Fishkin on dissent: The transcendent importance of the Thirteenth Amendment

Sandy Levinson

 I want to underscore my agreement with Joseph Fishkin's arguments about what the dissents should say.  I will add only one comment, not because he did. not bring it up, but because I am more and more convinced of its centrality.  That is the argument, argued valiantly for years by Andy Koppelman (and in a book published a while ago by Eileen McDonaugh) that the strongest textual argument by far is the Thirteenth Amendment.  There are moments when I think the Constitution would be just as well off without the Fourteenth and Fifteenth Amendments, at least if we had really taken the Thirteenth Amendment with the full seriousness that it deserved.  One of the great tragedies in American political thought (and the development of legal doctrine) is the rapid negation of the Thirteenth Amendment as what Robert Cover described as a truly'" jurisgenerative" part of the Constitution.  Even if it is true that the immediate (proximate) cause of the Amendment was the desire to get rid of chattel slavery, every theoretically iterate person in the 18th and 19th century was familiar with the use of "slavery" as a synonym for "illegitimate domination."  That's why a number of our presumptively sacred founders thought they weren't speaking nonsense when referring to the attempts of the British to "enslave" us by passing illegitimate taxes.  

There are altogether separate arguments to be made as to whether the English Parliament in fact did not possess the legal authority to levy the taxes in question, but the point is that those colonists who thought not freely used the term "slavery" as part of their argument and concluded that King George III was a "tyrant" whose conduct justified American secession from the British Empire.  They were all smart enough to recognize that chattel slavery, whether in the colonies or in Jamaica, was the very worst form of slavery, but that doesn't in the least entail that less awful forms were "slavery" (or "involuntary servitude") at all.  One can describe a given political leader (say, Mussolini, Franco, or Putin, for starters) as a "tyrant" while agreeing at the same time that he's not so bad as Hitler.  Our inability to engage in such arguments about "slavery" is a terrible feature of our conventional legal dialogue--and the vacuity of much legal education, including that received by the Justices--in this country.  

It's not simply that forced pregnancies were an important part of the phenomenology of chattel slavery, necessary in order to create "productive assets" that the "owners" could use either directly as labor or as commodities to be sold.  It is also the case that one might well think, without even going over the particular history of chattel slavey, that coercing a woman to maintain a pregnancy against her wishes counts exactly as an example of the "involuntary servitude" that the Amendment says it bars in America, whether imposed by the state or even by private people (thus the Texas law, under any description, violates the Thirteenth Amendment).  

I would strongly hope that a truly honest dissent would begin as follows: 

"Roe v. Wade was correct the day it is was decided, even if, as is true of most constitutional opinions written when a given subject first comes before the Court, before it is sufficiently elaborated over many cases and years, it has significant weaknesses.  But the weakness of an opinion does not in the least establish the invalidity of the outcome, unless we truly believe that there are no convincing opinions at Time T2 that might replace the by stipulation weaker opinions offered in the original opinion at T1.  Fortunately, that is not the case with regard to the issue of protecting the reproductive choices of each and every pregnant person, whatever the etiology of the pregnancy.  All coerced pregnancies, especially if they inflict physical or mental pain on the unwilling mother, violate the fundamental entitlement to a life without illegitimate domination that is guaranteed by the most important single outcome of a War that killed some 750,000 Americans as part of what Abraham Lincoln called the striving for a "new birth of freedom.""  Perhaps there can be some legitimate constraints on reproductive choice when a truly compelling interest is presented.  But short of such circumstances, which will presumably be quite rare, and, most certainly, not presented in this case, the principle of freedom must prevail.  The Thirteenth Amendment demands no less."

No doubt there would be a brouhaha because this approach first of all basically rejects the emphasis on the sheer status of Roe as a precedent and, more importantly, actually take the Thirteenth Amendment seriously in a way that has not been true, alas, for 150 years.  One might surmise, incidentally, as Jack Balkin and I did in an article published some years so in the Columbia Law Review, that a country built on multiple forms of illegitimate domination has a deep ideological interest in neutering the force of the Amendment by the altogether unfounded suggestion that it refers only to chattel slavery, and even then only to selective features of chattel slavery that we can assure ourselves are no longer present in our own world.  This is to create Justice Scalia's "dead Constitution" with a true vengeance, rejecting the most radical features of what some call "anti-slavery constitutionalism" and replacing it with a dessicated version that, even if full of "sound and fury," as a practical matter "signifies nothing" to those who believe themselves authorized to offer what the Court is pleased to call "ultimate" or "definitive" interpretations of the Constitution.  Justice Alito's opinion is he best possible evidence for the ultimate truth of Andrew Jackson's own opinion that Supreme Court opinions are entitled to only so much respect as their reasoning leads them to deserve.  In the case of Justice Alito's opinion, that is none.  As Fishkin suggests, if is adopted, the correct response is to say, adopting one of the Court's own formulations, that it "is wrong the instant it is decided."  But, more importantly, demonstrating why that is the case should encourage us to realize how limited the Court's (and the country's) understanding has been of what is in fact the most inspiring single addition to the Constitution since the Bill of Rights in 1791.  To put it mildly, the case--and its opinions--should stimulate a vital debate going well beyond the specific facts of the case.