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71 Md. L. Rev. 163 (2011-2012)
Constitutional Politics, Constitutional Law, and the Thirteenth Amendment

handle is hein.journals/mllr71 and id is 165 raw text is: CONSTITUTIONAL POLITICS, CONSTITUTIONAL IAW, AND THE THIRTEENTH AMENDMENT MICHAEL LES BENEDICT* I. INTRODUCTION In his contribution to this symposium, Alex Tsesis addresses Con- gressional Authority to Interpret the Thirteenth Amendment,' responding to an article on the same subject by Jennifer Mason McAward.2 He ar- gues, correctly, that the Republicans who passed the Civil Rights Act over President Andrew Johnson's veto in 1866 intended for the second section of the Thirteenth Amendment to delegate broad pow- er to Congress to secure the rights and privileges associated with free- dom in the United States.' Both essays are very much constitutional law essays. They address the powers of Congress in terms of legal principles and arguments of the sort that ultimately would be pre- sented to courts testing the constitutionality of the broad legislation the essays envision. Both arguments are addressed to Congress as well. McAward tells congressmen and congresswomen that broad legislation to pro- tect rights would be unconstitutional, while Tsesis tells Congress the opposite.' Bound by their oaths to support the Constitution, con- gressmen and congresswomen should refrain from passing such legis- lation if McAward is right; they are free to pass such legislation if Tse- sis is right. However, while many congressmen and congresswomen are lawyers, they are politicians first and foremost. They no doubt see their jobs primarily to reflect the national interest and the interests of their constituents, not to make determinations of constitutional law. One should not be surprised that many congresspersons who favor Copyright @ 2011 by Michael Les Benedict. * Professor Emeritus of History, The Ohio State University. 1. Alexander Tsesis, Congressional Authority to Interpret the Thirteenth Amendment, 71 MD. L. REV. 40 (2011). 2. Jennifer Mason McAward, The Scope of Congress's Thirteenth Amendment Enforcement Power After City of Boerne v. Flores, 88 WASH. U. L. REv. 77 (2010). 3. Tsesis, supra note 1, at 43-45. 4. McAward, supra note 2, at 134-42 (Moreover, the historical record does not indi- cate that any of the framers of the Thirteenth Amendment contemplated, much less en- dorsed, such an expansive view of Congress's interpretive powers.); Tsesis, supra note 1, at 53-56. 163

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