Saturday, April 11, 2009
Both sides of the abortion debate invoke analogies to slavery. Recently, in the National Review Online, Michael Novak's article "Notre Dame Disgrace" criticizes the university for inviting Barak Obama, arguing that "I doubt very much whether the University of Notre Dame would ever give an honorary degree to a slave owner or a propagandist for slavery." One of the presentations scheduled for the upcoming conference on the Thirteenth Amendment, previously blogged here, is “Forced Labor, Revisited: The Thirteenth Amendment and Abortion” by Andrew Koppelman, of Northwestern University, School of Law. In Koppleman's previously published article, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U. L. Rev. 480 (1990), he argues:
Abortion prohibitions violate the amendment's guarantee of personal liberty, because forced pregnancy and childbirth, by compelling the woman to serve the fetus, creates “that control by which the personal service of one man sic is disposed of or coerced for another's benefit which is the essence of involuntary servitude.”' Such laws violate the amendment's guarantee of equality, because forcing women to be mothers makes them into a servant caste, a group which, by virtue of a status of birth, is held subject to a special duty to serve others and not themselves.
Outside the abortion context, doctrines and theoretical perspective of slavery and involuntary servitude continue to have valence. For example, in an extensive essay-review I've authored and just published in Berkeley Journal of Gender, Law and Justice, available on ssrn, I discuss a recent high profile prosecution on Long Island regarding wage slavery. (The essay springs from a book considering the writer Virginia Woolf's life and work).
In the context of domestic violence, Joyce McConnell, now Dean of West Virginia University College of Law, argued the applicability of the Thirteenth Amendment to the situation of domestic violence.
In her article, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 Yale J.L. & Feminism 207 (1992), McConnell opened with a rejection of slavery as metaphor:
When Congress debated the Thirteenth Amendment and its prohibitions against slavery and involuntary servitude, anxious members inquired whether it would alter the traditional relationship of husband and wife. The concern materialized out of a political context in which those who sought abolition of African American chat-tel slavery and the establishment of women's rights were applying the norm of individual freedom beyond the nar-row scope of landed white men. At that time, the metaphor “women are slaves” had rhetorical currency and suggested that white women shared with African American men and women a similar legal and social status of non-identity and disability. No matter how rhetorically useful this metaphor may have seemed then or may seem now, it was and remains grossly inaccurate and inherently racist. It obscured the fact that white women were slaveholders or beneficiaries of the slave system. It failed to recognize that even though there were significant legal, political and social restraints on white women, they did not as a class suffer in the way that African Americans did under slavery. Finally, it ignored the fact that African American women were slaves and that other women were not, no matter what their subordinate legal or socio-economic status. So, the metaphor was and is fundamentally flawed both by its generality and its exclusion.
Id. at 207-8 (footnotes omitted). Instead, McConnell argued, the term "involuntary servitude" is applicable. Indeed, she discussed the fear of certain Congressmen that the prohibition of "involuntary servitude" would reshape their domestic lives and homes:
Senator Howard worried that if the Amendment was to be enacted “a woman would be equal to a man ... [a] wife would be equal to her husband and as free ... before the law.” Representative Cox was concerned that if Congress had the power to regulate “domestic slavery” then perhaps it could exercise this power to “change the relation of ... husband and wife.” To allay his colleagues' fears, Senator Sumner the chief proponent of the Thirteenth Amendment in the Senate, argued that the right to contract and the right to maintain a family were natural rights essential to the concept of freedom. In this he implied that to regard the Thirteenth Amendment as interfering with the traditional legal relationship between husband and wife would be reductio ad absurdum. His narrow interpretation of the Thirteenth Amendment assured its opponents that the Amendment would not in any way alter the family under the law, but rather was to give everyone, regardless of their race, the right to create and maintain a family under the laws then applicable to only whites and freed slaves. Such a family presumed the traditional authority of the husband over the wife.
Id. at 216 (footnotes omitted). This is a passage I return to again and again, using it to provoke class discussions.
In her article, McConnell goes on to mount a compelling argument regarding battered women as subject to involuntary servitude. Although not explicitly based on the Thirteenth Amendment, Congressional actions addressing domestic violence such as the Violence Against Women Act and immigration remedies for battered women, fit within some of the solutions McConnell proposed seventeen years ago. Yet McConnell's article still raises fresh perspectives.