Mississippi Ratifies Slavery Ban After ‘Lincoln’

Reports that Mississippi has finally formally ratified the 13A might be seen as just a symbolic act, if not just a reason to make jokes about how backward they are.  But, it gives us a chance to respect the history, breadth and continual application of this amendment.  The fact a movie inspired the event also probably can have its own conversation. 

"By its own unaided force and effect," the Thirteenth Amendment "abolished slavery, and established universal freedom." Civil Rights Cases, 109 U.S. 3, 20. Whether or not the Amendment itself did any more than that -- a question not involved in this case -- it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more. For that clause clothed "Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." Ibid. (Emphasis added.)

This was noted in a 1968 ruling upholding the use of @2 of the 13A to address private housing discrimination. The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment, edited by Alexander Tsesis [covered in the past] has various accounts that suggest the possible reach of this power. Cf. this analysis that opposes such breadth (ironic from an author who thinks the federal draft has 13A implications).

The reach goes beyond the self-executing first section, just like federal voting rights laws can go beyond what the 14th and 15th Amendments expressly block (literary tests might be okay, but a federal law against them because of the tendency to apply them in a discriminatory way is acceptable).  Since the 13A, somewhat uniquely, reaches private conduct, this enabling clause has potential broad reach.  For instance, federal hate crime laws against private parties have rested on the 13A.  The essays in the cited book and others provides broad possibilities here, including union rights (needed for true freedom), child abuse (see, e.g, writings of Prof. Akhil Amar), attacks on Confederate displays and broad attempts to protect general liberties of freedom.*

Just taking basic civil rights laws, including federal hate crime laws, state endorsement of the 13A touches upon matters still having some force. Slavery and involuntary servitude, especially for some undocumented aliens, also still lingers to this day.  Finally, consider that the amendment makes a special exception for involuntary servitude as punishment, which continues to have a disproportionate racial connotation.

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* I think some of this stuff can be taken too far and somewhat foreclosed by the 14A, which was passed in part because the open-ended possibilities of the 13A was rejected. I think reading them together is often helpful. Still, the reach of federal power on private action here can be taken too far. For instance, some broad federal child abuse law that micromanages the issue is problematic even if we accept child abuse can in some fashion be a sort of "enslavement" of the victim. 

I'm sympathetic to the idea a federal draft clashes with the 13A, but am led to remember the Civil War Congress authorized one where "involuntary servitude" was not allowed.  Still, it does make the draft particularly questionable, except when there is a compelling need, though if we are talking about a general civil service requirement, I am pretty sympathetic to the idea.