an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yesterday Columbia Law Review held a symposium on the Thirteenth Amendment, at which Sandy Levinson and I presented a paper we are currently working on (I hope to post a draft soon).
As we explain in the paper, while the Fourteenth Amendment has been the font of a huge caselaw, and has been construed in ways that far outstrip its original purposes and understandings, the Thirteenth Amendment has been treated very differently. There is only a modest amount of case law construing it, and courts have generally construed it very narrowly, limiting it to situations that closely approximate chattel slavery of African-Americans. This is so despite the view of many Congressional Republicans in the 1860s that the end of slavery meant equal civil freedom for all, and the far broader conception of slavery that existed at the country's founding (more about that in another post). [Update: Marty Lederman correctly points out that section 2 has been read to give Congress broad powers to remedy private racial and national origin discrimination, but the point is that section 2 would bestow even broader powers if section 1 had been read in the way that we normally read section 1 of the Fourteenth Amendment--or many other portions of the Bill of Rights. Courts do not, for example, assume that section 2 gives Congress the power to regulate all oppressive labor conditions or secure equality of civil rights generally, unrelated to questions of race or national origin.].
There are several reasons why the Fourteenth Amendment blossomed and the Thirteenth Amendment did not. One of them is that the Fourteenth Amendment proved much more easily adaptable to the interests of business than the Thirteenth Amendment. (This is a point about the comparative opportunities available to repeat players with resources for litigation, which fairly well describes the business and corporate bar in the nineteenth century.)
Attorneys representing business interests had incentives to bring Fourteenth Amendment claims repeatedly to try to protect the interests of their clients, and federal judges, who were often drawn from the same group of lawyers, were increasingly receptive to these claims as the nineteenth century drew to a close. In this way, the Fourteenth Amendment was gradually co-opted by business interests during the nineteenth century; it was transformed from a vehicle for promoting racial equality and basic civil liberties for all into a vehicle for protecting the interests of businesses, industry, and corporations.
The Thirteenth Amendment was much less adaptable to this purpose, for a number of reasons. It says that "[n]either slavery nor involuntary servitude" shall exist in the United States. Suppose we read this language broadly, as we do for the Fourteenth Amendment. Then the ban on "slavery" might be useful to groups that sought to end various forms of unjustified domination and enforced dependence in civil society. In fact, it was so used by women seeking to reform marriage laws, and by early labor activists seeking to attack sweatshop conditions in factories. The same language, however, would be somewhat less useful to market-based enterprises, especially large and powerful ones.
Make no mistake-- the language of the Thirteenth Amendment could be adapted to protect powerful economic interests-- one should never underestimate the cleverness of lawyers with well-paying clients-- but it would just be more difficult to carry off. We are talking here about comparative opportunities available to lawyers seeking to promote their clients' interests. If there had never been a Fourteenth Amendment, I expect that the corporate bar in the nineteenth century might have tried to see if they could get judges to read the Thirteenth Amendment with a pro-business and anti-regulatory spin, for example, by arguing that government regulations of the economy or various forms of taxation were so onerous as to be a form of "involuntary servitude," or perhaps even slavery. Modern Tea Party conservatives, echoing protests against the British Empire, have tried to suggest that contemporary Americans are now slaves to an overweening federal government, and that the individual mandate is a form of unjustified coercion. So it's possible to make pro-corporate and pro-business arguments using the Thirteenth Amendment. It's just that it takes a lot of rhetorical work, and even then the arguments may not be particularly convincing.
On the other hand, the ideas of due process and equal protection in the Fourteenth Amendment could be more easily adapted-- and in fact were adapted-- to protect the interests of businesses. After the Supreme Court rebuffed initial attempts to use the Fourteenth Amendment to protect white butchers in the Slaughterhouse Cases, theories about how to use the concept of due process to protect business interests percolated in the state courts until they were recognized by the Supreme Court near the end of the nineteenth century. Businesses did not attempt to use the Thirteenth Amendment this way, although, as noted above, early women's rights activists and labor activists tried.
Moreover, in 1886, in the Santa Clara case, the Supreme Court held that corporations were persons protected by the Fourteenth Amendment. But lawyers representing business and industry could not make similar use of the Thirteenth Amendment. For-profit corporations could not be persons protected by the Thirteenth Amendment for a simple reason: You can own for- profit corporations (or shares of corporations) and buy and sell them. You can auction off corporations in markets (sometimes called stock exchanges). Finally, the owners of corporations can force corporations to work for them and take all the profits of their labor. Put differently, for-profit corporations are by nature designed to be "slaves." That is what distinguishes them from natural persons.