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71 Md. L. Rev. 21 (2011-2012)
Thirteenth Amendment, Interest Convergence, and the Badges and Incidents of Slavery

handle is hein.journals/mllr71 and id is 23 raw text is: THE THIRTEENTH AMENDMENT, INTEREST CONVERGENCE,
The Thirteenth Amendment was intended to eliminate the insti-
tution and legacy of slavery. Having accomplished the former, the
Amendment has rarely been extended to the latter. The Thirteenth
Amendment's full scope therefore remains unrealized.
This Article explores the gap between the Thirteenth Amend-
ment's promise and its implementation. Drawing on Critical Race
Theory,' this Article argues that the relative underdevelopment of
Thirteenth Amendment doctrine is due in part to a lack of perceived
interest convergence in eliminating what the Amendment's framers
called the badges and incidents of slavery.' The theory of interest
convergence, in its strongest form, suggests that civil rights gains sel-
dom happen unless they are perceived as advancing, or at least not
hindering, the material interests of dominant groups.
Part II of this Article will explain the theory of interest conver-
gence and analyze major Thirteenth Amendment cases through an
interest convergence prism. This Part contends that the cases in
which courts have been receptive to badges and incidents of slavery
Copyright @ 2011 by William M. Carter,Jr.
Professor of Law, Temple University Beasley School of Law. I would like to acknowl-
edge the Clifford Scott Green Research Fund in Law for its generous support. This Article
benefited greatly from the comments and critiques I received at the University of Maryland
Francis King Carey School of Law's Constitutional Law Schmooze, and at a faculty work-
shop at the Elon University School of Law. I also thank Jonathan Mayer for his research
assistance. This Article is dedicated to the memory of Professor Derrick Bell, whose scho-
larship, courage, and uncompromising pursuit of social justice will be sorely missed. This
Article builds upon his insights and, I hope, extends them in some small way.
1. Broadly defined, Critical Race Theory is a collection of themes aimed at studying
and transforming the relationship among race, racism, and power .... Unlike traditional
civil rights [theory], critical race theory questions the very foundations of the liberal order,
including equality theory, legal reasoning, Enlightenment rationalism, and neutral prin-
2. See infra Part III. For a discussion of the Amendment's legislative history, see general-
ly William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and
Incidents of Slavery, 40 U.C. DAVIS L. REV. 1311 (2007) [hereinafter Carter, Race, Rights, and
the Thirteenth Amendment].


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