VanderVelde on Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately After Its Enactment

Lea S. VanderVelde, University of Iowa College of Law, is publishing Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately after its Enactment in volume 27 of the William & Mary Bill of Rights Journal. Here is the abstract.

In the 19th century, the American common law of master and servant was a system of subordination principles designed to command and capture the labor of workers. Blackstone’s Commentaries was the received common law, from the nation’s early days through the settlement of new states in the American West. Blackstone’s Chapter 14, organized the legal rules into a system of subordination as formal inequality. As the system’s foundation, Blackstone used slavery, rather than partnership or voluntary free labor. Thus, when the nation abolished slavery by the 13th Amendment, the structure’s foundation was implicitly undermined. Moreover, during Reconstruction, the Radical Republicans, who dominated the post-War Congress, engaged in a sweeping anti-subordination agenda marked by multiple reform initiatives. Oppressive labor systems that they found to be slave-like were deemed “anti-republican.” An egalitarian, leveling ethos held sway as Reconstruction brought about a revolution in basic rights. Yet, this ethos did not find its way into a revision of all of the subordinating principles in the nation’s common law of master and servant. In the years immediately after its enactment, the anti-subordination agenda lost ground. The 13th Amendment was subject to different interpretations as state courts, analogized more broadly or narrowly, depending upon their state’s position as a former slave state or free state. As a result, the nation’s received common law was never completely reordered upon a new foundation of fully free labor.

Download the article from SSRN at the link.

VanderVelde on Henry Wilson, Cobbler of the Frayed Constitution, Strategist of the Thirteenth Amendment @IowaLawSchool

Lea S. VanderVelde, University of Iowa College of Law, has published Henry Wilson: Cobbler of the Frayed Constitution, Strategist of the Thirteenth Amendment at 15 Georgetown Journal of Law & Public Policy 173 (2017). Here is the abstract.

This article explores the extraordinary but rarely recognized contribution of Senator Henry Wilson in accomplishing the passage of the Thirteenth Amendment, motivated as he was by free labor ideology. Wilson played a key role in directing the strategic moves made by Congress to prepare the ground for passage of the Thirteenth Amendment and for its implementation. Born into poverty, Wilson worked his way up as a cobbler, developing along the way a strong commitment to the work ethic and the Republican ‘free labor’ ideology. Free labor ideology informed his opposition to slavery and advocacy on behalf of oppressed workers. Understanding Wilson’s free labor ideology has important implications for understanding the Thirteenth Amendment as a broader and more profound enactment designed to eliminate caste, class, and racial distinctions beyond simply banning chattel slavery. A deeper understanding of Wilson’s thoughts and deeds is valuable to our contemporary debates regarding the amendment and its continuing role in our republic.

Download the article from SSRN at the link.

The Legacy of the Author of the Thirteenth Amendment

David B. Kopel, Independence Institute and University of Denver College of Law, has published Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer. Here is the abstract.

Illinois Senator and attorney Lyman Trumbull wrote the Thirteenth Amendment, outlawing slavery in the United States, and giving Congress the power to remove all badges of servitude “by appropriate legislation.” The appropriate legislation which Trumbull then introduced was the Civil Rights Act of 1886, the foundational civil rights statute in the United States. He also wrote the First Freedmen’s Bureau Bill, to protect the civil rights of freedmen nationally. The bills were the first federal legislation to protect Second Amendment rights.

Later, he brought Second Amendment test cases to the U.S. Supreme Court (Presser v. Illinois in 1886 ) and the Illinois Supreme Court (Dunne v. Illinois in 1879). These Second Amendment cases involved labor rights, in particular, the rights of organized groups of working men to defend themselves from company goons and other violence. The most famous case of the last part of Trumbull’s career was also a labor case, In re Debs; there, he brought a habeas corpus case to the Supreme Court in support of the labor leader Eugene Debs, who had defied a federal court injunction against continuing to encourage a railroad strike.

Trumbull was not a particularly “pro-Second Amendment” person. Other rights in the Constitution, such as habeas corpus, interested him much more. His legislation and litigation for the Second Amendment were derivative of the great cause to which he was devoted: “a fair chance” for “the poor who toil for a living in this world” — as Clarence Darrow remembered him.

This article examines Trumbull’s career as a lawyer and legislator. It pays particular attention to the themes which explain why he became involved in Second Amendment issues.

Part I of this article provides an overview of Trumbull’s political philosophy, as it remained mostly constant from his early days as an Andrew Jackson Democrat to Republican Senator to Populist. Part II then begins the narrative of Trumbull’s life, from earliest days through his service in the Illinois state legislature, on the Illinois Supreme Court, and as the leading anti-slavery advocate of that state. Part III details Trumbull’s three terms as United States Senator from Illinois — defending civil liberties during the war, authoring the first statute which freed slaves, the Thirteenth Amendment, and then major Reconstruction legislation. Finally, Part IV examines Trumbull’s career after the Senate, as a Chicago lawyer from 1873 until his death in 1896.

Trumbull was one of the “Founding Sons” who in the mid-19th century first eliminated slavery, and then set up the constitutional and statutory structures for national protection of civil rights. This structure continues to be vitally important today. So studying the full sweep of Trumbull’s political and legal career is important for the same reason as is studying the other Founding Sons, such as Salmon Chase, Jonathan Bingham, or Thaddeus Stevens. Trumbull has been the subject of three biographies, the first in 1913 by his friend the newspaper writer Horace White, and the last in 1979. None of these general biographies, however, were legal scholarship. Given Trumbull’s tremendous importance in the development of American law, this Article aims to fill that gap.

A second purpose of this Article is to explicate Trumbull’s heretofore-overlooked position as the leading pro-Second Amendment legislator and lawyer of the nineteenth century — or at least the part of the century after Founders such as Thomas Jefferson and James Madison had departed. Second Amendment rights were not among Trumbull’s major political or legal interests. So why did he end up doing so much on behalf of the Second Amendment? This Article suggests that the answer was Trumbull’s lifelong devotion to the rights of workers.

Download the paper from SSRN at the link.

Mississippi Finally Files Its Paperwork

The state of Mississippi finally ratified the Thirteenth Amendment, which outlawed slavery in the U.S., in 1995. But the paperwork didn't actually reach the National Archives until this month. Why did it take so long? It might have taken even longer. Dr. Ranjan Batra, who works for the University of Mississippi Medical Center, happened to see Lincoln, the Steven Spielberg film, and wondered when the state ratified the amendment. He found the record of the state's vote, dated 1995, but no indication that Mississippi was listed in national records as having ratified the amendment, and mentioned the fact to a co-worker, Ken Sullivan. Dr. Sullivan took up the question with Mississippi's present Secretary of State, who dug out the paperwork, to discover that the paperwork was never sent in to the National Archives; he sent it in. Dr. Sullivan received notice of the National Archives' recordation on Lincoln's birthday. Another example of the power of film, and the power of Lincoln.

Here, Jon Stewart has fun with Mississippi's embarrassment over failing to file 13th Amendment paperwork.