THE ACCORDION OF THE THIRTEENTH AMENDMENT: ( QUASI-PERSONS AND) THE RIGHT OF SELF-INTEREST Lebovitz, 14 St. Thomas L. Rev. 561 (2002)

THE ORIGINAL CONSTITUTION Article IV, Section 2, Clause 3 [ superceded by the 13 th Amendment, ratified December 6, 1865 ] [The Fugitive Slave Clause] “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” Article 1, Section 2, Clause 3 [ modified by the 14th Amendment, ratified July, 9, 1868 ]: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a term of years, and excluding Indians not taxed, three fifths of all other Persons."

THE ORIGINAL CONSTITUTION South would be under represented in Congress if slaves were not counted By counting slaves, South increased their Congressional representation North: Slaves are property, not persons South: Slaves have attributes of both property and person, and therefore should be counted to determine representation The 3/5 Rule was the outcome: a constitutional compromise which established quasi-personhood for slaves Article 1, Section 2, Clause 3 [ modified by the 14th Amendment, ratified July, 9, 1868 ]: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a term of years, and excluding Indians not taxed, three fifths of all other Persons."

THE ORIGINAL CONSTITUTION Article IV, Section 2, Clause 3 [ superceded by the 13 th Amendment, ratified December 6, 1865 ] [The Fugitive Slave Clause] “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labor may be due.” Article 1, Section 2, Clause 3 [ modified by the 14th Amendment, ratified July, 9, 1868 ]: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a term of years, and excluding Indians not taxed, three fifths of all other Persons."

By 1860, there were almost 4 million slaves in the US in a population of 31 million In some areas, slaves outnumbered whites 13 to 1

The growing rift: would slavery be allowed to extend into new Territories and States? The Missouri Compromise, The admission of Missouri to the Union as a slave state was coupled to the admission of Maine as a free state to avoid sectional confrontation between the North and South - Sectional line established; slavery permitted south of the line and prohibited north it The Compromise of Should newly acquired territory allow slavery? - Should California be allowed to enter as a free state? - Status of Washington, DC as a center of the slave trade - Fugitive Slave Act requiring citizens to assist in the recovery of slaves

The growing rift: would slavery be allowed to extend into new Territories and States? The Dred Scott Case (1857) Held: African slaves were not U.S. citizens, and were not intended to be included in the community defined by "We the people" when it was originally written. Thus, no standing. Held: "a negro [slave or free], whose ancestors were imported into this country, and sold as slaves" could not "become a member of the political community formed and brought into existence by the constitution of the United States," except by constitutional amendment. Held: Congress did not have power to regulate slavery in the territories

The growing rift: would slavery be allowed to extend into new Territories and States? The Dred Scott Case (1857) Held: African slaves were not U.S. citizens, and were not intended to be included in the community defined by "We the people" when it was originally written. Held: "a negro [slave or free], whose ancestors were imported into this country, and sold as slaves" could not "become a member of the political community formed and brought into existence by the constitution of the United States," except by constitutional amendment. Decision reached by analyzing status of slaves at the time the Constitution was adopted (similar analysis in Roe v. Wade led to the exclusion of embryos as persons entitled to constitutional protection)

The growing rift: would slavery be allowed to extend into new Territories and States? The Dred Scott Case (1857) Held: African slaves were not U.S. citizens, and were not intended to be included in the community defined by "We the people" when it was originally written. Held: "a negro [slave or free], whose ancestors were imported into this country, and sold as slaves" could not "become a member of the political community formed and brought into existence by the constitution of the United States," except by constitutional amendment. Slaves were property: “He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion at the time was fixed and universal in the civilized portion of the white race."

The growing rift: would slavery be allowed to extend into new Territories and States? The Dred Scott Case (1857) Held: Congress did not have power to regulate slavery in the territories Today, would have the Court have relied on the commerce clause for the power to regulate slavery? Is the commerce clause the right tool to exercise the Federal police power to legislate for the health, safety, and morality? ALBERTO R. GONZALES, ATTORNEY GENERAL v. PLANNED PARENTHOOD (2007) The validity of the Partial-Birth Abortion Ban Act of 2003 (Act), 18 U. S. C. §1531, a federal18 U. S. C. §1531 statute regulating abortion procedures. “A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession.”

THE CONGRESSIONAL DEBATES The status of slavery in the District of Columbia Status of slavery in new territories acquired by the US Federal power over slavery The Fugitive Slave Act

THE CONGRESSIONAL DEBATES “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” Declaration of Independence (1776). Importing the Declaration of Independence into the Constitution Equal because they are “endowed... with certain unalienable rights” What are the “unalienable rights”? - Political rights (e.g., the right to vote) - Social rights - Natural rights

THE CONGRESSIONAL DEBATES “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” Declaration of Independence (1776). "I do not mean to be misunderstood, when I speak of the equality of men. I do not mean that they are equal in strength, intelligence, social position, or political rights. I mean that every man has certain natural, inherent, and inalienable rights. All have them equally alike, and to the protection of these rights they are all entitled." Congressman B. Stanton of Ohio. "Natural rights emanate from the Creator, and the Government cannot properly interfere with them; and this is the sense in which the Declaration of Independence declares all men equal." Congressman Hutchins of Ohio.

THE CONGRESSIONAL DEBATES “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” Declaration of Independence (1776). “I believe that every human being has the right to his life and to his liberty, and to act in this world to secure his happiness. I believe, in a word, in the Declaration of Independence; but I do not, as I have said, believe in the mental or moral or physical equality of some the races, as against this white race of ours.” Congressman Wilson.

THE CONGRESSIONAL DEBATES “I cannot take time to define slavery, except that it reduces persons to chattels to all intents, purposes, and constructions whatever; ignores their rights to family, wife, or children, except for the interest of others, and does not recognize the marriage relation among slaves.” Hutchins. “According to my understanding of moral philosophy, there is no other mode recognized among men whereby the human race maybe perpetuated, except through the instrumentality of family relations - husband and wife, parent and child.” Stanton. “None of us fear that anybody will class us with the negro population of the country if you protect the negro's rights - if you allow him to eat the bread that he earns with his own hands; if you allow him to support his own wife and his own children with the proceeds of his own toil.” Representative Harlan of Iowa.

THE CONGRESSIONAL DEBATES “If might gives the right; if strength is a warrant which will authorize one man to subjugate another man to his will, then it is just as applicable to despots subjugating millions, as it is to the individual. You are therefore cut loose from all moral obligations or moral restraints, and you resolve the whole government of mankind in favor of brute force.” Stanton

THE CONGRESSIONAL DEBATES The right to have one’s own interest considered The right to be free The right to secure one’s own happiness The right to procreate and have familial and marriage relations The right to keep the proceeds of one’s own labor The right to be free of brute force, such as physical abuse

THE CONGRESSIONAL DEBATES The right to have one’s own interest considered The right to be free The right to secure one’s own happiness The right to procreate and have familial and marriage relations The right to keep the proceeds of one’s own labor The right to be free of brute force, such as physical abuse THE RIGHT OF SELF-INTEREST

THE CONGRESSIONAL DEBATES The right to have one’s own interest considered The right to be free The right to secure one’s own happiness The right to procreate and have familial and marriage relations The right to keep the proceeds of one’s own labor The right to be free of brute force, such as physical abuse THE RIGHT OF SELF-INTEREST Recognizing the right of self-interest was the first step in correcting the moral stain upon which the Constitution was founded.

THE CONGRESSIONAL DEBATES The right to have one’s own interest considered The right to be free The right to secure one’s own happiness The right to procreate and have familial and marriage relations The right to keep the proceeds of one’s own labor The right to be free of brute force, such as physical abuse THE RIGHT OF SELF-INTEREST Restoring “moral obligations” and “moral restraints” (Stanton): Constitutional source of biethics

THIRTEENTH AMENDMENT (ratified December 18, 1865) Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have the power to enforce this article by appropriate legislation.

THIRTEENTH AMENDMENT (ratified December 18, 1865) What was the purpose of the 13 th Amendment? To eliminate the moral stain upon which the Constitution was framed To restore moral obligations and restraints To repudiate brute force as a way of subjugating another person To abolish slavery To confer “natural rights” on [persons and quasi-persons]

THIRTEENTH AMENDMENT (ratified December 18, 1865) The right of self-interest is separable from the Thirteenth Its source is the Declaration of Independence Formed the foundation upon which the 13 th Amendment was erected By adopting the 13 th Amendment, the Declaration of Independence was imported into the Constitution as the right of self-interest

THIRTEENTH AMENDMENT (ratified December 18, 1865) To whom does the 13 th Amendment apply? Under Dred Scott, slaves were not constitutional persons Rather, slaves were “quasi-persons” that had attributes of both property and person (see e.g., The 3/5 Rule) Thus, the provisions of the 13 th Amendment can be expanded to quasi-persons

THIRTEENTH AMENDMENT (ratified December 18, 1865) To whom does the 13th Amendment apply?

THIRTEENTH AMENDMENT (ratified December 18, 1865) To whom does the 13th Amendment apply? Synthetic organisms, chimeras, and a genetically engineered part human part horse

THIRTEENTH AMENDMENT (ratified December 18, 1865) To whom does the 13th Amendment apply? Quasi-persons having attributes of both person and property Pets : “In ruling that a pet such as a dog is not just a thing I believe the plaintiff is entitled to damages beyond the market value of the dog. A pet is not an inanimate thing that just receives affection; it also returns it.” Kay Corso, Plaintiff v. Crawford Dog and Cat Hospital, Inc, Defendant, 415 N.Y.S.2d 182, 97 Misc.2d 530 (Civ.Ct. Queens Co., 1979). Embryos : “We conclude that pre-embryos are not, strictly speaking, either 'persons' or 'property,' but occupy an interim category that entitles them to special respect because of their potential for human life." Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992). Nho’s (pronounced “no’s): Non-human organisms

THIRTEENTH AMENDMENT (ratified December 18, 1865) What is the reach of the 13 th Amendment? The Thirteenth Amendment has a “larger meaning” in forbidding all “shades and conditions of African slavery.” The Slaughterhouse Cases, 83 U.S. 36 (1872). Apart from simply freeing slaves, the Thirteenth was aimed at ending “all badges and incidents of slavery.” The Civil Rights Cases, 109 U.S. 3, 20 (1883). Special vulnerabilities must be considered: “a child who is told he can go home late at night in the dark through a strange area may be subject to physical coercion that results in his staying, although a competent adult plainly would not be.” United States v. Kozminski, 487 U.S. 931, 940 (1988).

THIRTEENTH AMENDMENT (ratified December 18, 1865) What is the reach of the 13 th Amendment? Extends to private actions to erase the badges and incidents of slavery. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968).

THIRTEENTH AMENDMENT (ratified December 18, 1865) How is the purpose of the 13 th Amendment achieved? Legislative action through its enabling power Section 2. Congress shall have the power to enforce this article by appropriate legislation. Judicial action

THIRTEENTH AMENDMENT (ratified December 18, 1865) How is the purpose of the 13 th Amendment achieved? Legislative action through its enabling power Section 2. Congress shall have the power to enforce this article by appropriate legislation. Judicial action A “Thirteenth Amendment action”

THIRTEENTH AMENDMENT ACTIONS Any action – private or government (Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968)). A violation of the right of self-interest [broadly applicable to all persons and quasi-persons; think of any human rights/bioethics issue – health, poverty, education] Brought on behalf of a guardian ad litem (if a nho or a child) Confers judicial standing for the purpose of representing aggrieved party, apart from any interest in her as property