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15 Geo. J.L. & Pub. Pol'y 137 (2017)

handle is hein.journals/geojlap15 and id is 142 raw text is: The Understanding of Neither Slavery Nor Involuntary Servitude Shall Exist Before the Thirteenth Amendment DAVID R. UPHAM* ABSTRACT By providing that [n]either slavery nor involuntary servitude shall exist, the authors of the Thirteenth Amendment adopted a prohibitory formula, origi- nating in the Northwest Ordinance of 1787 that was subsequently incorporated into the organic laws of many territories and states, and by 1865, had been for decades subject to extensive interpretation and commentary. To assess the original understanding of the Thirteenth Amendment, then, it is necessary to examine the pre-Amendment understanding of this prohibitory language. In this article, I review this evidence and draw the following conclusions: (1) the prohibition was deemed derivative of the natural-rights principles of the Decla- ration of Independence; (2) the prohibited slavery and involuntary servitude represented two distinct, yet partially-overlapping, concepts; (3) the prohibited slavery and involuntary servitude did not encompass traditional servitudes like those between parent and child; (4) the stipulated non-existence of slavery and involuntary servitude concerned chiefly their legal existence and perhaps also their actual existence; and (5) this stipulated non-existence did not, ipso facto, prohibit racial discrimination or any other badges of servitude. INTRODUCTION .......................................... 138 I. JEFFERSON'S DECLARATION AND JEFFERSON'S ORDINANCE ........ 141 II. SLAVERY V. INVOLUNTARY SERVITUDE ...................... 146 III. THE EXCEPTIONS ..................................... 154 A. Traditional Servitudes Remaining Lawful Under the Ordinance ........................................ 155 B. Possible Modifications of Arrangements Arising from Contracts: Master-Apprentice and Obligor-Obligee ....... .. 160 * Associate Professor of Politics, University of Dallas; Ph.D., University of Dallas; J.D., the University of Texas School of Law. I am very grateful for the criticism, advice, and encouragement offered by participants in the 2015 Salmon P. Chase Lecture and Colloquium on the Constitution, held at the Georgetown Center for the Constitution. I am further thankful to the editors and staff of this journal for their fine work in preparing this article for publication. I dedicate this article to the memory of Professor Harry V. Jaffa. D 2017, David R. Upham. 137

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