The Thirteenth Amendment is unique among constitutional provisions in directly regulating private activity. The amendment abolishes slavery both in the familiar antebellum form, in which it was established by the state, and as it might be perpetuated by private individuals, either through their own coercive activity or through the exercise of common law rights. This private action interpretation of the amendment became established soon after the amendment was ratified, and it has remained unquestioned since. This Essay considers the arguments for the amendment’s coverage of private action based on its text, its origins, and the congressional debates over its meaning. The text of the amendment itself makes no reference to the states, unlike the Fourteenth Amendment, as it was modeled on territorial legislation in which Congress exercised plenary authority over private behavior. The congressional debates over the amendment reveal that it was designed to eliminate all forms of slavery, to alter the existing distribution of power between the states and the federal government, and to abolish slavery as a system of property rights—including property rights exercised by private individuals. All of this was accomplished by the self-executing provisions of section 1, but the private action interpretation of the amendment also extends to section 2, which grants Congress the power to enforce the amendment “by appropriate legislation.” This grant of legislative authority provides indirect, but crucial support, for modern civil rights legislation that prohibits private discrimination. Section 2 should not be narrowly construed in an effort to find a restraint on federal power analogous to the state action doctrine under the Fourteenth Amendment. The influence of the Thirteenth Amendment has been—and should continue to be—as broad as the problems of slavery to which it was originally addressed.
Essay
The Concealmeant of Religious Values in Judicial Decisionmaking
Religious beliefs and values can play a significant and potentially necessary role in the judicial disposition of cases, particularly those in which the positive law is meaningfully underdeterminate. With some exceptions, however, the permissible role of such beliefs and values in various stages of the judicial process is not often appropriately addressed within public and even academic circles. To the contrary, the issue tends by most commentators to be either largely overlooked, perhaps due to its delicacy or complexity, or categorically disposed of pursuant to a debatable theory of public discourse or a distinctive reading of the Constitution’s religion clauses. The central thesis of this Essay is that the relationship between judging and religious influences, as a result of these and other circumstances, is one defined substantially by concealment, much of it unconscious, rather than by truly principled and effective regulation. The Essay’s purposes, accordingly, are to develop this thesis more fully; to examine its chief consequences, especially for the legitimacy of judicial decisionmaking; and, to the extent that these consequences are unfavorable, to suggest some modest corrective measures.
Does Frye or Daubert Matter?: A Study of Scientific Admissibility Standards
Nearly every treatment of scientific evidence begins with a faithful comparison between the Frye and Daubert standards. Since 1993, jurists and legal scholars have spiritedly debated which standard is preferable and whether particular states should adopt one standard or the other. These efforts beg the question: Does a state’s choice of scientific admissibility standard matter? A growing number of scholars suspect that the answer is no. Under this theory, the import of the Supreme Court’s Daubert decision was not in its doctrinal standard, but rather in the general consciousness it raised about the problems of unreliable scientific evidence. This Essay empirically examines this question. Using data provided by the Federal Judicial Center, the National Center for State Courts, and the New York and Connecticut court systems, it applies a novel approach of using removal from state to federal court to measure litigants’ perceptions of scientific admissibility standards in practice. The analysis strongly supports the theory that a state’s choice between Frye and Daubert does not matter in tort cases. The results raise larger questions about the efficacy of tort reform through procedural rules, suggesting that the judiciary in some contexts may be more responsive to educative measures than to doctrinally based procedural reforms.