Rutherglen on Employees' Rights and Lessons from the History of the 13th Amendment

October 17, 2011

Professor George Rutherglen's new paper examines what has worked, and what hasn't, when applying the 13th Amendment to employment concerns heard by the U.S. Supreme Court. Although the 13th Amendment was enacted after the Civil War as a ban on slavery and involuntary servitude, it has become a key source of constitutional rights. Professor George Rutherglen recently investigated the resurgence of petitioners invoking the amendment in employment concerns heard by the U.S. Supreme Court.

George Rutherglen
George Rutherglen

Rutherglen, who teaches employment discrimination, civil procedure, admiralty and legal ethics, observes in his paper, "Constitutionalizing Employees' Rights: Lessons from the History of the Thirteenth Amendment," that over time, numerous discriminatory and coercive employment practices have been banned in the spirit of the 13th Amendment, which has influenced the modern interpretation of employment law. Rutherglen will present the paper at a conference on the constitutionalization of labor and employment law on Oct. 28 at the University of Wisconsin in Madison.

How did legislation such as the Civil Rights Act of 1866 and cases such as United States v. Kozminski broaden the interpretation of the 13th Amendment to apply to employment?

The amendment began as the constitutional embodiment of the principles of free labor: that the United States would be a country in which everyone was free to work — or not to — under freely bargained terms of employment. For that reason, the amendment and legislation to implement it have always been directly concerned with issues of employment. In both the Civil Rights Act of 1866 and in the Anti-Peonage Act of 1867, Congress exercised its power to enforce the amendment by making more specific and concrete the particular rights and remedies that followed from the basic constitutional prohibition against involuntary servitude. Both statutes have had a long and complex history, resulting most recently in amendments confirming the broad reach of enforcement legislation. In the 1866 Act, it extends to prohibitions against private discrimination on the basis of race in making any kind of contract, and in the 1867 Act, it includes prohibitions against psychological coercion as a form of involuntary servitude. These amendments superseded some narrowing interpretations of the statutes, including United States v. Kozminski, revealing how Congress plays as great a role as the Supreme Court in giving effect to the 13th Amendment.

You indicate that progressives haven't been as skillful as they could be in using the amendment when arguing for individual and collective rights with employers. What are some recent examples?

Progressives have turned to the amendment to support a variety of legal and political positions, for instance, in favor of protecting unions and labor rights. Only a few of the arguments invoking the amendment have succeeded in actually changing the law, chiefly in the area of civil rights. In this respect, progressives have been somewhat more successful than conservatives, who have also turned to the 13th Amendment to serve their own purposes, for instance, in opposing modern civil rights legislation. Conservatives have lost, in my view, mainly because they could not succeed in getting Congress to accept their views. My point is that progressives should not make the same mistake. They should adopt a strategy that looks beyond purely judicial interpretation of the amendment and appeal to Congress to pass enforcement legislation.

A point you make is that judicial interpretation of the amendment alone isn't enough to protect employee rights. Why not?

Judicial decisions can serve many purposes, including basic enforcement of fundamental rights, what some call "the machineless operation of the rule of law." Assertion of rights directly under the 13th Amendment takes this form. Someone subject to involuntary servitude can simply obtain release by means of the common law writ of habeas corpus. But other rights based on the 13th Amendment require more elaborate mechanisms for enforcement, such as the right not be subject to private racial discrimination. That requires legislation like the Civil Rights Act of 1866 and the creation of statutory remedies. At this point, Congress plays a crucial role.

You note that decisions just as often favor employers as employees. Is there an actual bias against progressives arguing the 13th Amendment? What can shift the balance?

Constitutional arguments do not really have a political allegiance. Throughout American history, they have been made in the courts and political campaigns as often for progressive as for conservative purposes. I wouldn't say that there is a bias against progressives, just that they shouldn't put their faith in achieving their goals through judicial decisions alone.

Have we seen any losses at the Supreme Court level translate into legislation by Congress in reaction?

Yes we have, particularly in the Civil Rights Act of 1991. In the disability rights area, the same process occurred in the ADA Amendments Act of 2008. In both instances, Congress stepped in to overrule decisions of the Supreme Court that had given previously enacted legislation a narrow interpretation.These episodes, however, provide only a one-sided view of the interaction between Congress and the courts. Enforcing constitutional rights turns out to result in quite a bit of give-and-take between the legislative and judicial processes, with the enactment of legislation resulting in judicial interpretations, which are then re-examined by further legislation. This seems to me to be a salutary combination of the benefits of judicial review — to assure basic remedies for fundamental constitutional rights — and democratic legislation — to add the further remedies necessary to make those rights truly effective.

Is there the possibility that the 13th Amendment has been stretched as far as it will go in terms of employee rights?

Because of the possibility of further legislation, I doubt that we have seen the end of developments under the 13th Amendment. Courts might not be able, by themselves, to further expand the amendment, but Congress can effectively achieve the same result through its broad enforcement power.

What are you working on next?

I have a book coming out, "Civil Rights in the Shadow of Slavery," which discusses the dynamics of legislative and judicial enforcement over the entire history of the Civil Rights Act of 1866.

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