A hypothetical: Relying upon its authority under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress enacts a statute, later signed into law by the president, containing a provision providing a private right of action to victims of sex-based violence. A young woman in her first semester of college is subsequently raped by two of her peers. Seeking recompense, she brings suit under the provision. The defendants move to dismiss, arguing that the provision exceeds Congress's legislative authority. Is the provision constitutional? Another hypothetical: Citing emotional damages and the fostering of racial animus, an African-American Mississippian sues the governor of Mississippi, seeking a declaratory judgment declaring that adoption of the state's flag, by way of its Confederate battle emblem, is violative of the Equal Protection Clause and an injunction enjoining Mississippi's governor from enforcing statutes that adopt the flag's design or mandate or allow it to fly on public property. Is Mississippi's flag constitutionally problematic? Yet another: Plainclothes officers observe two African-American males sitting in a vehicle stopped at a stop sign in a “high drug area” for over twenty seconds. With their suspicions aroused, the officers approach the vehicle. Upon observing this, the defendant-driver turns suddenly to the right without signaling and speeds off at a seemingly unreasonable speed. With traffic infractions now providing the basis for a stop, the officers pull over the vehicle. Upon approaching the vehicle, one of the officers observes two bags of crack cocaine in plain view. The defendants are arrested and charged with the violation of various federal drug laws. They later move to suppress the drugs, arguing that, standing alone, the reasonable-suspicion/probable-cause standard, as applied in the traffic context, encourages race-based pre-textual stops and thus violates the Fourth Amendment. Are race-based pre-textual stops unconstitutional? Of course, these scenarios are anything but hypothetical. The first recites the facts of United States v. Morrison, 529 U.S. 598 (2000); the second, Moore v. Bryant, 853 F.3d 245 (5th Cir. 2017), cert. denied 138 S.Ct. 468 (2017); and the third, Whren v. United States, 517 U.S. 806 (1996).

In Morrison, the Supreme Court held that Congress's power to regulate activities that substantially affect interstate commerce, as restated in United States v. Lopez, 514 U.S. 549 (1995), extends solely to activities that are directly economic in nature. Because the court found that any economic impact of sex-based crimes upon interstate commerce is, at best, indirect, it held that Congress could not rely upon the Commerce Clause to provide a private right of action to victims of sex-based violence. As to Section Five of the Fourteenth Amendment, the court confirmed that the congruence-and-proportionality requirement set forth in City of Boerne v. Flores, 521 U.S. 507 (1997), requires that Congress prophylactically stay within the bounds of the court's annunciation of Fourteenth Amendment rights. Since these bounds generally do not extend to private action, and since the provision in question did so extend, neither could Congress rely upon Section Five of the Fourteenth Amendment for its authority. The challenged provision of the Violence Against Women Act was thus held unconstitutional.

In Moore, the District Court of the Southern District of Mississippi granted the defendant's motion to dismiss, finding that the plaintiff failed to plead injury-in-fact and thus lacked standing. On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed, emphasizing that, per Allen v. Wright, 468 U.S. 737 (1984), for Equal Protection purposes, standing's injury-in-fact requirement is satisfied by stigmatic injury only where the plaintiff alleges that he/she has been personally denied equal treatment by the challenged discriminatory conduct. Since the court found that the plaintiff's claims that his unavoidable exposure to the Mississippi flag was “painful, threatening, and offensive” to him, made him “feel like a second-class citizen,” and caused him both “physical and emotional injuries” failed to amount to an allegation of personal denial of equal treatment, it found that the plaintiff lacked standing and affirmed. The plaintiff subsequently appealed to the Supreme Court, which denied certiorari.

In Whren, the defendants conceded that the officers had probable cause to believe that they had violated various provisions of the District of Columbia Vehicle Code. Rather, the defendants argued that the code was so labyrinthine and voluminous that compliance with all of its provisions at all times was practically impossible and thus tempted officers to utilize de minims traffic infractions as a basis to detain defendants to investigate pre-textual suspicion founded upon factors such as race. As such, the defendants continued, the Fourth Amendment standard in the traffic context should be whether a police officer, acting reasonably under the circumstances, would otherwise make the stop for the reasons given (the “reasonable officer” standard), rather than whether reasonable suspicion or probable cause exists to justify the stop. The Supreme Court rejected the defendants' argument, unanimously affirming their convictions. Writing for the court, Justice Scalia held, “The temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective.”

These cases present but three of many situations in which civil rights attorneys and their clients might be well-served served by relying upon the Thirteenth Amendment. A seeming relic of the Civil War, the Thirteenth Amendment is anything but. In Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the Supreme Court overhauled the amendment's reach, reversing almost a century of contrary precedent and holding that Section Two thereof authorizes Congress to enact legislation “rationally related to ending badges and incidents of servitude.” There, the court upheld a provision of the Civil Rights Act of 1866 (42 U.S.C. § 1982) prohibiting racial discrimination in the sale of private property, finding that such constituted a restraint “upon those fundamental rights which are the essence of civil freedom” and thus a badge or incident of servitude. In so holding, the court overturned Hodges v. United States, 203 U.S. 1 (1906), which held that Congress's legislative authority pursuant to Section 2 of the Thirteenth Amendment extended no further than eliminating and preventing physical enslavement, and paved the way for a new era of Thirteenth Amendment jurisprudence.

Unfortunately, the new era is yet to arrive. Hodges was the culmination of a line of cases resting on dubious readings of the Radical Republicans' intended reach of the Thirteenth Amendment, including the infamous Plessey v. Ferguson, 163 U.S. 537 (1896), and Civil Rights Cases, 109 U.S. 3 (1883). Such cases vastly undermined the Thirteenth Amendment's reach, with the court maintaining that it “merely abolishe[d] slavery” until 1968. With Hodges the law of the land until Jones, reformers were forced to turn to other parts of the Constitution in the meantime. Congress, for example, found a home in the Commerce Clause, upon which it relied in defending the Civil Rights Act of 1964 in Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964), and Section Five of the Fourteenth Amendment. Individuals turned to the Equal Protection and Due Process Clauses, which proved increasingly successful in instances of governmental action but increasingly futile in instances of private action, given the state-action doctrine. (Shelley v. Kraemer, 334 U.S. 1 (1948), is the notable exception; however, even there, it was court enforcement of private, race-based restrictive covenants—state action—that the court found unconstitutional, not the restrictive covenants themselves.) Despite Jones's monumental holding, appeals to such provisions of the Constitution remain at the forefront of modern-day civil rights activism. For Jones arrived late on the scene, at a time when blatant badges and incidents of servitude—for example, racial discrimination in public accommodations, as outlawed by Title II of the Civil Rights Act of 1964, and anti-miscegenation laws, as outlawed in Loving v. Virginia, 338 U.S. 1 (1967)—had already been struck down thereunder. Yet not all badges and incidents of servitude are as blatant; the essence of civil freedom is yet to be secured for all. Given Jones, the Thirteenth Amendment presents a ripe and viable alternative avenue of argument. Shockingly, however, few outside academic circles are cognizant of its potential, with the result presenting additional obstacles to civil rights reform. This is an opportunity missed, and the above cases demonstrate that.

In analyzing Morrison through a Thirteenth Amendment lens, one can see the amendment's potential as a veritable powerhouse of future civil rights legislation. There, rather than relying upon the Commerce Clause and Section Five of the Fourteenth Amendment, Congress instead might have invoked its authority under Section Two of the Thirteenth Amendment. Under this approach, the need to demonstrate any direct economic effect of sex-based violence upon interstate commerce would have been obviated. Likewise, the Violence Against Women Act's extension to private action would have been moot, as the Thirteenth Amendment extends to both governmental and private action alike. Thus, the obstacles otherwise presented by the Commerce Clause and Section Five of the Fourteenth Amendment need not have been met. Rather, Congress's burden would have been to demonstrate that sex-based violence constitutes a badge or incident of servitude and that the challenged provision of the Violence Against Women Act was rationally related to its elimination. In so demonstrating, Congress might have relied upon historical accounts of the use of sex-based violence as an exploitative tool of slavery that often left women susceptible to sexual brutality and in a position of inferiority in a variety of contexts and, from there, proceeded to argue that the Violence Against Women Act rationally sought to deter and remedy current-day equivalents of such acts by providing victims of sex-based violence a private right of action against their perpetrators.

In analyzing Moore and Whren through a Thirteenth Amendment lens, one can see an increased role for individuals and the judiciary in identifying and eliminating remaining vestiges of servitude. In Moore, the plaintiff instead might have argued for equitable relief via Section One of the Thirteenth Amendment, emphasizing to the court that such relief, though novel, is necessary for the sake of logical consistency, given Jones's utilization of the language of Section Two, which derives its meaning from the language of Section One. Turning to standing, the plaintiff's argument might have run thus: Just as the American flag may fairly be said to represent American ideals as embodied in the Constitution, so also may the Confederate flag fairly be said to represent Confederate ideals as embodied in the Confederate Constitution. Given, then, that enduring slavery as protected by government was a Confederate ideal embodied in the Confederate Constitution (e.g., Article 1, Section 9, and Article 4, Sections 2 and 3 thereof), governmental display or endorsement of Confederate symbolism thus constitutes a literal, historical badge of servitude. Ipso facto, such involuntary exposure thereto constitutes injury-in-fact in its own right. Had the case survived the motion to dismiss, though, a Thirteenth Amendment argument would have proven beneficial beyond standing concerns, as, in relying upon the Equal Protection Clause, the plaintiff incurred the additional hardship of demonstrating that Mississippi's 2001 adoption of its current flag was aimed at advancing a racially discriminatory purpose. For, without such a showing, rational-basis review, rather than the more demanding strict-scrutiny review, would apply to any claim of disparate impact upon race per Washington v. Davis, 426 U.S. 229 (1976). Utilizing the Thirteenth Amendment, though, the plaintiff instead might have again pointed to the Confederate emblem's history, as well as its psychological impact upon minorities, in demonstrating that the disparate impact brought about by governmental display or endorsement of Confederate symbolism (or, alternatively, such display or endorsement itself) constitutes a badge or incident of servitude and is thus prohibited outright by the Thirteenth Amendment. Likewise, an argument along similar lines might have been advanced in Whren, with the defendants instead arguing that race-based pre-textual detentions, or racial profilings, constitute an invidious badge of servitude and are thus prohibited outright by the Thirteenth Amendment. Adoption of such an approach would provide criminal defendants with an additional tier of constitutional protection from police overreach beyond the Fourth Amendment.

The tale of the Thirteenth Amendment need not remain one of what could have been or what could be. While the court's initial interpretations of the amendment presented significant setbacks to civil rights reform beyond the elimination of physical bondage, its reversal in Jones provided a beacon of hope. With Jones yet to be overturned, and with calls for civil rights reform ubiquitous, the time is ripe for a new generation of attorneys, congresspersons, and litigants alike to revitalize Thirteenth Amendment jurisprudence and test the amendment's limits. While there is, of course, no guarantee that courts will adopt all—or even any—of the lines of argument proposed herein, so also is there no fault in effort in pursuit of a noble cause. Moreover, given the Thirteenth Amendment's seemingly expansive reach in eliminating badges and incidents of servitude, calls to amend the Constitution on similar grounds amount to calls for the more difficult task and risk further complicating an already enigmatic constitutional landscape. The Thirteenth Amendment, then, presents the more propitious prospect. For it is a sleeping giant, hiding in plain sight.

Dean L. Pillarella is currently employed at Held & Hines, a Brooklyn-based firm, where his work focuses on plaintiffs' constitutional and tort litigation. He sits on the Legal History and Sex & Law Committees of the New York City Bar Association and can be contacted at [email protected].