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The Thirteenth Amendment 'Exception' to the State Action Doctrine: An Originalist Reappraisal

Ryan D. Walters

Independent

March 19, 2013

George Mason University Civil Rights Law Journal (CRLJ), Vol. 23, No. 3, 2013

Abstract:

In 1865, the Thirteenth Amendment banned slavery in the United States. There is an overwhelming consensus that the Thirteenth Amendment represents an exception to the state action doctrine – the general rule that the U.S. Constitution does not apply to private actors. There has never been an analysis of this assertion using reasonable observer originalism. As a result, the consensus view on the Thirteenth Amendment threatens to undermine a key feature of the Constitution – that it provides rules of conduct solely for governmental actors.

This Article uses reasonable observer originalism to examine the text and context of the Thirteenth Amendment. This is the first analysis that finds that Section One of the Thirteenth Amendment is not the aberration that most have claimed; it is consistent with the state action doctrine and only applies to governmental actors. However, Section Two allows Congress to act on private individuals when a state has refused to enforce its generally applicable laws protecting bodily integrity and freedom from restraint. Both aspects of this analysis demonstrate how the case law that has arisen from the Thirteenth Amendment is in harmony with the revised view set forth in this Article, and that the constitutional ban of slavery is properly understood as an anti-caste provision prohibiting discriminatory governmental exemptions from laws protecting persons from physical force.

Part I of this Article describes the consensus view that the Thirteenth Amendment is an exception to the generally accepted maxim that the U.S. Constitution applies solely to governmental actors. Examining constitutional context and using the techniques of intratextualism, Part II explains the flaws in the reasoning advanced in support of the consensus view. Part III describes how the original meaning of the term “slavery” denoted a legal institution created and maintained by state action. Similarly, Part IV describes how the original meaning of “involuntary servitude” is consistent with a state-centered view of the institution. Part V analyzes how the relationship between the Civil Rights Act of 1866 and the Fourteenth Amendment reinforces the plausibility of the state-action interpretation of the Thirteenth Amendment. Part VI then describes how Section Two of the Thirteenth Amendment permits Congress to reach private conduct, even though Section One only directly reaches state conduct, and how this interpretation makes sense of the existing case law regarding the scope of the Thirteenth Amendment.