english 135 paper gender discrimination week 2

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GENDER DISCRIMINATION AND THE THIRTEENTH AMENDMENT

Alexander Tsesis*

Although the Thirteenth Amendment was ratified more than a cen- tury and a half ago, courts have yet to delve into its relevance to gender discrimination. This oversight is unfortunate given the extent to which jurisprudence about another Reconstruction Amendment, the Fourteenth Amendment, has evolved beyond its original racial confines to include gender, disability, sexual orientation, and other forms of group-specific inequalities. A progressive interpretation of the Thirteenth Amendment should likewise expand congressional enforcement authority beyond race. As was the case with its Fourteenth Amendment counterpart, the Thirteenth Amendment was initially ratified to prevent racial discrimi- nation, but its antisubordination principles are also relevant to policies for abolishing gender discrimination. This underexplored area of law of- fers tremendous potential for providing redress against a variety of pri- vate, state, and institutional forms of gender discrimination that are not actionable under current civil rights statutes.

This Essay demonstrates how broad concepts of liberty, which abo- litionists, feminists, and Congress developed before and after the ratifica- tion of the Thirteenth Amendment, seamlessly lend themselves to the en- forcement of gender equality norms. Over the last forty years, the Supreme Court has recognized the existence of federal authority to pre- vent state gender discrimination. The Thirteenth Amendment is a source of legislative authority that can be used to address private acts of dis- crimination.

INTRODUCTION

The Thirteenth Amendment is one of the most powerful, but un- derused, provisions of the United States Constitution. While the text pro- vides only minimal guidance on its range of applicability,1 historical and

* Associate Professor, Loyola University Chicago School of Law. Thanks to Elizabeth Dale, Zanita Fenton, Jessie Hill, Darrell A.H. Miller, Helen Norton, and Ariel Tsesis for their wise counsel. I am deeply grateful to the entire staff of the Columbia Law Review for their assistance in organizing this Symposium, Thirteenth Amendment: Meaning, Enforcement, Contemporary Implications. I wish to express a special thanks to Maren Hulden, Liliana Zaragoza, Aliya J. Sanders, Rashna Bhojwani, Farhang Heydari, and Kathleen Chojnicki.

1. The Thirteenth Amendment contains two sections. Section 1 states, “Neither slav- ery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction,” while Section 2 states, “Congress shall have power to enforce this article by appropriate legislation.” U.S. Const. amend. XIII.

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doctrinal references help flesh out its meaning. Statutory provisions, ju- dicial precedents, and social semantics link the Amendment to a variety of antisubordination policies. The Amendment’s Enforcement Clause provides Congress with the power to pass freedom-preserving legislation.

To date, academic literature has rarely touched upon the Thirteenth Amendment’s relevance to a broad variety of gender inequalities.2 The dearth of analysis on this subject is perhaps unsurprising given that it was ratified first and foremost to end racial slavery and discrimination. Yet its historical antecedents inform, but do not limit, contemporary applicabil- ity. Just as with the Fourteenth Amendment, the initial failure to translate the Thirteenth’s statement of rights into legislation affecting women’s issues does not diminish its current significance. This Essay seeks to demonstrate that the same principles that animated abolition extend to certain forms of gender subordination. The contours of congressional authority to act in this area can be gleaned from constitutional state- ments, feminist literature, and legal precedents. The Amendment’s con- temporary relevance, as this Essay articulates in Part II.E, extends to gen- der discrimination, gender-motivated violence, and human trafficking.

Although states ratified the Thirteenth Amendment more than a century and a half ago, courts have yet to delve into its relevance to gen- der subordination stemming from overt sexism and more subtle forms of stereotyping. This is particularly unfortunate in a day and age when Fourteenth Amendment jurisprudence has evolved beyond its original racial confines to include gender,3 disabilities,4 sexual orientation,5 and

2. Key articles on the subject to date have been Andrew Koppelman, Forced Labor: A

Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480, 484 (1990) (“When women are compelled to carry and bear children, they are subjected to ‘involuntary servi- tude’ in violation of the thirteenth amendment.”); Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 Yale J.L. & Feminism 207, 210 (1992) (“This article demonstrates that some battered women are held in involuntary servitude and suggests that a civil constitutional claim as well as a criminal constitutional claim could be brought against the batterer.”); Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. Pa. L. Rev. 1097, 1144–45 (1998) (“[M]odern violence against women is a badge and inci- dent of nineteenth-century slavery and of the nineteenth-century involuntary servitude of coverture.”).

3. See United States v. Virginia, 518 U.S. 515, 558 (1996) (holding Virginia Military Institute’s categorical refusal to accept female applicants unconstitutional under Equal Protection Clause); Craig v. Boren, 429 U.S. 190, 210 (1976) (striking down Oklahoma law on equal protection grounds for arbitrarily differentiating between males and females); Reed v. Reed, 404 U.S. 71, 76–77 (1971) (ruling that law distinguishing between male and female administrators of estates violated Equal Protection Clause).

4. See Tennessee v. Lane, 541 U.S. 509, 533–34 (2004) (holding Title II of Americans with Disabilities Act to be valid exercise of Congress’s Fourteenth Amendment authority).

5. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (holding Texas antisodomy law violated Due Process Clause); Romer v. Evans, 517 U.S. 620, 635 (1996) (finding Colorado constitutional amendment that prevented municipalities from providing special protec- tions to persons based on their sexuality violated Equal Protection Clause).

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other forms of group-specific inequalities. An interpretational method that takes into account how private, state, and institutional means have been used to subordinate women advances the Thirteenth Amendment’s substantive protection of individual liberties.

Such a methodology is in keeping with the Thirteenth Amendment’s abrogation of institutional and private practices linked to slavery, such as discriminatory travel and educational restrictions. The Amendment im- mediately abolished slavery and offered Congress the first opportunity to end all the incidents associated with that pervasive institution.6 While slavery was foremost a racialized institution, it negatively impacted many aspects of human lives, extending well beyond work servility. Its central purpose was not merely to extract forced labor, but also to degrade, de- humanize, and subjugate.

Female slaves suffered unique hardships, being exploited for both labor and reproductivity. While black women experienced the unique horrors of hereditary servitude, women of all races were legally and do- mestically prohibited from enjoying equality with men. Feminists’ hope bloomed at the beginning of Reconstruction, but the persistence of gen- der discrimination rapidly stifled it.

Although the ratifications of the Thirteenth and Fourteenth Amendments were part of a new departure for civil rights reforms, they fostered no social movement diffuse and powerful enough to address sex discrimination. Far from it, and much to the chagrin of nineteenth-cen- tury feminists, Section 2 of the Fourteenth Amendment included the first constitutional differentiation between males and females.7 The Thirteenth Amendment, on the other hand, used gender-neutral terms, consistent with the rest of the Constitution. It allowed Congress to assess whether private and state conduct prevented people from enjoying their fundamental right to live freely in the United States. Its addition to the Constitution was one of the most liberating moments in history, not only for Blacks but also for the American people as a whole.

This Essay explores the distinctions and intersections between the Thirteenth and Fourteenth Amendments’ grants of authority to Congress for addressing gender subordination. Congress’s ability to en- act statutes against civil, as opposed to only state, harms differentiates the reach of these two Amendments.8 Unlike the Fourteenth Amendment,

6. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968) (“The Thirteenth

Amendment authorizes Congress not only to outlaw all forms of slavery and involuntary servitude but also to eradicate the last vestiges and incidents of a society half slave and half free.”).

7. The Fourteenth Amendment impliedly tolerated female disenfranchisement. See U.S. Const. amend. XIV, § 2 (providing for reduction of states’ representation in House of Representatives only “when the right to vote . . . is denied to any of the male inhabitants of such State”).

8. The Supreme Court has interpreted the Fourteenth Amendment to only apply to state actions. Writing for the majority in the Civil Rights Cases, Justice Joseph P. Bradley

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the Thirteenth Amendment has no state action requirement. This dis- tinction renders a variety of harms, such as private violence against women, cognizable only under the Thirteenth. The Thirteenth Amendment also has a unique applicability to gender discrimination that is perpetrated by small private employers that are not covered by current federal legislation and that Congress may be unable to address through Commerce Clause authority.

The first Part of this Essay delves into the debates on the ratification of the Thirteenth Amendment to shed light on how its core principle is relevant to women’s rights issues. Framers of the Amendment under- stood that the evils of slavery lay much deeper than the harms directly associated with forced labor. Congressional debates on the Amendment, the contemporary meaning of terms like “vestiges of slavery,” and Congress’s translation of the Amendment into legislative provisions that passed immediately after ratification shed light on the framers’ compre- hensive understanding. Part II demonstrates the relevance of the Thirteenth Amendment to gender discrimination. It begins with a retro- spective narrative of first-wave feminists’ internalization of the “slavery of sex” concept in their written and verbal indictments of male suprema- cism. They were greatly disappointed that Congress did not take their concerns to heart when passing the Fourteenth Amendment, and the Supreme Court only applied the Equal Protection Clause to gender dis- crimination in the 1970s. Those doctrinal developments are directly rele- vant to an expanded understanding of the Thirteenth Amendment and its relevance to ending the continuing vestiges of gender subordination.

I. THIRTEENTH AMENDMENT DOCTRINE

Ratification of the Thirteenth Amendment was the culminating achievement of the abolitionist movement. Its addition to the Constitution not only outlawed slavery and involuntary servitude but also radically altered the relationship between state and federal governments.

The Amendment provided Congress with plenary power over state and private practices associated with slavery, involuntary servitude, and any form of discrimination incidental to them. The Civil War was only one necessary predicate to the Amendment’s movement from congres- sional proposal to ratified provision. Abolitionists had been agitating for the immediate release of slaves for decades before sectional conflict morphed into armed rebellion.

Many of the most prominent abolitionists—including Elizabeth Cady Stanton, Lucretia Mott, William Lloyd Garrison, and Frederick Douglass—were also central figures in the early nineteenth-century

proclaimed that the Fourteenth pertains only to public forms of discrimination. 109 U.S. 3, 11 (1883) (“It is State action of a particular character that is prohibited. Individual inva- sion of individual rights is not the subject-matter of the amendment.”).

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women’s rights movement.9 These leading expositors of equal liberty coupled the efforts of ending racial and sexist injustices. The end of slav- ery through constitutional amendment expanded the rights of men and women. Before delving more fully into this overlapping ideal of freedom, this Part analyzes how the Thirteenth Amendment altered the relation- ship between the federal and state governments to effectuate profound constitutional change.

A. Freedom and Equality

1. Constitutional Ideals of the Thirteenth Amendment. — Debates on the proposed Thirteenth Amendment clearly reflect that its most prominent supporters expected the Enforcement Clause to extend federal authority well beyond simple abolition. Senators of the Thirty-Eighth and Thirty- Ninth Congresses focused on the nation’s core commitments and the manifold failures to live up to them.10 The Amendment embedded na- tional ideals into enforceable, constitutional rights.

To its supporters, the Thirteenth Amendment was the legal instru- ment that would provide Congress with the leverage to achieve the na- tion’s founding commitment to liberal equality and break from its past injustices. Senator John P. Hale of New Hampshire, for example, called for the nation to abide by “the sublime truths” that the nation’s framers “uttered years ago and which have slumbered dead letters upon the pages of our Constitution, of our Declaration of Independence, and of our history.”11 Representative Ebon Ingersoll, whose brother Robert Ingersoll was a renowned supporter of woman suffrage, expected passage of the Thirteenth Amendment to raise “[t]he old starry banner of our country,” heralding “universal liberty” and “the rights of mankind.”12 Missouri Senator John Henderson, who at a later date advocated for add- ing a constitutional safeguard for women’s rights, drew attention to the hypocrisy of “[o]ur ancestors” in fighting for their own “inalienable right of liberty,” while denying it to others.13 Henceforth, as another

9. See Alexander Tsesis, We Shall Overcome: A History of Civil Rights and the Law 143–44 (2008) [hereinafter Tsesis, We Shall Overcome] (examining intersection between women’s rights and abolitionist movements).

10. There were three congressional debates on the merits of passing the proposed Thirteenth Amendment. The Senate passed the proposal on the first vote in 1864. See Cong. Globe, 38th Cong., 1st Sess. 1490 (1864). But it took the House of Representatives two votes before reaching the supermajority on January 31, 1865. See Cong. Globe, 38th Cong., 2d Sess. 531 (1865) (noting two-thirds of House voted to pass proposal); Cong. Globe, 38th Cong., 1st Sess. 2995 (1864) (providing record of unsuccessful vote in House).

11. Cong. Globe, 38th Cong., 1st Sess. 1443 (1864) (statement of Sen. John P. Hale). Despite Hale’s ardent abolitionism and support for women’s education, he opposed women’s suffrage. John P. Hale on Women’s Rights, N.Y. Times, July 17, 1858, at 2.

12. Cong. Globe, 38th Cong., 1st Sess. 2989 (1864) (statement of Rep. Ebon Ingersoll).

13. Id. at 1461 (statement of Sen. John Henderson); see also Jules Lobel, Success Without Victory 91 (2003) (observing Senator Henderson was “a moderate Republican

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Congressman put it, the United States government would become “an example of human freedom for the light and example of the world, and illustrating in the blessings and the happiness it confers the truth of the principles incorporated into the Declaration of Independence, that life and liberty are man’s inalienable right.”14

These statements were made in speeches about the framework of abolition, but they embrace new legislative powers for addressing human rights violations against men and women suffering other forms of subju- gation. In this sense, whether the framers contemplated future genera- tions applying the Thirteenth Amendment to gender equality is not de- terminative of its normative value. Before demonstrating the Amendment’s relevance to gender-related issues, addressed in Part II, it is important to understand its grant of legislative authority for passing civil rights legislation.

When the Thirteenth Amendment was ratified in 1865, it was the first change to the Constitution in sixty-one years.15 Throughout the country excitement fed an effort to immediately parse the Amendment’s meaning. The Lowell Daily Citizen & News expressed its opinion about what the Enforcement Clause signified: “What ‘appropriate legislation’ means can scarcely admit of a doubt. It means such legislation as may be found necessary and proper to secure the actual freedom of all men un- der the laws.”16 Such a perspective linked the newborn amendment to the Necessary and Proper Clause of the original Constitution.17 Representative James F. Wilson, Chairman of the Committee on the Judiciary, had said the same about Congress’s authority when he quoted from McCulloch v. Maryland, the seminal case on the Necessary and Proper Clause: “‘Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.’”18 A full century later, the Supreme Court continued to identify with the Daily Citizen’s and Wilson’s corroborative perspectives on the connection between

senator” who “had argued for the inclusion of women’s rights in the Fourteenth Amendment”).

14. Cong. Globe, 38th Cong., 1st Sess. 1424 (1864) (statement of Sen. Reverdy Johnson).

15. The Twelfth Amendment was ratified on June 15, 1804, and the Thirteenth Amendment on December 6, 1865. Nat’l Archives & Records Admin., Constitution of the United States: Amendments 11–27, available at http://www.archives.gov/exhib- its/charters/constitution_amendments_11-27.html (last visited Sept. 12, 2012) (on file with the Columbia Law Review).

16. What It Means, Lowell Daily Citizen & News, Dec. 8, 1865, at 2 (quoting U.S. Const. amend. XIII, § 2 (“Congress shall have power to enforce this article by appropriate legislation.”)).

17. U.S. Const. art. I, § 8, cl. 18. 18. Cong. Globe, 39th Cong., 1st Sess. 1118 (1866) (statement of Rep. James F.

Wilson) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)).

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Congress’s pre- and post-Civil War powers.19 Many speeches made during debates on the proposed amendment

evidence an unmistakable intent to expand legislative civil rights author- ity into areas that had previously been reserved to the states.20 Senator Reverdy Johnson, a Unionist Democrat, expressed the hope of many of his colleagues that the Amendment would provide Congress with the power to render the self-evident truths of the Declaration of Independence a practical reality.21 This sentiment was common among senators and representatives, who understood the Amendment to be a grant of legislative power to protect citizens’ lives, liberties, and pursuits of happiness.22 As was the case when the Declaration of Independence was passed, a chauvinistic sense of rights favored men. Yet, the framers’ unwillingness to apply the fundamental legal concepts to women does not undermine Congress’s current ability to exercise the Thirteenth Amendment’s authority to end any form of subordination predicated on gender.

Representative Wilson declared that the Amendment would confer Congress with the authority to end slavery and its vestiges. In his view, the Thirteenth Amendment was to be a grant of authority to Congress, ena- bling it to pass laws that “enforced and sanctioned” emancipation.23 After the debacle of Dred Scott, in which the Court held that Congress lacked the power to prohibit slavery in the western territories under the Due Process Clause of the Fifth Amendment,24 Section 2 of the Thirteenth Amendment granted legislators the unequivocal power to pass laws pro-

19. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 443 (1968) (quoting approvingly

statement of Representative James Wilson, who “urg[ed] that Congress had ample author- ity to pass the pending bill” and “recalled the celebrated words of Chief Justice Marshall in McCulloch”).

20. See Alexander Tsesis, The Thirteenth Amendment and American Freedom 39 (2004) (examining three extensive debates surrounding passage of Thirteenth Amendment, one in Senate and two in House, which provide great detail about framers’ expectations).

21. Cong. Globe, 38th Cong., 1st Sess. 1424 (1864) (statement of Sen. Reverdy Johnson).

22. After states had ratified the Thirteenth Amendment, Senator Lyman Trumbull stated, “[T]he liberty to which every citizen is entitled; that is the liberty which was in- tended to be secured by the Declaration of Independence and the Constitution of the United States originally, and more especially by the amendment which has recently been adopted.” Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (statement of Sen. Lyman Trumbull). Another prominent Congressman, Iowa Representative James Wilson, de- clared, “[C]itizens of the United States, as such, are entitled to certain rights; and . . . be- ing entitled to those rights it is the duty of the Government to protect citizens in the per- fect enjoyment of them. The citizen is entitled to life, liberty, and the right to property.” Id. at 1294 (statement of Rep. James F. Wilson).

23. Cong. Globe, 38th Cong., 1st Sess. 1324 (1864) (statement of Rep. James F. Wilson).

24. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 450–51 (1857), superseded by constitutional amendment, U.S. Const. amend. XIV.

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tecting the equal civil rights of all citizens.25 The increased power in Congress was, then, a response to judicial meddling. Any contrary state laws would be displaced by operation of the Supremacy Clause.26 Wilson clearly thought that Section 2 enabled Congress to do far more than simply liberate slaves from forced labor. He envisioned that Congress’s expanded authority to pass laws would end “all . . . [slavery] was and is, [and] everything connected with it or pertaining to it.”27 By logical exten- sion, Wilson’s observations also apply to women. During the Reconstruction Era, legal inequality in business dealings, marital rela- tions, property ownership, and employment was a reality for women as it was for Blacks. The Thirteenth Amendment extended the privilege of enjoying legal equality to all Americans and thereby superseded the orig- inal Constitution’s deference of arbitrary class treatment that had been the historical province of states.

The actual term equality did not, however, enter the Constitution un- til 1868 with the ratification of the Fourteenth Amendment. In 1864 and 1865, Thirteenth Amendment framers did not have the supermajority necessary to add it. When Senator Charles Sumner introduced an amended version of the Thirteenth Amendment, seeking to include the phrase “all persons are equal before the law,”28 other senators convinced

25. The first sentence of the Civil Rights Act of 1866 states, “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27. The Act was enacted pursuant to Congress’s Section 2 authority, the clearest sign that Section 2 was a protection of U.S. citizens’ rights. See Alexander Tsesis, Principled Governance: The American Creed and Congressional Authority, 41 Conn. L. Rev. 679, 715 (2009) (noting how Congress enacted Civil Rights Act under Section 2 au- thority even before ratification of Fourteenth Amendment); see also Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1816 (2010) (“The Citizenship Clause of the Fourteenth Amendment confirmed the declaration made in the 1866 Civil Rights Act and placed this declaration of citizenship in the Constitution.”). The floor leader of the Bill, Senator Lyman Trumbull, took it as a given that even the bill’s opponents recognized that it was intended to “secur[e] equal civil rights to all persons.” Cong. Globe, 39th Cong., 1st Sess. 605 (1866) (statement Sen. Lyman Trumbull). See also id. at 1152 (state- ment of Rep. Martin Thayer) (“[B]y virtue of the second section of the [Thirteenth A]mendment of the Constitution Congress has express power to pass laws which will guar- anty and insure these great rights and immunities of citizenship . . . .”).

26. See George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1381 (2008) [hereinafter Rutherglen, State Action] (“Matters that previously had been the exclusive domain of the states were now subject to federal regulation that could, under the Supremacy Clause, displace state law.”).

27. Cong. Globe, 38th Cong., 1st Sess. 1324 (1864) (statement of Rep. James F. Wilson).

28. Id. at 521 (statement of Sen. Charles Sumner) (proposing to add following amendment to Constitution: “Everywhere within the limits of the United States, and of each State or Territory thereof, all persons are equal before the law . . . .”); id. at 1483 (moving to amend proposed Thirteenth Amendment to insert: “All persons are equal before the law, so that no person can hold another as a slave; and the Congress may make all laws necessary and proper to carry this article into effect everywhere within the United States and the jurisdiction thereof.”).

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him to abandon the motion.29 Instead, Congress adopted the long-estab- lished but more constrained wording that was drawn from the Northwest Ordinance of 1787, which prohibited slavery in the Northwest Territory, bounded by the Ohio River to the South and the Mississippi River to the East.30 In part, the Senate’s decision not to adopt Sumner’s equality lan- guage into the Thirteenth Amendment was based on the chauvinism of congressmen like Senator Jacob Howard, a member of the Senate Judiciary Committee who fashioned the language of the Thirteenth Amendment. Howard flatly cautioned that including equality would mean that “before the law a woman would be equal to a man, a woman would be as free as a man. A wife would be equal to her husband and as free as her husband before the law.”31 The more pragmatic reason for avoiding the word equality in the final version of the Amendment was part of an effort to recruit as many Democratic and Unionist senators as possible for achieving the necessary two-thirds majority required by Article V of the Constitution.32 Part II of this Essay returns to the topic of how to as- sess this failure to expand gender equality at the same time as Congress received the power to end racial discrimination.

2. Popular Understanding of Vestiges of Slavery. — As is the case with many constitutional provisions, the text of the Thirteenth Amendment is relatively brief. Its first section mandates an end to slavery and involun- tary servitude, “except as a punishment for crime whereof the party shall have been duly convicted.” Section 2 is the Amendment’s principal source for passing antisubordination laws, granting Congress the power of legislative enforcement. The framers understood the Amendment to make a structural change to the relationship between federal and state

29. See, e.g., id. at 1488 (statement of Sen. Jacob Howard) (calling Senator Sumner’s

amendment “insignificant and meaningless”). 30. Id. at 1489. The Senate Committee of the Judiciary adapted the first clause of the

Thirteenth Amendment from the Northwest Ordinance of 1787. See Horace White, The Life of Lyman Trumbull 224 (1913) (discussing history of Thirteenth Amendment). The Ordinance’s legacy is not without blemish. Along with a prohibition on slavery, it also con- tained a fugitive slave clause:

There shall be neither slavery nor involuntary servitude in the said territory, oth- erwise than in the punishment of crimes, whereof the party shall have been duly convicted: [p]rovided always, [t]hat any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or services as aforesaid.

Northwest Ordinance of 1787, art. VI, 1 Stat. 51 n.(a). 31. Cong. Globe, 38th Cong., 1st Sess. 1488 (1864) (statement of Sen. Jacob

Howard). 32. See Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery,

and the Thirteenth Amendment 56–59 (2001) (discussing how both Republicans and Democrats were opposed to language of Senator Sumner’s proposal). The final Senate vote for the passage of the proposed Thirteenth Amendment included six senators either affiliated with the Democrats or the Unionist party. Cong. Globe, 38th Cong., 1st Sess. 1490 (1864) (providing list of senators who voted for and against Amendment).

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governments. On the heels of the Civil War, popular sentiment, espe- cially in the North, also favored radical constitutional change. Decades before the ratification of the Thirteenth Amendment, antislavery activists described the institution of slavery as a combination of statutes and cul- tural practices.33 Besides the obvious lack of control over labor, slaves could not sign contracts, lacked legal rights in property, could not partic- ipate in judicial cases, and were treated as innately subordinate.34 The inability to enjoy the full protection of the laws had long been consid- ered an incident of slavery.35

In a sermon delivered five months after the House voted for the Thirteenth Amendment, Methodist Reverend Charles Hammond of the Manson Academy asserted that the aim of Reconstruction should be “to establish the laws” needed for the systematic “removal of every vestige of slavery.”36 In the same period of time, the Scottish Presbyterian Synod admonished its United States colleagues to “exert themselves for the re- moval of every vestige of slavery from their constitution and the coun- try,—and to secure over the breadth of their vast continent the estab- lishment of peace and liberty.”37 The Reverend Frank L. Robbins, Pastor of the Greenhill Presbyterian Church, agreed. The North should not

33. See George M. Stroud, A Sketch of the Laws Relating to Slavery in the Several States of the United States of America 22 (1827) (stating that study of slave laws only pro- vided partial picture of incidents of slavery because none of slaveholding states “have adopted entire written codes”).

34. The term “incidents of slavery” was widely used for a broad range of legal and extralegal behaviors long before the Supreme Court adopted it. See, e.g., Wilson Armistead, A “Cloud of Witnesses” Against Slavery and Oppression 59 (1853) (document- ing testimony of Reverend John Thorpe referencing “incidents of slavery” to challenge plantation owner’s descriptions of slavery system); Horace Mann, Speech Delivered in the United States House of Representatives on the Subject of Slavery in the Territories, and the Consequences of a Dissolution of the Union (Feb. 15, 1850), in Slavery: Letters and Speeches 180, 198 (1851) (“The inference is inevitable, that if inhabitants of the fifteen slave states can carry slaves into California by virtue of the laws of their representative states, then they must carry all the incidents of slavery known to their respective codes.”); Thomas Price, Slavery in America: With Notices of the Present State of Slavery and the Slave Trade Throughout the World 26–27 (1837) (“That gentleman had been surrounded from earliest infancy with all the appalling incidents of slavery, and was well qualified to bear testimony to its true character.”); Duty of Promoting the Immediate and Complete Abolition of Slavery, 23 Evangelical Mag. & Missionary Chron. 676, 677 (1845) (“It is un- necessary to dwell upon the incidents of slavery---its oppressive cruelties---the awful degra- dation it inflicts on innocent human beings.”).

35. See, e.g., Book Review, 19 Critical Rev. 291, 294 (1765) (“[I]f freedom be the power of doing every thing which the law does not forbid, a privilege against the restraint of law inflicts a badge of slavery and all its consequences upon all those to whom it is not extended, and destroys at once our so much boasted constitution.”).

36. Charles Hammond, A Sermon on the Life and Character of Abraham Lincoln, Preached at Monson, at the United Service of the Congregational and Methodist Churches, on the Occasion of the National Fast, June 1, 1865, at 19 (1865).

37. Letter from Synod in Scotland to the Synod of the Reformed Presbyterian Church in America (1865), in 3 The Reformed Presbyterian and Covenanter 250, 251 (Thomas Sproull & Jas. M. Willson eds., 1865).

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permit Southern states to reenter the Union, said Robbins, unless they were willing to adopt the “posture of this nation” by eliminating “every vestige of . . . inhumanity” associated with slavery.38 The sense of religious duty to undo the harms of slavery was also shared by Baptists like Pastor Warren Randolph, who believed that, along with crushing the rebellion, “the last vestige of the curse” of slavery “must be destroyed.”39 The American Female Guardian Society and Home for the Friendless also identified the abolition of “every vestige of human slavery among us” as a Christian obligation.40 As seen in Part II.A, for feminists, impediments to women’s equal liberty were also vestiges of slavery.

Contemporaries understood slavery to be about more than the chat- telization of people. 41 Slaves were prohibited from marrying, freely wor- shiping, purchasing property, or exercising parental authority.42 Slaves were also brutally beaten by domineering masters.43 Union Commander of the Gulf, General Nathaniel P. Banks, issued an edict punishing any- one who engaged in slavery and its “incidents.”44 He decreed that “[n]o negro can be punished by his master, or divorced from his wife, or de- prived of his children, or sold off the plantation, or forbidden with due notice to exchange his service, or debarred from education.”45 To Banks, freeing Blacks meant securing for them the incidents of citizenship.

People around the country understood that by ratifying the Thirteenth Amendment they were empowering Congress to pass laws

38. Frank L. Robbins, A Discourse on the Death of Abraham Lincoln 7 (Phila., Henry B. Ashmead 1865).

39. Warren Randolph, The Fallen: A Discourse Preached at the Harvard Street Baptist Church in Boston 19 (Boston, J.M. Hewes 1865).

40. Sign of the Times, 30 Advoc. & Fam. Guardian 142 (1864). 41. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440–41 (1968) (“Surely Congress

has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irra- tional one.”); The Civil Rights Cases, 109 U.S. 3, 20 (1883) (“[I]t is assumed, that the power vested in Congress to enforce the . . . [Thirteenth Amendment] by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolish- ing all badges and incidents of slavery in the United States . . . .”). For a historical discus- sion of the term “badges and incidents of slavery,” see George A. Rutherglen, The Badges and Incidents of Slavery and the Power of Congress to Enforce the Thirteenth Amendment, in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 163, 164–67 (Alexander Tsesis ed., 2010).

42. George M. Stroud, Southern Slavery and the Christian Religion, North Am. and U.S. Gazette, Sept. 15, 1863, at 1 (stating that “legal incidents of Southern slavery” in- cluded keeping slave “wholly under the dominion of his master, subject to be bought and sold . . . fed and clothed much or little, as his master may prescribe,” and that slave could be forbidden from reading and “acquiring a knowledge of his religious duties, [rendered] incapable of a lawful marriage[,] denied all authority over those who are admitted to be his natural offspring,” and more).

43. Id. 44. The Reconstruction of Society in Louisiana, 37 Spectator 258 (1864). 45. Id.

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against and void all the incidental violations of civil rights that had been intrinsic to slaves’ lack of freedom. The framers’ initial purpose in ratify- ing the Thirteenth Amendment had been to abolish slavery, but congres- sional speeches and newspaper articles from the day indicate that they expected this to only be a first step. The Fourteenth Amendment was likewise initially passed to address racially motivated injustices.46 It was only in the twentieth century that its statements about equal protection and due process became the sources of civil rights protections and sub- stantive freedoms.

B. Statutory Aftermath of Ratification

Congressmen were so certain that the Thirteenth Amendment granted them power to end all the incidents of slavery that almost imme- diately after its ratification they began to formally debate the merits of a bill “to protect all persons in the United States in their civil rights, and furnish the means of their vindication.”47 The proposal became the Civil Rights Act of 1866. It regulated conduct that had been at the sole discre- tion of the states.48 The statute continues to be good law, protecting the individual rights to contract, testify at trial, and enter real estate and pri- vate property agreements.49

Although the final version of the Thirteenth Amendment did not include the word equality, provisions of the Civil Rights Act of 1866 ex- plicitly prohibited some of the most commonly perpetrated acts of dis- crimination.50 Its adoption was necessary, in the words of Representative M. Russell Thayer, “to secure . . . the fundamental rights of citizenship; those rights which constitute the essence of freedom, and . . . make all

46. See Berta Esperanza Hernández-Truyol, Out of the Shadows: Traversing the

Imaginary of Sameness, Difference, and Relationalism, A Human Rights Proposal, 17 Wis. Women’s L.J. 111, 155 (2002) (noting purpose of Fourteenth Amendment was to elimi- nate racial discrimination).

47. Cong. Globe, 39th Cong., 1st Sess. 474 (1866). 48. See Baher Azmy, Unshackling the Thirteenth Amendment: Modern Slavery and a

Reconstructed Civil Rights Agenda, 71 Fordham L. Rev. 981, 1017–18 (2002) (discussing debates surrounding reliance on Section 2 of Thirteenth Amendment to pass Civil Rights Act of 1866).

49. Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (1866) (codified as amended at 18 U.S.C. § 242 and 42 U.S.C. §§ 1981–1982). The Act guaranteed the rights to “make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property.” Id. § 1. It further provided citizens with the “full and equal benefit of all laws and proceedings for the security of person and property . . . any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” Id. The statute prohibited both public and private discriminations. See id. A penalty section provided federal courts with the authority to levy a $1,000 fine and sentence offenders to one year in jail. Id. § 2.

50. The Act guaranteed persons of all races “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Id. § 1.

2012] GENDER DISCRIMINATION 1653

men equal before the law.”51 The failure of the framers of the Thirteenth Amendment to include women in the protections of equal citizenship did not invalidate feminists’ conviction that as citizens they deserved equal civil treatment. Nothing in the 1866 law limited its scope to male citizens, even though in application it has only been effectively used in race discrimination cases. Part II.E.1 discusses the contemporary applica- tions of the statute to employment discrimination cases.

With the passage of the Act, the United States prohibited private parties,52 cartels,53 and states54 from violating individual liberties. Put an- other way, the Civil Rights Act of 1866 punished arbitrary discrimination that relegated people to a state of unfreedom.55 While the Act does not

51. Cong. Globe, 39th Cong., 1st Sess. 1152 (1866). 52. Besides positive legal impediments to black freedom, widespread violence pre-

vented freedpeople from choosing where to live and for whom to work. White suprema- cists engaged in whippings and lynchings. Of the five hundred whites charged with mur- dering blacks in Texas between 1865 and 1866, all five hundred were acquitted by white juries. Cong. Globe, 39th Cong., 1st Sess. 95 (1865) (providing eyewitness reports of con- temporary violence); Eric Foner, A Short History of Reconstruction 189–90 (1990) (detail- ing violence and extent of vigilante authority of private militias like Ku Klux Klan); Herbert Shapiro, White Violence and Black Response: From Reconstruction to Montgomery 5 (1988) (describing Ku Klux Klan violence).

53. For an extensive description of how racial discrimination is similar to the exclusionary conduct of an economic cartel, see Darrell A.H. Miller, White Cartels, the Civil Rights Act of 1866, and the History of Jones v. Alfred H. Mayer Co., 77 Fordham L. Rev. 999, 1023–25 (2008).

54. Shortly after the ratification of the Thirteenth Amendment several states enacted a variety of laws to prevent Blacks from enjoying the same freedoms as white citizens. For example, child apprenticeship laws bound black children to terms of service meant to prevent families from moving away from their former slaveholders. Peter Kolchin, American Slavery, 1619–1877, at 220–21 (1993); Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery 191, 237–38 (Vintage Books 1980) (1979). Black Codes were even more prevalent impediments on freedpeople’s ability to exercise their status as United States citizens. These codes prevented Blacks from traveling freely, bargaining with employers, or purchasing real estate. See Donald G. Nieman, To Set the Law in Motion: The Freedmen’s Bureau and the Legal Rights of Blacks, 1865–1868, at 98 (1979) (“The legislatures . . . had enacted true black codes—harsh systems of law which applied exclu- sively to blacks.”); Charles Sumner, The National Security and the National Faith: Guaranties for the National Freedman and the National Creditor (Sept. 14, 1865), in 9 The Works of Charles Sumner 437, 442–43 (1874) (“The Black Code is the incident of Slavery, and as such it must fall with the principal. Unless this is accomplished, you will keep the word of promise to the ear and break it to the sense . . . .”); Andrew E. Taslitz, Slaves No More!: The Implications of the Informed Citizen Ideal for Discovery Before Fourth Amendment Suppression Hearings, 15 Ga. St. U. L. Rev. 709, 746–47 (1999) (“The Codes . . . sought to repress Black freedom of movement, privacy, and property as an ex- pression of an intolerable idea of equality.”). Congress enacted the Civil Rights Act of 1866 in large part to provide a federal cause of action to persons subject to Black Codes. Rutherglen, State Action, supra note 26, at 1397 (“[T]he Civil Rights Act of 1866 identi- fied several badges and incidents of slavery recreated by the ‘Black Codes’ passed by southern states to deny full legal capacity to the newly freed slaves.”).

55. This use of “unfreedom” is analogous to Amartya Sen’s, although unlike his work, this Essay does not consider the extent to which poverty diminished the enjoyment of lib-

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mention gender, its coverage should be understood in its present form to extend to cases of sex discrimination or modified for the sake of clarity. The law reflected how members of the Reconstruction Congress under- stood Section 2 of the Thirteenth Amendment to extend to private and public wrongs. While congressmen may not have expected litigants to rely on the 1866 Act to challenge gender inequalities, its actual terms created redress against more than just racial discrimination. Arbitrary interferences with contractual rights, procedural safeguards, and prop- erty ownership prevented men and women from enjoying their basic freedoms. The Civil Rights Act protected the interests of “citizens, of every race and color,”56 which by definition included men and women.

During House debates on the bill, Representative William Windom, a future Secretary of the Treasury to Presidents James Garfield and Benjamin Harrison, enunciated the commonly held view that the Thirteenth Amendment granted Congress the authority to ensure that “the whole people,” irrespective of gender, enjoy their rights, whether they be “high and low, rich and poor, white and black.”57 Whether or not Windom expected women to file claims under the Act, his “whole peo- ple” conception should be interpreted today to logically include females. The federal government’s ability to pass antisubordination legislation under its Thirteenth Amendment power furthers the “equality of rights,” which the nation has professed from the time of its founding.58 The stat- ute’s explicit language is inclusive enough to permit lawsuits to vindicate gender discrimination, although historically it has only been applied to racial harms. Existing Thirteenth Amendment jurisprudence should be expanded into the area of gender inequality in the same way that the Supreme Court came to understand the Fourteenth Amendment as deal- ing with much more than race.59

In 1866, after President Johnson unexpectedly vetoed the civil rights bill,60 Congress returned to thoroughly debate its merits. The debates did not directly address the concerns of women’s rights activists. As was the case throughout the Reconstruction period, issues of race took center stage. While statements about natural rights might have seamlessly been

erty. See Amartya Sen, Development as Freedom 3, 15, 87 (1999) (discussing how poverty restricts access to basic goods and services and thereby limits freedom and individual ca- pabilities). Unfreedom in this Essay deals with forms of interference with individual free- doms that impede individuals from exercising their lawful rights to enjoy the general wel- fare and their unique pursuits.

56. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27. 57. Cong. Globe, 39th Cong., 1st Sess. 1159 (1866) (statement of Rep. William

Windom). 58. Id. 59. See infra Part II.C (discussing modern Supreme Court’s expanded reading of

Fourteenth Amendment to ban both gender- and race-based inequality). 60. For the text of Johnson’s veto message, see Cong. Globe, 39th Cong., 1st Sess.

1857–60 (1866).

2012] GENDER DISCRIMINATION 1655

extended to women, the legislative agenda did not take up feminist de- mands for transactional, ownership, and suffrage parity because of the widespread acquiescence to political pragmatism and cultural chauvin- ism.61 The need to secure a supermajority to override the veto rendered it essential to first deal with the topic most pressing to the postbellum Congress. It was difficult enough to pass laws to safeguard the rights of free Blacks, and Radical Republicans realized that they stood an even smaller chance of success if they were to simultaneously press ahead with women’s rights. Nevertheless, the principles they espoused, both by the ratification of the Thirteenth Amendment and the passage of the Civil Rights Act of 1866, applied to all people, irrespective of gender. Putting the laws’ potentials into effect would be left to future generations.

The ideals voiced in both chambers of Congress had universal ap- peal. Principled statements dictated the parsing of the Amendment. For instance, Representative Martin R. Thayer asserted the principle that “[t]he sole purpose of the [civil rights] bill is to secure to that class of persons the fundamental rights of citizenship.”62 By “class of persons,” Thayer referred to Blacks63 but the implication of his view for feminist appeals was obvious. He called on Congress to recognize rights “which are common to the citizens of all civilized States; those rights which se- cure life, liberty, and property, and which make all men equal before the law, as they are equal in the scales of eternal justice.”64 As early as 1848, feminists had asserted women’s equal right to enjoy life, liberty, and property.65

What is important here is not whether Thayer meant listeners to in- fer that women’s interests should also be weighed on “the scales of eter-

61. Elizabeth Cady Stanton, a leading feminist, summarized the argument of political

pragmatists: “It is all very well for the privileged order to look down complacently and tell us, ‘This is the negro’s hour; do not clog his way; do not embarrass the Republican party with any new issue; be generous and magnanimous; the negro once safe, the woman comes next.’” Letter from Elizabeth Cady Stanton to the Editor of the National Anti- Slavery Standard (Dec. 26, 1865), in The Concise History of Woman Suffrage 219, 219 n.* (Mari Jo Buhle & Paul Buhle eds., 1978). Stanton rejected this idea: “[T]he disfranchised all make the same demand, and the same logic and justice that secures suffrage to one class gives it to all.” Id. Other feminists like Lucy Stone, Wendell Phillips, and Frederick Douglass agreed with the serial approach of seeking black suffrage and then securing vot- ing rights for women. See Tsesis, We Shall Overcome, supra note 9, at 144–45, 150–51 (illustrating debate between those urging for immediate woman suffrage and those argu- ing that black suffrage should take precedence). The Republican Party was ideologically committed to black suffrage but believed “that to combine woman’s suffrage with this . . . plank would be to invite ruin.” Ida M. Tarbell, The American Woman, 70 Am. Mag. 64 (1910).

62. Cong. Globe, 39th Cong., 1st Sess. 1152 (1866) (statement of Rep. Martin Thayer).

63. Id. (referring interchangeably to this “class of persons” and “freemen”). 64. Id. 65. Declaration of Sentiments, Seneca Falls Convention (1848), in 1 History of

Woman Suffrage 70–71 (Arno & The New York Times 1969) (1881).

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nal justice.” The meaning of the Thirteenth Amendment lies not only in its text and the intent of its framers, but also in the meaning social and political groups have attached to it. The law secures for everyone the right “to make and enforce contracts, to sue, be parties, and give evi- dence, to inherit, purchase, lease, sell, hold, and convey real and per- sonal property”66 without reference to gender. The very terms of the law altered the legal relationship between the federal and state governments. The Act established a federal cause of action over civil rights, in matters formally at the sole discretion of the states, within the province of the federal government. By relying on its Thirteenth Amendment enforce- ment power to pass a law that was only abstractly tied to slavery, Congress demonstrated its determination to impose a federal standard of human rights throughout the country. That standard readily applies to govern- ment’s role in securing gender as well as racial equality.

Provisions of the Civil Rights Act of 1866 extend well beyond a sim- ple prohibition against chattel slavery. The law’s scope includes conduct that interferes with the enjoyment of basic freedoms. Its breadth includes forms of discrimination that are analogous to but by no means literally slavery or involuntary servitude. The framers made clear by the terms of the statute that their understanding of Congress’s Section 2 authority was much broader than the simple text of the Thirteenth Amendment. The supermajority of Congress who adopted the statute sought to protect lib- erties essential to free people, not merely to break the shackles of bondsmen.

By relying on this nontextualist approach to the Thirteenth Amendment, Congress would be able to explicitly extend protections of the Civil Rights Act to provide a new civil cause of action against gender discrimination. While the extent to which Blacks, and especially slaves, were unable to enter into contracts, dispose of property, and participate in court proceedings was more severe than the experience of most white women, especially those living in affluent households, gender inequality has imposed severe disabilities on females throughout the nation’s his- tory that can be addressed at the national level through federal legisla- tion. Feminists of the early- to mid-nineteenth century, who greatly influ- enced the abolitionist principle of the Thirteenth Amendment,67 often compared civil obstacles socially imposed on women and free Blacks to the impediments of slavery.68

From the opening to the closing of the debate on the Civil Rights

66. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27. 67. Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary Abolitionism

Through the Thirteenth Amendment, 39 U.C. Davis L. Rev. 1773, 1779–80 (2006) (ex- plaining how abolitionist notions of liberty traced their origin to ideology of American Revolution).

68. See infra Part II.A (discussing analogies drawn between social status of women and slaves).

2012] GENDER DISCRIMINATION 1657

Act of 1866, the bill’s Senate floor leader and foremost expositor, Lyman Trumbull, spoke of its passing as a homage to natural liberty and equal- ity.69 On the pragmatic level he convinced fellow senators that the Thirteenth Amendment granted Congress the authority both to identify and protect free persons’ rights to file lawsuits, travel, execute contracts, and purchase and alienate property.70 The bill’s provisions were and con- tinue to be of concern for men and women of all races. The terms Trumbull used readily graft from racial to gender equality. For instance, he asserted that the bill would entitle “all persons in the United States . . . to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happi- ness” without destroying state sovereignty interests.71 The statute was meant “to carry out a constitutional provision, and guaranty to every per- son of every color the same civil rights.”72 While the Reconstruction

69. He derived his natural theory of government from a variety of established sources. For instance, Trumbull deduced that the Thirteenth Amendment granted Congress the power to warrant privileges of citizenship identified in Justice Bushrod Washington’s circuit court dictum to Corfield v. Coryell, including:

[T]he enjoyment of life and liberty, with the right to acquire and possess prop- erty of every kind, and to pursue and obtain happiness and safety; . . . [t]he right of a citizen of one state to pass through, or to reside in any other state, for pur- poses of trade, agriculture, professional pursuits, or otherwise.

6 F. Cas. 546, 551–52 (Washington, Circuit Justice, C.C.E.D. Pa. 1823) (No. 3230). For Senator Trumbull’s discussion of Corfield in reference to Congress’s authority to pass the Civil Right Act of 1866 to protect natural rights, see Cong. Globe, 39th Cong., 1st Sess. 474–75 (1866). Trumbull’s reliance on Corfield has been discussed elsewhere. See Robert J. Kaczorowski, The Supreme Court and Congress’s Power to Enforce Constitutional Rights: An Overlooked Moral Anomaly, 73 Fordham L. Rev. 153, 218 (2004) (observing Trumbull’s reliance on Corfield to promote fundamental rights under Civil Rights Act); Kurt T. Lash, The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment, 99 Geo. L.J. 329, 361 (2011) (noting Trumbull cited Corfield’s language on “fundamental” rights of free men to support passage of Civil Rights Act).

70. Cong. Globe, 39th Cong., 1st Sess. 474–75 (1866) (statement of Sen. Lyman Trumbull). Quoting William Blackstone’s classic commentaries on law, Trumbull asserted that “‘Civil liberty [. . .] is no other than natural liberty, so far restrained by human laws and no further, as is necessary and expedient for the general advantage of the public.’” Id. at 474 (alterations in original) (quoting 1 William Blackstone, Commentaries *125).

71. Id. at 599. 72. Id. Trumbull rebuffed an opponent’s claims by stating: The bill is applicable exclusively to civil rights. It does not propose to regulate the political rights of individuals; it has nothing to do with the right to suffrage or any other political right; but is simply intended to carry out a constitutional provision, and guaranty to every person of every color the same civil rights. . . . But, says the Senator, it breaks down the local legislation of all the States; it con- solidates the power of the States in the Federal Government. Why, sir, if the State of Kentucky makes no discrimination in civil rights between its citizens, this bill has no operation whatever in the State of Kentucky. . . . The bill draws to the Federal Government no power whatever if the States will perform their constitu- tional obligations.

Id. at 599–600.

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Congress did not address issues of gender inequality, the principles its members espoused are entirely pertinent. As Trumbull explained, the Thirteenth Amendment granted the federal government the power to protect “the right to life, to liberty, and to avail one’s self of all the laws passed for the benefit of the citizen to enable him to enforce his rights.”73 The most straightforward interpretation of his reference to “every person of every color” applies to men and women.

Despite its potential to end sex discrimination, to date courts have only applied the Civil Rights Act and its modern versions—42 U.S.C. §§ 1981 and 1982—to cases of racial and ethnic discrimination.74 Most com- mentators have also taken the race focus of the statutes for granted. Professor Jeannette Cox, for instance, states that “§ 1981 only prohibits discrimination on the basis of race” without so much as questioning that assumption.75 Other authors who espouse this view76 treat the Thirteenth Amendment as if it contained the exhaustive list of categories—“race, color, or previous condition of servitude”—of the Fifteenth Amendment.77 These authors disregard that the Supreme Court has found ethnicity to be a protected class under the Civil Rights Act, and mistakenly believe that “race, under the 1866 Act” is “the only protected class entitled to compensatory damages in cases without intentional dis-

73. Id. at 600. 74. See William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment:

Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311, 1358 (2007) (noting application of “42 U.S.C. §§ 1981 and 1982 to whites only in circumstances where they had been injured not because of their race, but because of their association with blacks”); Jeannette Cox, Disability Stigma and Intraclass Discrimination, 62 Fla. L. Rev. 429, 440 n.42 (2010) (noting Title VII prohibits discrimination on basis of race, national origin, and color, unlike Civil Rights Act, which focuses only on race).

75. Cox, supra note 74, at 440 n.42. For other articles assuming that § 1981 only deals with race-based claims, see Douglas B. Kauffman, Is It Affirmative Action or Discrimination?, 65 Ala. Law. 395, 400 (2004) (noting that § 1981 “prohibit[s] race dis- crimination regardless of whether the affected employee is African-American or white”); Gary L. Sasso et al., Defense Against Class Certification, in Class Action Litigation 2006: Prosecution and Defense Strategies 389, 474 (PLI Litig. & Admin. Prac., Course Handbook Ser. No. 744, 2006), available at 744 PLI/Lit 389 (Westlaw) (on file with the Columbia Law Review) (providing race discrimination as only § 1981 ground for class certi- fication).

76. See, e.g., Jeffrey D. Dillman, New Strategies for Old Problems: The Fair Housing Act at 40, 57 Clev. St. L. Rev. 197, 197 n.2 (2009) (observing that §§ 1981 and 1982 only prohibit racial discrimination); Florence Wagman Roisman, The Impact of the Civil Rights Act of 1866 on Racially Discriminatory Donative Transfers, 53 Ala. L. Rev. 463, 466 (2002) (citing § 1981 as statute outlawing discrimination on basis of race). In Shaare Tefila Congregation v. Cobb, the Supreme Court found that ethnic groups, like Jews, “were among the peoples then considered to be distinct races and hence within the protection of the statute.” 481 U.S. 615, 617–18 (1987); see also Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) (holding Arabs are also protected under statute).

77. U.S. Const. amend. XV, § 1 (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”).

2012] GENDER DISCRIMINATION 1659

crimination.”78 The language of the statutes, however, does not require such a nar-

row construction. For instance, § 1981's guarantee to “[a]ll persons” of the same right “to make and enforce contracts,” in matters like employer- employee agreements, is worded broadly enough to include cases of gender equality.79 An inclusive interpretation of the statute would pro- vide remedies to all citizens, irrespective of sex or race. The Woman’s National Loyal League’s call for equality in 1863 still rings true today: “There never can be a true peace in this Republic until the civil and po- litical rights of all citizens of African descent and all women are practically established.”80 Elizabeth Cady Stanton would have mocked the notion that women lack the necessary standing to enforce civil rights norms. Rhetorically, she once asked, “Do you believe the African race is com- posed entirely of males?”81 “[W]hite citizens,” mentioned in § 1981, are, after all, male and female; emphasis should instead be placed on the statute’s application to “[a]ll persons.”82 Section 1982's provision protect- ing the right of “[a]ll citizens of the United States” to engage in property transactions “as is enjoyed by white citizens” also mentions race, but it logically covers cases of gender discrimination in real and personal prop- erty transactions.83

The Supreme Court’s interpretation of the Thirteenth Amendment also does not require confining §§ 1981 and 1982 or congressional en- forcement authority to race-based cases. The Court is free to take the Thirteenth Amendment along the same path of progress it took with the Fourteenth Amendment.84 As discussed in Part II, prior to its 1971 deci- sion in Reed v. Reed,85 the Court had never found a law discriminating on the basis of gender to violate the Equal Protection Clause. Before that time, the Court interpreted the Fourteenth Amendment to be exclusively about race-based discrimination. As with those found in Fourteenth

78. Mark R. Bandsuch, Dressing Up Title VII’s Analysis of Workplace Appearance

Policies, 40 Colum. Hum. Rts. L. Rev. 287, 308 (2009). 79. 42 U.S.C. § 1981(a) (2006). 80. Woman’s Nat’l Loyal League, Mammoth Petition, in 2 History of Woman

Suffrage, supra note 65, at 50, 57 (emphasis added). 81. Letter from Elizabeth Cady Stanton to Wendell Phillips (May 25, 1865) [hereinaf-

ter Stanton-Phillips Letter], in 2 Elizabeth Cady Stanton as Revealed in Her Letters, Diary and Reminiscences 104, 104–05 (Theodore Stanton & Harriot Stanton Blatch eds., 1922) [hereinafter Stanton as Revealed].

82. 42 U.S.C. § 1981(a). In McDonald v. Santa Fe Trail Transp. Co., the Supreme Court analogously dismissed the claim that the phrase “as is enjoyed by white citizens” meant that § 1981 did not protect whites. 427 U.S. 273, 287 (1976). Instead, the Court inter- preted the statute’s use of “[a]ll persons” to indicate that it protected persons of all races, including whites, from racial discrimination. Id.

83. 42 U.S.C. § 1982. 84. See infra notes 196–215 and accompanying text (tracking expansion of scope of

Fourteenth Amendment under modern-day Supreme Court jurisprudence). 85. 404 U.S. 71 (1971).

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Amendment precedents, principles identified in Thirteenth Amendment precedents on race should be expanded and modified to fit gender cases.

II. WOMEN, SLAVERY, AND ABOLITION

The premise that constitutional abolition logically encompasses gender equality is an offshoot of nineteenth-century feminist claims. As will be discussed in Part II.A, from the early part of that century, writers and orators compared the subordination of women to slavery. That per- spective did not carry much weight in Congress at the Thirteenth Amendment’s framing, but after long effort, American legal culture be- gan to address the harms associated with male supremacism.

From the 1830s until constitutional abolition in 1865, many femi- nists worked arduously to end slavery and the inequalities linked to it. They believed abolition should go hand in hand with the dissolution of the legal and social subordination of women. In the words of the early nineteenth-century abolitionist and women’s rights activist Angelina Grimké Weld, “I rejoice exceedingly that [our] resolution should com- bine us with the negro.”86 From March 1863 to August 1864, the Woman’s National Loyal League gathered about 400,000 signatures in favor of abolishing slavery.87 Senator Charles Sumner, the League’s strongest supporter in Congress, intermittently presented the Senate with thousands of signatures that the League gathered, seeking thereby to demonstrate the depth of popular support for ending slavery.88 Elizabeth Cady Stanton, organizer of the first women’s rights convention in the United States, believed that the subordination of Blacks and women was interlinked: “The negro’s skin and the woman’s sex are both prima facie evidence that they were intended to be in subjection to the white Saxon man.”89

Because their sufferings had many common features, feminists inte- grated their efforts to end slavery and gender discrimination. Woman’s emancipation, as anarchist Emma Goldman put it, “should make it pos- sible for woman to be human in the truest sense,” break down “artificial barriers” and clear “the road towards greater freedom” absent “of every

86. Angelina Grimké Weld, Address at the National Convention of the Woman’s

National Loyal League in New York (May 14, 1863), in 2 History of Woman Suffrage, supra note 65, at 54, 60.

87. Elisabeth Griffith, In Her Own Right: The Life of Elizabeth Cady Stanton 112 (1984). Members of the League included Elizabeth Cady Stanton, Susan B. Anthony, Angelina Grimké Weld, Antoinette Brown Blackwell, Lucy Stone, and Ernestine Rose. Id.

88. Wendy Hamand Venet, Neither Ballots nor Bullets: Women Abolitionists and the Civil War 120 (1991). Sumner began presenting the petitions even before the League had completed its canvass. Id. By February 1864, the Woman’s National Loyal League had gathered and sent Sumner 100,000 signatures compiled on 6,000 petition forms. Id.

89. 2 Great American Political Thinkers 116–17 (Bernard E. Brown ed., 1983).

2012] GENDER DISCRIMINATION 1661

trace of centuries of submission and slavery.”90 While black men, black women, and white women suffered unique harms from distinct stereo- types, none of them enjoyed the privileges of citizenship on an equal footing with white men.

This Part of the Essay details how nineteenth-century feminists inte- grated their efforts to end slavery and gender subordination. After providing the historical background necessary for understanding how Congress’s Thirteenth Amendment power to end the incidents of slavery applies to gender equality matters, the relevance of the Supreme Court’s Fourteenth Amendment Equal Protection doctrine to the context of the Thirteenth Amendment is discussed. The Part ends with examples of gender subordination that Congress should address through its authority under Section 2 of the Thirteenth Amendment.

A. The Slavery of Sex

The rhetoric of the antislavery and women’s rights movements often overlapped because many of their most prominent members embraced both causes. “In striving to strike [the slave’s] irons off,” wrote abolition- ist Abby Kelley Foster, “we found most surely that we were manacled our- selves.”91 The historian Blanche Glassman Hersh, who did an extensive study of this topic, found that “[t]he ‘woman and slave’ comparison was the most frequently used feminist argument in the antebellum period.”92 As early as the 1830s, Angelina Grimké Weld wrote that “like the colors of the rainbow[,]” “the great doctrine of Human Rights” blended “the rights of the slave and of woman.”93 One of the commonalities she pointed to was the socially accepted imputation of mental inferiority to all blacks and women, which was, in turn, used to rationalize limiting both groups’ educational opportunities.94 Speaking for women every- where, Grimké decried her plight, claiming that she felt “compelled to drag the chain and wear the collar on my struggling spirit as truly as the

90. Emma Goldman, The Tragedy of Woman’s Emancipation, in Anarchism and

Other Essays 213, 214 (Dover Publ’ns 1969) (1910). Goldman called for “[l]iberty and equality for woman! What hopes and aspirations these words awakened when they were first uttered by some of the noblest and bravest souls.” Id. at 215.

91. Amy Swerdlow, Abolition’s Conservative Sisters: The Ladies’ New York City Anti- Slavery Societies, 1834–1840, in The Abolitionist Sisterhood: Women’s Political Culture in Antebellum America 31, 32 n.4 (Jean Fagan Yellin & John C. Van Horne eds., 1994).

92. Blanche Glassman Hersh, The Slavery of Sex: Feminist-Abolitionists in America 196 (1978). The analogy of “sex slavery” was developed as early as late seventeenth-century England. Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country 220 (1995).

93. Alice Stone Blackwell, Lucy Stone: Pioneer of Woman’s Rights 30 (Univ. of Va. Press 2001) (1930).

94. Angelina S. Grimké, An Appeal to the Women of the Nominally Free States, Issued by an Anti-Slavery Convention of American Women 36 (1838).

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poor slave was on his body.”95 A columnist in the most prominent abolitionist newspaper asserted that “pro-slavery heads and tails of society know not what to do, when WOMAN stands forth to plead the cause of her degraded, chain-bound sex!”96 The author, however, overlooked that woman’s assertiveness would be met with consternation in the North as well as the South because, unlike slavery, chauvinism was a national, ra- ther than a regional, epidemic.

Feminists likened woman’s degraded sociopolitical condition to the subordinated status of slaves. While they sometimes acknowledged that the analogy was not literally true, feminists believed woman’s legal status resembled that of a slave. Neither of them could vote, sue or be sued, own property, enter into contracts, or choose an employer.97 The Civil Rights Act of 1866 would later secure these important rights.98 Grimké believed some of the antislavery rhetoric about chattel servitude also de- scribed the patriarchal domination that chained woman’s lives to the will of male relatives, acquaintances, and politicians.99 For instance, like slave women, white women were at risk of spousal, physical, and sexual assault without adequate legal recourse. An 1838 poem that was published in the American Anti-Slavery Society’s newspaper, The Emancipator, decried woman’s powerlessness against domestic brutality:

Tell me not of woman’s station, Tell me not we leave our “sphere,” When we urge by mild persuasion, Rights to every woman dear. When her back is stained and gory. When her tears in anguish flow; . . . . When her tend’rest ties are riven, For the sordid love of gold; And her children from her driven, “Human chattels” to be sold. . . . . Must we seek our lips to fetter, When our nature bids us plead? . . . .

95. Letter from Angelina Grimké to Sarah M. Douglass, in Letters of Theodore

Dwight Weld, Angelina Grimké Weld and Sarah Grimké, 1822–1844, at 572, 574 (Gilbert H. Barnes & Dwight L. Dumond eds., 1934).

96. The Women!, Liberator, Sept. 1, 1837, at 142. 97. See Françoise Basch, Women’s Rights and the Wrongs of Marriage in Mid-

Nineteenth-Century America, Hist. Workshop J., Autumn 1986, at 18, 22–23 (examining some legal handicaps that nineteenth-century feminists related to slavery).

98. See supra text accompanying notes 48–49 (discussing how Civil Rights Act of 1866 protected individual rights that were previously only regulated by states).

99. Jean Fagan Yellin, Women and Sisters: The Antislavery Feminists in American Culture 29 (1989).

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Mercy’s voice shall still inspire us, We will plead, till they shall spare.100

Feminists also regarded society’s unwillingness to interfere in cases of domestic violence to be as egregious as deference to brutal slavehold- ers.101

Inequalities in civil institutions, especially marriage, consigned too many women to a life of limited opportunity and legal recourse. As newspaper editor and writer Lydia Maria Child put it, “[B]oth with re- gard to women and slaves, men take away rights” by “physical force[,]” bringing “both of these classes into subjection” and excluding them from government and politics.102 Slaves and women were required to obey laws

100. S.E.P., For the Emancipator, The Emancipator, Dec. 6, 1838, at 130. 101. See Kim Shayo Buchanan, Impunity: Sexual Abuse in Women’s Prisons, 42 Harv.

C.R.-C.L. L. Rev. 45, 62 (2007) (“A husband’s beating of his wife was private; a master’s beating of his slave, however severe and unprovoked, was not a crime at all.”); Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2129–30 (1996) (finding that by 1870s, husband’s right to chastise his wife had been repu- diated but still inadequately punished).

The earliest instance of British colonial domestic violence law appears in the Massachusetts Body of Liberties in 1641. Elizabeth Pleck, Domestic Tyranny: The Making of Social Policy Against Family Violence from Colonial Times to the Present 21–22 (1987). But the extent of its enforcement is unclear. It is difficult to ascertain whether the fact that few cases were brought under it indicates abuse was uncommon or, what is far more likely, endured when not life endangering for lack of any reliable means of obtaining police re- dress. Id. at 21–31. Multiple examples of social disapprobation for domestic violence can be gleaned from early- to mid-nineteenth-century sources. The impression these accounts create, however, is that short of perpetrating life-endangering violence, domestic violence was frowned upon but not subject to criminal sanctions. See Henderson v. Stringer, 32 Ky. (2 Dana) 291, 292 (1834) (stating that husband was liable for wife’s board if “he had driven” her “off by beating her, or by other treatment which she could not be reasonably required to endure”); Bedell v. Bedell, 1 Johns. Ch. 604, 604 (N.Y. Ch. 1815) (describing successful divorce case in which wife accused husband of “the habitual practice of beating her”); Pennsylvania v. Michael M’Garvey, in 4 The American Annual Register for the Years 1827–8–9, pt. 2, at 58, 63–67 (1830) (transcribing testimony at trial resulting in husband’s conviction for murder in second degree for whipping his wife on head and throwing her out window); William Waller Hening, Surety for the Peace, in The New Virginia Justice, Comprising the Office and Authority of a Justice of the Peace 429, 430 (Richmond, T. Nicholson 1795) (“It is certain that a wife may demand” surety for the peace “against her husband, threatening to beat her outrageously, and that a husband may also have it against his wife.”); 1 William Oldnall Russell, A Treatise of Crimes and Misdemeanors 637 (London, Joseph Butterworth & Son 1819) (describing case where husbands caused wife “great bodily harm” resulting in her death); Vincent’s Semi-Annual United States Register—Events Transpiring Between the 1st of January and 1st of July, 1860, at 95 (Philadelphia, Francis Vincent 1860) (describing drunken husband’s “shocking murder” of his wife by beating “her in a most inhuman manner with a club or poker”); Clarissa David and John M’Donald’s Cases, in 3 The New-York City-Hall Recorder 45, 46 (Daniel Rogers ed., 1818) (documenting evidence at 1818 trial of husband charged with murder- ing his wife after long history of abuse); Horrid Murder!, The Lady’s Miscellany, June 16, 1810, at 125 (“One of the most aggravated species of murder was . . . committed by a man named Phillips, in the county of Champaign, (Ohio,) on the person of his wife.”).

102. Lydia Maria Child, Coincidences, National Anti-Slavery Standard, Oct. 6, 1842,

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that they were prohibited from framing.103 Stanton considered it “the most cursed monopoly . . . by man” to withhold “all the rights, the life, the liberty, and happiness of one-half of the human family—all woman- kind.”104 Female abolitionists perceived women to be enslaved by social and legal institutions.

The defense of slavery, in its religious and secular forms, regarded woman and slave’s spheres to be analogously beholden to the male lord of the household.105 Both groups were praised for remaining within their accepted spheres of behavior, and condemned for opposing culturally accepted inequalities.106 The subjection of slaves to the master of the house, explained Reverend Benjamin Palmer, is closely tied to the obe- dience wives owed to the head of the household.107 “Marriage,” wrote the proslavery apologist George Fitzhugh, “is too much like slavery not to be involved in its fate.”108

Child believed that women, like slaves, were treated as if they were property, rather than as individuals.109 This was particularly the case with married women, whom the law regarded as merged with their husbands rather than as uniquely volitional people.110 Thus, wives’ lives were often

at 70.

103. Id. 104. Letter from Elizabeth Cady Stanton to Lucy Stone, National Woman’s Rights

Convention (Nov. 24, 1856) [hereinafter Stanton-Stone Letter], in 1 History of Woman Suffrage, supra note 65, at 860, 860.

105. McCurry, supra note 92, at 216 (“The legitimacy of male authority over women within the household was a cornerstone of the slavery edifice.”).

106. See, e.g., Judge Harper, Memoir on Slavery, in 4 S. Literary Messenger 609, 611 (1838) (warning that claims for equality of blacks will result in efforts to politicize women and withdraw them from “nature which their Creator has impressed upon them”).

107. Benjamin M. Palmer, The Family in its Civil and Churchly Aspects 10–12, 15, 35–36, 50, 69 (Richmond, Presbyterian Comm. of Publ’n 1876).

108. George Fitzhugh, Sociology for the South or the Failure of Free Society 205 (Richmond, A. Morris 1854).

109. Lydia Maria Child, The African Race, National Anti-Slavery Standard, Apr. 27, 1843, at 187 (“The comparison between women and the colored race as classes is striking . . . both are kept in subjection by physical force, and considered rather in the light of property, than as individual.”).

110. Elizabeth Cady Stanton pointed out that “[a] man in marrying gives up no right; but a woman, every right, even the most sacred of all—the right to her own person. There will be no response among women to our demands until we have first aroused in them a sense of personal dignity and independence.” Letter from Elizabeth Cady Stanton to Susan B. Anthony (July 20, 1857), in 2 Stanton as Revealed, supra note 81, at 69, 70. Some feminists argued that the insufficient wages women received from employers forced them to be subservient to their husbands for fear of destitution or prostitution. See, e.g., Caroline H. Dall, The College, the Market and the Court 135 (1868) (asserting necessity for women to have “untrammelled access to all fields of labor”); Harriot K. Hunt, Glances and Glimpses 201, 384 (1856) (stating that because “dollars and a home come to woman through man” she is often “driven into legal and illegal prostitution” for lack of “just remu- neration for her labor”); Report in City Journal from National Convention at Cincinnati, Ohio (Oct. 17–18, 1855), in 1 History of Woman Suffrage, supra note 65, at 163, 166

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compared to those of slaves. Married abolitionist women found coping mechanisms against the built-in hierarchy of marriage. Stanton ex- plained why so many feminists of the nineteenth century retained their maiden names: They rebelled against the accepted marital norm of a woman taking on her husband’s identity along with his name, whereby a woman became “nameless, for a woman has no name! She is Mrs. John or James, Peter or Paul, just as she changes masters; like the Southern slave, she takes the name of her owner.”111 In his seminal Commentaries, William Blackstone described the accepted norm: “By marriage, the hus- band and wife are one person in law; that is, the very being or legal exist- ence of the woman is suspended during the marriage, or at least is incor- porated and consolidated into that of the husband.”112 This characteriza- tion, said a speaker at an 1850 Woman’s Rights Convention, absorbed married woman’s being into her domestic master, much like a slave’s.113 Furthermore, neither wives nor slaves were permitted to enter into inde- pendent contracts without first gaining their “masters” permission.114

For women, asserted Lucy Stone, marriage was “a state of slavery. It takes from her the right to her own property, and makes her submissive in all things to her husband.”115 In 1853, Antoinette Brown similarly de- plored, “The wife owes service and labor to her husband as much and as absolutely as the slave does to his master.”116 These statements were pur- posefully hyperbolic to draw attention to woman’s degraded status. Taken literally, however, they overlooked the fact that marriage itself was a contractual relationship barred to slaves. Unlike white women, slaves were regarded as actual property and therefore unable to enjoy privileges associated with marriage, like intestate succession or dower rights.117

(asserting that “society. . . keeps woman at home—a dependent” because while “[t]he flour-merchant, the house-builder, and the postman charge us no less on account of our sex; but when we endeavor to earn money to pay all these, then, indeed, we find the dif- ference”).

111. Stanton-Stone Letter, supra note 104, at, 860. 112. 1 William Blackstone, Commentaries *442. 113. Abby H. Price, Address to the Woman’s Rights Convention at Worcester (Oct.

24, 1850), in The Proceedings of the Woman’s Rights Convention, Held at Worcester, October 23 & 24, 1850, at 20, 31 (1851). Although Price provides no attribution for this statement, Sarah Grimké had said the same thing fourteen years before. Letter from Sarah Grimké to Angelina Grimké (Sept. 6, 1837), in Letters on the Equality of the Sexes and the Condition of Woman 74, 75 (1838) [hereinafter Letter from Sarah Grimké] (stating that “the very being of a woman, like that of a slave, is absorbed in her master. All con- tracts made with her, like those made with slaves by their owners, are a mere nullity”).

114. Letter from Sarah Grimké, supra note 113, at 75. 115. Editor’s Notes, The Una: A Paper Devoted to the Elevation of Woman 254 (Mar.

17, 1854). 116. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 64 (2000). 117. For some nineteenth-century examples of intestate succession, see Webb v.

Webb, 40 Tenn. (3 Head) 68, 70 (1859) (granting wife entire intestate estate); Eleanor Miot Boatwright, Status of Women in Georgia, 1783–1860, at 52 (1994) (discussing wives’ rights to dower and ways that inheritance laws affected women in Georgia); Dower Act of

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Stanton, who often relied on the slavery metaphor, recognized that woman’s “bondage” differed “from that of the negro slave.”118 At the very least, white women could not be held in hereditary bondage, nor could their children automatically become perpetual slaves. Despite the great asymmetries, the comparison was understandable given the legally ac- cepted domination of husbands over their wives’ economic, sexual, do- mestic, and maternal lives.119

Black abolitionist and former slave Sojourner Truth wholeheartedly agreed that there were similarities between the treatment of women and Blacks, but she distinguished metaphorical from actual slavery.120 In an

Dec. 22, 1812, in Acts Passed at the Second Session of the Seventh General Assembly of the Mississippi Territory 115, 115 (1812).

118. Stanton-Stone Letter, supra note 104, at 860, 860. 119. See generally, e.g., Mary Ann Mason, From Father’s Property to Children’s

Rights: The History of Child Custody in the United States 49–84 (1994) (charting evolu- tion of child custody in nineteenth century); 1 R.S. Donnison Roper, A Treatise of the Law of Property Arising from the Relation Between Husband and Wife (Edward Jacob ed., London, Joseph Butterworth & Son, 2d ed. 1826) (examining impact of marriage on hus- band and wife’s property rights); Jill E. Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373, 1382–412 (2000) (discussing nineteenth-century un- derstanding and application of marital rape exemption); Editor’s Notes, supra note 115, at 254 (relating example of husband who, by will, granted custody of his child to relatives and denied it to his widow).

120. Jean Fagan Yellin provides an excellent analysis of the differences between white and black women abolitionist perspectives on gender discrimination. Yellin, supra note 99, at 77–96 (1989) (discussing perspectives of Sojourner Truth and Harriet Jacobs as black women abolitionists who had been slaves). Frederick Douglass was an abolitionist who, like Truth, had escaped from slavery, but he believed it was too much to use the word “slavery” for women’s condition. He argued:

Slavery must be regarded as something different; it must be regarded as one man holding property in another, subjected to the destroying of all the higher qualities of his nature, deprived of his own body, his own soul. A slave is one who is to all intents and purposes a marketable commodity—common goods and chattels.

Frederick Douglass, International Moral Force Can Destroy Slavery: An Address Delivered in Paisley, Scotland (Mar. 17, 1846), in 1 Frederick Douglass Papers 183, 183–85 (John W. Blassingame, ed., 1979).

Douglass was a lifelong supporter of women’s equality, but during Reconstruction, he decided that ending racial discrimination was the most urgent task. See Frederick Douglass, The Woman Question, New Nat’l Era, May 12, 1870, reprinted in Frederick Douglass on Women’s Rights 90, 90–92 (Philip S. Foner ed., Da Capo Press 1992) (1976) (discussing Douglass’s decision to first press for black voting rights and then continue his work on behalf of women’s suffrage). Three months after the ratification of the Fifteenth Amendment, Douglass turned his attention back to women’s rights, writing a newspaper column encouraging efforts to press on with women’s suffrage. Id. That same year, he used his newly founded New National Era newspaper to campaign on behalf of women’s suffrage. Gary L. Lemons, Womanist Forefathers: Frederick Douglass and W.E.B. Du Bois 42 (2009).

Douglass explained his support for enfranchising Blacks before women: I do not see how any one can pretend that there is the same urgency in giving the ballot to woman as to the negro. With us, the matter is a question of life and

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1851 speech to the Akron Women’s Rights Convention, Truth pointed out that black women did not receive the comforts of chivalry—for ex- ample, being helped into a carriage, over a mud puddle, and being ush- ered into the “bes[t] place”—to which white women were accustomed.121 But Truth also believed that pressing the nation to protect women’s rights was intrinsic to constitutional emancipation.122 She was, of course, keenly aware that black women suffered greater oppression than white women, and, indeed, than black men. Truth, nevertheless, warned that if only black men gained the right to vote they might become “masters over the women, and it will be just as bad as it was before.”123

Comparisons between the lives of slaves and ordinary women must, therefore, not be taken too far. There are, nevertheless, significant simi- larities between women’s second-class citizenship and the oppression ex- perienced by slaves and free blacks, whom the Thirteenth Amendment clearly sought to elevate to equal civil status. Without cognizable redress against socially acceptable gender degradations, half the nation re- mained subject to a despotic class system, at the whim of husbands, em- ployers, and legislative bodies.124 “We are weary of sitting in the cellar of the temple of Liberty,” stated a petition for women’s suffrage in

death . . . . When women, because they are women, are hunted down . . . when they are dragged from their houses and hung upon lamp-posts; when their chil- dren are torn from their arms . . . ; when they are the objects of insult and out- rage at every turn; when they are in danger of having their homes burnt down over their heads; when their children are not allowed to enter schools; then they will have an urgency to obtain the ballot equal to our own.

Debates at the American Equal Rights Association Meeting (May 12–14, 1869), in The Concise History of Woman Suffrage, supra note 61, at 257, 258.

In her response to Douglass, Lucy Stone acknowledged African American sufferings, but she believed he had failed to comprehend that women suffered from “Ku-Kluxes . . . in the North in the shape of men, [who] take away the children from the mother, and sepa- rate them as completely as if done on the block of the auctioneer.” Id. at 260. Stone’s statement referred to state laws that granted fathers exclusive custody rights of their chil- dren in case of the spouses’ legal separation. See Mary Ann Mason, Motherhood v. Equal Treatment, 29 J. Fam. L. 1, 3 (1990–91) (“In the event of legal separation the father as- sumed custody of the children.”).

121. Sojourner Truth, 14 Unity 434, 434 (1885). 122. Truth eventually broke with Anthony and Stanton over their resort to racism

and abandonment of black male suffrage. Instead, she allied herself with Lucy Stone’s American Woman’s Suffrage Association. Nell Irvin Painter, Voices of Suffrage: Sojourner Truth, Frances Watkins Harper, and the Struggle for Woman Suffrage, in Votes for Women: The Struggle for Suffrage Revisited 42, 50–52 (Jean H. Baker ed., 2002).

123. Sojourner Truth, Address to the First Annual Meeting of the American Equal Rights Association, New York City (May 9, 1867), in The Concise History of Woman Suffrage, supra note 61, at 234, 235.

124. Susan B. Anthony, Address at United States Centennial Celebration and the Declaration of Rights: Declaration of Rights for Women by the National Woman Suffrage Association (July 4, 1876), in The Concise History of Woman Suffrage, supra note 61, at 300, 302 (“Universal manhood suffrage, by establishing an aristocracy of sex, imposes upon the women of this nation a more absolute and cruel depotism [sic] than monarchy; in that, woman finds a political master in her father, husband, brother, [and] son.”).

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California, “and listening to the distressing noise of the feet of our brothers overhead.”125

American women’s rights activists were deeply influenced by the phi- losopher John Stuart Mill’s views on the evils of socially imposed subser- vience.126 In his essay The Subjection of Women, Mill analogized the power dynamic in marriage to slavery because the law permitted husbands to deny their wives the opportunities for professional advancement, familial parity, and personal safety from domestic violence.127 He wrote that only a marriage among equals is based on true consent.128 The marital laws of England and the United States facilitated the suppression of women’s talents, urges, and personalities. Deeply impressed by Mill’s argument, Stanton added that “men abuse their wives[,]” having been “taught by law and gospel that they own them as property.”129

B. The Fourteenth Amendment at Its Inception

In the aftermath of Reconstruction, prominent figures in the women’s rights movement focused much of their effort on obtaining elective franchise. The New Departure Movement regarded the Fourteenth Amendment to be a promising constitutional source of polit- ical equality.130 Realizing that ratification of an additional constitutional amendment was unlikely for the time being, the Movement’s adherents reinterpreted the Fourteenth Amendment to recognize female citizens’ equal right to vote. The Supreme Court, on the other hand, initially re- fused to apply the Amendment to gender inequality cases.131 Not until a

125. The Work in California, 10 Woman’s J. 385, 388 (1879). 126. Elizabeth Pleck, Feminist Responses to “Crimes Against Women,” 1868–1896, 8

Signs 451, 455 (1983) (discussing Mill’s influence on women’s rights movement). 127. John Stuart Mill, The Subjection of Women 18, 23, 29 (Edward Alexander ed.,

Transaction Publishers 2001) (1869). 128. See Mary Lyndon Shanley, Marital Slavery and Friendship: John Stuart Mill’s

The Subjection of Women, 9 Pol. Theory 229, 230–35 (1981) (explaining Mill’s view that married women were treated like their husband’s chattel slaves rather than individuals).

129. Elizabeth Cady Stanton, On Marriage and Divorce (1871), available at http://gos.sbc.edu/s/stantoncady3.html (on file with the Columbia Law Review) (last vis- ited Sept. 8, 2012); see also Elizabeth B. Clark, Matrimonial Bonds: Slavery and Divorce in Nineteenth-Century America, 8 Law & Hist. Rev. 25, 46–48 (1990) (discussing Stanton’s push for disaggregation of family unit).

130. See Jack M. Balkin, How Social Movements Change (or Fail To Change) the Constitution: The Case of the New Departure, 39 Suffolk U. L. Rev. 27, 56 (2005) (“[T]he New Departure’s arguments for woman suffrage took positions about how the Fourteenth Amendment trumped state law that were virtually guaranteed not to appeal to a wide spec- trum of political and judicial elites.”); Rayne L. Hammond, Comment, Trial and Tribulation: The Story of United States v. Anthony, 48 Buff. L. Rev. 981, 998 (2000) (stating that Susan B. Anthony and her supporters hoped to adopt “the Fourteenth Amendment’s seeming support of a nationalistic approach . . . in bringing women’s suffrage to the polit- ical forefront”).

131. Minor v. Happersett, 88 U.S. (21 Wall.) 162, 174–75 (1874) (holding Fourteenth Amendment is no bar against state voting qualifications that only permit males to vote);

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century after its ratification did the Court recognize the Equal Protection and Due Process Clauses’ relevance to sex discrimination.132 Although, as Professor George Fletcher has correctly pointed out, today it seems pre- posterous to argue that the Equal Protection Clause does not protect women’s voting rights,133 that was not the case during the late nineteenth to early twentieth centuries. The history of how the Court came to ex- tend Fourteenth Amendment principles to women’s rights issues holds a lesson for expanding the Thirteenth Amendment to contemporary gen- der equality issues.

Professor Steven Calabresi and Julia Rickert recently challenged the commonly accepted view that, at its inception, the framers did not mean for the Fourteenth Amendment to affect women’s subordinated legal status.134 Calabresi and Rickert argued instead that the original public meaning of the anticaste principles of the Fourteenth Amendment in- cluded a prohibition against any sex discrimination that was “similar to race discrimination.”135 They contended that government conduct “that discriminates on the basis of sex violates the anticaste rule of the Fourteenth Amendment as that rule was originally understood.”136 This understanding is based on their interpretation of public meaning at the time of the Fourteenth Amendment’s ratification;137 however, they later indicate that its meaning must also be elucidated on the basis of the Nineteenth Amendment,138 even though the latter was ratified more than

Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 140–41 (1873) (rejecting claim that Fourteenth Amendment prohibits states from setting barriers to women practicing lawful professions).

132. United States v. Virginia, 518 U.S. 515, 534 (1996) (finding Virginia Military Institute’s bar against women’s admission invalid under Equal Protection Clause of Fourteenth Amendment); Craig v. Boren, 429 U.S. 190, 210 (1976) (striking down state gender-based age differential for alcohol sales on Equal Protection grounds).

133. George Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. Rev. 1895, 1903–04 (1999). Although the text of Section 2 refers only to male voters, “under current standards of equal protection analysis, attempt- ing to justify the denial of the franchise to women by invoking the text of Section 2 would be laughed out of court.” Id.

134. Compare Steven G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 Tex. L. Rev. 1, 47 (2011) (arguing that framers’ expectations about how judges would apply Fourteenth Amendment to facts is not controlling), with Jack M. Balkin, Living Originalism 11–12 (2011) (suggesting Amendment was not expected to apply to women), and David A. Strauss, The Living Constitution 13 (Geoffrey R. Stone ed., 2010) (“[N]o one in 1868, when the Fourteenth Amendment was adopted, thought that the amendment outlawed discrimination against women.”).

135. Calabresi & Rickert, supra note 134, at 49 (“[A] consensus emerged that . . . [should] inform our understanding of the original meaning of the Amendment and how it should affect laws that discriminate on the basis of sex. Lawmakers . . . agreed [that] . . . [i]f sex discrimination were similar to race discrimination, then sex discrimination would be prohibited by the Amendment.”).

136. Id. at 50. 137. Id. at 19–20. 138. Id. at 101 (“The original public meaning of the Fourteenth Amendment, when

read in light of the Nineteenth Amendment, renders sex discrimination as to civil rights

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a half century later. To determine the “original public meaning of Section One” Calabresi and Rickert quite rightly “consult extratextual sources.”139 Their method is well conceived, but the small set of primary sources they used in support of the thesis do not adequately back the as- sertion that “Justice Ginsburg and Justice Scalia are mistaken when they claim that part of the original meaning of the Fourteenth Amendment is that it does not apply to sex classifications.”140 The Nineteenth Amendment, as the authors pointed out, certainly changed constitu- tional meaning,141 but they overstated the claim that the Fourteenth Amendment’s public meaning at the time of ratification included a broad understanding that caste included gender inequality. In reality, it took decades of feminist activism as well as Supreme Court adoption of the intermediate scrutiny standard to get to the current state of Fourteenth Amendment jurisprudence extending to cases of gender dis- crimination.142

To the extent that Calabresi and Rickert show that a segment of the population connected gender with caste, they rely on the advocates of women’s rights like Elizabeth Cady Stanton, Susan B. Anthony, and Ben- jamin Wade rather than the general population.143 What is more, some of the quotes they use to establish the public meaning before the Fourteenth Amendment’s ratification are taken from assertions made after its ratification.144 To prove that at the time of Reconstruction the meaning of caste oppression was commonly tied to women’s social and political status, they would have needed to present evidence from state- ments made by a much larger swath of the population in the 1860s.145

unconstitutional.”).

139. Id. at 27. 140. Id. at 15. 141. Id. at 11. 142. See infra text accompanying notes 172–215 (describing early attempts to secure

women’s suffrage and Supreme Court’s adoption of intermediate scrutiny standard). 143. See, e.g., Calabresi & Rickert, supra note 134, at 56–60. 144. See id. at 58–59 (quoting Elizabeth Cady Stanton, Address to the National

Woman Suffrage Convention (Jan. 19, 1869), in The Concise History of Woman Suffrage, supra note 61, at 249, 251–52); id. at 59–60 (quoting Matilda Joslyn Gage, Preceding Causes (1881), reprinted in The Concise History of Woman Suffrage, supra note 61, at 51, 52).

145. Insofar as Calabresi and Rickert examine such things as contemporary understanding and states’ legislative discussions of the Fourteenth Amendment’s mean- ing, they demonstrate the common understanding that the change to the Constitution would end official sanctions of Blacks’ lower status. Id. at 35–41. They admit both that there is a sparse record of state debates and that “[d]iscussions of the Amendment in state legislative journals sometimes raise more questions than they answer.” Id. at 40. But they are unable to show that in ordinary discourse, outside feminist circles, ending caste privi- lege also meant ending gender discrimination. Their argument that the contemporary understanding of caste must inform our understanding of the Fourteenth Amendment’s antidiscrimination principles is more in line with living constitutionalism than original meaning theory on which Calabresi and Rickert rely.

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During the congressional debates on the Fourteenth Amendment on the eve of its ratification, the overwhelming consensus was that the new amendment would only rectify racial injustices and punish Confederate loyalists. Prior to ratification, many feminists actually de- cried the overtly sexist wording of Section 2. It was only in the 1870s that the New Departure Movement adopted the Fourteenth Amendment into the woman suffrage drive.

Furthermore, Congress’s disinterest in and lack of effort toward passing women’s rights legislation following ratification of the Fourteenth Amendment indicates that the opponents of the Amendment were trying to score political points; it does not show the framers’ under- standing of the Amendment’s potential scope. Calabresi and Rickert are correct that the Fourteenth Amendment established principles that, in the twentieth century, influenced current doctrine against state-spon- sored gender stereotypes. But that development was not based on origi- nal meaning just as it was not based on original intent. Rather, the more inclusive interpretation resulted from a more pluralistic and egalitarian social understanding of constitutional ideals, which the judiciary adopted into Fourteenth Amendment precedent.

Initially, the Supreme Court, Congress, and state governments re- fused to extend the Fourteenth Amendment to matters of gender injus- tice.146 As critical as women-led petition drives had been to achieving constitutional change, especially for securing the ratification of the Thirteenth Amendment,147 the Reconstruction Amendments did not in- clude any clauses explicitly prohibiting gender discrimination in matters of marriage, politics, child rearing, or sexual autonomy.148 Just a short time earlier, the Women’s Loyal League had played a conspicuous role in presenting petitions to Senator Charles Sumner that favored abolition and the Thirteenth Amendment, but to its members’ chagrin no legisla- tive or constitutional effort to end gender inequalities followed the Amendment’s ratification.149

146. See Hernández-Truyol, supra note 46, at 155 (2002) (“[T]he Fourteenth

Amendment, in which sex/gender equality rights are now grounded, was intended to eliminate race, not sex, discrimination; so it originally did not provide women any equality rights.”).

147. See supra text accompanying notes 86–88 (detailing magnitude of support to abolish slavery garnered by women’s movement).

148. There were several notable bills introduced for such purposes, but they inevita- bly sought to protect the rights of women residing only in the District of Columbia rather than nationwide. For instance, Representative William E. Niblack introduced a bill to pro- tect married women’s property rights. H.R. 72, 41st Cong. (1869). Samuel M. Arnell in- troduced a similar bill to protect the right of married women to acquire, possess, and al- ienate property. H.R. 1761, 40th Cong. (1869). These initiatives relied on the Seat of Government Clause of the Constitution rather than on the Reconstruction powers. U.S. Const. art. I, § 8, cl. 17 (providing Congress with power to “exercise exclusive Legislation” over nation’s capital).

149. In their zeal to shun the Republicans, Susan B. Anthony and Elizabeth Cady

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Feminist petition drives in 1866, organized in the midst of congres- sional discussions about the proposed Fourteenth Amendment, were of a different character. They were protests against the inclusion of “male” in Section 2 of the Amendment to define the class of constitutionally pro- tected voters.150 The Woman’s Rights Convention of 1866 fortified the petition drive with two resolutions that were delivered to Congress.151 Anthony and Stanton condemned congressmen for losing their zeal to achieve complete equality so soon after the final battles of the Civil War:

And now, think you, we have no souls to fire, no brains to weigh your arguments; that, after education such as this, we can stand silent witnesses while you sell our birthright of liberty to save from a timely death an effete political organization? No, as we respect womanhood, we must protest against this desecration of the magna charta of American liberties . . . [and] our demand must ever be, “No compromise of human rights”—“No admis- sion to the Constitution of inequality of rights or disfranchise- ment on account of color or sex.”152

Anthony and Stanton were certain that Section 2 would impede the gen- der-neutral potential of Section 1.153 In the immediate aftermath of ratification, feminists viewed the Fourteenth Amendment as an impedi- ment to sex equality.

Section 2 required that a state’s congressional representation be di- minished proportionally to the number of males older than twenty-one who the state prevented from voting.154 This provision created a disincen- tive to prevent black male citizens from casting ballots, but it applied only to male disenfranchisement and, therefore, left state restrictions on women’s voting intact and unregulated. Stanton, Anthony, Virginia Woodhull, Beecher Hooker, and other feminists made their concerns

Stanton made the calculated decision to seek Democratic support, which included the financing of an avowed opponent of black manhood suffrage and proponent of white woman suffrage. See Painter, supra note 122, at 50 (noting they joined with “Democrats willing to back woman suffrage in order to stymie black male enfranchisement”); Ross Evans Paulson, Liberty, Equality, and Justice: Civil Rights, Women’s Rights, and the Regulation of Business, 1865–1932, at 44 (1997) (discussing their reliance on “an eccen- tric racist”).

150. See U.S. Const. amend. XIV, § 2 (“[W]hen the right to vote . . . is denied to any of the male inhabitants[,] . . . the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens . . . .”); Carrie Chapman Catt & Nettie Rogers Shuler, Woman Suffrage and Politics: The Inner Story of the Suffrage Movement 37–38 (1926).

151. See Catt & Shuler, supra note 150, at 38–39. 152. Elizabeth Cady Stanton & Susan B. Anthony, Address to Congress (May 10,

1866), in 2 The Life and Work of Susan B. Anthony 968, 971 (Ida Husted Harper ed., 1898).

153. See U.S. Const. amend. XIV, § 1 (establishing protections for “[a]ll persons born or naturalized in the United States”); Catt & Shuler, supra note 150, at 38–39.

154. U.S. Const. amend. XIV, § 2.

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known to congressmen, but to no avail.155 In a speech made to the Senate in favor of including Section 2 as part of the final Fourteenth Amendment, Senator Jacob Howard made it clear that he did not think the natural law of self-governance applied to women.156 So while Section 1 acknowledged women’s citizenship, Section 2 made clear that states could treat them unequally without federal consequence.

The potential harm from the use of “male” was not lost on Representative Thaddeus Stevens, one of the leading radicals in Congress. He brought to Congress’s attention that female citizens stood to suffer great harm by the inclusion of the word “male” in Section 2, and castigated Ohio Representative Robert C. Schenck for introducing the term into the text. “Why,” Stevens rhetorically asked, “make a crusade against women in the Constitution of the nation?”157 He also thought it was as wrongheaded to create a rivalry between men and women as it was to frame white interests against those of Blacks.158 He believed that using the term “male” in reference to voting rights would “disfigure the Constitution,” and stated, “I certainly shall never vote to insert the word ‘male’ or the word ‘white’ in the national Constitution.”159 These state- ments appear to represent principled concerns that Section 2 implicitly condoned state disfranchisement of women rather than the opportunis- tic posture Calabresi and Rickert attribute to the Republicans.160 In the end, Stevens voted for the Fourteenth Amendment, despite the inclusion of “male” in the final version, because he saw no better alternative than to compromise for the sake of racial progress.

Ann Carroll Fitzhugh, the wife of longtime abolitionist and women’s rights advocate Gerrit Smith, drafted a petition to Congress. She drew attention to Congress’s hypocrisy of proceeding with the Fourteenth Amendment’s statement of equality side by side with Section 2's implicit disregard for states’ restrictions against women voters.161 Her petition was

155. Several members of the New Departure Movement testified before the United

States House Judiciary Committee. Victoria Claflin Woodhull, The Human Body the Temple of God 316 (1890); Hearing the Women, Daily Evening Bulletin, Jan. 12, 1871, at 1; Woman Suffrage, Cleveland Morning Herald, Jan. 12, 1871, at 1. The House committee voted down the New Departure claim that argued for woman suffrage. The Woman Suffrage Question, Milwaukee Sentinel, Jan. 14, 1871, at 1.

156. Cong. Globe, 39th Cong., 1st Sess. 2767 (1866) (statement of Sen. Jacob Howard) (“[B]y [natural] law women and children were not regarded as the equals of men.”).

157. Id. at 536 (statement of Rep. Thaddeus Stevens). 158. See id. at 536–37 (asking rhetorically, “Is my friend [Representative Schenck] as

much afraid of . . . [women’s] rivalry as the . . . [Democrats] are afraid of the rivalry of the negro?”).

159. Id. at 537. 160. See Calabresi & Rickert, supra note 134, at 47 (noting framers of Fourteenth

Amendment did not expect to change women’s legal status by including “male” in Section 2).

161. Cong. Globe, 39th Cong., 1st Sess. 951 (1866) (statement of Sen. John B.

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mocked and then tabled.162 Knowing how difficult it would be to modify the Constitution after the Fourteenth Amendment had been ratified, Stanton warned her cousin and ally Gerrit Smith that the second section could “take us a century at least to get . . . out.”163

Despite the warnings of Fitzhugh, Stanton, and Anthony, many committed abolitionists thought it expedient to tackle one issue at a time rather than address the rights of Blacks and women simultaneously. They were concerned that seeking racial and gender equality at the same time would be the death knell for both. After the Thirteenth Amendment was ratified, the constitutional agenda centered on providing legal protec- tions for the newly freed. At the thirty-second anniversary of the American Anti-Slavery Society, Wendell Phillips told an assembly that one question would need to be addressed at a time: “This hour belongs to the Negro.”164 He had come to the conclusion that despite his persistent advocacy on behalf of women’s rights,165 the time was not ripe to take on that cause. Phillips went on to say that he hoped both Blacks and women would eventually enjoy the franchise, but the latter would need to wait.166 Stanton curtly replied to Phillips by letter, “May I ask . . . just one ques- tion based on the apparent opposition in which you place the negro and woman. My question is this: Do you believe the African race is composed entirely of males?”167 Even more poignantly, Frances Grange denounced those abolitionists who were unwilling to seek racial and gender justice simultaneously:

Can any one tell us why the great advocates of Human Equality . . . forget that when they were a weak party and needed all the womanly strength of the nation to help them on, they always united the words “without regard to sex, race, or color?” Who

Henderson) (reading Fitzhugh’s petition). Senator John B. Henderson sought to enter the petition into the record in Fitzhugh’s name, whose prayer was joined by “twenty-seven other ladies of the United States, the most of them from the State of New York.” Id.

162. Id. at 952 (statements of Sen. Willard Saulsbury, Sr., Sen. John B. Henderson, Sen. Richard Yates, Sen. Charles Sumner, Sen. Lafayette S. Foster & President Pro Tempore).

163. Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women’s Movement in America, 1848–1869, at 61 (1978) [hereinafter DuBois, Feminism] (quoting Letter from Elizabeth Cady Stanton to Gerrit Smith (Jan. 1, 1866)).

164. Wendell Phillips, Speech at the Thirty-Second Anniversary of the American Anti- Slavery Society (May 9, 1865), National Anti-Slavery Standard, May 13, 1865, at 2 [herein- after Phillips, Thirty-Second Anniversary Speech].

165. In 1898, the National American Woman Suffrage Association published pre- and post-Reconstruction speeches Phillips made on behalf of women’s rights. E.g., Wendell Phillips, Speech at the Convention Held at Worcester (Oct. 15 & 16, 1851), in Wendell Phillips et al., Woman’s Rights Tracts 1–21 (Boston, Robert F. Wallcut 1854); Wendell Phillips, Speeches on Rights of Women (Philadelphia, Press of Alfred J. Ferris 1898); Phillips, Thirty-Second Anniversary Speech, supra note 164.

166. Phillips, Thirty-Second Anniversary Speech, supra note 164. 167. Stanton-Phillips Letter, supra note 81, at 104, 104–05.

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ever hears of sex from any of these champions of freedom?168 In hindsight, it is likely that the Fourteenth Amendment would not have received the needed supermajority in Congress had it explicitly prohib- ited gender discrimination.169

Stanton and Fitzhugh’s concerns were not only based on the word- ing of Section 2. They knew that the accepted narrative of the day down- played women’s need for constitutional and statutory protections. In the years following the Civil War, the traditional faith that male relatives would adequately represent women’s interests to legislators was often restated in Congress.170 The subordination of women’s rights in matters ranging from employment to child custody should have made this suppo- sition suspect, but the stereotype of male gallantry and female purity overlooked the favoritism demonstrated by male-only legislatures.

For the likes of Grange and Lucy Stone, gaining women’s rights was intrinsic to the abolitionists’ overarching purpose of protecting human interests. As far as they were concerned, full victory over slavery through the ratification of the Thirteenth Amendment would remain incomplete as long as women’s demands for equal liberty were ignored. In their eyes, it was unfair to neglect dealing with women’s oppression when the slav- ery of sex continued to subjugate them to the whims of men.171

168. DuBois, Feminism, supra note 163, at 60–61 (quoting Letter from Frances Gage,

National Anti-Slavery Standard, Nov. 25, 1865, at 3). 169. Eleanor Flexner & Ellen Fitzpatrick, Century of Struggle: The Woman’s Rights

Movement in the United States 141 (enlarged ed. 1996) (stating Stanton and Anthony “failed to see” including word “sex” in Fourteenth Amendment “was still far ahead of prac- tical political possibilities”).

170. During the Reconstruction period, there were several examples of this stereotypical attitude. For instance, during debates on the District of Columbia franchise bill, Senator Frederick Frelinghuysen confessed “a little surprise” at those who believed that there was no difference between granting the right to women and blacks. Cong. Globe, 39th Cong., 2d Sess. 65–66 (1866) (statement of Sen. Frederick Frelinghuysen). “[T]he women of America[,]” he believed, “vote by faithful and true representatives, their husbands, their brothers, their sons; and no true man will go to the polls and deposit his ballot without remembering the true and loving constituency that he has at home.” Id. at 66. Senator John Sherman also expressed his concern that allowing women to vote and hold elective offices was likely to introduce “disturbing elements into the family circle.” Cong. Globe, 42d Cong., 2d Sess. 845 (1872) (statement of Sen. John Sherman). Representative Robert S. Hale held a similar presumption about married women’s lack of property rights, which he took to be intrinsic to the marital relationship. Cong. Globe, 39th Cong., 1st Sess. 1064 (1866) (statement of Rep. Robert S. Hale) (“[T]here is not to- day a State in the Union where there is not a distinction between the rights of married women, as to property, and the rights of femmes sole and men.”).

171. This idea is drawn from John Stuart Mill’s statement in 1869: [F]rom the very earliest twilight of human society, every woman . . . was found in a state of bondage to some man,” although that state for women was “gradually changed into a milder form of dependence. But this dependence, as it exists at present, is not an original institution, taking a fresh start from considerations of justice and social expedience—it is the primitive state of slavery lasting through successive mitigations and modifications.

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Early efforts to formulate women’s rights claims on the basis of the Fourteenth Amendment proved entirely unsuccessful. Shortly after its ratification, husband and wife suffragists Francis and Virginia L. Minor argued that the Privileges and Immunities Clause protects women’s right to vote.172 The Minors were not propounding abstract constitutional the- ory. Theirs was a call to action: a “New Departure under the Fourteenth Amendment.”173 They counseled women to vote and file lawsuits when they encountered obstacles from election registrars.

Victoria Woodhull, who was also a member of the New Departure Movement, turned to congressional action rather than legal complaint. In January 1871, she addressed the United States House Judiciary Committee.174 Woodhull testified that, despite its use of the word “male,” the Fourteenth Amendment granted women the full rights of citizenship, including enfranchisement.175 She pointed out that the Privileges and Immunities Clause made no reference to gender and was therefore unaf- fected by the wording of Section 2.176 The majority report, written for the Committee by Representative John Bingham, the principal framer of the Fourteenth Amendment, rejected Woodhull’s call for Congress to pre-

Mill, supra note 127, at 8–9.

172. See Ellen Carol DuBois, Taking the Law into Our Own Hands, Bradwell, Minor, and Suffrage Militance in the 1870s [hereinafter DuBois, Taking the Law], in Visible Women: New Essays on American Activism 19, 22 (Nancy A. Hewitt & Suzanne Lebsock eds., 1993) (discussing Francis and Virginia Minor’s “elaborate and elegant interpretation of the Constitution” on basis of Fourteenth Amendment); Rebecca J. Mead, How the Vote Was Won: Woman Suffrage in the Western United States, 1868–1914, at 37 (2004) (relat- ing Minors’ role in New Departure movement for seeking woman suffrage through Fourteenth Amendment authority); Rogers M. Smith, Civic Ideals 338 (1997) (indicating importance of Virginia and Francis Minor to formulation of Fourteenth Amendment ar- gument for enfranchising women).

173. 2 History of Woman Suffrage, supra note 65, at 407–10. 174. Victoria C. Woodhull, Address to the House Judiciary Committee (Jan. 11,

1871), in 2 History of Woman Suffrage, supra note 65, at 444–48. Congressional recogni- tion of and order to print her speech appear at Cong. Globe, 41st Cong., 3d Sess. 838 (1871). While Woodhull made the speech to the House Judiciary Committee on January 11, 1871, Representative George W. Julian introduced her written memorial in the House to the Committee of the Whole on December 21, 1870. Id. at 272. The same day, Senator John S. Harris introduced the memorial to the Senate. Id. at 218. The memorial requested that Congress pass necessary and proper laws to protect women’s citizenship right to vote under the Fourteenth and Fifteenth Amendments. Id. at 272.

175. Amanda Frisken, Victoria Woodhull’s Sexual Revolution: Political Theater and the Popular Press in Nineteenth-Century America 28 (2004). Woodhull also argued that the Fifteenth Amendment applied to women because, while it did not explicitly protect their right to vote, it “could be said to include women as members of races.” Allison L. Sneider, Suffragists in an Imperial Age: U.S. Expansion and the Woman Question, 1870– 1929, at 44 (2008). The Fourteenth Amendment argument seems stronger because Section 1 contains neutral language; the Fifteenth Amendment, on the other hand, very clearly includes only specific classes and does not name women.

176. See DuBois, Taking the Law, supra note 172, at 26–27 (summarizing content of Woodhull’s memorial before Congress).

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vent gender differentiation in state election laws.177 The minority report, on the other hand, welcomed Woodhull’s interpretation that the Fourteenth Amendment was meant “to secure the natural rights of citi- zens, as well as their equal capacities before the law.”178 Encouraged by the minority report, several women, including Isabella Beecher Hooker, who was the president of the National Woman Suffrage and Educational Committee, met in January 1872 at the Lincoln Hall Convention in Washington, D.C., and sent a memorial to the Senate Judiciary Committee requesting that women’s right to equal citizenship be recog- nized under the Fourteenth Amendment.179

The Supreme Court’s narrow interpretation of the Fourteenth Amendment soon thwarted whatever chances of success the New Departure Movement’s persistence might have accomplished. An 1874 case, Minor v. Happersett, rejected the argument that the Fourteenth Amendment protected women’s rights.180 The Supreme Court unani- mously found that the Amendment’s “penalty for the exclusion of males alone” indicated that the women did not enjoy an equal citizenship right to vote.181 This opinion bore out the worry of those who had warned that including “male” in Section 2 would prove to be doctrinally consequen- tial. None of the Justices, not even those who in earlier cases had ex- pressed expansive views about the Fourteenth Amendment’s relevance to race discrimination, interpreted the Amendment to apply to political chauvinism.182

The Justices hammered a nail in the New Departure movement in Bradwell v. Illinois, which was decided in 1873.183 Myra Bradwell brought the case after she had passed the Illinois bar examination, but the state’s supreme court refused to grant her a license to practice law on sexist grounds.184 Through counsel, Bradwell argued that the Privileges and

177. John Bingham, Report of the Committee on the Judiciary of the House of

Representatives, reprinted in A Hand-Book of Politics for 1872, at 108, 108–09 (Edward McPherson ed., 5th ed. 1872).

178. Id. at 110–15. Representative William Loughridge submitted the minority re- port. Id.

179. Memorial from the National Woman Suffrage and Educational Committee to the Senate Judiciary Committee (1872), in 2 History of Woman Suffrage, supra note 65, at 493, 497.

180. 88 U.S. (21 Wall.) 162, 174–75 (1874). 181. Id. 182. In his dissent to the Slaughter-House Cases, Justice Noah Swayne argued that the

Reconstruction Amendments were “a new departure” from antebellum federalism because they recognized rights common to all American citizens. 83 U.S. (16 Wall.) 36, 125, 128– 29 (1873) (Swayne, J., dissenting). In a separate dissent to the same decision, Justice Joseph P. Bradley also believed that the Fourteenth Amendment’s recognition of national citizenship implicitly created federally recognized rights. Id. at 113 (Bradley, J., dissent- ing).

183. 83 U.S. (16 Wall.) 130 (1873). 184. George W. Gale, Myra Bradwell: The First Woman Lawyer, 39 A.B.A. J. 1080,

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Immunities Clause of the Fourteenth Amendment prohibited the state’s bar standards from discriminating against citizens of the United States on account of their sex, just as it prohibited discrimination against citizens because of their race.185 The Court, however, rejected this argument. It found that the Fourteenth Amendment did not grant the federal gov- ernment the authority to control states’ licensing regulations, even when they discriminated between men and women.186 Justice Joseph P. Bradley’s infamous concurrence to the decision explicitly relied on ste- reotypes:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. . . . The harmony, not to say identity, of interests and views which belong, or should belong, to the family institu- tion is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil sta- tus, many of the special rules of law flowing from and depend- ent upon this cardinal principle still exist in full force in most States.187

The condition that Bradley regarded to be benign and even divinely or- dained,188 the feminists considered to be on a par with slavery, prohibited by the Thirteenth Amendment.189 Only Chief Justice Salmon P. Chase dissented from the opinion,190 but he did not submit anything in writing because he was mortally ill and died shortly thereafter.191

Other than Chase, the Justices were impervious to Fourteenth Amendment women’s rights claims. With the Supreme Court foreclosing Fourteenth Amendment claims for anything other than direct racial dis- crimination, those legal clauses also become unavailable to the New Departure Movement.192 For decades after Minor and Bradwell, the effort 1080 (1953). The conclusion of the story, however, was a happy one for Mrs. Bradwell. In 1890, the Illinois Supreme Court granted her admission on its own motion. Id.

185. Bradwell, 83 U.S. (16 Wall.) at 135–37. 186. Id. at 139. 187. Id. at 141 (Bradley, J., concurring). 188. See id. (“The constitution of the family organization, which is founded in the di-

vine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”).

189. See supra Part II.A (examining comparison by women’s rights activists of woman’s degraded position in society to status of slaves).

190. Bradwell, 83 U.S. (16 Wall.) at 142 (Chase, C.J., dissenting). 191. B. Zorina Khan, The Democratization of Invention: Patents and Copyrights in

American Economic Development, 1790–1920, at 163 n.4 (2005). 192. See The Civil Rights Cases, 109 U.S. 3, 18–19, 23–24 (1883) (holding racial

segregation violated neither Equal Protection nor Due Process Clauses of Fourteenth

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to achieve gender equality focused almost exclusively on obtaining suf- frage and did so with limited success on a state-by-state level.193

C. Revival of the Fourteenth Amendment

Even if there had been the political will to rely on Section 5 of the Fourteenth Amendment to enforce federal remedies against sex discrim- ination, the Supreme Court’s holdings in Minor and Bradwell foreclosed the possibility. While those cases had only tested the Citizenship and Privileges and Immunities Clauses, the Court’s 5-4 ruling in the Slaughter- House Cases, along with its later decision in the Civil Rights Cases, also sig- nificantly diminished the effectiveness of the Due Process and Equal Protection Clauses.194 While in the twentieth century the Supreme Court modified Fourteenth Amendment jurisprudence substantially enough to make the Fourteenth Amendment relevant in the context of gender equality,195 the Thirteenth Amendment has remained confined to racial- ism alone. This section first reviews the evolution of Fourteenth Amendment jurisprudence and later explains how a similar expansion of the Thirteenth Amendment’s scope could benefit the victims of gender discrimination.

Beginning in 1971, with its decision in Reed v. Reed,196 the modern Supreme Court began to strike down state regulations based on gender stereotypes, which Justice Bradley had taken for granted in Bradwell. Historical principle and social reinterpretation were needed to expand the legal concepts of due process and equal protection.197 The text of the

Amendment).

193. See Tsesis, We Shall Overcome, supra note 9, at 166–71 (providing state-by-state account of achievements and failures of women’s suffrage movement).

194. See The Civil Rights Cases, 109 U.S. at 27 (“What we have to decide is, whether such plenary power has been conferred upon congress by the fourteenth amendment, and, in our judgment, it has not.”); The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 80 (1872) (“[W]e are of opinion that the rights claimed . . . are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration.”).

195. For accounts of how the feminist movement turned to the Fourteenth Amendment in the latter half of the twentieth century, see Cary Franklin, The Anti-Stereo- typing Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 123–54 (2010) (discussing Justice Ginsburg’s role in development and evolution of antistereotyp- ing doctrine); Barry Friedman, Reconstructing Reconstruction: Some Problems for Originalists (and Everyone Else, Too), 11 U. Pa. J. Const. L. 1201, 1220 (2009) (noting Court’s reliance on Fourteenth Amendment in gender discrimination cases, even while country was rejecting Equal Rights Amendment); Neomi Rao, Gender, Race, and Individual Dignity: Evaluating Justice Ginsburg’s Equality Jurisprudence, 70 Ohio St. L.J. 1053, 1059–70 (2009) (examining Justice Ginsburg’s focus on formal equality and antidis- crimination in gender equality cases).

196. 404 U.S. 71 (1971). 197. The key point here is that history is relevant to constitutional interpretation but

need not be determinant. Where exclusionary norms dominated culture at the time of ratification—as did cultural chauvinism when the Fourteenth Amendment was ratified—

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Fourteenth Amendment clearly applies to all persons, which by default includes men and women. The gender-neutral language of Section 1, therefore, applies to all humans, even if the framers did not originally intend it to cover cases of gender discrimination.198 The modern Court simply passed over its earlier assertion in Minor concerning the relevance of Section 2 to the interpretation of the Fourteenth Amendment’s scope.199

Modern cases routinely examine whether gendered criteria are predicated on stereotypes. Such an assessment is by no means textual, just as Thirteenth Amendment jurisprudence has not been literalist. The concept of unconstitutional gender stereotypes has enriched the mean- ing of the document beyond the Fourteenth Amendment’s plain word- ing, just as the concepts of slavery and involuntary servitude have allowed the Court to establish legislative powers beyond the simple recitation of Section 1 of the Thirteenth Amendment.

The Supreme Court’s interpretive methodology can work hand in hand with Congress’s power to prevent gender-motivated discrimination. The Court’s approach to the Fourteenth Amendment, for instance, ac- cepts that the Due Process Clause enables Congress to pass laws against traditional forms of gender discrimination. In this vein, the Court has found the Family Medical Leave Act (FMLA)200 to be a constitutional method of addressing traditional inequalities in the workforce:

Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibili- ties for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accom- modations or discouraged them from taking leave. These mutu- ally reinforcing stereotypes created a self-fulfilling cycle of dis- crimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypi-

interpretations of principles, like those intrinsic to the Equal Protection Clause, should disavow the errors of the framers. This is too pregnant a concept to unpack here and will require a separate article.

198. See Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857, 901–02 (2009) (describing importance of gender- neutral text to interpreting Fourteenth Amendment, irrespective of framers’ intents).

199. See Minor v. Happersett, 88 U.S. (21 Wall.) 162, 174–75 (1874) (holding Section 2 of Fourteenth Amendment does not guarantee right to vote to all citizens). Like Minor, Bradwell’s narrow ruling on the Privileges and Immunities Clause continues to be widely criticized. See Dale Carpenter, Unanimously Wrong, 2006 Cato Sup. Ct. Rev. 217, 217 n.2 (citing Bradwell as example of unanimous but widely criticized decision); Mary Anne Case, “The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1469 (2000) (noting modern Court’s strong disapproval of Bradwell for depriving female citizens of lawful employment even in absence of express legislation). Both Minor and Bradwell, nevertheless, remain good law.

200. Family Medical Leave Act (FMLA) of 1993, Pub. L. No. 103-3, 107 Stat. 6 (codi- fied at 2 U.S.C. § 60 and 29 U.S.C. §§ 2601, 2611–2619, 2631–2636, 2651–2654).

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cal views about women’s commitment to work and their value as employees.201

Such a perspective on gender inequality exhibits a vast change in the Court’s understanding of the Fourteenth Amendment from its first take on the Amendment in Bradwell.

The Court had not only moved to broaden the conception of con- gressional powers under the Fourteenth Amendment but also adapted to the social evolution of family structure. Acknowledgment of Congress’s power to enforce the FMLA against state employers,202 a concept that appears nowhere in the congressional debates on the proposed Fourteenth Amendment, neither from its supporters nor its detractors, demonstrated a willingness to expand the scope of legislative authority to meet the needs of American working families. The Court’s recognition that Congress has the authority to prevent a state employer from discrim- inating on the basis of gender in its workplace203 was well beyond the text of the Amendment, the intent of its founders, and the internal coher- ence of its sections. But it wholly comported with the antisubordination principle of the Due Process and Equal Protection Clauses.204

201. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003). Lower courts have

also recognized “that because sex-based classifications may be based on outdated stereotypes of the nature of males and females, courts must be particularly sensitive to the possibility of invidious discrimination in evaluating them.” Brenden v. Indep. Sch. Dist., 477 F.2d 1292, 1300 (8th Cir. 1973); see also Hibbs v. Dep’t of Human Res., 273 F.3d 844, 871 (9th Cir. 2001) (finding “the stereotypical assumption that women are marginal work- ers whose fundamental responsibilities are in the home” to be illegitimate), aff’d, 538 U.S. 721 (2003); Faulkner v. Jones, 10 F.3d 226, 231 (4th Cir. 1993) (holding that while legisla- tive distinctions based on sex may be upheld for important governmental interests, gender stereotypes could not overcome intermediate scrutiny requirement).

202. Hibbs, 538 U.S. at 727–35 (holding that Congress had properly abrogated state sovereign immunity through its Fourteenth Amendment Section 5 power); see also 29 U.S.C. §§ 2612(a)(1)(C), 2617(a)(2) (2006) (allowing actions in federal and state courts to recover relief against employers, including state employers, for interfering with rights).

203. See Hibbs, 538 U.S. at 740 (Souter, J., concurring) (agreeing with Court that pas- sage of FMLA was legitimate use of Section 5 Fourteenth Amendment authority and argu- ing that majority’s rationale about abrogating sovereign immunity should extend to fed- eral disability and age discrimination).

204. See Christopher A. Bracey, Adjudication, Antisubordination, and the Jazz Connection, 54 Ala. L. Rev. 853, 869 (2003) (“[T]he principle of antisubordination em- bodied in the Equal Protection Clause of the Fourteenth Amendment was likewise re- flected in the Due Process Clause of the Fifth Amendment.”); Kenneth L. Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 UCLA L. Rev. 99, 102 (2007) (drawing attention “to the ways in which equal citizenship’s antisubordination val- ues have contributed to individual liberties, as those liberties are embodied in the Fourteenth Amendment’s Due Process Clause”); Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1477 (2004) (“Antisubordination values are not foreign to the modern equal protection tradition, but a founding part of it, deeply tempered by other values, including the need to have a Constitution that speaks to all.”). For a well-worded contrast between the antisubordination and anticlassification models of equal protection, see Helen Norton, The Supreme Court’s Post-Racial Turn Towards a Zero-Sum

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Reed had similarly concluded that the Fourteenth Amendment pro- hibited states from adopting a policy preference for male estate adminis- trators based on traditional familial subordination of women’s financial interests.205 At its core, the antistereotyping metaphor of inequality recog- nizes that unjustified generalizations about male and female work, famil- ial, educational, and recreational roles disproportionately augment men’s civil and political status. This antisubordination concept was like- wise embedded in the nineteenth-century feminist analogy of slavery with sex discrimination.206

Its presence is also evident in Justice Sandra Day O’Connor’s opin- ion in Mississippi University for Women v. Hogan.207 As she explained, by creating an exclusively female nursing school, Mississippi “perpetuate[d] the stereotyped view of nursing as an exclusively woman’s job,”208 and, implicitly, thereby limited women’s ability to gain access to professions historically dominated by men. As in Hibbs, the Court in Hogan did not confine itself to the precise text of the Fourteenth Amendment or the framers’ view that it did not apply to sex discrimination.209

Understanding of Equality, 52 Wm. & Mary L. Rev. 197, 206–07 (2010) (describing “[a]ntisubordination advocates” as those who “urge that the Equal Protection Clause should be understood to bar those government actions that have the intent or the effect of perpetuating traditional patterns of hierarchy,” whereas anticlassification advocates “take the view that the Constitution prohibits government from” differentiating based on racial categorization).

205. Reed v. Reed, 404 U.S. 71, 74 (1971) (“[A]rbitrary preference established in fa- vor of males by . . . the Idaho Code cannot stand in the face of the Fourteenth Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction.”). In dicta, the Court stated that the paternalistic desire to help avoid “intrafamily controversy” is not a legitimate reason to grant sex preferences. Id. at 76–77.

206. See supra Part II.A (discussing various ways in which nineteenth-century femi- nists analogized sex discrimination to slavery).

207. 458 U.S. 718 (1982). 208. Id. at 729. 209. Indicative of the general caution of avoiding talk of women’s rights to gain suffi-

cient congressional votes for the proposed Fourteenth Amendment was an exchange be- tween Representatives Robert S. Hale and Thaddeus Stevens. Discussing an early draft of the Fourteenth Amendment, Hale asked whether the proposed Equal Protection Clause would grant Congress the power to supersede state marital property laws that treated wives differently than husbands. Cong. Globe, 39th Cong., 1st Sess. 1064 (1866) (statement of Rep. Robert S. Hale). Stevens remonstrated that the Amendment would prohibit distinc- tions between two classes of married women or two classes of unmarried women, but “[w]hen a distinction is made between two married people or two femmes sole, then it is unequal legislation.” Id. (statement of Rep. Thaddeus Stevens). To Hale’s mind, that re- sponse was “specious” because, he warned, “[t]he language of the section under consider- ation gives to all persons equal protection.” Id. (statement of Rep. Robert S. Hale). Stevens did not respond to this charge, perhaps because he wanted to keep open the question of how women’s equality issues would be treated in the future. In order to gain the superma- jority needed to pass the amendment to the states for ratification, Stevens was unwilling to risk losing support for racial justice by overreaching to the protection of women’s rights.

Similar caution had also been demonstrated during debates on the Civil Rights Act of

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Justice Ruth Bader Ginsburg’s opinion in United States v. Virginia also rejected traditional stereotypes that dominated legal culture at the time of the Fourteenth Amendment’s ratification.210 The Court held that by prohibiting women from enrolling, the Virginia Military Academy (VMI) violated the Equal Protection Clause.211 Ginsburg’s opinion rested on the premise that the Amendment is a vehicle for change from the “volumes of history” that describe “official action denying rights or opportunities based on sex.”212 This sentiment differs drastically from that of Justice Antonin Scalia, who in dissent would have had tradition—in this case, excluding women from military academies—govern the interpretation of the Equal Protection Clause.213 Prior to the Civil War, VMI’s curriculum strongly supported slavery.214 While Scalia did not directly refer to the

1866, which members of Congress believed the Fourteenth Amendment would make more secure against statutory reversal. For instance, Senator Edgar Cowan raised concerns about federal overreaching. Cong. Globe, 39th Cong., 1st Sess. 1782 (1866) (statement of Sen. Edgar Cowan). He asserted that Congress was trying to meddle with states’ ability to dif- ferentiate based on domestic gender classifications. Id. He warned that Congress intended to create a new order that would grant “upon married women, upon minors, upon idiots, upon lunatics, and upon everybody native born in all the States, the right to make and enforce contracts, because there is no qualification in the bill, and the very object of the bill is to override the qualifications that are upon those rights in the States.” Id. Comments of this type are few, but all indicate an unwillingness to antagonize members of Congress by seeking their protection against sex discrimination. Professor Catharine A. MacKinnon has pointed out that the dearth of comments about women’s equality during debates on the Fourteenth Amendment is indicative that “few seriously contemplated that ‘equal pro- tection of the laws’ might apply to sex.” Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1283 n.12 (1991) (quoting U.S. Const. amend. XIV, § 1).

210. 518 U.S. 515 (1996). 211. Id. at 555–56. 212. Id. at 531. 213. Id. at 568–69 (Scalia, J., dissenting) (“But in my view the function of this Court is

to preserve our society’s values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees.”).

214. Francis H. Smith, VMI’s superintendent from 1839 through 1889, incorporated a defense of slavery into the curriculum. Bradford Alexander Wineman, Francis H. Smith: Architect of Antebellum Southern Military Schools and Educational Reform 1, 199 (Aug. 2006) (unpublished Ph.D. dissertation, Texas A&M University), available at h t t p : / / r e p o s i t o r y . t a m u . e d u / b i t s t r e a m / h a n d l e / 1 9 6 9 . 1 / 4 3 4 4 / e t d - t a m u - 2006B-HiST-Wineman-Copyright.pdf?sequence=1 (on file with the Columbia Law Review). Slavery was so accepted at VMI before the Civil War that the institution rented a slave from Thomas J. “Stonewall” Jackson, who was for a time a professor at VMI and eventually a Confederate general. William L. Richter, Historical Dictionary of the Old South 187 (2006). A sister, public military institution, the Citadel of South Carolina, shared VMI’s tradition. The Citadel opened in 1842 to guard against slave uprisings. Neal R. Peirce, The Deep South States of America: People, Politics, and Power in the Seven Deep South States 386 (1974). A Citadel cadet is reported to have fired the first shot of the Civil War against United States forces. W. Scott Poole, South Carolina’s Civil War: A Narrative History 26 (2005). Following the Civil War, Lieutenant Colonel Augustus G. Bennett’s Twenty-First

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history of the VMI, he might have pointed out that 455 men graduated from VMI prior to the Civil War without the slightest protest from the Reconstruction Congress about gender discrimination at the time of rati- fication.215 What Scalia’s traditionalism did not recognize was how the founding principles of the Fourteenth Amendment set VMI on the path of gender integration, even though the framers probably never contem- plated that outcome. The following section discusses why the gendered reading of the Fourteenth Amendment should be adopted into Thirteenth Amendment doctrine.

The VMI case was not only a major advance in educational equality, but also demonstrated a progressive interpretation of the Fourteenth Amendment. The advances in Fourteenth Amendment jurisprudence displayed an unmistakable willingness to take a principled approach to the Equal Protection Clause, one that encompasses women’s rights is- sues. The next section of this Essay explores a similarly expanded per- spective of the Thirteenth Amendment. It too was a product of Reconstruction, yet its potential application to cases of gender subordi- nation has never been fully explored.

D. Rejuvenating Thirteenth Amendment Precedents

Thirteenth Amendment jurisprudence is relatively nascent com- pared to that of its Fourteenth Amendment cousin. This disparity is partly due to the sparse number of statutes Congress passed under the former’s grant of authority. The Supreme Court has on several occasions recognized that Section 2 of the Thirteenth Amendment grants Congress broad discretion to enact civil rights legislation.216 If Congress were to use this grant of authority to combat gender discrimination, courts would likely review challenges under rational basis scrutiny.

In Jones v. Alfred H. Mayer Co., the majority recognized, “Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”217 The extent of

United States Colored Regiment was headquartered at the Citadel, where Emancipation celebrations were held after the abolition of slavery. Alexander Macaulay, Marching in Step: Masculinity, Citizenship, and The Citadel in Post-World War II America 11 (2009). The histories and traditions of these military institutions are more disturbing than Justice Scalia may have realized.

215. See Philip Katcher, The Complete Civil War: The Definitive Fact File of the Campaigns, Weapons, Tactics, Armies and Key Figures 231 (1998) (providing graduation figures of VMI prior to Civil War).

216. See 1 Laurence H. Tribe, American Constitutional Law 926–27 (3d ed. 2000) (“Seemingly, Congress is free, within the broad limits of reason, to recognize whatever rights it wishes, define the infringement of those rights as a form of domination or subor- dination and thus an aspect of slavery, and proscribe such infringement as a violation of the Thirteenth Amendment.”).

217. 392 U.S. 409, 440 (1968).

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Section 2 legislative power is comparable to Congress’s authority to pass necessary and proper laws for meeting other constitutional responsibili- ties.218 At the end of his majority opinion in Jones, Justice Potter Stewart poignantly quoted from McCulloch v. Maryland to parse the term “appro- priate legislation” in Section 2 of the Thirteenth Amendment. Just as with Congress’s authority to enact statutes pursuant to the Necessary and Proper Clause, judges defer to Congress’s use of its Section 2 authority. A law is “proper” and “appropriate” when it regulates conduct or state ac- tion that hinders victims from enjoying fundamental liberties. Specifically, in Jones the Court made clear that Congress can pass any law whose “end be legitimate, . . . [and] within the scope of the constitution,” and which is “plainly adapted to that end” and “not prohibited, but con- sistent with the letter and spirit of the constitution.”219 The Court ex- plained that “[a]t the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom” to engage in commercial intercourse without discrimination.220 The opin- ion is written in racial terms, but this Essay expands the significance of the holding based on a broader reading of the term “freedom.”

Such a sweeping power, as Professor Laurence Tribe has explained, grants Congress “nearly plenary authority . . . to protect all but the most trivial individual rights from both governmental and private invasion.”221 Under that standard, if Congress were to reasonably find that some forms of gender discrimination, such as discrimination in the workplace, are rationally related to the badges and incidents of slavery and involuntary servitude, the Court might uphold them against facial challenges.

Having recognized that the Fourteenth Amendment governs matters of gender equality, the Court should likewise extend Thirteenth Amendment doctrine beyond racial cases. Such a deferential approach would not be limited by the judicially imposed limits on Fourteenth Amendment Section 5 authority, which the Court adopted in cases like City of Boerne v. Flores.222

Unlike legislation passed under the Fourteenth Amendment, legisla-

218. Id. at 443 (approvingly quoting from McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316 (1819), to explain power vested in Congress by Thirteenth Amendment). 219. Id. Justice Stewart quotes this passage from a congressional speech made by

Representative James Wilson, the House leader of the Civil Rights Bill of 1866. Cong. Globe, 39th Cong., 1st Sess. 1118 (1866) (statement of Rep. James F. Wilson) (quoting McCulloch, 17 U.S. (4 Wheat.) at 421).

220. Jones, 392 U.S. at 443. 221. Tribe, supra note 216, at 927. 222. 521 U.S. 507, 533 (1997) (requiring congruence and proportionality between

means and ends for Congress to exercise its Section 5 authority). For an expositive differ- entiation between the Boerne congruence and proportionality test and Jones rational basis review, see United States v. Beebe, 807 F. Supp. 2d 1045, 1048–49 (D.N.M. 2011); Alexander Tsesis, Congressional Authority to Interpret the Thirteenth Amendment, 71 Md. L. Rev. 40, 51--59 (2011) [hereinafter Tsesis, Congressional Authority].

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tion passed pursuant to Section 2 of the Thirteenth need not be limited to state infringements. The scope of the Thirteenth Amendment, there- fore, extends to offenses beyond Congress’s Fourteenth Amendment au- thority. The Supreme Court recognized this dichotomy as early as 1883 in the Civil Rights Cases.223 In striking down a federal desegregation stat- ute, the Court explained that the Fourteenth Amendment does not grant Congress the authority “to create a code of municipal law for the regula- tion of private rights.”224 The Fourteenth Amendment only secured rights, the majority went on to assert, “by way of prohibition against State laws and State proceedings affecting . . . rights and privileges.”225 As for the Thirteenth Amendment, the majority stated that it “is not a mere prohibition of State laws establishing or upholding slavery, but an abso- lute declaration that slavery or involuntary servitude shall not exist in any part of the United States.”226 This exposition of the Thirteenth Amendment recognized that its enforcement mechanism extended Con- gress’s authority beyond chattel slavery.

Succeeding developments have confirmed that the Thirteenth Amendment grants Congress the power to create causes of action against various forms of private discrimination.227 For instance, the Court has found that 42 U.S.C. § 1981—the modern version of a statute originally passed in 1866 under Congress’s Thirteenth Amendment authority228— offers parents a cause of action against any private school that refuses, on the basis of race, to enroll their children.229 This understanding of the incidents of slavery and involuntary servitude goes well beyond forced labor. Section 2 authority to pass laws against contractual discrimination is predicated on Congress’s analogical findings about characterization of the incidents of slavery and involuntary servitude rather than a textualist interpretation of the first section of the Amendment. The Supreme Court’s most recent analysis of § 1981 found that the statute “protects the equal right of ‘[a]ll persons within the jurisdiction of the United States’ to ‘make and enforce contracts’ without respect to race.”230 The Court

223. 109 U.S. 3 (1883). 224. Id. at 11. 225. Id. 226. Id. at 20. 227. See, e.g., 42 U.S.C. § 1981(a)–(b) (2006) (giving all persons within jurisdiction

of United States right to “make and enforce contracts,” which includes “the making, per- formance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship”); Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994) (recognizing expansion of § 1981); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440–41 (1968) (upholding statutory prohibition against private housing discrimination).

228. See supra text accompanying notes 69–73 (describing history of Civil Rights Act of 1866).

229. Runyon v. McCrary, 427 U.S. 160, 161–62 (1976). 230. Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006) (alteration in origi-

nal) (quoting 42 U.S.C. § 1981(a)).

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thereby recognized the interconnection between the liberty and equality principles of the Thirteenth Amendment. The right of all persons to en- ter and enforce private agreements must apply to men and women, and when gender discrimination is afoot it can impair contractual relation- ships as much as racial discrimination. Both types of discrimination inter- fere with freedoms that Congress can regulate through Section 2 of the Thirteenth Amendment.

The Court not only acknowledged Congress’s authority to pass sub- stantive legislation, but also held that legislators properly amended §§ 1981 and 1982 to include a retaliation claim for damages on a con- tract.231 The creation of a remedy for retaliation was a matter of rational congressional policymaking that the text of the Amendment does not mention.232 By acknowledging that Congress has enforcement power un- der the Thirteenth Amendment to pass antiretaliation legislation, the Supreme Court demonstrated further deference to reasonable legislative prerogative.

In these and other cases, the Court has limited its review of congres- sional reliance on Section 2 power to the determination of whether Congress had a rational justification to regulate conduct that subordi- nates members of a protected group. In no instance has the Court re- quired Congress to create a record of its deliberations; indeed, the Thirty-Eighth Congress created no evidentiary record prior to passing the Civil Rights Act of 1866. Debates on the bill were principled rather than based on the sorts of factual analysis the Court has required in Fourteenth Amendment enactments.233 The rational basis review stand- ard to which the Court turns for its Thirteenth Amendment analysis is not as demanding as the Fourteenth Amendment congruence and pro- portionality test. The former only requires that Congress determine whether the regulated conduct subordinated a protected class of per- sons.234

E. Thirteenth Amendment and Contemporary Gender Subordination

231. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 451 (2008). 232. Id. at 1959. 233. See Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 725, 729–32 (2003)

(deciding law abrogated state sovereign immunity where congressional record contained evidence of widespread gender discrimination); United States v. Morrison, 529 U.S. 598, 626–27 (2000) (asserting Congress lacked evidence that all states were engaged in sex discrimination and therefore overstepped its Fourteenth Amendment authority); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 90 (2000) (finding insufficient evidence in congressional record to indicate pattern of state discrimination); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 640–43 (1999) (finding Congress had im- properly used its Fourteenth Amendment authority to abrogate state sovereign immunity because legislative record contained no evidence that states routinely infringed patents).

234. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438–39 (1968) (finding Congress’s enforcement authority under Section 2 of Thirteenth Amendment includes power to “eliminate all racial barriers to the acquisition of real and personal property”).

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The Thirteenth Amendment provides Congress with a substantial, albeit rarely used, grant of power. This Essay has focused on its relevance to gender discrimination law. This section outlines several innovative statutory mechanisms for dealing with employment discrimination, hu- man trafficking, and hate crimes.235

1. Employment Discrimination. — An expanded interpretation of the Thirteenth Amendment can fill gaps in existing employment discrimina- tion law. This is a logical place to start because it is so closely linked to the badges of slavery, even when that term is understood very narrowly to refer to coerced labor. Women have historically been treated unequally in the workforce. Section 1981, which was previously discussed,236 pro- tects individuals’ ability to enter into and enforce a contract.237 That right, as Senator Lyman Trumbull described prior to the statute’s origi- nal passage in 1866, was meant “to secure equal rights to all the citizens of the country.”238 Based on the terms of the statute, the right to enter employment contracts without being subject to invidious discrimination is one of the “fundamental rights” intrinsic to persons of all races and colors.239 Gender discrimination is as much a barrier to enjoying that fundamental right as is racial discrimination, and therefore both natu- rally fall under § 1981's protections, even though heretofore courts have only applied that statute to race-based cases. That is not to say that racial employment discrimination is identical to employment discrimination based on gender. They are each rooted in unique histories and stereo- types. Yet interference, termination, and hiring decisions based on either characteristic interfere with the contractual rights Congress used its Thirteenth Amendment power to secure through § 1981. While it is ad- visable to rewrite § 1981 to make clear that legislative intent includes gender discrimination claims, the current language of the statute already provides a legally cognizable cause of action in that context.

The § 1981 avenue of approach has unique features. It establishes a right of action that many women currently do not enjoy through Title VII litigation. For one, the class of proper party defendants under Title VII is defined as any employer with fifteen or more employees.240 On the

235. This paraphrases language the Court used elsewhere when the Court addressed the Thirteenth Amendment’s relevance to civil actions in the context of race discrimina- tion. See Griffin v. Breckenridge, 403 U.S. 88, 105 (1971) (“Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men.”).

236. See supra notes 230–232 and accompanying text (discussing interpretation of § 1981 in recent Supreme Court decisions).

237. 42 U.S.C. § 1981(a) (2006). 238. Cong. Globe, 39th Cong., 1st Sess. 599 (1866) (statement of Sen. Lyman

Trumbull). 239. Id. at 475. 240. 42 U.S.C. § 2000e(b) (“The term ‘employer’ means a person engaged in an

industry affecting commerce who has fifteen or more employees for each working day in

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other hand, there is no minimum employee requirement under § 1981.241 Cases brought under the two statutes also have different trajectories because, unlike Title VII, § 1981 does not require plaintiffs to exhaust administrative remedies before filing suit in an Article III court242 and provides a longer statute of limitations period to file suits.243 Plaintiffs filing gender discrimination claims under § 1981 would not be subject to the compensatory and punitive damages caps by which Title VII claims are limited.244

This is not to say that all gender discrimination claims should be filed under § 1981. Disparate impact claims, for instance, are available under Title VII,245 whereas proof of discriminatory purpose is currently required to prove § 1981 complaints.246 But the expansion of coverage for gender discrimination cases to cover small employers would neverthe- less favor litigants using § 1981 in appropriate situations. Furthermore, Congress could use its Section 2 power to expand the coverage of § 1981 to be commensurate with Title VII remedies.

If the expanded version of Congress’s Thirteenth Amendment au- thority were applied, plaintiffs could file claims under § 1981 against em- ployers with fourteen or fewer employees. This would be a particularly important development for individual employees, like domestic workers, against whom the employer committed sex discrimination. But it would also provide a potential cause of action for plaintiffs who work for smaller businesses and who have been discriminated against because of their sex. A further advantage to litigating sex discrimination claims under this Thirteenth Amendment statute is that it would allow independent con- tractors, and not merely employees, to bring lawsuits.247 Traditionally,

each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . .”).

241. 42 U.S.C. § 1981(a). 242. See Bryant v. U.S. Steel Corp., 428 F. App’x 895, 897 (11th Cir. 2011) (“Bryant’s

§ 1981 retaliation claims are not subject to the administrative exhaustion requirement applicable to Title VII claims.” (citing Caldwell v. Nat’l Brewing Co., 443 F.2d 1044, 1046 (5th Cir. 1971))).

243. The catchall four-year statute of limitations governs § 1981 claims for all causes of action arising after December 1, 1990. 28 U.S.C. § 1658(a) (2006). But see 42 U.S.C. § 2000e–5(e)(1) (limiting statute of limitations on Title VII claims to either 180 or 300 days after allegedly unlawful employment conduct).

244. 42 U.S.C. § 1981a(b) (setting cap on Title VII damages); see also Swinton v. Potomac Corp., 270 F.3d 794, 820 (9th Cir. 2001) (“Congress has not seen fit to impose any recovery caps in cases under § 1981 (or § 1983), although it has had ample oppor- tunity to do so since the 1991 amendments to Title VII.”).

245. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (stating Title VII may be violated “by hiring and promotion criteria that result in disparate impact”).

246. Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 389 (1982) (holding § 1981 claims require proof of purposeful discrimination).

247. See, e.g., Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 13–14 (1st Cir. 1999) (allowing private contractor’s claim under § 1981 where Title VII claim was unavailable); Danielle Tarantolo, Note, From Employment to Contract: Section 1981 and

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courts have only allowed § 1981 claims for race-based discrimination, but both the text of the statute and the general antidiscrimination premises of the Thirteenth Amendment permit the statute’s application to extend to the employees and private contractors who are currently immune from Title VII complaints.

2. Human Trafficking. — The Trafficking and Violence Protection Act of 2000 (TVPA) is to date one of the most promising statutes passed pursuant to Congress’s Thirteenth Amendment authority.248 Many vic- tims of human trafficking are subject to control reminiscent of slavery. The Act is not specific to women because many men are also the victims of human trafficking. Nevertheless, a special office within the Department of Justice, known as the Office on Violence Against Women, is responsible for assisting women because they are the predominant vic- tims of trafficking. Perpetrators force them to comply with sexual249 or labor250 demands by taking away legal documentation, like visas or pass- ports; forcing them to discharge a debt through coercion and violence; threatening to hurt the victims’ families; and threatening to report them to the Immigration and Naturalization Service.251 The TVPA criminalizes the use of force, threats of force, and other coercive means to induce another to engage in commercial sex acts, labor, or services.252 Within eight years of its enactment, prosecutors secured seventy convictions.253 Between October 1, 2008, and September 30, 2009, a record 189 investi- gations were opened, 114 defendants were charged, and 47 of them were convicted.254

Antidiscrimination Law for the Independent Contractor Workforce, 116 Yale L.J. 170, 201 (2006) (discussing private contractor’s § 1981 claims that survived summary judgment phase).

248. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464, 1466 (codified at 22 U.S.C. §§ 7101–7110); see also 18 U.S.C. §§ 1589–1594 (2006) (dealing with forced labor). While there is no way to be certain about the scope of the problem, all information indicates it is grave. According to the U.S. State Department, “As many as 17,500 people are trafficked to the United States each year.” Alison Siskin & Liana Sun Wyler, Cong. Research Serv., RL34317, Trafficking in Persons: U.S. Policy and Issues for Congress 20 (2010).

249. 22 U.S.C. § 7102(8)(A) (including commercial sex demands in definition of hu- man trafficking).

250. Id. § 7102(8)(B) (including coercive labor in definition of human trafficking). 251. Office on Women’s Health, U.S. Dep’t of Health and Human Servs., Violence

Against Women: Human Trafficking, womenshealth.gov, http://www.womenshealth.gov/ violence-against-women/types-of-violence/human-trafficking.cfm (on file with the Columbia Law Review) (last updated May 18, 2011).

252. 18 U.S.C. §§ 1589–1591 (Supp. II 2008). 253. Martina Pomeroy, Left Out in the Cold: Trafficking Victims, Gender, and

Misinterpretation of the Refugee Convention’s “Nexus” Requirement, 16 Mich. J. Gender & L., 453, 460 (2010). The Human Trafficking Prosecution Unit of the Criminal Section of the Department of Justice’s Civil Rights Division specializes in bringing these cases.

254. Office of Legal Policy, U.S. Dept. of Justice, Attorney General’s Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in

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Ever since the 2003 reauthorization of the law, it has contained a civil remedy provision,255 creating a private cause of action that is unavailable under the Fourteenth Amendment because of the state ac- tion requirement.256 The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 reduced prosecutors’ burden of proof for demonstrating sex trafficking, redefined “force” to include conduct meant to violate law, and augmented the penalties available upon a finding of guilt for trafficking crimes.257 The law demonstrates the ability of Congress to regulate forced labor where most of the crimi- nal conduct involves the exploitation of women for their sexuality.258

3. Gender-Motivated Violence. — An expanded understanding of the Thirteenth Amendment’s liberty protections would further enable Congress to enhance federal policy against gender-motivated violence. That would fill the gap in coverage left after the Court struck the civil remedy section of the previously discussed statute.

In 1994, Congress relied on its Fourteenth Amendment and Commerce Clause powers to adopt a private cause of action into the Violence Against Women Act (VAWA).259 The Act created a punishment for “crimes of violence motivated by gender.”260 Congressional testimony, reports, and statements demonstrated that the statute was passed because many states lacked adequate remedies and procedural safeguards to compensate the victims of domestic violence and rape.261

Persons 62 (2010) [hereinafter DOJ 2010 Trafficking Report].

255. 18 U.S.C. § 1595. 256. See infra text accompanying notes 259–263 (discussing Supreme Court case

rejecting private cause of action due to state action requirement of Fourteenth Amendment).

257. DOJ 2010 Trafficking Report, supra note 254, at 3. 258. Id. at 4–5, 14–15. 259. Civil Rights Remedies for Gender-Motivated Violence Act, Pub. L. No. 103-322,

§ 40302, 108 Stat. 1796, 1941–42 (1994) (codified as amended at 42 U.S.C. § 13981 (2006)); Human Trafficking Prosecution Unit, U.S. Dep’t of Justice, http:// www.justice.gov/crt/about/crm/htpu.php (on file with the Columbia Law Review) (last visited Sept. 8, 2012).

260. Pub. L. No. 103-322, § 40302(b), 108 Stat. at 1941–42 (codified as amended at 42 U.S.C. § 13981(b)).

261. Justice Souter’s dissent in Morrison cites a variety of congressional reports and hearings with revealing statistics: Sexual assault and domestic violence caused a loss of $3 billion in 1990 and $5 to $10 billion in 1993; about 75% of women are so concerned about being the victims of rape that they do not go to the movies by themselves after dark and 50% avoid being alone in public transit after dark; and thirty-eight state attorneys general “urged Congress to enact the Civil Rights Remedy, representing that ‘the current system for dealing with violence against women is inadequate.’” United States v. Morrison, 529 U.S. 598, 632–35, 653 (2000) (Souter, J., dissenting); see also Brief of Amici Law Professors Filed Pursuant to Rule 29 of Federal Rules of Appellate Procedure in Support of the Constitutionality of the Violence Against Women Act at 20–21, Brzonkala v. Va. Polytechnic Inst. & State Univ., 132 F.3d 949 (4th Cir. 1997) (No. 96-1814), 1996 WL 33414283, at *20–*21 (recounting congressional findings of how state “condoned or over-

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A gendered understanding of the Thirteenth Amendment is particu- larly important in light of the subsequent history of VAWA.262 In United States v. Morrison, the Court relied on its state action requirement for the Fourteenth Amendment and an economic reading of the Commerce Clause to strike down the private remedy in VAWA.263

By adopting the broadened perspective on the Thirteenth Amendment, which would enhance legislative authority in the area of gender discrimination, Congress could reauthorize the private remedy section of the VAWA. Just as with the Civil Rights Act of 1866264 and the Conspiracy to Interfere with Civil Rights Act,265 the new VAWA would encompass both state inaction and private acts of violence.266 The current federal law against gender-related violence, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act,267 is too narrow, covering only cases arising from interstate activities or channels, facilities, or in- strumentalities of commerce.268

The enhanced conception of Congress’s Thirteenth Amendment Section 2 authority would allow for the repassage of a federal civil rem- edy for the victims of gender-motivated violence. The statute would cre- ate a uniform, national standard to prevent any forced sex or gender-mo- tivated violence that is closely related to one of the incidents of slavery that women suffered. Such uniformity is needed because Congress and empirical researchers have found that many victims of sexual violence

looked” private acts of violence against women).

262. The earliest analyses this author is aware of on the relevance of the Thirteenth Amendment to the constitutionality of a civil remedy under VAWA were McConnell, supra note 2, and Hearn, supra note 2. Space does not allow for a thorough critique of those articles, but they differ from this author’s approach because both authors read the terms of the Thirteenth Amendment more literally. For instance, Hearn’s argument that “violent acts experienced by women today are the same violent acts experienced by slave women and chastised wives in the nineteenth century” is unconvincing. Hearn, supra note 2, at 1163. McConnell’s description of cases where domestic violence is used as a means of co- ercion and control is more compelling. McConnell, supra note 2, at 229–34. The nuance of the latter argument is particularly helpful but needs to be updated because the article was published eight years before the key decision striking down the Violence Against Women Act. Morrison, 529 U.S. at 627.

263. 529 U.S. at 627 (holding Congress overstepped its Commerce Clause and Fourteenth Amendment authority by passing VAWA).

264. See supra text accompanying notes 47–55 (discussing Congress’s authority to protect civil rights from private violations under Thirteenth Amendment).

265. 42 U.S.C. § 1985 (2006); see United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 832 (1983) (recognizing Congress’s power to pass § 1985 was based on Thirteenth Amendment).

266. For a discussion of the Reconstruction Congress’s efforts to regulate vigilante violence and state discriminations, see Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction 28–59 (2011).

267. Pub. L. No. 111-84, §§ 4701–4713, 123 Stat. 2835, 2835–44 (2009). 268. 18 U.S.C. § 249(a)(2)(B) (Supp. III 2007).

2012] GENDER DISCRIMINATION 1693

find a state-by-state legal regimen to be inadequate.269 Two reasons provide hope that the Court might uphold a gender-

motivated violence statute if it were to be passed pursuant to the Thirteenth Amendment. First, unlike the Fourteenth Amendment, the Thirteenth Amendment contains no wording that could be misconstrued to require state action. As already discussed, the Court upheld a civil remedy for discriminatory dealings in contractual and property transac- tions, and it might do the same for gender-motivated violence.270 Violence was at least as (and arguably much more) intrinsic to slavery as restrictions on entering contracts and purchasing property. In all three areas of law, uniform norms are needed to deal with inadequate state remedies.

The Supreme Court is unlikely to import recently imposed Fourteenth Amendment limitations on congressional authority into its standard for reviewing statutes enacted pursuant to the Thirteenth Amendment.271 A district court also came to the conclusion that the Thirteenth Amendment has been unaffected by the recent judicially im- posed restraints on Congress’s Fourteenth Amendment powers.272 The Supreme Court has repeatedly confirmed that Congress’s Thirteenth Amendment authority extends to private conduct that resembles the in- cidents and badges of involuntary servitude.273 Those incidents need not

269. Thirty-seven states’ attorneys general signed a letter to Congress asserting that: [T]he current system for dealing with violence against women is inadequate. Our experience as Attorneys General strengthens our belief that the problem of violence against women is a national one, requiring federal attention, federal leadership, and federal funds. [VAWA] would begin to meet those needs by . . . creating a specific federal civil rights remedy for victims of gender-based crimes . . . .

Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 103d Cong. 35 (1993).

270. See supra text accompanying notes 79–84 (arguing § 1981 and § 1982 of Civil Rights Act apply to “[a]ll persons”).

271. For an in-depth debate into whether the new Fourteenth Amendment jurispru- dence applies to the Thirteenth Amendment field, compare Tsesis, Congressional Authority, supra note 222, at 51–59 (arguing Rehnquist Court’s narrow reading of Fourteenth Amendment enforcement power is inapplicable to Thirteenth Amendment), with Jennifer Mason McAward, Congressional Authority to Interpret the Thirteenth Amendment: A Response to Professor Tsesis, 71 Md. L. Rev. 60, 64 (2011) (arguing that narrow interpretation of Fourteenth Amendment in Boerne also constrains reading of Section 2 of Thirteenth Amendment).

272. United States v. Beebe, 897 F. Supp. 2d 1045, 1048–51 (D.N.M. 2011) (maintain- ing rational basis standard of review in context of Thirteenth Amendment legislation and rejecting argument that Boerne applied because of similar wording of Fourteenth Amendment’s Enforcement Clause).

273. The Warren Court decided Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), while the Burger Court extended the decision to Runyon v. McCrary, 427 U.S. 160, 170 (1976) (adopting Jones test of whether “prohibition was within Congress’ power under Section 2 of the Thirteenth Amendment ‘rationally to determine what are the badges and the incidents of slavery, and . . . to translate that determination into effective legislation’”

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literally be forms of bondage resembling slavery.274 To withstand a constitutional challenge, the statute will need to be rationally related to some legitimate use of Congress’s Section 2 authority.275 This standard provides legislators with significantly more latitude to identify nationally recognized liberties than the congruence and proportionality test the Court now invokes to assess the constitutionality of statutes passed pursu- ant to the Fourteenth Amendment.276 Applying existing Thirteenth Amendment jurisprudence, therefore, the Supreme Court may defer to Congress even when a parallel statute targeting state action would over- step Fourteenth Amendment authority.

There is also a second basis for hoping that the Court will uphold a civil remedy against gender-motivated violence pursuant to the Thirteenth Amendment. The Court’s Commerce Clause reasoning in Morrison for striking VAWA would be irrelevant to the new statute. Simply put, the Thirteenth Amendment is not confined by Commerce Clause analysis because it deals with an evil that is far more than economic. Its central purpose is principled, having been ratified to end injustices ra- ther than facilitate commercial intercourse or manufacturing.

A Thirteenth Amendment approach to gender subordination would be immune from the Supreme Court’s exacting review of Commerce Clause legislation. In Morrison, the majority rejected the information gathered by congressional task forces demonstrating the massive effect gender-motivated violence had on the economy, business, and travel.277 The Court claimed that “[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity.”278 Relying on this eco- nomic perspective of the Commerce Clause, the Court turned aside the civil remedy component of VAWA.279

(quoting Jones, 392 U.S. at 440)). The Rehnquist Court also reaffirmed Jones in Patterson v. McLean Credit Union, 491 U.S. 164, 175–76 (1989) (“We decline to overrule Runyon and acknowledge that its holding remains the governing law in this area.”), and the Roberts Court did the same in Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) (rec- ognizing Congress’s authority to prohibit racial discrimination in contractual dealings).

274. See supra text accompanying notes 216–221 (examining situations that are analogous to badges and incidents of slavery).

275. See Jones, 392 U.S. at 440 (“Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”).

276. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 728 (2003) (“[V]alid § 5 legislation must exhibit ‘congruence and proportionality between the injury to be pre- vented or remedied and the means adopted to that end.’” (quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997)).

277. See United States v. Morrison, 529 U.S. 598, 628–35 (2000) (Souter, J., dissent- ing) (describing congressional findings about widespread economic effect of violence committed against women).

278. Id. at 613 (majority opinion). 279. Id. at 617–18 (finding gender-motivated violence was “not directed at the instru-

mentalities, channels, or goods involved in interstate commerce”).

2012] GENDER DISCRIMINATION 1695

Whereas the Court was not convinced by the Commerce Clause ar- gument, it might find the Thirteenth Amendment approach to combat- ing gender-motivated violence to be more on point. The Thirteenth Amendment’s underlying purpose is not economic but principled. The majority’s finding that gender-motivated crime was not economic in na- ture280 is not pertinent to Thirteenth Amendment interpretation.

The Thirteenth Amendment is an available source of power for Congress to invoke to pass criminal law to punish persons engaged in gender-motivated violence. Whether such conduct is an isolated or re- peated occurrence with substantial or negligible effects on interstate commerce, it leaves victims in the state of bondage that feminists have convincingly compared to the incidents of involuntary servitude.281 Persons who live in fear of gender-motivated attack are not victims of simple crimes, which states can deal with singly, but of criminals who in- tend to sexually or domestically maintain power relationships reflecting stereotypes of men and women. At stake in cases of coercion and gender violence are harms to dignity, human integrity, and fundamental free- dom, none of which are intrinsically economic.

CONCLUSION

While courts have historically only interpreted the Thirteenth Amendment within the framework of racial discrimination, its protection of liberty applies equally to cases of gender discrimination. Congressional authority under Section 2 is triggered whenever an act of discrimination is rationally related to a legislatively or judicially recognized incident or badge of involuntary servitude. The Court’s pathbreaking decisions of the 1970s, which for the first time applied the Fourteenth Amendment to gender discrimination cases, provide models for expanding the reach of the Thirteenth Amendment. The latter contains a unique grant of au- thority that, unlike the Fourteenth Amendment, includes private acts of subordination. Congress should utilize its authority to pass added protec- tions against employment discrimination and hate crimes. And the rein- vigorated interpretation of the Thirteenth Amendment can help courts develop the needed groundwork for applying existing legislation, like § 1981, to litigation alleging sex discrimination.

280. See id. at 614–15 (arguing aggregation of noneconomic activity will “completely

obliterate the Constitution’s distinction between national and local authority” (citing United States v. Lopez, 514 U.S. 549, 564 (1995))).

281. See supra Part II.A (showing how feminists compared sociopolitical condition and legal status of women in antebellum era to slavery).

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