71 Md. L. Rev. 60 (2011-2012)
Congressional Authority to Interpret the Thirteenth Amendment: A Response to Professor Tsesis

handle is hein.journals/mllr71 and id is 62 raw text is: CONGRESSIONAL AUTHORITY TO INTERPRET
THE THIRTEENTH AMENDMENT:
A RESPONSE TO PROFESSOR TSESIS
JENNIFER MASON MCAWARD*
In his essay Congressional Authority to Interpret the Thirteenth Amend-
ment,' Alex Tsesis responds to my article, The Scope of Congress's Thir-
teenth Amendment Enforcement Power After City of Boerne v. Flores.' I
hope to take this opportunity to further that dialogue, clarifying my
own position and challenging Professor Tsesis's arguments when ne-
cessary. Despite our disagreements, I believe we share a common
purpose, namely, to provide useful and constitutionally sound guid-
ance for Congress in the exercise of its Thirteenth Amendment en-
forcement power. I will conclude this piece by suggesting some areas
that are ripe for further exploration in pursuit of that goal.
I. THE SECTION 2 POWER: THREE MODELS
At the outset, let me summarize the context, inquiry, and argu-
ments of my earlier article.' Section 2 of the Thirteenth Amendment
gives Congress the power to enforce this article by appropriate legis-
lation.4 Since the Civil Rights Cases in 1883, the Supreme Court of
the United States has maintained that this provision empowers Con-
gress not simply to pass laws outlawing slavery and involuntary servi-
tude, but to pass all laws necessary and proper for abolishing all
badges and incidents of slavery in the United States.' In Jones v. Al-
fred H. Mayer Co.,' the Court invoked this canonical language7 and
Copyright @ 2011 byJennifer Mason McAward.
* Associate Professor of Law, University of Notre Dame Law School; J.D. 1998, New
York University School of Law; B.A. 1994, University of Notre Dame.
1. Alexander Tsesis, Congressional Authority to Interpret the Thirteenth Amendment, 71 MD.
L. REV. 40 (2011) [hereinafter Tsesis, Congressional Authority].
2. Jennifer Mason McAward, The Scope of Congress's Thirteenth Amendment Enforcement
Power After City of Boerne v. Flores, 88 WASH. U. L. REV. 77 (2010) [hereinafter McAward,
Enforcement Power].
3. See generally id. at 77-84.
4. U.S. CONST. amend. XIII, § 2.
5. The Civil Rights Cases, 109 U.S. 3, 20 (1883).
6. 392 U.S. 409 (1968).
7. George A. Rutherglen, The Badges and Incidents of Slavery and the Power of Congress to
Enforce the Thirteenth Amendment, in THE PROMISES OF LIBERTY: THE HISTORY AND

60

What Is HeinOnline?

With comprehensive coverage of government documents and more than 2,400 journals from inception on hundreds of subjects such as political science, criminal justice, and human rights, HeinOnline is an affordable option for colleges and universities. Documents have the authority of print combined with the accessibility of a user-friendly and powerful database.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Already a HeinOnline Subscriber?