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71 Md. L. Rev. 189 (2011-2012)
What's Different about the Thirteenth Amendment, and Why Does it Matter

handle is hein.journals/mllr71 and id is 191 raw text is: WHAT'S DIFFERENT ABOUT THE THIRTEENTH AMENDMENT, AND WHY DOES IT MATTER? JAMES GRAY POPE* When I entered law school back in 1980, the Thirteenth Amend- ment beckoned as the noblest and most fascinating of all constitu- tional provisions. Most spectacularly, it had singlehandedly trans- formed the Constitution of the United States from that of a slave nation to that of a modern republic.' From my point of view as a re- cently laid-off ship welder, it also mattered that the Thirteenth Amendment is the only currently operative constitutional provision that addresses the law of labor, having displaced the fugitive slave (held to Service or Labour) clause.' Moreover, the Thirteenth Amendment stands out as the sole rights guarantee that protects not only against government, but also against private concentrations of power, including multi-national corporations. Yet, to put it mildly, others did not share my fascination. In fact, many considered it a waste of time to converse about an Amendment that, in their view, had been conclusively consigned to the dustbin of history. They agreed with me that the Amendment was unique but, to my frustra- tion, they found it to be uniquely suited for narrow interpretation. Why? We might speculate that some people oppose broad inter- pretation because they fear the likely substantive outcomes. The same features that attracted a laid-off ship welder might well repel others, and for similarly result-oriented reasons. Over time, however, I have come to believe that at least part of the explanation may be found in the distinctively difficult interpretive questions posed by the Amend- ment. Part I of this Essay discusses four unique features of the Copyright @ 2011 byJames Cray Pope. * Professor of Law & Sidney Reitman Scholar, Rutgers University School of Law- Newark. 1. On the centrality of slavery to the original United States Constitution, see ALFRED w. BLUMROSEN & RUTH G. BLUMROSEN, SLAVE NATION: How SLAVERY UNITED THE COLONIES & SPARKED THE AMERICAN REVOLUTION 171-202 (2006); DAVID WALDSTREICHER, SLAVERY'S CONSTITUTION: FROM REVOLUTION TO RATIFICATION 3-20 (2009). 2. On the labor dimension of the Amendment, see Lea S. VanderVelde, The Labor Vi- sion of the Thirteenth Amendment, 138 U. PA. L. REv. 437 (1989). 3. The Civil Rights Cases, 109 U.S. 3, 20 (1883); United States v. Kozminski, 487 U.S. 931, 932 (1988). 189

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