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.
Issue 6
Linkage and the Deterrence of Corporate Fraud
Corporate fraud is often presumed to be the type of crime that can be deterred. Those who embrace deterrence as a goal of law enforcement, however, often ignore the tradeoffs between the deterrence of potential offenders and the deterrence of those “mid-fraud perpetrators” who are already mid-way through illicit schemes when the government announces a change in policy. Unlike potential offenders, mid-fraud perpetrators have no incentive to cease criminal conduct in response to increases in sanctions or likelihood of detection. This is true because their cessation of future misconduct increases the probability that their prior conduct will be detected and punished. If a CFO has lied to a company’s shareholders in Quarter 1 about the company’s profits, his cessation of lying in Quarter 2 substantially increases the chances that someone will focus on and detect his previous lies in Quarter 1. The problem with linkage is that criminal sanctions aimed primarily at deterring new offenders may also encourage “ongoing” offenders to invest in techniques that decrease the likelihood of detection. Policymakers contemplating changes in law enforcement policy should therefore consider the linkage problem in calculating the benefits and drawbacks of different law enforcement strategies.
A Tribute to Glen O. Robinson
As Glen O. Robinson retires from the Law School faculty, colleagues reflect on his career and the impact he has had.