From Racial Discrimination to Separate But Equal: The Common Law Impact of the Thirteenth Amendment

17 Pages Posted: 11 Aug 2011 Last revised: 8 Apr 2015

See all articles by David Skillen Bogen

David Skillen Bogen

University of Maryland Francis King Carey School of Law

Date Written: 2011

Abstract

Many forces produced the shift in the United States from the acceptance of slavery and racial inequality to the doctrine of separate but equal. The 13th Amendment abolished slavery and authorized legislation to enforce that abolition, but these well-known direct effects are only part of the story. This paper examines the Amendment’s indirect impact on racial discrimination - furthering a standard of equality in public relationships without threatening the existing racial separation. The Amendment is evidence of a change in values that justified overturning prior decisions, and abolition created a new context for legislation and common law decisions. It reinforced the belief that African-Americans were entitled to fundamental rights including citizenship. The recognition of equal rights led courts and legislators to require equality on common carriers, but courts distinguished between civil rights and social relationships, and allowed carriers to segregate as long as the facilities were physically equal. The Court subsequently incorporated the doctrine of separate but equal from common carrier law into a constitutional standard.

Keywords: Thirteenth Amendment, slavery, involuntary servitude

Suggested Citation

Bogen, David Skillen, From Racial Discrimination to Separate But Equal: The Common Law Impact of the Thirteenth Amendment (2011). Ohio North University Law Review, Vol. 38, 2011, p. 117-132., U of Maryland Legal Studies Research Paper No. 2011-37, Available at SSRN: https://ssrn.com/abstract=1908315

David Skillen Bogen (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

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Baltimore, MD 21201-1786
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