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Cornell Law Review Online Vol. 104

New Textualism and the Thirteenth Amendment

Leah M. Litman, Assistant Professor of Law, University of California Irvine School of Law.

28 Sep 2019

Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment.1Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 CORNELL L. REV. 899 (2019)  In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed practices resembling slavery to continue, perhaps reflecting the extant stereotypes and racism that formally amending the Constitution cannot root out. Indeed, Goodwin excavates historical materials that suggest the people who drafted and ratified the Amendment understood and expected that it would allow the perpetuation of slavery in another form. As Goodwin explains, most historians have argued that the Thirteenth Amendment’s punishment clause, which allows for involuntary servitude “as punishment for a crime,”2U.S. CONST. amend. XIII. “was probably meant to preserve the existing system of prison labor.”3Goodwin, supra note 1, at 932–33. But she persuasively demonstrates that these historians “overlook . . . [how] those systems were . . . racialized.”4Id. In other words, everyone understands that the Thirteenth Amendment was drafted to allow the continuation of prison labor. But while prison labor could hypothetically—be a racially neutral system of uncompensated or undercompensated labor, contemporaries of the Thirteenth Amendment understood that it was not, in actuality, neutral. And they expected that it would not be neutral, and that undercompensated prison labor would be performed by primarily black and non-white immigrant populations caught in a dragnet web of interlocking state and private discrimination that would push them into the criminal justice system. Goodwin’s narrative about the Thirteenth Amendment is a prime example of what Professor Reva Siegel has called “preservation-through-transformation”—how society and the legal system reject one form of racial discrimination while at the same time legitimating other forms of it.5Reva B. Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1112 (1997).

Goodwin’s project thus pointedly asks what the Thirteenth Amendment means—was it understood and meant to permit, and does it permit, a racialized system of prison labor? Answering that question requires us to think about what the Thirteenth Amendment means, and Goodwin’s thought- provoking article provides an occasion to revisit some of the ways people have interpreted the Thirteenth Amendment. As it so happens, the Thirteenth Amendment provides an abbreviated case study on some of the promises and limits of constitutional textualism, including the variant of “new textualism” that has recently emerged.6See James E. Ryan, Laying Claim to The Constitution: The Promise of New Textualism, 97 VA. L. REV. 1523, 1524 (2011). New textualism, in Jim Ryan’s definition, is the promising new form of constitutional textualism whose “core principle . . . is that constitutional interpretation must start with a determination, based on evidence from the text, structure, and enactment history, of what the language in the Constitution actually means.”7Id. But unlike its predecessors, new textualism recognizes that the semantic meaning of texts can embody broad principles whose application to particular facts may change over time, and it welcomes the consideration of non-textual sources like structure or enactment history or historical context.8See id. at 1538–56.

The quest to interpret the Thirteenth Amendment illuminates how constitutional textualism, in practice, often involves the kinds of interpretive challenges that its proponents ascribe to purportedly textual methods of constitutional interpretation. These challenges include reconciling different genres of sources and selecting between different pieces of evidence based on intuitions about constitutional substance. Acknowledging that the end goal of constitutional textualism is to determine “what the language in the Constitution actually means” does not change that;9Id. at 1524. nor does it necessarily provide the kind constraining, anchoring force that textualism is supposed to offer relative to other interpretive methodologies. This piece highlights how these dynamics have played out in the context of the Thirteenth Amendment with respect to two interpretive questions—what relevance the historical context behind the Amendment has, and whether other provisions in the Constitution shed some light on the meaning of the Thirteenth Amendment. It suggests that new textualism in many respects converges on other purportedly competing methodologies and that the promise of the new textualism also represents its shortcomings or at least the sacrifice of textualism’s comparative advantages over other methodologies.

To read more, click here: New Textualism and the Thirteenth Amendment.

References   [ + ]

1. Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 CORNELL L. REV. 899 (2019)
2. U.S. CONST. amend. XIII.
3. Goodwin, supra note 1, at 932–33.
4. Id.
5. Reva B. Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1112 (1997).
6. See James E. Ryan, Laying Claim to The Constitution: The Promise of New Textualism, 97 VA. L. REV. 1523, 1524 (2011).
7. Id.
8. See id. at 1538–56.
9. Id. at 1524.

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