Vol. 15 No.1 (January 2005), pp.27-29

THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM: A LEGAL HISTORY, by Alexander Tsesis.  New York: New York University Press, 2004.  240pp.  Hardcover. $45.00.  ISBN: 0814782760.

Reviewed by Daniel N. Hoffman, Johnson C. Smith University, dhoffman@jcsu.edu .

In this interesting study, Alexander Tsesis argues for an expansive view of the Thirteenth Amendment, presenting it as an effort to permanently abolish all the incidents and badges of slavery in America, including both governmentally and privately sponsored forms of oppression against former slaves and others.

His argument commences with historical evidence, drawn mostly from congressional debates, about the Radical Republicans’ sweeping view of the goals of the Amendment.   While acknowledging that some who voted for the Amendment had a narrower understanding, he insists that the Radicals’ view was the most compelling, legitimate, and attuned to the realities on the ground that freed slaves faced with massive, organized resistance to their full-fledged emancipation. 

Despite the attention paid to the historical record, Tsesis is not a rigid originalist.  He repeatedly asserts that the scope of the Amendment need not and should not be restricted to the specific applications envisioned by its framers.  Rather, its scope should respond to evolving circumstances, in accord with the original aim, to enforce every person’s natural right to pursue a free, autonomous life, unconstrained by the prejudices of others.  The core of a free life, he maintains, is the opposite of the conditions of the slave—the equal ability to pursue self-determined family and career goals, so long as one does not infringe the equal rights of others.

After his account of the framing and ratification—which, by the way, ignores issues, noted by Ackerman and others, about the irregular methods used to obtain ratification by Southern states, Tsesis reviews the end of Reconstruction and the Court’s retreat from enforcing the Civil War amendments.  He faults the Court on both legal and political grounds, but takes comfort in the fact that, due to the sparseness of litigation, the Thirteenth Amendment was less weakened in this period by crabbed interpretation than was the Fourteenth.  In particular, the Court never held that the Thirteenth Amendment, and the power of Congress to enforce it, extended only to cases of State action.  Nor did it hold that section one is not self-enforcing—thus leaving open the door for private lawsuits even in the absence of legislation.

Thus, when in 1968 the Warren Court decided JONES v. ALFRED H. MAYER, upholding the Civil Rights Act of 1866 and an employment discrimination suit brought thereunder, it had only to overrule two early cases (PLESSY v. FERGUSON, for one) that equated involuntary servitude with forced labor.  Tsesis declares: “The logical implication of JONES is that Congress has the power to legislate [*28] against any state and private infringements that arbitrarily prevent individuals’ rights to live freely” (p.86).   Moreover, the Court would treat exercises of this power deferentially.  As the Court held, “Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”

Tsesis believes that this decision, along with several ensuing ones, presents Congress and litigants with ample opportunity for creative action to expand our personal freedoms, despite recent narrow Court readings of the Fourteenth Amendment and the Commerce Clause, upon which most recent Civil Rights legislation and litigation has been based.  To make his case, he chooses three issues that, he argues, can and should be addressed through the Thirteenth Amendment: display of Confederate symbols, hate crimes, and contemporary cases of peonage.

This reader must confess a certain disappointment at the modesty of Tsesis’s declared reform agenda.  If the Thirteenth Amendment declares a bold, natural rights theory of personal freedom applicable to all, why is the agenda limited to members of discrete, insular minorities?  Tsesis’ proposed hate-crimes legislation would protect “all groups who have endured past civil impediments analogous to involuntary servitude” (p.151); yet his earlier historical and theoretical exposition seems to invite frontal assaults on any form of social stratification, especially if manifest in family life or the economy, that impedes individual autonomy.  Such a broader agenda would not only be more intellectually intriguing, but more broadly politically appealing.

In his conclusion, Tsesis reverts to a broader claim that Congress should use the Thirteenth Amendment to protect such rights as “family autonomy, free travel, and professional decision making” (p.162).  These terms have fascinating potential, but are accompanied by no elaboration.  Possible applications to issues such as gay marriage, ethnic profiling at airports, HMOs, and confidentiality for journalists are not considered.

The text seems better designed for a law school Civil Rights litigation course than for a political science audience.  Indeed, while the volume provides some useful political insights about the end of Reconstruction and the Jim Crow era, it conspicuously avoids examining the current political situation.  By so doing, it appears to espouse a naive belief that one could achieve significant social progress simply by advocating a novel legal theory.

Since neither Congress nor the Court shares the Tsesis agenda these days, one ought to wonder whether pressing that agenda could have any favorable effect, or whether it would only engender new, negative precedents.  I am reminded of an interesting conversation in which one party maintained that, where abortion is concerned, the fetus is a victim of involuntary servitude, while the other retorted that the pregnant woman is in that very position.  Both arguments have some force.  Which prevails?  Stay tuned for our next Court appointment. [*29]

REFERENCES:

Ackerman, Bruce.  1998.  WE THE PEOPLE: TRANSFORMATIONS.  Cambridge: Harvard University Press.

CASE REFERENCES:

JONES v. ALFRED H. MAYER, 392 U.S.409 (1968).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

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© Copyright 2005 by the author, Daniel N. Hoffman.