New Article: Rebecca E. Zietlow, Free at Last! Anti-Subordination and the Thirteenth Amendment, 90 B.U. L. Rev. 255 (2010). Abstract below:
Notwithstanding the powerful symbolism that liberty has in the American psyche, liberty is largely absent from our late twentieth century understandingof civil rights, which instead is based on the Equal Protection Clause and its promise of formal equality. People of color and women of every race have made significant advances under the equal protection model of equality, but they continue to lag behind whites and men under virtually every economic index. This Article argues for an alternative model of equality, an antisubordination model, which allows decision-makers to focus on and remedythe material conditions that contribute to inequality in our society. This model can be found in another Reconstruction Amendment, the Thirteenth Amendment, which empowers Congress to remedy racial and economic subordination in order to further the belonging of outsiders in our society. This Article considers the abolitionist roots of the Thirteenth Amendment to aid in an understanding of its potential, and analyzes the congressional debates enacting and enforcing the Amendment. When enforcing the Thirteenth Amendment, Congress has adopted an anti-subordination approach to equality, remedying both race discrimination and the economic subordination of workers. The debates and the legislation itself create a precedent for a twenty-first century Congress to reshape the meaning of “equality” and“liberty” and enact more measures to effectively address the interconnected subordination of people of color, women, and workers of all races.