“Badges of slavery,” by contrast, had a somewhat looser meaning. See id. at 575–82. In the antebellum years, it could refer literally to a badge worn by slaves, such as copper badges issued to certain slaves in Charleston, South Carolina. See generally Harlan Greene et al., Slave Badges and the Slave-Hire System in Charleston, South Carolina 1783–1865 (2008); Rutherglen, Badges and Incidents, at 166 (noting that “badge,” in antebellum legal discourse, was sometimes used as shorthand for “evidence permitting an inference from external appearances to legal status”). In addition, “badges of slavery” could refer to the psychological scars that slavery inflicted upon slaves, McAward, Defining the Badges, at 577, or to any “evidence of political subjugation,” Rutherglen, Badges and Incidents, at 166
In postbellum legal discourse, “badges of slavery” came to be used primarily as a synonym for slavery’s continuing “incidents,” as perpetuated by the Black Codes. McAward, Defining the Badges, at 581; Rutherglen, Badges and Incidents, at 165. But “badges of slavery” also arguably extended to “widespread -10- [private] violence and discrimination, disparate enforcement of racially neutral laws, and eventually, Jim Crow laws.” McAward, Defining the Badges, at 581.
Whatever “badges of slavery” and “incidents of slavery” meant in isolation, the compound phrase, “badges and incidents of slavery,” first arose in the Civil Rights Cases and “quickly became the Supreme Court’s standard gloss upon the powers of Congress under the Thirteenth Amendment.” Rutherglen, Badges and Incidents, at 172. In other words, it is not clear the Supreme Court in the Civil Rights Cases intended “badges and incidents of slavery” as a reference to the phrase’s component parts as contemporarily understood. It was, rather, “a new characterization of Congress’s power.” McAward, Defining the Badges, at 583.
As to § 1982 specifically, the Court could not “say that the determination Congress has made is an irrational one” given that restrictions on property ownership and alienability were indisputably a badge or incident of slavery. Id. at 440–41.
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 brings us to the Hate Crimes Act.