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Kurt Lash on the Thirteenth Amendment and abortion
Andrew Koppelman
My thirteenth amendment argument for abortion rights has
just been subjected to a sustained
originalist attack by the distinguished legal historian, Kurt Lash. I appreciate the attention from such a major
scholar, which indicates that after many
years, my argument is finally being taken seriously. (Coincidentally, today it got a friendly
mention from Linda Greenhouse in the New York Times.)
But Lash is too good a historian not to acknowledge the counterevidence
for his claim.
Lash claims that the language of the amendment, drawn
from the Northwest Ordinance, “was well known and had a narrow historical meaning.”
He writes:“As used in the
Ordinance, the terms "slavery and involuntary servitude" referred to
a specific and legally codified "private economical relation" between
a "master" and a "servant."”If the original meaning is that narrow, he
argues, it can’t cover abortion.
But he admits that a sizable subset of the framers disagreed with his
interpretation.They took it to
authorize the Civil Rights Act of 1866, which understood “slavery” far more
broadly than he does.
He responds:“Although the Civil Rights Bill passed, the debates
suggest that no more than a minority shared a broad reading of the Thirteenth
Amendment.”He simultaneously asserts that
the amendment has a clear and narrow meaning, and that many of the framers,
notably Lyman Trumbull, didn’t understand the original meaning!
There are other problems
with Lash’s paper.
Lash evidently rejects the
broad interpretation of the amendment offered by Justice Harlan in the Civil Rights
Cases and Plessy v. Ferguson, and by the Court in Jones v. Mayer.
It’s not clear what Lash
thinks Section 2 empowers Congress to do.
Note that his paper is
only a working paper.Doubtless he will
have more to say.As will I.