Threshold Liberty
46 Pages Posted: 21 Mar 2015 Last revised: 9 Oct 2015
Date Written: October 8, 2015
Abstract
The Thirteenth Amendment is now an outlier among the Reconstruction Amendments. According to the Supreme Court, Congress may use its Thirteenth Amendment enforcement power to prohibit the "badges and incidents" of slavery and Congress may "rationally determine" what constitutes a "badge or incident" of slavery. This approach is no longer sustainable. In addition to the serious federalism and separation of powers concerns identified by several circuits, the modern Court has recently constrained the enforcement provisions of the Fourteenth and Fifteenth Amendments. This development has created widening discord between the Thirteenth Amendment and its sister Reconstruction Amendments.
Scholars have sought to either reinforce the shaky status quo or to strip the Amendment of any modern application. This Article offers a principled compromise between these academic poles, one that retains the Thirteenth Amendment as a contemporary fountain of congressional authority, but that moderates its flow. Read properly, the "badges and incidents" of slavery should be retired from Thirteenth Amendment jurisprudence. But, the Amendment permits Congress to address direct or functional limitations on "threshold liberty," that is the liberty necessary for physical mobility. In addition to justifying this formulation, this Article applies the revised standard to eight modern circumstances to give judges and attorneys a sense as to how it may work in practice.
Keywords: Thirteenth Amendment, mobility, liberty, federalism, separation of powers, hate crimes
Suggested Citation: Suggested Citation