A Lawyer’s Judgment for the 13th Amendment
Vol. 2, No. 8, 1980, p. 8
It is understandable that Blacks geared their pre-Brown legal struggle to the requirement of equal protection in the Fourteenth Amendment. In the years prior to 1954, federal and state statutes separated the Black and the denied from the White and the privileged. Blacks saw equal rights, not equality.
Perhaps the Thirteenth Amendment, which addresses the continuing effects of past slavery, was ignored because of a lawyer’s judgment. In 1954, it is more likely that governmental action to remove the vestiges of slavery was simply beyond the imagination of lawyers and judges. These vestiges of slavery visible in the status of Blacks in education, the economy, and most aspects of life, were too uncomfortable to be mentioned.
Few in those years could envision a national debate over preferences for classes of citizens. Today we term the debate as a question of “affirmative action,” words which first entered the law as a part of the New Deal’s National Labor Relations Act. While we can debate interpretive constitutional words such as “unreasonable” as in the prohibition against searches and seizures, and “due process” as guaranteed by the Fifth and Fourteenth Amendments, the word “equal” in the Fourteenth Amendment is like the words “no law” in the First Amendment. If equal” does not mean “equal”, then it means nothing. To three Whites, Messrs. DeFunis, Bakke, and Weber, the word “equal” meant something.
Rationally, affirmative action for an entire class of people does fly in the face of the word “equal.” However, the Thirteenth Amendment does not speak of “equal” protection and does not apply to Messrs. DeFunis, Bakke, Weber, me, or to most, males or females. It was written to abolish slavery, and to eliminate “the badges and incidents of slavery” which Blacks suffer. As its Senate sponsor observed in 1866: “With the destruction of slavery necessarily follows the destruction of the incidents of slavery.”
To end inequality, the rights and remedies for Blacks can find power in the Thirteenth Amendment. While the Fourteenth Amendment embraces a “broader principle” and groups other than Blacks have rights under it, the Thirteenth Amendment is an affirmative “absolute declaration” that action be taken on behalf of Blacks; the Fourteenth is a “mere prohibition.” Unlike the Fourteenth which can prohibit only state actions, the Thirteenth can also reach purely private conduct that restricts the achievement of equality.