There are at least two different historical approaches to constitutional interpretation. The first is what constitutional scholars most readily think of as historical interpretation: originalism. Following that approach, much ink has been spilled on the original meaning of the Thirteenth Amendment, the relationship between precursors to the Amendment and the Amendment itself, and the relationship between the Thirteenth, Fourteenth, and Fifteenth Amendments. The second historical approach leads to a very different kind of historical endeavor. This approach assumes that constitutional understandings are elaborated by historical practice in American history long after the founding. It is this second historical approach—the nonoriginalist historical approach—that this paper engages. What concerns me here is not what the Thirteenth Amendment meant in originalist terms, but how its meaning has changed over time. The meaning of the Thirteenth Amendment has diverged widely at different moments in history— emphasizing the right to contract during the Lochner era, New Deal labor and economic rights in the 1930s and 1940s, and desegregation and antidiscrimination during the civil rights era of the 1960s. These shifting historical meanings of the Thirteenth Amendment—and of the slavery and involuntary servitude it prohibits—offer up a resource for thinking about the Amendment’s purview today.
Risa Goluboff, The Thirteenth Amendment in Historical Perspective, 11 University of Pennsylvania Journal of Constitutional Law, 1451–1473 (2009).