Business Memo TemplateMEMORANDUMTOFROMDATESUB.docx

Business Memo Template
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
I'm writing to inform you that [reason for writing memo].
As our company continues to grow … [evidence or reason to
support your opening paragraph].
Please let me know if you have any questions. In the meantime,
I'd appreciate your cooperation as [official business
information] takes place.
Header:
In your header, you'll want to clearly label your content
"Memorandum" so your readers know exactly they're receiving.
Then, you'll want to include "TO", "FROM", "DATE", and
"SUBJECT". This information is relevant for providing content,
like who you're addressing, and why.
Paragraph One:
In the first paragraph, you'll want to quickly and clearly state
the purpose of your memo. You might begin your sentence with
the phrase, "I'm writing to inform you … " or "I'm writing to
request ... ". A memo is meant to be short, clear, and to-the-
point. You'll want to deliver your most critical information
upfront, and then use subsequent paragraphs as opportunities to

dive into more detail.
Paragraph Two:
In the second paragraph, you'll want to provide context or
supporting evidence. For instance, let's say your memo is
informing the company of an internal re-organization. If this is
the case, paragraph two should say something like, "As our
company continues to grow, we've decided it makes more sense
to separate our video production team from our content team.
This way, those teams can focus more on their individual
goals."
Paragraph Three:
In the third paragraph, you'll want to include your specific
request of each employee -- if you're planning a team outing,
this is the space you'd include, "Please RSVP with dietary
restrictions," or "Please email me with questions."
On the contrary, if you're informing staff of upcoming
construction to the building, you might say, "I'd appreciate your
cooperation during this time." Even if there isn't any specific
action you expect from employees, it's helpful to include how
you hope they'll handle the news and whether you expect them
to do something in response to the memo.
V ie w s fro m t h e B e n c h
Understanding the 14th Amendment
Editor’s Note: The following short essays appeared in the Law
Day special edition sponsored by the Utah State Bar; the Utah
Judiciary, and the Utah Commission on Civic & Character
Education. The special edition was included in the print version
of

Utah's leading newspapers. Although written with a lay
audience in mind, these essays contain worthwhile messages,
and we
reprint them here, with the authors' permission, in case any o f
our readers missed them.
Bending Toward Justice
by Judge J. Frederic Voros, Jr., Presiding Judge, Utah Court o f
Appeals
T w i c e in the last month - once in a
law office and once in an art museum - 1
saw a print of a 1963 painting by
Norman Rockwell. He called it “The
Problem We All Live With.” It depicts a
six-year-old girl walking to school. Two
deputy U.S. marshals walk ahead of her,
two behind. The girl, dressed in a white
dress and carrying her schoolbooks, is African-American. Her
name is Ruby Bridges.
The school was William Frantz Elementary in New Orleans.
Rockwell shows the girl and the marshals but not the
protestors. They were throwing things and shouting. We can all
imagine the hateful things they shouted. But the girl walked on.
One of the marshals later recalled, “She showed a lot of
courage. She never cried. She didn’t whimper. She just marched
along like a little soldier.”
White parents kept their children home from school and
teachers refused to teach. For over a year Ruby’s teacher,
Barbara Henry, taught Ruby one-on-one “as if she were teaching
a whole class." But not that first day. Amid all the commotion,
Ruby spent the day in the principal’s office. On the second day,
a

white Methodist minister named Lloyd Anderson Foreman
walked his five-year-old daughter through the angry mob. Later
more white children began to attend, some teachers returned,
and protests subsided.
Ruby’s family paid a price for daring to claim the promise of
equality. Her father lost his job, their local grocery store
refused
Volume 30 No. 3
to sell to them, and her sharecropping grandparents lost their
land. But the Bridges family also had allies. Neighbors hired
her
father, protected their house, and walked behind the marshals’
car on the way to school. Fifty years later, Ruby Bridges and
the
minister’s daughter, Pam Foreman Testroet, met again at a
Frantz Elementary School reunion - sisters in the struggle to
transform American democracy.
Paving the way for the integration of Frantz Elementary School
was the United States Supreme Court’s decision in Brown v.
Board o f Education, 347 U.S. 483 (1954). A unanimous Court
held that racially segregated public schools denied black
Americans equal protection of the law under the Fourteenth
Amendment to the United States Constitution.
That amendment, adopted in 1868, states in part, “No state shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the
equal protection of the laws.” As Justice Harlan wrote for the
Court in 1896, that amendment declares, “All citizens are equal

before the law." Gibson v. Mississippi, 162 U.S. 565,591
(1896).
But equality under the law is easier to promise than to deliver;
Constitutional promises are not self-executing. Equality must be
won one battle at a time - some fought by soldiers at places
like Gettysburg and Cold Harbor, some fought by civilians at
places like the Edmund Pettus Bridge and William Frantz
Elementary School. But these battles have indeed transformed
American democracy.
N orm an R o ckw e ll's The Problem We All Live With c o u rte
s y of the N orm an R ockw ell estate.
Only 6% of Americans were entitled to vote in the election of
1789; really, only landed white men could be said to be “equal
before the law.” But thanks to the Reconstruction Amendments,
African Americans, female Americans, and gay Americans can
now claim a measure of equality under the Constitution. So far
the history of America has borne out the words often attributed
to Dr. Martin Luther King, “The arc of the moral universe is
long, but it bends toward justice.”
But battles remain to be fought - the mass incarceration of
young black men comes to mind. Realizing the promise of
equality, more fully transforming American democracy, will
require many more Americans with the courage and moral
conviction of Ruby Bridges.
Gender Discrimination and the 14th Amendment:
Equality Under the Law
by Judge Michele Christiansen, Utah Court o f Appeals

At the heart o f the United States
Constitution's guarantee o f equal
protection lies the simple command that
the government must treat all citizens
as competent and worthy individuals,
not simply as a stereotype.
- Justice Sandra Day O'Connor
I t was only 145 years ago, in 1873, that the United States
Supreme Court issued its infamous decision rejecting female
lawyer Myra BradwelTs bid for a law license. Bradwell sought
to
challenge the Illinois law that barred women from obtaining law
licenses and argued that her right to a livelihood was protected
by the United States Constitution. The Court observed that the
“difference in the respective spheres and destinies of man and
11
Views from the Bench
Vi
ew
s f
rom
th
e B
en
ch woman” prevented women like Bradwell from assuming an

equal place beside men in the workforce because “ [t] he
natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of
civil
life." Bradwell v. State, 16 Wall. 130,141 (1873). The Court’s
decision treated Bradwell not as an equal citizen under the law,
but instead limited Bradwell’s ambitions to practice law
alongside her husband due to a characteristic over which she
had no control - her sex. Bradwell’s challenge to the Illinois
law was based on the Fourteenth Amendment to the United
States Constitution. Just five years before the decision in
Bradwell’s case, on July 28,1868, the Fourteenth
Amendment to the United States Constitution was
ratified by the required three-fourths of the
states. The Equal Protection Clause of that
amendment provides that, “no State sh a ll...
deny to any person within its jurisdiction the
equal protection of the laws.” Thus, the
plain language of the Equal Protection
Clause imposes a duty on state actors to treat
similarly-situated individuals alike. However,
using equal protection constitutional principles
to protect against gender discrimination has been a
relatively recent idea, and the recognition of American
women as equal citizens and possessors of constitutionally-
protected rights has only slowly evolved over the course of our
country’s history.
For many years, the prevailing notion was that state and federal
governments could withhold from women the same
opportunities
afforded to men. As recognized by the Supreme Court in
Frontiero v. Richardson, these notions contributed to our
nation’s “long and unfortunate history of sex discrimination.” It
was not until the middle of the twentieth century that the
Supreme Court began to apply equal protection principles to

strike down government practices of racial discrimination and
became receptive to arguments about the applicability of equal
protection principles to gender discrimination. While duly
enacted legislation is generally presumed valid and federal
courts are not meant to be agents of social change, the
Constitution requires courts to consider state action that makes
suspect distinctions between similarly-situated groups of people
with varying levels of skepticism.
The level of scrutiny applied to an equal protection claim is
relevant because it often affects the outcome of the case; the
more rigorous the scrutiny of the governmental action, the
more likely that state action is to be ruled unconstitutional.
Courts traditionally analyze alleged equal protection violations
using one of the following three standards of review: strict
scrutiny, intermediate scrutiny, or rational basis review. Since
1971, the Supreme Court has held that laws or government
policies that draw distinctions on the basis of gender are subject
to heightened intermediate judicial scrutiny.
Of course, this does not mean that no law can discriminate or
make classifications, only that a law cannot
discriminate on an improper basis. To be sure,
the sexes are not alike in every regard and the
Supreme Court has upheld differential
treatment of men and women based on
relevant sex-specific biological differences,
‘“inherent differences’ between men and
w om en.. .remain cause for celebration,” U.S.
v. Virginia, 518 U.S. 515, 533 (1996). Thus,
the Equal Protection Clause cannot and should
not be read in a way that requires absolute equality

for everyone, but rather can be legitimately applied in a
way to provide both genders freedom from discrimination, as
one’s gender bears no relation to one’s ability to perform or
contribute to society. As Justice Ginsburg stated in U.S. v.
Virginia, the Court has repeatedly recognized that equal
protection requires that both genders have “equal opportunity
to aspire, achieve, participate in and contribute to society based
on their individual talents and capacities.” Id. at 516. As equal
members of society, women’s contribution to our communities,
schools, businesses, and courts can be accomplished through
the application of the same qualities that male citizens have
undertaken for years - intelligence, hard work, patience, and a
commitment to integrity, honesty and fair dealing - and
shouldn't be limited because of stereotypical notions.
Fortunately, the Supreme Court has recognized that general-
izations about women no longer justify denying them equal
opportunities. Myra Bradwell would be proud.
12
A Prim er f o r Young People - Due Process in Juvenile Court
by Judge Michael F. Leavitt, Fifth District Juvenile Court
T h e clock on the c a r’s dashboard reads
“ 12:17” as you pull into the driveway.
Once again, you have violated your twelve
o'clock curfew. “Dad is gonna be so
m ad,” you m utter as you scram ble out of
the car to get inside. As you open the front
door, your father is seated in his easy
chair with reading glasses perched on the
end of his nose and book in hand.

“You are late,” he says. “Again.”
“But, Dad, 1 can e x p la in ...”
He cuts you off. “Not another word. You’re grounded for a
week.”
And just like that, in a m atter of seconds, you were charged,
tried, and sentenced for failure to obey curfew without a chance
to even state your case.
When young people are charged with allegations that would be
crim es if committed by adults, they often have to come to
juvenile court to answer to those allegations. Many assum e that
their encounter with the juvenile court judge will be just like
dad in the middle of the night. Not so. While parents
(unfortunately!) are not bound to the due process provisions of
the United States and Utah Constitutions, juvenile courts are.
That m eans that when young people attend juvenile court, they
have the right to have a judge hear them out, to explain
themselves, and even require a prosecutor to prove beyond a
reasonable doubt that they violated the law.
It has not always been that way. Before 1967, juvenile courts
were extremely informal. To focus on rehabilitation, rath er
than
punishm ent, the prevailing belief was that informality allowed
courts the flexibility to find out about a child and determine
how to best send them down a law-abiding path to a successful
adulthood. As such, proponents asserted that this did not
necessarily require a formal trial, notice of possible
consequences,
o r the right of the juvenile to talk to an attorney.
Good intentions, but the informality often led to unfair results.

This becam e evident in the United States Supreme Court
landm ark decision, In re Gault. Back in 1964, Gerald Gault was
a fifteen-vear-old boy living in Arizona who was arrested, along
with a buddy, for making an “obscene" phone call to a neighbor.
At the time he was picked up, Gerald’s parents were at w ork
and
no one attempted to notify them of Iris arrest. He was taken to
youth detention where his mother, after her own investigation as
to his whereabouts, discovered him later that evening.
The next afternoon, Gerald, his m other and b rother appeared
before the judge in his cham bers. Only the judge and two
probation officers were present. Mrs. Cook, the recipient of the
infamous phone call, was not. The court placed no one under
oath; n o r did the court reco rd o r transcribe the proceeding.
According to later testimony from those present, the judge
questioned Gerald about the call. The judge claimed Gerald
admitted to making it, while his m other later testified that he
only admitted to dialing a phone num ber and handing the
phone
to his friend. After the informal discussion, the judge decided to
"think about it” and sent Gerald back to detention w here he
rem ained for five days. Upon release, he was allowed to return
home, but was informed to return to court a few days later.
At the next hearing, the judge h eard further statements about
whether Gerald was involved in making the call. There
remained
a disagreement about what he actually said o r did. In spite of
this, the judge sentenced Gerald to be removed from his home
and placed in the State Industrial School until he turned
twenty-one years old.
At no point was Gerald given the right to talk to an attorney, the
right to hear evidence from his accuser o r ask h er questions, or

even have p rio r notice that he might be removed from his
p arents’ custody for the rem ainder of his childhood.
Ultimately, Gerald’s case m ade it all the way to the United
States
Supreme Court. There, the Court held that “due process has a
role
to play” in juvenile courts. It held that children have the right to
notice of the allegations in advance of a hearing o r trial with an
opportunity to prepare. They have the right to have an attorney
present and the right to confront witnesses and cross-exam ine
them, and they have the right not to testify against themselves.
13
Vie
ws
fro
m
the
B
en
ch In the spirit of Gault, Utah law includes additional requirem
ents
to en sure that juveniles enjoy fundamental fairness in
delinquency
cases. They have the right to call their p arents an d an attorney
immediately if they are arrested. They have the right to have

their p arents p resen t at all proceedings (even if you do not
want
them th e re ). Juvenile courts a re req u ired to release
juveniles
being held in detention to their p arents unless specific findings
are m ade justifying continued detention. In fact, just this year,
the Utah Legislature am ended the Juvenile Court Act,
establishing
additional legal req uirem ents for juvenile courts to co nsid er
before placing o r keeping young people in detention o r
removing
them from their p aren ts’ custody.
Ultimately, the law cannot req u ire mom o r dad to listen to
your
explanation for being late, w h ether it be a flat tire, falling
asleep
at your friend’s house, o r your cellphone battery dying. But if
you find yourself in juvenile court, the Fourteenth Amendment
req uires your juvenile co urt judge to listen an d co nsid er the
excuse. Ju st m ake it a good one.
Lady Justice and the Equal Protection Clause
by Judge Paul C. Farr, Third District Justice Court
O ne evening while eating d in ner with
my family, I was su rp rised w hen one of my
children inform ed m e that I was “the
m an.” This com m ent was not in the “you
a re aw esom e” sense of the phrase. Rather,
its connotation was “you rep resen t the
oppressive governm ental system that holds
us dow n.” Oddly enough, I was unaw are
that as a judge, I might be thought of in that way. I had

previously
h eard of "the m an,” although I h ad never personally met
him.
As I reflected for a bit, I recalled in my youth that I too had
occasionally manifest som e resentm ent for “the m an.” Here I
was, sitting in my kitchen, realizing that I had becom e “the m
an.”
I graduated from high school in a small Utah farming
community, attended local colleges, an d graduated from law
school (the first in my family to do so ). In 2010, after ten years
of law practice, I was appointed to the judiciary as a justice
co urt judge. Ju st as h app ens to the many o th er judges, I put
on
the black rob e and becam e a representative of the judicial
system o r as my c hildren p ut it, “the m an .”
Judicial systems are often represented by a statue known as
Lady
Justice. In one h an d Lady Justice holds a scale, representing h
er
duty to weigh the m erits of each side of a case in o rd e r to
reach
a decision. In the o th er hand she holds a sword, representing
h er authority to act o r im pose judgm ent. Perhaps Lady Ju
stice’s
m ost im portant feature is a blindfold, which rep resen ts the
concept that justice is blind. Lady Justice weighs the m erits of
a
case and im poses judgm ent that is blind to the individual
characteristics of the parties before her.
Consider this key language of the Fourteenth Amendment to the
U.S. Constitution: “n o r shall any s ta te ... deny to any p erson
within its jurisdiction the equal protection of the laws.” In both

the creation an d enforcem ent of the law all people a re to be
treated equal, without regard to individual characteristics.
Generally, a legislature may n ot create a law that treats
different
categories of people differently. For example, a law that sets a
speed limit at 50 m ph for right-handed individuals but 70 mph
for those that are left-handed would violate the Equal
Protection
Clause. Similarly, a judge may not apply the law differently to
different categories of people. For example, w hen on trial for
theft if a judge afforded all right-handed defendants the right to
be rep resen ted by an attorney but denied that right to those
that
w ere left-handed, that would violate the Equal Protection
Clause
(as well as o th er constitutional rights).
These im portant rights are applied in Utah courts on a daily
basis.
In 2016 there w ere 6 46,488 cases filed in Utah’s different
courts. As indicated below, these cases w ere p re sid ed over
by
244 judges, magistrates and com m issioners (all grouped below
as judges, including those that serve part-tim e).
• Utah Suprem e Court: 5 judges, 585 cases
14
• Utah Court of Appeals: 7 judges, 946 cases
• Utah District Courts: 83 judges, 171,620 cases
• Utah Juvenile Courts: 33 judges, 30,434 cases

• Utah Justice Courts: 98 judges, 428,809 cases
• Utah Federal District Court: 18 judges (including 3
bankruptcy judges and 6 senior judges), 2,443 civil/criminal
cases and 11,651 bankruptcy cases
Each of these courts and judges play different roles. However,
all are responsible for ensuring equal protection of the laws for
all individuals appearing before them. It is critical to the
public’s confidence in our judicial system that judges always
“wear” Lady Justice’s blindfold so that justice may truly be
blind
and that all may receive equal protection under the law.
It is an honor to serve the people of Utah as a judge. It is my
goal, as I am sure it is the goal of most judges, to apply the law
as written by the legislature (the people’s representatives), to
apply the law equally, consistently and fairly, and to treat
everyone that comes into court with the professionalism and
respect due even' member of our community. In doing my part,
I envision the day when my children view me not as "the man,”
but as the blindfolded lady with a sword!
Fighting fo r justice to fa irly compensate those
injured by wrongful conduct o f others
D E W S N U P // K IN G / OLSEN // W O REL / HAVAS /
M O R TEN SEN
dkowlaw.com ■ 801.533.0400 or 8 00.40 4.8520
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WHAT'S DIFFERENT ABOUT THE THIRTEENTH
AMENDMENT,
AND WHY DOES IT MATTER?
JAMES GRAY POPE*
When I entered law school back in 1980, the Thirteenth Amend-
ment beckoned as the noblest and most fascinating of all
constitu-
tional provisions. Most spectacularly, it had singlehandedly
trans-
formed the Constitution of the United States from that of a slave
nation to that of a modern republic' From my point of view as a
re-
cently laid-off ship welder, it also mattered that the Thirteenth
Amendment is the only currently operative constitutional
provision
that addresses the law of labor, having displaced the fugitive
slave
("held to Service or Labour") clause.^ Moreover, the Thirteenth
Amendment stands out as the sole rights guarantee that protects
not

only against government, but also against private concentrations
of
power, including multi-national corporations.' Yet, to put it
mildly,
others did not share my fascination. In fact, many considered it
a
waste of time to converse about an Amendment that, in their
view,
had been conclusively consigned to the dustbin of history. They
agreed with me that tihe Amendment was unique but, to my
frustra-
tion, they found it to be uniquely suited for narrow
interpretation.
Why? We might speculate that some people oppose broad inter-
pretation because they fear the likely substantive outcomes. The
same
f"eatures that attracted a laid-off ship welder might well repel
others,
and for similarly result-oriented reasons. Over time, however, I
have
come to believe that at least part of the explanation may be
found in
the distinctively difficult interpretive questions posed by the
Amend-
ment. Part I of this Essay discusses four unique features of the
Gopyright © 2011 by James Gray Pope.
* Professor of Law & Sidney Reitman Scholar, Rutgers
University School of
Newark.
1. On the centrality of slavery to the original United States
Gonstitution, iee ALFRED
W. BLUMROSEN & RUTH G. BLUMROSEN, SLAVE

NATION: H O W SLAVERY UNITED THE
GoLONiES & SPARKED THE AMERICAN REVOLUTION
171-202 (2006); DAVID
WALDSTREICHER, SLAVERY'S GONSTITUTION: FROM
REVOLUTION TO RATIFICATION 3-20
(2009).
2. On the labor dimension of the Amendment, see Lea S.
VanderVelde, The Labor Vi-
sion ofthe Thirteenth Amendment, 138 U. PA. L. REV. 437
(1989).
3. The Givil Rights Gases, 109 U.S. 3, 20 (1883); United States
v. Kozminski, 487 U.S.
931,932(1988).
189
190 MARYLAND LAW REVIEW [Vol. 71:189
Amendment that give rise to interpretive questions of unfamiliar
kinds. The difficulty of these questions may help to account for
why,
approaching the sesquicentennial of the Amendment, courts
have yet
to make any serious attempt at answering them, and the Amend-
ment—in spite of its potentially broad scope—remains limited
to a
few, narrowly circumscribed doctrines." To put the point
positively,
scholars may have a crucial role to play in puzzling out these
unfami-

liar and difficult questions, so as to unblock the development of
Thir-
teenth Amendment jurisprudence. Specifically, Part I suggests
that
the Amendment is: (1) the only constitutional provision that
man-
dates the official identification and protection of unenumerated
rights; (2) the only constitutional provision that calls for the
devel-
opment of rights protections based on the dynamics of a
nongovern-
mental system (the First Amendment "system of freedom of
expres-
sion" notwithstanding); (3) the only constitutional provision
that
directiy commands the government to undertake a project of
social
transformation; and (4) the only constitutional rights guarantee
that
is generally acknowledged to attack relations of subjugation and
ex-
ploitation.
Part II of the Essay considers three purportedly unique features
of the Amendment that have been invoked as reasons to limit its
scope and relevance. Specifically, the Amendment has been
said: (1)
to be uniquely unambiguous, and therefore unsuited for
interpreta-
tion; (2) to require uniquely bright-line or "absolute" doctrines;
and
(3) to be uniquely limited by its historical context or purposes.
Upon
examination, however, these claims appear misplaced.
1. FOUR UNIQUE FEATURES OF THE THIRTEENTH

AMENDMENT
1. The Thirteenth Amendment is the only constitutional
provision that
clearly mandates the official identification and enforcement of
unenumerated
rights. From the earliest congressional debates to the most
recent
court decisions, nobody has doubted that Section 1 of the
Thirteenth
Amendment guarantees certain fundamental rights.^ Nor has it
been
4. On the potentially broad scope of the Amendment, iee Akhil
Reed Amar, Remember
the Thirteenth, 10 CONST. COMMENT. 403 (1993). On its
currentiy truncated scope, iee Al-
e x a n d e r Tsesis, The Thirteenth Amendment's Revolutionary
Aims, in THE PROMISES OF LiBERTi':
T H E HISTORY AND CONTEMPORARY RELEVANCE OF
THE THIRTEENTH AMENDMENT 1, 13-14
(Alexander Tsesis ed., 2010) [hereinafter THE PROMISES OF
LIBERTY] .
5. See, e.g, CONG. GLOBE, 38th Cong., lstSess. 2990 (1864)
(Rep. IngersoU) (explain-
ing that the Thirteenth Amendment was created to protect
"certain inalienable rights" in-
cluding the "right to till the soil, to earn his bread by the sweat
of his brow, and enjoy the
rewards of his own labor"); The Civil Rights Cases, 109 U.S. at
22; Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 441-44 (1968); Tsesis, THE PROMISES OF
LIBERTY, supra note 4, at 10-12;

2011] WHAT'S DIFFERENT ABOUT THE 13TH
AMENDMENT 191
questioned either that Section 1 authorizes courts to enforce
those
rights or that Section 2 empowers Congress to do the same.''
Yet, the
Amendment mentions no right. Instead, courts and Congress are
left
with the task of determining what rights are necessary to negate
the
prohibited conditions of slavery and involuntary servitude. By
con-
trast, the Ninth Amendment declares the existence of
unenumerated
rights, but provides no criteria for recognizing them and says
nothing
about who is to identify or enforce them.^
This feature would not be remarkable if the only rights guaran-
teed were the "right to be free from slavery" and the "right to be
free
from involuntary servitude."* Immediately following
ratification,
southern states adopted that position. They enacted "Black
Codes"
that enforced labor discipline on freed people using vagrancy
laws,
restrictions on mobility, and a variety of other measures that
differed
significantiy from slavery but also infringed basic freedoms like
the
right to change employers. The great majority of northerners,
how-
ever, reacted to the Black Codes vwth outrage. While

southerners
held that the Amendment did nothing more than abolish the
specific
conditions of slavery and involuntary servitude, northerners
assumed
"that when the positive law of slavery fell away, the former
slave was
left with a broad panoply of basic civil rights."^ Under
authority of
the Thirteenth Amendment, Congress prompdy enacted this
view in-
to law. The Civil Rights Act of 1866 guaranteed a set of rights
that ex-
tended far beyond those necessary to negate a condition of
slavery or
involuntary servitude (narrowly defined as forced labor),
including
"the same r i g h t . . . as is enjoyed by white citizens" to "make
and en-
force contracts, to sue, be parties, and give evidence, inherit,
pur-
chase, lease, sell, hold, and convey real and personal
property."'" The
Peonage Act of 1867 prohibited "voluntary" as well as
involuntary
peonage without any racial referent."
MICHAEL VORENBERG, FINAL FREEDOM: T H E CIVIL
WAR, THE ABOLITION OE SLAVERY, AND
THE THIRTEENTH AMENDMENT 235 (2001 ) ; VanderVelde,
supra note 2, at 443-504.
6. Secdon 1 is self-enforcing. The Civil Rights Cases, 109 U.S.
at 20, 23. Secdon 2 pro-
vides: "Congress shall have power to enforce this árdele by

appropriate legislation." U.S.
CONST, amend. XIII.
7. The Amendment reads in full: "The enumeradon in the
Consdtution, of certain
rights, shall not be construed to deny or disparage others
retained by the people." U.S.
CONST, amend. IX.
8. Guam Soc'y of Obstetricians & Gynecologists v. Ada, 100
F.3d 691, 700 (9th Cir.
1996); United States v. Kozminski, 487 U.S. 931, 934 (1988).
9. William M. Wiecek, Emancipation and Civic Status: The
American Experience, 1865-
1915, in T H E PROMISES OF LIBERTY, supra note 4, at
78,83.
10. CivilRightsActof 1866, ch. 31, § 1,14 Stat 27.
11. Peonage Act of 1867, ch. 187, § 1, 14 Stat 546.
Today, Thirteenth Amendment rights claims generally fall into
one of two categories: rights to be free from certain forms of
race dis-
crimination, conceptualized as "badges and incidents of
slavery," and
rights of labor freedom, analyzed under the involuntary
servitude
clause.'^ Scholars have proposed standards for assessing
particular
rights claims in both categories, but—reflecting the general
underde-

velopment of Thirteenth Amendment doctrine—no standard has
been clearly articulated or consistentiy applied by the courts.'*
The
choice of such a standard might be facilitated by taking into
account
the following additional features of the Amendment.
2. The Thirteenth Amendment is the only constitutional
provision that
calls for the development of rights protections based on the
dynamics of a non-
governmental system. There is a natural tendency to interpret
broad or
ambiguous rights guarantees in relation to their functions in the
con-
stitutional system of govemment. Eor example, the Equal
Protection
Clause has been read to establish the principle of one-person,
one-
vote on the ground that the "right to vote freely for the
candidate of
one's choice is of the essence of a democratic society, and any
restric-
tions on that right strike at the heart of representative
government."'"
But judges and legal scholars are also drawn to engage in
systemic in-
terpretation outside the governmental context. Consider, for
exam-
ple, the Eirst Amendment's Eree Speech Clause. Thomas
Emerson
famously conceptualized free speech rights as components of a
system
of freedom of expression designed not only to facilitate
political dis-
cussion, but also to promote individual self-realization and the

search
for truth. Emerson's book. The System of Freedom of
Expression, has been
12. In cases involving race discrimination, the question has
hinged on whether the
particular type of race discrimination (for example, in the sale
or rental of housing) con-
stitutes a "badge or incident" of slavery. See, e.g., Jones v.
Alfred H. Mayer Co., 392 U.S.
409, 440-41 (1968). In cases involving race-neutral
infringements of the freedom of labor,
on the other hand, the issue usually centers on the extent and
nature of employer control.
See, e.g, Kozminski, 487 U.S. at 948; Pollock v. Williams, 322
U.S. 4, 18 (1944).
13. William M. Carter, Jr., Race, Rights, and the Thirteenth
Amendment: Defining the Badges
and Incidents of Slavery, 40 U.C. DAVIS L. REV. 1311, 1313-
14, 1320, 1366 (2007) (noting the
absence of any standard for identifying badges or incidents of
slavery and proposing that
the determination should hinge on "whether the identity of the
victim and the nature of
the injury demonstrate a concrete link to the system of chattel
slavery"); James Gray Pope,
Contract, Race, and Freedom of Labor in the Constitutional Law
of "Involuntary Servitude," 119
YALE LJ. 1474, 1478-79 (2010) (noting the absence of any
standard for assessing labor
rights claims and arguing that the Court should adopt as a
general standard the approach
used in Pollock, 322 U.S. at 18, namely that a claimed labor
right is protected under the
Amendment if it is necessary to provide workers with the

"power below" and employers the
"incentive above" to prevent "a harsh overlordship or
unwholesome conditions of work").
14. Reynolds v. Sims, 337 U.S. 533, 555 (1964); JOHN HART
ELY, DEMOCRACY AND
DISTRUST: A THEORY OF JUDICIAL REVIEW 116-18
(1980).
AMENDMENT 193
cited in no fewer than twenty-two Supreme Court opinions.'^
The
Court has also deployed a more pardcularized systemic model of
free
speech, the "marketplace of ideas," which is said to be "open"
and
"uninhibited."'*^ But the text of the First Amendment, which
states
simply that "Congress shall make no law . . . abridging the
freedom of
speech," provides no apparent sancdon for either Congress or
the
courts to design and insdtute a free speech system.
By contrast, the text of the Thirteenth Amendment expressly
mandates a systemic approach. Slavery and involuntary
servitude are
not just things that happen to individuals; they are systems of
labor
control. During the congressional debates, proponents and oppo-
nents of the Amendment spoke of "a conflict between two
systems; a

controversy between right and wrong," of changing "their
system of
labor from compulsory to voluntary," of choosing between
slavery, on
the one hand, and "free insdtudons and free labor" on the other,
and
of supplandng slavery with the "system of free labor."" In this
view,
the abolidon of slavery and involuntary servitude necessarily
entailed
the establishment of a free labor system. In Pollock v. Williams,
the Su-
preme Court confirmed that one "undoubted aim of the
Thirteenth
Amendment. . . was not merely to end slavery but to maintain a
sys-
tem of completely free and voluntary labor throughout the
United
States."'* It would appear, then, that the Thirteenth Amendment
af-
firmadvely commands both Congress and the courts to ascertain
what
rights are necessary to ensure the permanent exdncdon of the
slave
labor system and the ongoing operation of a free labor system.
Only once, however, has the Supreme Court provided a glimpse
into the nature of this system. In Pollock, the Court struck down
a law
that restricted the right to quit work and thus imposed "forced
la-
bor."'" But the Court's reasoning, which centered on the
operation
of the "general basic system of free labor," swept more broadly.
"[I]n
general," wrote Jusdce Robert Jackson, "the defense against

oppres-
15. THOMAS I. EMERSON, T H E SYSTEM OF FREEDOM OF
EXPRESSION (1971); Lexis
search of Supreme Court cases for "System of Freedom of
Expression" within the same
sentence as "Emerson," conducted Oct 6, 2011.
16. Citizens United v. FEC, 130 S. Ct 876, 896, 906 (2010)
(quoting Virginia v. Hicks,
539 U.S. 113, 119 (2003) & N.Y. State Bd. of Elections v.
Lopez Torres, 552 U.S. 196, 208
(2008)).
17. CONG. GLOBE, 38th Cong., 1st Sess. 2615 (1864) (Rep.
Morris); id. at 1440 (Sen.
Harian); id. at 2944 (Rep. Higby); id. at 2983 (Rep. Mallory);
see also id. at 2685 (Rep. Kel-
Iey asserting that the Amendment would "establish freedom as a
permanent institution,
and make it universal").
18. 322U.S. 4, 17(1944).
19. Id. at 17-18.
sive hours, pay, working conditions, or treatment is the right to
change employers. When the master can compel and the laborer
cannot escape the obligation to go on, there is no power below
to re-
dress and no incentive above to relieve a harsh overlordship or
un-

wholesome conditions of work."^" How does "the right to
change
employers" generate this "power below" and "incentive above"?
Jus-
tice Jackson did not explain, but the logic seems clear. As long
as
workers effectively enjoy that right, then employers that exert
harsh
domination and impose unwholesome conditions should be
punished
with quits, while those who offer better terms should be
rewarded
with loyalty. But what if the right to change employers by itself
failed
to produce this result? What if, for example, employers formed
a car-
tel and refused to hire any workers who would not submit to
starva-
tion wages? Then, by the logic of the systemic approach,
workers
would also need the right to set the wages for which they were
willing
to work. '̂ Pollock thus suggests, as Archibald Cox pointed out
long
ago, that the standard for determining whether a given labor
right is
protected by the Thirteenth Amendment hinges on whether it is
ne-
cessary to provide workers with the "power below" and
employers the
"incentive above" to prevent "a harsh overlordship or
unwholesome
conditions of work."̂ ^ Since Pollock, however, the Court has
refrained
from systemic analysis, leaving this as another area awaiting
future de-

velopment.
3. Alone among constitutional provisions, the Thirteenth
Amendment
directly commands the govemment to undertake a project of
social transforma-
tion. Many newly enacted laws change social practice, and some
do so
in dramatic and far-reaching ways. The Nineteenth Amendment,
for
example, instandy conferred voting rights on millions of
women. And
that shift, in turn, altered the field of interpretation on other
issues
involving women's rights: Could the same Constitution that
welcomed
women into the polity as full voting members simultaneously
permit
legislatures to treat them as inferiors in other realms? Some
courts
thought not, and read the Amendment "to have implications for
mat-
20. Id. at 18. On the right to change employers, see Shaw v.
Fisher, 102 S.E. 325 (S.G.
1920). In Shaw, the South Garolina Supreme Gourt held that the
Thirteenth Amendment
had "annulled" the tort of hiring a laborer who was under a
contractual obligation to work
for another, though there was no legal or physical restraint on
the laborer's right to quit,
and no finding that he could not have worked with family
members, found some other
means of support, or departed the state. Id. at 326, 327. At
stake, evidently, was the labor-
er's right to participate in the free labor system.

21. For a more detailed discussion of this point, see Pope,
supranote 13, at 1533-36.
22. Pollock, 322 U.S. at 18; Archibald Gox, Strikes, Picketing
and the Constitution, 4 VAND.
L. REV. 574, 576-77(1951).
AMENDMENT 195
ters other than voting, including matters concerning the law of
mar-
riage."^^ We might say, then, that the Nineteenth Amendment
worked a transformation by declaring a new right, directing the
gov-
ernment to enforce it, and causing ripple effects beyond the
scope of
the newly declared right The Thirteenth Amendment issued a
dif-
ferent kind of transformative command, directiy banning the
social
practices of slavery and involuntary servitude. A women's rights
equivalent might have proclaimed something like "Patriarchy
shall
not exist within the United States."
This type of command commits the government to root out the
prohibited practice wherever it appears and to enact whatever
meas-
ures might be necessary to prevent it from recurring. The
Thirteenth
Amendment imposes this difficult and continuing duty on both
Con-

gress (by virtue of Section 2) and the courts (because the
Amendment
is self-enforcing). With regard to an enumerated right, like the
right
of women to vote or the right to speak freely, courts and
Congress
might reasonably consider their job done once individuals
possess an
effective legal entitiement to exercise the right. But Thirteenth
Amendment rights cannot be considered successful unless they
are
actually exercised to ensure that "[n] either slavery nor
involuntary
servitude . . . shall exist. . . ."^^ In light of events since 1865,
this pro-
nunciamento recalls to mind the tale of Cnut the Great, who
report-
edly set up his throne on a beach and commanded that the tide
not
rise to wet his robes. As illustrated by the Black Codes of the
late
1860s, no sooner has one form of servitude been eliminated than
others will emerge to replace it. Despite the Peonage Act of
1867,
backed up by broad Supreme Court interpretations, old-
fashioned
debt peonage remained common in southern agriculture through
the
1960s.̂ '̂ Recent decades have seen the emergence of new forms
of
slavery, grouped under the label of "human trafficking" or the
"new
slavery."^^ By any definition, involuntary servitude continues
to exist
in the United States today. ̂ ^ This poses an ongoing challenge
for

2 3 . Reva B. Siegel, She the People: The Nineteenth
Amendment, Sex Equality, Federalism, and
the Family, 115 HARV. L. REV. 947, 953 (2002).
24. U.S. C O N S T , a m e n d . XIII (emphasis a d d e d ) .
25. See PETE DANIEL, THE SHADOW OF SLAVERY:
PEONAGE IN THE SOUTH, 1901-1969,
170-92 (1990); DANIELA. NOVAK, THE WHEEL OF
SERVITUDE: B L A G K F O R G E D LABOR AFTER
SLAVERY 4 6 - 6 2 (1978).
2 6 . SEE, E.G., KEVIN BALES, DISPOSABLE PEOPLE: NEW
SLAVERY IN THE GLOBAL ECONOMY
(rev. ed. 2004) (1999).
27. See KEVIN BALES & RON SOODALTER, THE SLAVE
NEXT DOOR: HUMAN TRAFFICKING
AND SLAVERY IN A M E R I C A T O D A Y (2009).
courts. Congress, and all Americans who take seriously fidelity
to the
Constitution.
4. The Thirteenth Amendment is the only constitutional rights
guarantee
that is generally acknowledged to attack relations of
subjugation and exploita-
tion. As Abraham Lincoln pointed out in 1864, the concept of
"liber-
ty" could support either effective freedom for all or the

"liberty" to
dominate and exploit others: "With some the word liberty may
mean
for each man to do as he pleases with himself, and the product
of his
labor; while with others the same word may mean for some men
to do
as they please with other men, and the product of other men's
la-
bor. "̂ ^ Similarly, the phrase "equal protection of the laws" has
been
read to require "equal" protection of dominant and subordinate
ra-
cially defined groups, thereby blocking targeted affirmative
action on
behalf of the latter with the effect, arguably, of preserving
white racial
privilege.^^ By contrast, the Thirteenth Amendment direcdy
attacks
relations of domination and exploitation. "Slavery" and
"servitude"
involve, by definition, relations between masters and
subordinates.
Slavery is the "state of entire subjection of one person to the
will of
another," while servitude is the "state of voluntary or
involuntary ser-
vice to a master."'" Admittedly, the text leaves a loophole; it
could be
read to permit a worker "voluntarily" to enter into a contract for
servi-
tude that would then become involuntary by virtue of the
enforce-
ment mechanisms available to the employer. The Supreme Court
re-
jected that approach a century ago, however, reasoning that the

Amendment was intended "to render impossible any state of
bon-
dage; to make labor free, by prohibiting that control by which
the
personal service of one man is disposed of or coerced for
another's
28. Tsesis, supra note 4, at 9 (quoting Abraham Lincoln, At the
Fair in Baldmore, in
Aid of the Sanitary Commission (April 18, 1864), in
ABRAHAM LINCOLN, THE MARTYR'S
MONUMENT 252 (The American News Co. ed., 1865)).
29. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 201,
226 (1995) (holding that
strict scrutiny applies to benign as well as invidious racial
classificadons because "it may not
always be clear that a so-called preference is in fact benign").
This doctrine provides white
people with an effecdve consdtudonal right to enjoy the benefits
of past societal discrimi-
nadon as well as present discriminadon that cannot be proven to
be intendonal. See Der-
rick Bell, Xerces and the Affirmative Action Myth, 57 GEO.
WASH. L. REV. 1595, 1609 (1989);
Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV.
1707, 1766-77 (1993).
30. NOAH WEBSTER, AN AMERICAN DICTIONARY OF
THE ENGLISH LANGUAGE 1241,1207
(1865); see also Hodges v. United States, 203 U.S. 1, 17 (1906)
(defining servitude as "'the
state of voluntary or compulsory subjecdon to a master'");
JOSEPH E. WORCESTER, A
DICTIONARY OF THE ENGLISH LANGUAGE 1314,1352
(1860) (defining slavery as "[t]he state

of absolute subjection to the will of another" while defining
servitude as "[t]he state or
condition of a servant, or more commonly of a slave; slavery;
bondage").
AMENDMENT 197
benefit which is the essence of involuntary servitude."*' The
concept
of "badges and incidents of slavery" incorporates this focus on
domi-
nation. The Amendment is concerned not with the irrationality
or
unfairness of race-based decisionmaking in the abstract, but
with its
function as a badge of slavery. Thus, what made housing
discrimina-
tion objectionable in fones v. Alfred H. Mayer Co. was its
functional
equivalence to the Black Codes in securing "the exclusion of
Negroes
from white communities," in "herd[ing them] into ghettos," and
in
depriving them of the important right to buy property based on
"the
color of their skin."*^
The question is thus raised: What kinds of domination and ex-
ploitation fall within the scope of the Amendment? Scholars
have
proposed a wide variety of applications including, for example,
child
abuse, spouse abuse, forced childbearing, and the denial of

basic
rights to immigrant workers.** These claims, in turn, pose the
doc-
trinal question: By what criteria should such claims be
addressed?
The current limitation to intentional race discrimination and
coerced
labor appears arbitrary in light of the Amendment's text, which
is not
restricted to forms of slavery or servitude based on race or
targeted at
productive labor. Scholars have proposed a wide variety of
criteria in
the course of advocating various types of claims, but we have
yet to
conduct a sustained discussion of the question.
II. THREE PURPORTEDLY UNIQUE EEATURES OF THE
AMENDMENT
THAT MAY N O T BE
1. The Thirteenth Amendment does not appear to be uniquely
unambi-
guous or unsuited for interpretation. In the Slaughter-House
Cases, a major-
ity of the Supreme Court signed on to the view that the words of
the
Thirteenth Amendment "seem hardly to admit of construction,
so vi-
gorous is their expression."*" Since I began studying the
Amendment
three decades ago, many people have told me that I was wasting
my
31. Bailey V. Alabama, 219 U.S. 219, 241 (1911). For a detailed

discussion of the cases,
see Pope, supra note 13, at 1481-91.
32. 392 U.S. 409, 441 (1968); iee also Rebecca E. Zietlow, Free
at Last! Anti-Subordination
and the Thirteenth Amendment, 90 B.U. L. REV. 255, 284
(2010).
33. See, e.g., Akhil Reed Amar & Daniel Widawsky, Child
Abuse as Slavery: A Thirteenth
Amendment Response to DeShaney, 105 HARV. L. REV. 1359
(1992); Joyce E. McConnell,
Beyond Metaphor: Battered Women, Involuntary Servitude, and
the Thirteenth Amendment, 4 YALE
J. L. & FEMINISM 207 (1992); Andrew Koppelman, Forced
Labor Revisited: The Thirteenth
Amendment and Abortion, in THE PROMISES OE LIBERTY,
supra note 4, at 226; Maria Ontive-
ros. Immigrant Workers and the Thirteenth Amendment, in THE
PROMISES OF LIBERTY, supra
note 4, at 279.
34. 83 U.S. (16 Wall.) 36, 69 (1873).
dme because of this purportedly undeniable fact. Upon
examinadon,
however, the text of the Amendment appears to raise its full
share of
interpredve quandaries. For example, the quesdon of what
makes ac-
don "involuntary" or coerced has long been a topic of sharp
disputa-

don among philosophers.^* Nor is it obvious what consdtutes
"servi-
tude," a term that has been used to describe reladons ranging
from
ordinary "service" to full-blown "slavery."^^ More broadly, the
inclu-
sion of the phrase "involuntary servitude," in addidon to the
narrower
term "slavery," raises the possibility that the Amendment might
have
been "purposely left to gather meaning from experience" and
that it
might have "created new meanings of freedom even for the
twendeth
and twenty-first centuries."^' Then there is the clause permitdng
sla-
very "as a punishment for crime whereof the party shall have
been du-
ly convicted." Is convict labor truly "a punishment for crime"
when
insdtuted with the economic purpose or effect of removing jobs
from
the free labor system and depressing the "working condidons
and liv-
ing standards" of free workers?** For a final example, the
concept of
badges of slavery raises numerous quesdons ranging from the
validity
of the doctrine itself to various possible applicadons, for
example to
the denial of important rights based on immigradon status.''^
2. The Thirteenth Amendment does not appear to require
uniquely
bright-line or "absolute" doctrines. Beginning with moral
abolidonists like

William Lloyd Garrison, there has been a tendency to view
slavery as a
uniquely horrific evil that is sharply disdnguishable from other,
more
nuanced forms of oppression. Kevin Bales, a leading scholar of
present-day abolidonism, maintains that slavery amounts to the
"theft
35. See, e.g., GERTRUDE EzoRSKY, FREEDOM IN THE
WORKPLACE? 5-14 (2007); ROBERT
NoziCK, ANARCHY, STATE AND UTOPIA 262-64 (1974);
ROBERT J. STEINFELD, COERCION,
CONTRACT, AND FREE LABOR IN THE NINETEENTH
CENTURY 1-26 (2001). For a discussion
of the concept as used in the Thirteenth Amendment, see Pope,
supra note 13, at 1527-36.
36. For a discussion of various definitions, see Pope, supra note
13, at 1503-07.
37. Note, The "New " Thirteenth Amendment: A Preliminary
Analysis, 82 HARV. L. REV. 1294,
1301 (1969); David Brion Davis, Foreword: The Rocky Road to
Freedom: Crucial Barriers to Aboli-
tion in the Antebellum Years, in THE PROMISES OE
LIBERTY, supra note 4, at xi, xxiii.
38. Pollock V. Williams, 322 U.S. 4, 18 (1944) (observing tiiat
die "[r]esulting depres-
sion of working conditions and living standards affects not only
the laborer under the sys-
tem [of forced labor], but every other with whom his labor
comes in competition"). On
convict labor as an economically driven policy with negative
effects on free labor, see Da-
vid M. O'Shinsky, Convict Labor in the Post-Civil War South,

in THE PROMISES OF LIBERTY, su-
pra n o t e 4, at 100, 103-06, 111-15; ALEX LICHTENSTEIN,
TWICE THE WORK OF F R E E LABOR:
T H E P O L I T I C A L E C O N O M Y O F C O N V I C T L
A B O R IN T H E N E W S O U T H ( 1996).
39. George A. Rutherglen, The Badges and Incidents of Slavery
and the Power of Congress to
Enforce the Thirteenth Amendment, in THE PROMISES OF
LIBERTY, supra n o t e 4, at 163, 177;
Maria L. Ontiveros, Immigrant Workers' Rights in a Post-
Hoffman World—Organizing Around the
Thirteenth Amendment, 18 GEO. IMMIGR. L J . 651, 6 7 7 - 7 8
(2004).
AMENDMENT 199
of an entire life" and that it is "more closely related to the
concentra-
tion camp than to questions of bad working conditions.'"'" This
sen-
timent finds jurisprudential expression in the idea that
Thirteenth
Amendment rights should be demarcated by bright-line
doctrines so
that protection can be "absolute" (i.e., not subject to balancing)
with-
in their scope. For example, Archibald Cox acknowledged that
de-
spite purposive arguments of "considerable force" to the
contrary, the
Amendment should protect only rights that could be exercised
by in-

di'viduals acting alone because protection for associational
rights
could not be absolute in view of the compelling public interest
in re-
gulating them.'"
Upon refiection, however, this approach of exclusive absolutism
appears unworkable and ill-advised. No right is truly absolute.
Even
the individual right to cease work, for example, would not
protect a
surgeon who quits during an operation or a bus driver who
abandons
her bus in the middle of a desert. And if the concern is to
prevent the
erosion of core rights by ad hoc balancing, there is nothing to
prevent
the application of hard-edged rules to certain core rights (for
exam-
ple, those that by definition are necessary to negate a condition
of sla-
very or involuntary servitude), while applying balancing tests
ranging
from strict to relatively deferential scrutiny to other rights. This
would seem to accord better with the Amendment's purpose not
sole-
ly to eliminate the prohibited conditions of slavery and
involuntary
servitude, narrowly defined, but to leave in their place a free
labor sys-
tem.*^ Furthermore, and most importantly, an exclusively
absolutist
approach is not likely to be effective. However distinctive the
evil of
slavery might be, it does not follow that its effective
elimination can be

accomplished with a narrow set of absolute rights. Even Kevin
Bales
has argued that various free labor rights, including the right to
form
and join unions, may be essential to the practical elimination of
sla-
very.**
40. BALES, supra note 26, at 7.
41. Gox, supra note 22, at 577, 579.
42. See iM//ra text accompanying notes 18-22.
43. Bales has joined with Ron Soodalter in proposing that the
protections of the Na-
tional Labor Relations Act (which guarantees the rights to
organize and engage in con-
certed activities) be extended to all American agricultural and
domestic workers on the
grounds that "otherwise, as recent history has shovm, they will
continue to be more sus-
ceptible to enslavement than other workers in America" and
that, where free and enslaved
workers labor in close proximity, organized free workers can
provide economical and
highly effective enforcement service. BALES & SOODALTER,
supra note 27, at 263. Building
on the work of Bales, Soodalter, and others, I have suggested
elsewhere that a Thirteenth
Amendment free labor approach to labor and sex trafficking
might usefully supplement
3. The Thirteenth Amendment is not uniquely limited by its

historical
context or purposes. The notion that the Thirteenth Amendment
has
present-day relevance is often met with the objection that it was
enacted to eliminate slavery, and that was accomplished long
ago.
Proponents of this view can point to the Supreme Court's
observation
that the "obvious purpose" of the clause was to "forbid all
shades and
conditions of African slavery" including, for example, long-
term ap-
prenticeships, serfdom, Mexican peonage, and the "Chinese
coolie"
labor system.** Arguments that the Amendment applies to less
egre-
gious forms of labor control are sometimes met by claims that
this
would "demean" the suffering of enslaved Africans.
The fact that the Thirteenth Amendment was enacted to accom-
plish a specific historical purpose does not, however,
differentiate it
from other constitutional rights guarantees. The Free Speech
Clause
of the First Amendment was adopted to outiaw prior restraints
on
speech, for example, and the Equal Protection Clause of the
Four-
teenth to protect against race discrimination in the area of civil
(as
opposed to political and social) rights. Eventually, however, the
Su-
preme Court focused on the broad wording of those provisions
and
approached them as sources of principles and not as freeze-

frame
bans on specific historical practices. As a result, the Free
Speech
Clause now protects against punishment of speech as well as
prior re-
straints, and the Equal Protection Clause against sex as well as
race
discrimination, and against discrimination pertaining to social
and
political as well as civil rights. Furthermore, upon refiection, it
ap-
pears perverse to single out the Thirteenth Amendment for
crabbed,
freeze-frame interpretation on the ground that applying the
usual
methods of interpretation would demean the suffering of
African
slaves. Today, nearly a century-and-a-half after the
Amendment's ra-
tification, workers of color continue to be concentrated in the
most
dangerous, unhealthy, and poorly remunerated sectors of the
econo-
my. Being born with black skin has roughly the same impact on
a
worker's prospects of employment as a felony conviction."^ As
in
1865, workers of color stand to gain from full and eJBfective
enforce-
the prevailing approach of criminal prohibition. James Gray
Pope, A Free Labor Approach to
Human Trafficking, 158 U. PA. L. REV. 1849 (2010).
44. Slaughter-House Cases, 83 U.S. (16Wall.) 36, 69, 72 (1873);
iee aiso Butier v. Perry,

240 U.S. 328, 332-33 (1916) (opining that tiie Amendment
covers only the historical prac-
tice of African chattel slavery along with "forms of compulsory
labor akin to African slavery
which, in practical operation, would tend to produce like
undesirable results").
45. Devah Pager, The Mark of a Criminal Record, 108 A M . J .
SOC. 937, 955-62 (2003)
(study involving four testers posing as job applicants, two black
and two white, one of each
racial category with a felony conviction and one without).
2011 ] WHAT' S DIFFERENT ABOUT THE 1 3TH
AMENDMENT 201
ment of the Amendment. Thus, it is not surprising that, instead
of
claiming special ownership of the Amendment, African-
American
workers have welcomed its application to workers of all colors
in situa-
tions quite different from nineteenth century chattel slavery.
With as-
sistance from the New Orleans Workers Center for Racial
Justice
("NOWCRJ"), for example, workers trafficked from South Asia
chal-
lenged their conditions as amounting to involuntary servitude
under
the Thirteenth Amendment. NOWCRJ Director Saket Soni
reported
that "the African-American community, which is also part of
our

membership, didn't say 'You don't have the right to say this is
invo-
luntary servitude.' Instead, they said 'you know what, that
reminds us
of what's been going on dovm here for a long time.'"*''
III. CONCLUSION
The past few years have seen an undeniable surge of scholarly
in-
terest in the Thirteenth Amendment. Some people view this as a
boon, a long overdue reassessment of an underutilized and
vitally im-
portant constitutional provision. Others see it as a misguided
attempt
to read a "wish list" of present-day demands into a provision
that has
been deservedly relegated to obscurity. Whichever one's point
of
view, controversies arising from the four unique features of the
Amendment discussed here are likely to exert an important
influence
on the outcome. If, as argued above in Part I, the Amendment
clear-
ly mandates the identification of unenumerated rights, then what
standard should guide that determination? And if the
Amendment
calls for a systemic approach to the elimination of slavery and
its re-
placement by free labor, then what are the defining attributes of
a
free labor system, and what rights are essential to its operation?
Fur-
ther, if the Amendment commands the government to undertake
a
difficult and as yet incomplete social transformation, then how

can
this imperative be met? Finally, if the Amendment
unambiguously at-
tacks relations defined by subjugation and domination, then how
is
the constitutionally objectionable level of subjugation and
domina-
tion to be determined?
46. Saket Soni, Speech at the Left Forum (March 21, 2010)
(available at
http;//www.radioproject.org/2010/08/working-beyond-unions-
labor-day-special-encore/)
(last visited O c t 6, 2011). Historically, black workers
analogized labor injuncdons to sla-
very and invoked the Thirteenth Amendment. See JOE
WILLIAM TROTTER, JR., COAL,
CLASS, AND COLOR 114 (1990) (quodng black miners'
tesdmony before Congress);
WlLLLM E. FORBATH, LAW AND THE SHAPING OF THE
AMERICAN LABOR MOVEMENT 138-39
(1991) (quodng black unionist's newspaper árdele).
It is often said that the Thirteenth Amendment is uniquely un-
suited for the kind of probing interpretation that will be
necessary to
answer such questions. People have insisted that it is uniquely
unam-
biguous and therefore unfit for interpretation, that it is uniquely
ab-
solute and therefore in need of simple, bright-line boundaries,
and

that it is uniquely limited to its historical context and therefore
inap-
plicable to present-day practices. As argued in Part II above,
however,
these claims appear to be without any principled basis, and
therefore
give us no excuse for interpreting the Thirteenth Amendment
with
any less diligence and thoroughness than we apply to other
constitu-
tional provisions.
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