Tuesday, May 24, 2022

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.


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