The Thirteenth Amendment and American Freedom: A Legal History.

The Thirteenth Amendment and American Freedom: A Legal History. By Alexander Tsesis. (New York and London: New York University Press, c. 2004. Pp. x, 228. $45.00, ISBN 0-8147-8276-0.)

This is an imaginative work of constitutional theory that uses historical information about the Thirteenth Amendment to advocate a futuristic, radical approach to civil rights law and policy in the United States. Alexander Tsesis, a law professor, argues that the Thirteenth Amendment is not in essence a libertarian document but an instrument of government that guarantees "people's quest for a good life" (p. 109). "[M]ore than a means for ending coercive domination," the amendment requires "the [national] government to assess and act to create laws for a country where everyone may live a good life" (p. 162).

It is obvious, even to the author, that the history of the framing, ratification, and enforcement of the Thirteenth Amendment provides little if any support for such a sweeping and inventive constitutional construction. As numerous historical accounts make clear, the Thirteenth Amendment has been interpreted substantially in accord with the intent of its framers and ratifiers. The amendment declares that neither slavery nor involuntary servitude, except as a punishment for crime, shall exist in the United States or in any place subject to its jurisdiction. It was not necessary to provide a specific definition of slavery in the language of the amendment. Slavery was universally recognized as the holding of another person as chattel, especially to appropriate his labor by force, without his consent. The Thirteenth Amendment was libertarian in nature. It conferred the natural right of personal liberty on all persons within the United States and gave Congress the power to enforce the amendment by appropriate legislation.

The legal force and practical effect of the Thirteenth Amendment depended on the meaning of slavery and involuntary servitude. Opponents asserted a narrow interpretation according to which the amendment simply conferred the right not to be held as chattel by another. Supporters argued that the right not to be held as property implied the possession of basic civil rights whereby the right of personal liberty was positively to be exercised. The question for Republicans after the Civil War was whether the text of the Thirteenth Amendment provided sufficient authority to guarantee the exercise of basic civil rights reasonably and necessarily implied in the prohibition of slavery. In order to eliminate doubt concerning the authority of the national government over civil rights, the Fourteenth Amendment, containing express guarantees of fundamental civil rights against denial by state governments, was passed by Congress in 1866 and ratified by the states in 1868.

The Thirteenth Amendment ceased to be politically controversial as federal-state conflict over civil rights regulation was directed toward interpretation of the Fourteenth Amendment. From the end of Reconstruction through the twentieth century, federal legislative and judicial enforcement of the Thirteenth Amendment conformed to the original intent of its framers and ratifiers. Most notably, peonage and other forms of labor subordination were struck down by the Supreme Court in the early twentieth century. Significantly, attempts to broaden the scope of the amendment were rejected. Among other things, courts decided that military conscription, public work laws, discrimination in contracts, distribution of social security benefits, deportation of aliens, treatment of the criminally insane, restrictions on labor union activities, and duties required of public school students were not forms of involuntary servitude in violation of the Thirteenth Amendment.

Although some of these historical facts can be found in Alexander Tsesis's book, this is not the story he wishes to tell. His concern rather is to advance a comprehensive agenda of civil rights reform based on the power of Congress to prohibit arbitrary infringements on individual autonomy that can be analogized to slavery. Of course the Thirteenth Amendment confers no such power on Congress. In Civil Rights Cases (1883), however, and more recently in Jones v. Alfred H. Mayer (1968), the Supreme Court said that Congress had the power under the Thirteenth Amendment "to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation"(p. 86).

Complaining that courts have negated the force of the Thirteenth Amendment by defining slavery in its "natural sense," Tsesis hangs his argument on the slender thread of these judicial dicta (p. 80). He seeks to expand the meaning of slavery morally, metaphorically, and psychologically in order "to achieve progressive aims" (p. 104). Conflating living constitutionalism with dialectical utopianism, Tsesis contends that the Thirteenth Amendment gives each generation of Americans the authority to eliminate "any remaining injustices that resemble slavery or involuntary servitude" (p. 6). This is an unhistorical book written in serene disregard of the nature and reality of political life. It is an ideological tract that illustrates the intellectual licentiousness of contemporary progressive legal theory.

HERMAN BELZ

University of Maryland