Wednesday, June 22, 2016

The Thirteenth Amendment as Protection Against Domestic Violence

James Gray Pope, The Thirteenth Amendment at the Intersection of Class and Gender: Robertson v. Baldwin's Exclusion of Infants, Lunatics, Women and Seamen, 39 Seattle L. Rev. (2016) 


In Robertson v. Baldwin [1897], the Supreme Court held that merchant seamen under contract could be legally compelled to work notwithstanding the Thirteenth Amendment’s prohibition on slavery and involuntary servitude.  According to the Court, seamen were “deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults,” and therefore could—along with children and wards—be deprived of liberty. From a present-day perspective, the Court’s casual deprecation of seamen’s intelligence and character might seem anachronistic, even shocking. ***


Robertson’s domestic exclusion raises intertwined issues of class and gender. As a general rule, the Thirteenth Amendment limits inequalities of class, where class is conceived as “power relationships among groups involved in systems of production.” Regardless of contractual consent, workers may not be legally or physically compelled to work. The Supreme Court has explained this principle in terms of class power, as necessary to prevent the “master” from dominating the “laborer”: “When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.” Robertson carves out a gendered exception to this protection, relegating seamen to what political theorist Carole Pateman has described as “the private sphere of natural subjection and womanly capacities.”


By contrast, it is an open question whether the Amendment reaches gender relations. On that issue, Robertson has historically served to block jurisprudential development by preserving the domestic sphere as a zone where services can be coerced free from Thirteenth Amendment scrutiny. As Joyce McConnell has shown, Robertson’s domestic exclusion has operated to deprive women, married or not, of protection against coercion by intimate partners. When a woman enters into an intimate relationship with a man, then, she departs the public sphere of class relations and loses her Thirteenth Amendment protection against coercion of services. Over the past few years, however, several courts have applied statutory bans on “involuntary servitude” and “forced labor” (a “species of involuntary servitude”) to protect women and children in domestic settings.

Constitutional, Family, Violence Against Women | Permalink


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