Modern Day Implications of the Thirteenth Amendment

Kimberly Lapointe, December 2016

The United States of America epitomizes nationalist pride with its well-known identifier, “the Land of the Free.” Our founding fathers crafted perhaps the greatest document in American history. The foundation of this country, our very own framework, we all know as the Constitution. On behalf of the people, the Constitution is a carefully structured list of rules and beliefs for citizens to follow. Its laws are the highest form of authority and are simply irrefutable, especially in the eyes of the Supreme Court.

With a focus on one particular change in the Constitution- the Thirteenth Amendment, it can be argued that this one-hundred and fifty one year old declaration, originally intended to prohibit slavery, actually offers modern protections as well. An analysis of the crafted rhetoric of the Thirteenth Amendment reveals potential application to current issues.

The Thirteenth Amendment, passed and ratified in 1865, was intended at the time to cease slavery, or involuntary servitude. Even with such careful rhetoric, as seen with each word in the entire Constitution, many interpretations can still be argued. (In fact, it was a manipulation of word choice in this Amendment that still basically permitted slavery after 1865 through the establishment of the Black Codes, where blacks were unrightfully led to “disobey the law” in order to be excluded from Constitutional protection.) Based on the wording of the Thirteenth Amendment, it should apply to current American threats regarding violence and subjugation. Such cases include forced prostitution, sexual assault, and child abuse. Therefore, these offenses are direct non-compliance of the United States Constitution and should undoubtedly be prosecuted as so.

The Thirteenth Amendment specifically states:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. (Passed January 31, 1865, Ratified December 6, 1865) [1]

This declaration forbids slavery (assuming a crime has not been committed) in the United States, or within America’s jurisdiction. The key phrasing that can be interpreted for contemporary meaning is “involuntary servitude.” To what extent that definition may refer to is to which extent this Amendment protects. In laymen’s terms, since the Thirteenth Amendment prohibits “involuntary servitude,” any circumstance that can be described as such, is considered a direct Constitutional offense.

According to the Merriam Webster Dictionary, “involuntary” is defined as “not done or made consciously; not done by choice,” and “servitude” as “the condition of having to obey another person.” [2] In light of this word choice and its associated denotation, it is practical to apply this definition to certain modern realistic situations, including forced prostitution in the sex-trade industry, sexual assault, and child abuse. All of these complex contexts describe–in accordance with the definition of the Constitution’s original wording–choice, consciousness, and obedience all as potential deprived factors. Additionally stated in Section II, Congress has full enforcement power regarding these violations.

The first contemporary application, forced prostitution, is a horribly unfortunate international dilemma. In these situations, typically young women will be forced to engage in prostitution in order to financially supply a higher-up, rather, the pimp. This coincides with the definition of involuntary servitude, as the women do not consent to these acts, and in fact, would have to obey another person. “Prostitutes are raped, beaten, and tortured at the whim of the men who control them.” [3] This quotation without a doubt mimics that of involuntary servitude, and indirectly offers comparison to actual slavery. It highlights just how much obedience the prostitutes are subject to under the pimp. Definitionally, a pimp truly does not deviate much from that of a slave owner, at the same time, a forced prostitute seems to have unsettlingly similar attributes and plights of black slaves until the late 1800s.

In the next modern-day scenario, sexual assault, a similar interpretation may also be made as with forced prostitution. However, in sexual abuse cases another grim factor may be present in definitional terms. In certain sexual assault cases, not only are the acts “not done by choice” and “having to obey another person,” but they also may not be “done or made consciously.” This could mean literal and/or mental unconsciousness, most often due to alcohol or drug toxicity, typically offered by the actual perpetrator. “As a badge of slavery, sexual harassment in the workplace can be prohibited by Congress under Section Two of the Thirteenth Amendment, thereby providing a constitutional justification for curtailing the speech of those charged with harassment. Congress has direct power to protect any class from the imposition of a badge of slavery in whatever form it might take.” [4] It is evident in this quotation of just how much power Congress has in the matter and over due process. Congress has the ability to offer strict enforcements based on these type of violations.

On the other hand of this responsibility, legal punishment cannot be made without this Congressional authority. Unfortunately, “Lower court cases examining the Thirteenth Amendment have construed its scope narrowly. In Rogers v. Loews L’Enfant Plaza Hotel, the U.S. District Court for the District of Columbia held that the Thirteenth Amendment related solely to racial discrimination and could not be applied to a sexual harassment claim.” [5] However, in the Thirteenth Amendment, there is no actual mention of racial restriction; that is only one type of assumption. The Amendment only legitimately applies to involuntary servitude and congressional competency. “The Court stated that “the true spirit and meaning of the amendments . . . cannot be understood without keeping in view the history of the times when they were adopted.” [6] Based on this statement, the Court will concede on the premise of racial and sexual discrimination being equated at the same point in history. “Throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. And although blacks were guaranteed the right to vote in 1870, women were denied that right until adoption of the Nineteenth Amendment half a century later.” [7] This passage ranks the two groups at the same level and therefore should offer the same response in its legal diminishment in 1865. The two groups are equally matched, and it would be unjust to protect one group without also extending that protection to the other.

The final modern-day application this paper touches upon, child abuse, is no less of a grave circumstance. Child abuse may meet any of all of the definitional criteria. As opposed to sexual assault cases where lack of consciousness may be due to an artificial substance, in child abuse, unconsciousness may disturbingly be referring to the fact that a young child may be simply unaware of what is happening. With a child too young and naive, growing up his or her entire life with that same experience, or simply taught to respect and cherish their parents and authority, it is not surprising full consciousness and awareness is not always an option. “Like an antebellum slave, an abused child is subject to near total domination and degradation by another person, and is treated more as a possession than as a person.” [8] This quotation again equates the two victimized groups of people, even more-so broadening the scope of Amendment. In each of these examples, the victims were coerced and thus committed no crime. Therefore, according to the Amendment, the targeted victims should still be protected.

All of these serious offenses are punishable for infinite reasons. This essay proposes a reason for punishment beyond city or state legislature. It proposes the most serious of all, a national Constitutional crime. It is unarguable under the strict laws of the land, and proven a direct violation of the Constitution, deserves the strictest and highest level of punishment. The Thirteenth Amendment allows for full Congressional enforcement, so this power should be used, and interpretation in the scope of its meaning should be tried. It is simply the highest form of government our nation holds. These cases ought to be investigated and persecuted through the eyes of our governing document.

Notes

[1] “Primary Documents in American History.” 13th Amendment to the U.S. Constitution: Primary Documents of American History (Virtual Programs & Services, Library of Congress).
[2] Merriam-Webster. Accessed November 15, 2016.
[3] Katyal, Neal Kumar. “Men Who Own Women: A Thirteenth Amendment Critique of Forced Prostitution.” The Yale Law Journal 103, no. 3 (1993): 791-826. doi:10.2307/797084.
[4] Conn, Jennifer L. 1995. Sexual harassment: A thirteenth amendment response. Columbia Journal of Law and Social Problems 28 (4): 519-57.
[5] Tsesis, Alexander. 2010. The promises of liberty : The history and contemporary relevance of the thirteenth amendment. New York: Columbia University Press.
[6] Ibid.
[7] Ibid.
[8] Amar, Akhil Reed, and Daniel Widawsky. 1992. Child abuse as slavery: A thirteenth amendment response to deshaney. Harvard Law Review 105 (6): 1359.

Further Reading

Tsesis, Alexander. 2004. The thirteenth amendment and american freedom : A legal history. 1st ed. New York: NYU Press.