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71 Md. L. Rev. 12 (2011-2012)
Plus or Minus One: The Thirteenth and Fourteenth Amendments

handle is hein.journals/mllr71 and id is 14 raw text is: Symposium The Maryland Constitutional Law Schmooze FOREWORD: PLUS OR MINUS ONE: THE THIRTEENTH AND FOURTEENTH AMENDMENTS MARK A. GRABER* Conventional wisdom maintains that ratification of the Four- teenth Amendment mooted a heated controversy over the scope of the Thirteenth Amendment. That controversy broke out during the debates over the Freedmen's Bureau Bill of 1866 and the Civil Rights Act of 1866. Most Republicans insisted those laws were appropriate means for enforcing the Thirteenth Amendment.' President Andrew Johnson, the Democrats in Congress, and a few Republicans insisted that the Congressional power under the Thirteenth Amendment was limited to legislation abolishing slavery and did not authorize the na- tional legislature to pass laws protecting freed persons of color from discrimination short of enslavement.' Although the Civil Rights Act of 1866 passed over President Johnson's veto, Republicans recognized that the substantive rights of freed blacks needed firmer constitution- al foundations. Hence, they framed and ratified the Fourteenth Amendment. The ratification of the Fourteenth Amendment transformed con- stitutional debate in the United States. Subsequent controversies over the constitutional rights of African-Americans focused on the proper interpretation of Sections 1 and 5 of that Amendment. The Thir- teenth Amendment was confined to a few isolated practices that could be analogized with slavery as it existed in the United States before the Civil War.3 Legal historians continue to debate the proper interpreta- Copyright @ 2011 by Mark A. Graber. Professor of Law and Government, University of Maryland Francis King Carey School of Law and University of Maryland, College Park. 1. Jacobus tenBroek, Thirteenth Amendment to the Constitution of the United States: Con- summation to Abolition and Key to the Fourteenth Amendment, 39 CALIF. L. REv. 171, 189-94 (1951). 2. Id. at 189. 3. See Bailey v. Alabama, 219 U.S. 219, 241-42 (1911) (defining involuntary servitude and the practice of peonage). 12

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