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Abstract

The Thirteenth Amendment currently enjoys a robust renaissance among legal scholars who contend that it provides a judicial remedy for and congressional authority to proscribe the “badges and incidents of slavery.” As discussed below, this interpretation, although not self- evident from the Amendment’s bare text, is well supported by the Amendment’s history and context, the Framers’ explicit intentions, the legislative debates in Congress leading to the Amendment’s adoption, and the contemporaneous legal understanding of the ways in which the Slave Power that had come to dominate and distort American society. This Article briefly explores whether the Thirteenth Amendment applies to class-based subordination and concludes that it generally does not, at least not in such broad terms. The Amendment’s text, history, context, and intent do not support an interpretation of the Amendment as generally prohibiting discrimination or subordination based on social class distinctions per se that are completely detached from the legacy of chattel slavery or involuntary servitude. Rather, this Article argues, it is only when class-based distinctions are so impermeable and of such magnitude as to transform class into caste, thus constituting a near-total alienation from civil society akin to that characteristic of the system of slavery, that the Thirteenth Amendment would apply.