In UNITED STATES OF AMERICA, v. CHARLES CANNON; BRIAN KERSTETTER; MICHAEL MCLAUGHLIN the Fifth Circuit provided some excellent discussion on the badges, incidents, vestiges and relics of Slavery in 2014. I myself have been employing these Constitutional tools in the U.S. District Court for the District of New Jersey since 2012.
This whole time I knew I couldn’t have been the only one in the Federal Courts going at the existing Badges, Incidents, Vestiges and the Relics of Slavery that American Governments currently still cling too. A predecessor to the Black Codes, Jim Crow Laws and Slave Codes is the Bull of the Crusade: “The alms given by the faithful in response to this bull, which were at first used exclusively for carrying on the war against the ‘infidel’ Moors”.
From my research the Badges, Incidents, Vestiges and Relics are not properly addressed by Reliance on the Fourteenth Amendments legislative power nor its scope as we can see with the majority of cases that have been argue in relying on the Fourteenth Amendment which does not reach Private activity like Thirteenth which covers State and Private, which is needed because many things done under color of law are considered to be done in ones individual and not their official capacity, in fact most scholars on the subject are aware and make note that in some instances the Fourteenth has been used to supersede the Thirteenth in certain areas specifically to re-create certain conditions that exist today to which those we call slaves were subjected to on the basis that they were slaves, the Fourteenth is not potent enough,additionally in our day we have something the freedmen did not have, we have a right of access to all the courts in the country whose records we can study and we have the apologies for slavery which are list of recognized badges, incidents, vestiges and relics of slavery, the problem has been more in the fact that those under Black have not been teaching the next coming generation what constitutes a Badge, Incident, Vestige or Relic of Slavery, and this why they can re introduce race based criminal suspicion to you under “Racial Profiling” and you think its some new rogue phenomenon, when had you been educated on what the conditions of slavery were beyond seeing people slaughtered or forced to pick cotton. To Trigger the Thirteenths weaponry against those incidents of slavery, one must be able to define a condition existing today that is recognized to have existed then..
The Fifth Circuit ruled that:
The Court found 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.
Accordingly, eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude. 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. 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 Neal v. Farmer, 9 Ga. 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 of 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).
In conclusion, racially motivated violence was essential to the enslavement of African-Americans and was widely employed after the Civil War in an attempt to return African-Americans to a position of de facto enslavement. In light of these facts, we cannot say that Congress was irrational in determining that racially motivated violence is a badge or incident of slavery.
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.”).
In Jones, the Supreme Court explained that, pursuant to its powers under the Thirteenth Amendment, Congress can legislate to address not only practices that support the institution of slavery, but also “vestiges of slavery” and “the relic[s] of slavery.” 392 U.S. at 441 n.78, 443.
As noted in the panel opinion, the Thirteenth, Fourteenth, and Fifteenth Amendments are collectively referred to as the Reconstruction Amendments. All three Amendments were ratified between 1865 and 1870 in the wake of the Civil War. Although each Amendment provides unique powers, they also share “a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning.” Hatch, 722 F.3d at 1202 (citing Slaughter-House Cases, 83 U.S. 36, 67 (1872)). 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.