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11 U. Pa. J. Const. L. 1451 (2008-2009)
The Thirteenth Amendment in Historical Perspective

handle is hein.journals/upjcl11 and id is 1461 raw text is: THE THIRTEENTH AMENDMENT IN HISTORICAL PERSPECTIVE Risa L. Goluboff One of the first cases I teach in my required first-year course on constitutional law is McCulloch v. Maryland.' Like other constitutional law teachers, I use McCulloch in part as a preview of approaches to constitutional interpretation-it offers up historical, textual, struc- tural, and representation-reinforcing theories of interpretation. Most relevant here, I emphasize that the historical approach to constitu- tional interpretation in McCulloch actually represents two approaches. The first is what constitutional scholars most readily think of as his- torical interpretation: originalism. That is the approach that many papers in this conference take, and the primary questions to which this conference is addressed. Following that approach, much ink has been spilled on the original meaning of the Thirteenth Amendment, the relationship between precursors to the Amendment and the Amendment itself, and the relationship between the Thirteenth, Fourteenth, and Fifteenth Amendments. The second historical approach in McCulloch leads to a very differ- ent kind of historical endeavor. This approach assumes that constitu- tional understandings are elaborated by historical practice in Ameri- can history long after the founding. Relevant history in McCulloch does not end with the writing of the Constitution; it develops over time up to the very moment of judicial intervention. McCulloch thus suggests that the ways in which laypeople, politicians, scholars, law- yers, and jurists interpret the Constitution during the decades and centuries since 1789 offer up important glosses on constitutional meaning. It is this second historical approach-the nonoriginalist historical approach-that this paper engages. 'hat concerns me here is not what the Thirteenth Amendment meant in originalist terms, but how its meaning has changed over time. Unsurprisingly, dominant cur- rents of political thought have influenced interpretations of the * Professor of Law and History, Caddell & Chapman Research Professor, University of Vir- ginia; Stephen and Barbara Friedman Visiting Professor, Columbia Law School. I would like to thank Rich Schragger, Meera Trehan, and the American Constitution Society. 1 17 U.S. (4 Wheat.) 316 (1819).

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