The Thirteenth Amendment, the Power of Congress, and the Shifting Sources of Civil Rights Law
This article charts a middle way in recent scholarship on the Thirteenth Amendment, which tends toward extremes. One view is that the amendment might mean anything - as a source of a wide range of new constitutional rights. Another is that it might mean nothing - that it has lost whatever significance it had as a provision narrowly focused on slavery, which has now been abolished. Most of the current controversy concerns the possibility of using the amendment to create rights like those under the Equal Protection and Due Process Clauses, but without the restrictions of the state action doctrine. I argue for a shift in the focus of debate over the amendment: From judicial review under section 1 to congressional enforcement under section 2; from the isolated interpretation of the amendment itself to its place in the Constitution as a whole; and from the constitutional law of slavery and race to statutory prohibitions against discrimination generally. Taking a broader perspective on the amendment allows a reassessment of its significance and why it has remained at the margins of formal constitutional doctrine.