Document Type
Conference Proceeding
Publication Date
2-26-2011
Keywords
Constitution, 13th Amendment, slavery, involuntary servitude
Abstract
The 13th Amendment affords two very different visions. One vision limits the 13th Amendment’s scope to ending slavery and involuntary servitude without more. The second expands the 13th Amendment’s scope to include an anti-subordination principle. Proponents of both visions rely on originalism to support their visions. Unfortunately, originalism does not help us reach a clearly correct conclusion regarding the scope of the 13th Amendment.
That is fine, because the core question regarding the interpretation of the 13th Amendment ought to be whether the amendment is constitutionally transformative. That is, does the 13th Amendment announce a constitutional principle that requires that the constitutional meaning of other text not explicitly changed by the amendment be re-interpreted. Determining that requires that the Constitution be read as it existed just before the 13th Amendment was adopted and as it existed just after the 13th Amendment was adopted. This is arguably originalist in orientation with its focus on the effect of the 13th Amendment at the time it was adopted. However, this method’s results may not be originalist at all.
The interpretive method suggested makes the current scope of the 13th Amendment depends not on its original meaning or original intent, but on amendments passed after it. To be clear, the amendments adopted after the 13th Amendment would not change the amendment through implication. They would merely require that the amendment’s interpretation change.
Disciplines
Constitutional Law