private claim is available under section 1 absent an ancillary statute and, if such a cause of action is available, whether it may be filed against public and private actors.
The ‘‘force and effect’’ of the [Thirteenth] Amendment itself has been invoked only a few times by the Court to strike down state legislation which it considered to have reintroduced servitude of persons Infra, p. 1555. Runyon v. McCrary, 427 U.S. 160 (1976)
The Court in Rogers v. American Airlines stated: “that Thirteenth Amendment “prohibits practices that constitute a badge of slavery.” See Rogers v. American Airlines, 527 F. Supp. 229, 231 (S.D.N.Y. 1981).
U.S. Const. Amend. XIII. Thirteenth Amendment does not give rise to a private cause of action, but may be asserted as the underlying constitutional claim for a violation of Section 1983. See Joynes v. Meconi United States District Court, D. Delaware. Civil Action No. 05-332 GMS. (D. Del. Sep 30, 2006).” [Cited in El Aemer El Mujaddid v. Lynn A. Wehling CIVIL ACTION NO. 12-7750 (JBS/JS) 08-25-2015].
The general trend among lower courts has been to reject an independent cause of action under the Thirteenth Amendment. This is particularly true with employment discrimination claims. See, e.g., Rash v. Minority Intermodal Specialists, Inc., 2001 WL 1654710, at *5 (N.D. Ill. Dec. 20, 2001) (stating that “[p]laintiff cannot bring a private right of action directly under the Thirteenth Amendment for employment discrimination”); Horton v. Norfolk S. Corp., 102 F. Supp. 2d 330, 335 (M.D. N.C. 1999) (stating the Thirteenth Amendment does not provide “an independent action for employment discrimination”); Mitchell v. Carrier Corp., 954 F. Supp. 1568, 1575 (M.D. Ga. 1995) (finding that the Thirteenth Amendment does not provide an independent cause of action in employment cases); Baker v. McDonald’s Corp., 686 F. Supp. 1474, 1480 n.12 (S.D. Fla. 1987) (stating that while unequal treatment of black persons may violate the Thirteenth Amendment, “plaintiff may not maintain a cause of action directly under the Thirteenth Amendment for employment discrimination. Rather, the plaintiff must base his claims on one of the implementing statutes, e.g., 42 U.S.C. § 1985(3) or § 1981”).
In TIMOTHY LEUALLEN, et al., Plaintiffs, v. BOROUGH OF PAULSBORO, et al., Defendants. Civil No. 99-4353 (JBS) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY 180 F. Supp. 2d 615 January 10, 2002, Judge Simandle ruled:
Second, a Thirteenth Amendment violation arising under 42 U.S.C. § 1983 would [*620] require that some facts be plead indicating that plaintiffs were forced into slavery or involuntary servitude by defendants prior to being convicted for any crime. A claim that the Thirteenth Amendment has been violated requires allegations that plaintiff “was forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process. This definition encompasses those cases in which the defendant holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion.” United States v. Kozminski, 487 U.S. 931, 952, 108 S. Ct. 2751, 2765, 101 L. Ed. 2d 788 (1988) (interpreting the term “involuntary servitude” as contained in 18 U.S.C. § 1584 and the Thirteenth Amendment); see also Kaveney v. Miller, 1993 U.S. Dist. Lexis 10784, 1993 WL 298718 at *2 (E.D. Pa. Jul. 30, 1993). Although Mr. Malat correctly noted that the Thirteen Amendment does not limit its protection to racial minorities, he proffered no facts, even in response to the Court’s repeated questions, that in any way indicated what basis may have existed for this claim on behalf of any of these plaintiffs. Instead, Mr. Malat stated that the information which initially led him to believe that each of the named plaintiffs had suffered such a constitutional violation was privileged and did not result in any admissible evidence, and therefore could not be used to oppose the motion for summary judgment on that ground. Mr. Malat further indicated that he would have voluntarily dismissed this claim if asked to do so by the defendants.
Whether he might have voluntarily withdrawn these baseless Thirteenth Amendment claims is not the point. The fact is that he did not do so and this Court had to adjudicate the defendants’ summary judgment motions addressed to these claims. Because there is no evidence whatsoever of any factual support for a Thirteenth Amendment violation, the claim never should have remained in the Complaint, Amended Complaint, and Second Amended Complaint. Therefore, this conduct constitutes a violation of Rules 11(b)(2) and 11(b)(3).
In City of Boerne, the Court turned to the Thirteenth Amendment and stated that Amendment as an original matter had a broader focus, and was “not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” Id. at 20. Beyond simply “nullifying all state laws which establish or uphold slavery,” the Court reasoned that the Thirteenth Amendment has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States.
A § 1983 claim must be based on a right secured by the Constitution and laws of the United States. See 42 U.S.C. § 1983. Further, “[t]o make out a prima facie case under § 1983, the plaintiff must demonstrate that a person, acting under color of law, deprived him of a federal right.” Berg v. County of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000)(citing Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995)). The Supreme Court Reporter, Volume 27 states: As we have seen, this court has held that the 13th Amendment, by its own force, without aid of legislation, not only conferred freedom upon every person not legally held in custody for crime within the jurisdiction of the United States, but the right and privilege of being free from the badges or incidents of slavery…….I have already said that the liberty protected by the 14th Amendment against state action inconsistent with due process of law is neither more nor less than the freedom established by the 13th Amendment. This I think, cannot be doubted. In Allgeyer v. Lousiana, 165 U.S. 578, 589, 41 L. ed.832, 835, 17 Sup. Ct. Rep. 427, 431,we said thtat such liberty “means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right o the citizen to be free in the enjoyment of all his faculties; to be free to use them all lawful ways; to live and work when he will; to earn his livelihood or avocation, and for that purpose to enter into all contracts which may proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned. All these rights, as this court adjudged in the Allgeyer Case are embraced in the liberty which the 14th Amendment protects against hostile state action, when such state action is wanting in due process o law. They are rights essential in the freedom conferred by the 13th Amendment. Page 16 27 Supreme Court Reporter Oct. Term.
The Fifth Circuit U.S. Court of Appeals found in that: For generations, the institutions of slavery and involuntary servitude were defined by the race, color, and ancestry of those held in bondage. Slavery and involuntary servitude were enforced, both prior to and after the adoption of the 13th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Both at the time when the 13th, 14th, and 15th amendments to the Constitution of the United States were adopted, and continuing to date, members of certain religious and national origin groups were and are perceived to be distinct “races”. Thus, in order to eliminate, to the extent possible, the badges, incidents, and relics of slavery, it is necessary to prohibit assaults on the basis of real or perceived religions or national origins, at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13th, 14th, and 15th amendments to the Constitution of the United States. The words “badges” and “incidents” were originally terms of art with specific meanings tied to their historical context. An incident of slavery, as that term was used, was any legal right or restriction that necessarily accompanied the institution of slavery. Most often, “incident” was used to refer to the aspects of property law that applied to the ownership and transfer of slaves. It also was used to refer to the civil disabilities imposed on slaves by virtue of their status as property. In all, the term has clear, finite, historically determined meaning. It refers to a closed set of public laws that applied in the antebellum slaveholding states. See UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES CANNON; BRIAN KERSTETTER; MICHAEL MCLAUGHLIN , Congressional Record, V. 150, Pt. 5, March 30, 2004 to April 19, 2004 and Hate Crimes Act (Matthew Shepard Act)
The Supreme Court of Georgia provided a more expansive list of badges and incidents of slavery in Bryan v. Walton, describing how free blacks were subject to the most humiliating incidents of his degradation.—Like the slave, the free person of color is incompetent to testify against a free white citizen He lives under, and is tried by the same Criminal Code. He has neither vote nor voice in forming the laws by which he is governed. He is not allowed to keep or carry fire-arms. He cannot preach or exhort without a special license, on pain of imprisonment, fine and corporeal punishment. He cannot be employed in mixing or vending drugs or medicines of any description. 14 Ga. 185, 202–03 (1853); see also Tom v. State, 27 Tenn. 86, 88 (1847) (terming as a “necessary incident to the institution of slavery” the duty of a runaway slave to submit to arrest).
“Randall Kennedy, a law professor at Harvard, writes that “many jurisdictions made slaves into ‘criminals’ by prohibiting them from pursuing a wide range of activities that whites were typically free to pursue.” Among these activities were: learning to read, leaving their masters’ property without a proper pass, engaging in “unbecoming” conduct in the presence of a white female, assembling to worship outside the supervisory presence of a white person, neglecting to step out of the way when a white person approached on a walkway, smoking in public, walking with a cane, making loud noises, or defending themselves from assaults. Antebellum Virginia had 73 crimes that could garner the death penalty for slaves—and only one for whites. See The Black Family in the Age of Mass Incarceration
See, e.g., Crenshaw v. City of Defuniak Springs, 891 F. Supp. 1548, 1556–57 (N.D. Fla. 1995) (noting, however, that “neither the Supreme Court of the United States or the Courts of Appeal have decided the extent to which adirect cause of action exists under the Thirteenth Amendment”). On this point, the Fifth Circuit noted in 1997 that, “[w]hile it is true that suits attacking the ‘badges and incidents of slavery’ must be based on a statute enacted under § 2, suits attacking compulsory labor arise directly under prohibition of § 1, which is ‘undoubtedly self-executing without any ancillary legislation.’” Channer v. Hall, 112 F.3d 214, 217 n.5 (5th Cir. 1997) (quoting Civil Rights Cases, 109 U.S. at 20). Likewise, the Fourth Circuit stated that “[w]hile Co ngress may arguably have some discretion in determining what kind of protective legislation to enact pursuant to the thirteenth amendment, it appears that the amendment’s independent scope is limited to the eradication of the incidents or badges of slavery and does not reach other acts of discrimination.” Washington v. Finlay, 664 F.2d 913, 927 (4th Cir. 1981). In Jones, the Supreme Court explained that “[s]urely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery.” Id. at 440; see also Hatch, 722 F.3d at 1200 (“In sum, after these cases the Thirteenth Amendment can be seen as treating most forms of racial discrimination as badges and incidents of slavery, and that Congress not only has the power to enforce the amendment, but also to a certain extent to define its meaning.”). That “unity of purpose” was to confront slavery, and the atrocious practices associated with it. See George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1370, 1378 (2008). Specifically, Congress noted that [s]lavery and involuntary servitude were enforced, both prior to and after the adoption of the 13th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No. 111-84, 123 Stat. 2190 (2009), div. E., § 4702 (codified as amended at 18 U.S.C. § 249) (emphasis added). There is no doubt that hate crimes and racial discrimination still exist. There is also no doubt that such crimes are deplorable acts. Unlike the Commerce Clause, the Congress’s power under the Thirteenth Amendment is not limited to interstate activities. Unlike the Fourteenth Amendment, it is not limited to state action. Unlike the Fifteenth Amendment, it does not require Congress to act based on a need grounded in current conditions. Congress’s power under the Thirteenth Amendment is constrained only by the definition of “badges” or “incidents” of slavery. See Jones, 392 U.S. at 440; see generally Rutherglen, supra at 1367. And under Jones, that definition only a self-imposed limit. Congress’s powers are constrained only by Congress. See United States Court Of Appeals for The Fifth Circuit in United States Of America, Plaintiff-Appellee, v. Charles Cannon; Brian Kerstetter; Michael Mclaughlin, No. 12-20514.
Magistrate or other judicial officer, who corruptly exercised his functions in order that citizen might be unlawfully convicted of crime and sold into involuntary servitude for benefit of another, with whom he had understanding, could not escape liability for conspiracy, and its natural and designed results in holding accused to condition of peonage, because of official character of his acts. If one person carried another before magistrate, informing him that he was accused of crime, and magistrate induced accused, who was of weak mind, or little intelligence, or confiding, to believe that he had been sentenced to hard labor for fine when in fact no offense was charged, no warrant issued, and no judgment entered, and such person was induced by such fraudulent means to submit to restraint of his liberty, persons so concerned were guilty of causing accused to be held to condition of peonage. See John Norton Pomeroy & John C. Mann, A Treatise On The Specific Performance Of Contracts (3d ed. 1926).
But see id. § 310 n.(a) (“Any system or plan by which the court could order or direct the physical coercion of the laborer would be wholly out of harmony with the spirit of our institutions . . . .” (quoting H.W. Gossard Co. v. Crosby, 109 N.W. 483 (Iowa 1906))). Similarly, in United States v. Reynolds, the Court held that “[c]ompulsion of . . . service by the constant fear of imprisonment under the criminal laws” violated “rights intended to be secured by the Thirteenth Amendment. See United States v. Reynolds, 235 U.S. 133, 146, 150 (1914). In the decades after Reconstruction, debt bondage emerged as part of the effort to reassert white dominion over African American workers. See generally Pete Daniel, The Shadow of Slavery: Peonage In The South, 1901–1969 (1972); N. Gordon Carper, Slavery Revisited: Peonage in the South, 37 PHYLON 85 (1976); William Cohen, Negro Involuntary Servitude in the South, 1865–1940: A Preliminary Analysis, 42 J. S. HIST. 31 (1976). 349. See Act of Mar. 9, 1911, No. 98, 1911 Ala. Laws 93; Procuring Money on Contract for Service, No. 345, 1903 Ga. Laws 90; see also Cohen, supra note 348, at 53. In practice, those jailed found themselves bound upon pain of re-imprisonment to work off a debt incurred as a result of an “agreement” made on pain of continued imprisonment. See, e.g., Thomas v. State, 13 Ala. App. 431 (Ala. Ct. App. 1915); Lee v. State, 75 Ala. 29, 30–31 (1883); Wilson v. State, 138 Ga. 489, 494 (1912); see also Cohen, supra note 348, at 54–55. Given the reality of coercion, financial exploitation, duration, and domination involved in Jim Crow labor relationships, it is not surprising that the Court upheld convictions under the Anti-Peonage Act as a legitimate exercise of congressional power under Section 2 of the Thirteenth Amendment, See, e.g., Bailey v. Alabama, 219 U.S. 219, 244–45 (1911) struck down state laws creating a presumption of fraud when an indebted worker quit, See, e.g., Clyatt v. United States, 197 U.S. 207, 218 (1905) and overturned criminal-surety statutes. See, e.g., United States v. Reynolds, 235 U.S. 133, 149–50 (1914).
In doing so, it struck at conditions well within the original understanding of “involuntary servitude.” Since the term “peonage” was not defined in the statute, the Court turned to New Mexican cases for its meaning. In doing so, however, the Court simply defined peonage as a status or condition of compulsory service based on indebtedness. See id. at 215–16 (discussing the meaning of “peonage”). The Court went on to hold that “involuntary servitude” existed whenever there was “compulsory service.” Writing for the Court, Justice Hughes stated: The act of Congress [i.e. the Anti-Peonage Act], nullifying all state laws by which it should be attempted to enforce the “service or labor of any person as peons, in liquidation of any debt or obligation, or otherwise,” necessarily embraces all legislation which seeks to compel the service or labor by making it a crime to refuse or fail to perform it. See Clyatt, 197 U.S. at 216 (“This amendment denounces a status or condition, irrespective of the manner or authority by which it is created.”). See id. at 10–11 (referencing United States v. Gaskin, 320 U.S. 527, 529–30 (1944) (reversing a lower court holding that one could not be convicted under the Anti-Peonage Act for merely arresting someone with the intent of returning them to peonage).
See Victims of Trafficking and Violence Protection Act of 2000Sec. 1102. See Trafficking Victims Protection Reauthorization Act of 2003Sec. 2. Findings. Congress finds the following: (3) On the other hand, victims of trafficking have faced unintended obstacles in the process of securing needed assistance. (5) Corruption among foreign law enforcement authorities continues to undermine the efforts by governments to investigate, prosecute, and convict traffickers. 77. Peonage, slavery, and trafficking in persons’. Sec. 6. Enhancing United States Efforts To Combat Trafficking. (A) Report- (1) In General- Section 105(d) of the Victims of Trafficking and Violence Protection Act of 2000 (22 U.S.C. 7103(d)) is amended by adding at the end the following new paragraph: `(7) Not later than May 1, 2004, and annually thereafter, the Attorney General shall submit to the Committee on Ways and Means, the Committee on International Relations, and the Committee on the Judiciary of the House of Representatives and the Committee on Finance, the Committee on Foreign Relations, and the Committee on the Judiciary of the Senate, a report on Federal agencies that are implementing any provision of this division, or any amendment made by this division, which shall include, at a minimum, information on- `(D) the number of persons who have been charged or convicted under one or more of sections 1581, 1583, 1584, 1589, 1590, 1591, 1592, or 1594 of title 18, United States Code, during the preceding fiscal year and the sentences imposed against each such person. Trafficking Victims Protection Reauthorization Act of 2005 SEC. 2. FINDINGS. Congress finds the following: (1) The United States has demonstrated international leadership in combating human trafficking and slavery through the enactment of the Trafficking Victims Protection Act of 2000 (division A of Public Law 106-386; 22 U.S.C. 7101 et seq.) and the Trafficking Victims Protection Reauthorization Act of 2003 (Public Law 108-193). (4) Trafficking in persons also occurs within the borders of a country, including the United States. See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 Subtitle B–Assistance For Trafficking Victims Sec. 213. See Victims of Trafficking and Violence Protection Act of 2000Sec. 1102. Role Of Courts. (a) Courts As Eligible Stop Subgrantees- Part T of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796gg et seq.) is amended– (1) in section 2001– (A) in subsection (a), by striking `Indian tribal governments,’ and inserting `State and local courts (including juvenile courts), Indian tribal governments, tribal courts,’; and (B) in subsection (b)– (i) in paragraph (1), by inserting `, judges, other court personnel,’ after `law enforcement officers’; (ii) in paragraph (2), by inserting `, judges, other court personnel,’ after `law enforcement officers’; and (iii) in paragraph (3), by inserting `, court,’ after `police’; and (2) in section 2002– (A) in subsection (a), by inserting `State and local courts (including juvenile courts),’ after `States,’ the second place it appears.
The state or condition of a peon as above defined; a condition of en- forced servitude, by which the servitor is restrained of his liberty and compelled to labor in liquidation of some debt or obligation, real or pretended, against his will. Peonage Cases (D. C.) 123 Fed. 071; In re Lewis (C. C.) 114 Fed. 903 ; U. S. v. McClel- lan (D. C.) 127 Fed. 971; Rev. St. U. S.
Work; toil; service. Continued exertion, of the more onerous and inferior kind, usually and chiefly consisting in the protracted expenditure of muscular force, adapted to the accomplishment of specific useful ends. It is used in this sense in several legal phrases, such as “a count for work and labor,” “wages of labor,” etc. “Labor.” “business,” and “work” are not synonyms. Labor may be business, but it is not necessarily so; and business is not always labor. Labor implies toil; exertion producing weariness; manual exertion of a toilsome nature. Making an agreement for the sale of a chattel is not within a prohibition of common labor upon Sunday, though it is (if by a merchant in his calling) within a prohibition upon business. Bloom v. Richards. 2 Ohio St. 387.
Furthermore, according to the court in Food Lion, “One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.” “Huggins v. Winn-Dixie Greenville, Inc., 153 S.E.2d 693, 694 (S.C. 1967) (citation omitted).
The Thirteenth Amendment’s lack of a state action requirement is another reason for sometimes preferring the Thirteenth to the Fourteenth Amendment. The Supreme Court created this dichotomy as early as 1883, in the Civil Rights Cases, and never strayed from it. The Court then found that the Fourteenth Amendment enforcement power is limited to state actions: It does not authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of state officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect: and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect. Civil Rights Cases, 109 U.S. 3, 11–12 (1883). Furthering American Freedom: Civil Rights and the 13th Amendment
The Court’s most extensive foray into the meaning of “involuntary servitude” came in the so-called Peonage Cases. In a series of opinions in the early twentieth-century, the Court declared in sweeping dicta that any attempt to enforce a contract with legal sanctions would constitute “involuntary servitude. See, e.g., Pollock v. Williams, 322 U.S. 4, 18 (1944) (concluding that “no state can make the quitting of work any component of a crime”); Bailey v. Alabama, 219 U.S. 219, 243 (1911) (“The act of Congress [under the Thirteenth Amendment] . . . necessarily embraces all legislation which seeks to compel the service or labor by making it a crime to refuse . . . to perform it.”).
Congress in 2009 passed the Matthew Shepard and James Byrd Hate Crimes Prevention Act (HCPA) which sought to criminalize acts that “cause bodily injury to any person … because of the actual or perceived race, color, religion, or national origin of any person.” It allows for the federal government to re-prosecute a defendant already acquitted in state court.
Since the passage of the HCPA, courts have expressed concern about its constitutional validity. Judges in Hatch v. US, a Tenth Circuit case involving white-on-Native American violence, acknowledged that, post-Jones, there were “few limits” on what conduct might be prohibited under the Act and that given slavery’s lasting effects, “nearly every hurtful thing one human could do to another and nearly every disadvantaged state of being might be analogized to slavery.”
Civil rights expert Gail Heriot has noted, the approach the Supreme Court took in the late sixties “essentially interprets the Thirteenth Amendment as giving Congress a general police power over all conduct concerning race.
U.S. Supreme Court stated in dicta that the scope of the Thirteenth Amendment extended beyond abolishing laws or private acts that perpetuated slavery or involuntary servitude in a literal sense. Specifically, the Supreme Court stated: It is true that slavery cannot exist without law any more than property in lands and goods can exist without law, and therefore the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.
Both the Supreme Court and our own precedent afford Congress ample deference in defining what private actions qualify as “badges” and “incidents” of slavery. See Jones, 392 U.S. at 440; Bob Lawrence Realty, Inc., 474 F.2d at 120. Under our Thirteenth Amendment jurisprudence, we must respect Congress’s determination unless it lacks a rational basis. In order to determine whether racially motivated violence is rationally considered one of the “badges” or “incidents” of slavery, we must first examine what those terms mean. The words “badges” and “incidents” were originally terms of art with specific meanings tied to their historical context. An incident of slavery, as that term was used, was any legal right or restriction that necessarily accompanied the institution of slavery. Most often, “incident” was used to refer to the aspects of property law that applied to the ownership and transfer of slaves. It also was used to refer to the civil disabilities imposed on slaves by virtue of their status as property. In all, the term has clear, finite, historically determined meaning. It refers to a closed set of public laws that applied in the antebellum slave holding states. Identifying an “incident of slavery,” then, is an exercise in historical inquiry. Jennifer Mason McAward, Defining the Badges and Incidents of Slavery, 14 U. Pa. J. Const. L. 561, 575 (2012).
While the definition of badge has broadened over time, “in its most general sense, the term ‘badge of slavery’ . . . refers to indicators, physical or otherwise, of African-Americans’ slave or subordinate status.” Id. at 575. Before the Civil War, the term referred to skin color. After the War, it came to mean the kinds of legal restrictions, such as the Black Codes, that were imposed on African-Americans to try to enforce inferior status on them. After the end of Black Codes, it came to mean “less formal but equally virulent means—including widespread violence and discrimination, disparate enforcement of racially neutral laws, and eventually, Jim Crow laws—to keep the freed slaves in an inferior status.” Id. at 581–82.6
As the Tenth Circuit explained in its opinion holding that § 249(a)(1) is a valid exercise of Congress’s power under § 2 of the Thirteenth Amendment: Congress could rationally conclude that physically attacking a person of a particular race because of animus toward or a desire to assert superiority over that race is a badge or incident of slavery. The antebellum North Carolina Supreme Court, for example, characterized unrestrained master-on-slave violence as one of slavery’s most necessary features. State v. Mann, 13 N.C. (2 Dev.) 263, 1829 WL 252, at *2–3.
“[U]ncontrolled authority over the body,” it said, is the only thing “which can operate to produce” a slave’s necessary obedience. Id. at *2. “The power of the master must be absolute, to render the submission of the slave perfect.” Id.; see also United States v. Nelson, 277 F.3d 164, 189 (2d Cir. 2002) (“slavery in general . . . centrally involved the master’s constant power to use private violence against the slave”); Neal v. Farmer, 9Ga. 555, 1851 WL 1474, at *8 (stating that being “liable to beating . . . and every species of chastisement” were “incidents of slavery”); George M. Stroud, A Sketch of the Laws Relating to Slavery 31, 38 (2d ed. 1856) (listing among the “incidents” of slavery, “[t]he master may, at his discretion, inflict any punishment on the person ofeorge M. Stroud, A Sketch of the Laws Relating to Slavery 31, 38 (2d ed. 1856) (listing among the “incidents” of slavery, “[t]he master may, at his discretion, inflict any punishment on the p his slave”); Rutherglen, State Action, at 1399 (“the principal feature of the law of slavery was the ‘master’s justice’ over his slaves, who had virtually no legal protection from the master’s decision to discipline and punish”).
Just as master-on-slave violence was intended to enforce the social and racial superiority of the attacker and the relative powerlessness of the victim, Congress could conceive that modern racially motivated violence communicates to the victim that he or she must remain in a subservient position, unworthy of the decency afforded to other races.United States v. Hatch, 722 F.3d 1193, 1206 (10th Cir. 2013), cert. denied, 13-6765, 2014 WL 1124872 (Mar. 24, 2014).
Rutherglen, State Action, at 1399 (“the principal feature of the law of slavery was the ‘master’s justice’ over his slaves, who had virtually no legal protection from the master’s decision to discipline and punish”).
Just as master-on-slave violence was intended to enforce the social and racial superiority of the attacker and the relative powerlessness of the victim, Congress could conceive that modern racially motivated violence communicates to the victim that he or she must remain in a subservient position, unworthy of the decency afforded to other races.
This sense of A badges rarely appeared in the law of slavery, which relied far more frequently on A incidents to denote the consequences of being a slave. A Badges, when it was used in legal discourse, appeared in an entirely different field, as A badges of fraud@: evidence that a transaction was designed to put a debtor=s assets beyond the reach of existing creditors. This terminology was well established in the law of bankruptcy and creditors rights by the middle of the nineteenth century. As one treatise defined the term and its synonyms, they all A simply denote an act which has a fraudulent aspect, confirming the sense of A badges as evidence permitting an inference from external appearances to legal status. A transaction with the badges of fraud, such as a secret transfer of the debtors assets, supports the inference that it is a fraudulent conveyance. For some additional examples, see Thomas D. Morris, Southern Slavery and the Law, 1619-1860 35 (1996); Jacob v. State, 22 Tenn. 493, ___ (1842) (It is certainly true that many of the disabilities incident to slavery are inconsistent with the common law.; Neal v. Farmer, 9 Ga. 555, ___ (1851) (A The condition of a villein, had many of the incidents of slavery. His service was uncertain, and he was bound to do whatever his lord commanded.).Orlando Bump, A Treatise upon Conveyances Made by Debtors to Defraud Creditors 29 (3d ed., James Gray, ed. 1896). For antebellum cases using the term, see, e.g., Warner v. Norton, 61 U.S. 448, 459 (1857); 200 Chests of Tea, 22 U.S. 430, 443 (1824); Sexton v. Wheaton, 21 U.S. 229, 250 (1823). The standard provision on this subject today, although not one using the term, is the Uniform Fraudulent Transfer Act ‘ 4(b).