Threshold Liberty

Authors

Dawinder S. Sidhu, University of New Mexico School of Law

Abstract

The Supreme Court's Thirteenth Amendment precedent is no longer sustainable. For starters, that precedent - which holds that the Amendment prohibits the "badges and incidents" of slavery, and that Congress has the power to "rationally" determine what constitutes a "badge or incident" of slavery - raises serious federalism and separation of powers concerns. To make matters worse, the Court itself has recently restricted the enforcement provisions of the Fourteenth Amendment (in City of Boerne v. Flores) and Fifteenth Amendment (in Shelby County v. Holder), rendering the generous bounds of the Thirteenth Amendment enforcement power an outlier among the Reconstruction Amendments.

To ensure that the Thirteenth Amendment has modern application in a manner consistent with these important constitutional considerations and these cases, the Amendment should no longer be interpreted to prohibit the "badges and incidents" of slavery, a non-textual category of harms that is virtually limitless in scope and is therefore virtually limitless as a source of congressional action. Instead, drawing from the Amendment's textual prohibitions against "slavery" and "involuntary servitude," direct or functional limitations on physical mobility should be the touchstone for the enforcement power moving forward.

To justify this proposal, this Article summarizes the Supreme Court's Thirteenth Amendment jurisprudence, elaborates on the twin problems with this precedent, explores labor- and consent-based alternatives to the current model, and explains why a mobility-based approach enjoys more constitutional and historical support. To demonstrate the proposal's workability, this Article shows how a mobility-centric model would apply to eight modern situations.

Disciplines

Constitutional Law | Human Rights Law | Law | Law and Society | Legal History

Recommended Citation

Dawinder S. Sidhu, Threshold Liberty, 37 Cardozo L. Rev. 503 (2015).
Available at: https://larc.cardozo.yu.edu/clr/vol37/iss2/4