The Original Thirteenth Amendment: A Rule of Liberty
53 Cumb. L. Rev. 33 (2024)
54 Pages Posted: 11 Apr 2017 Last revised: 11 Apr 2024
Date Written: January 29, 2021
Abstract
The Supreme Court’s renewed focus on original meaning is ex-posing Originalism’s growing pains. It is no longer a criticism offered in dissent. Now, it faces the more complicated task of governing. Hon-est Originalism must follow the compass anywhere, even when it does not favor the limited-government, states’-rights causes that birthed it. If Originalism cannot fulfill its promise—to govern with an even hand—then it will either consume democracy or be consumed itself. To be sure, Originalism often dictates results conservatives like. But just as often, it leads in a different direction.
In this Article, I explore an instance of the latter, in the context of the Thirteenth Amendment. For most of our history, the maxim be-hind the well-known Rule of Lenity applied in another context: slavery and freedom. Based in the presumption that the natural law abhorred slavery, it told courts to interpret emancipations liberally. The rule, which I call the Rule of Liberty, was well-established in the antebellum United States. As the sectional crisis deepened, the South inverted the canon, presuming instead that natural law favored slavery. This was a foundational principle of Dred Scott. After abolition, revanchist law-yers induced the reconstruction Court to retain the presumption in its constitutional-law decisions. The ghost of those decisions is still with us today.
The Rule of Liberty’s pedigree rivals even the most ancient constitutional rules of construction, and it was approved by nearly every state in our Union. Its demise was not due to structural flaws; it was destroyed by slaveholders intent on preserving slavery and white supremacy. But their view of the law has been repudiated by the blood of our patriots and by our Constitution, and so it is time to restore the Rule of Liberty to its rightful place in our constitutional order. I argue that this, at least, includes broader interpretations of the Thirteenth Amendment and greater deference to executive decisions that favor human liberty.
Keywords: Constitutional Interpretation, Thirteenth Amendment, Separation of Powers, Slavery, Involuntary Servitude, Jurisprudence
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