Of Swords, Shields, and a Gun to the Head: Coercing Individuals, But Not States

This Article begins with a brief reprise of what should be a textual “gotcha” about the Enforcement Clauses of the post-Civil War Amendments—if our current Supreme Court Justices actually cared about original texts, originalism, or a combination of the two. Next, the Article focuses on the gnarled issue of “coercion.” It argues that, contrary to a great deal of Anglo-American legal doctrine, coercion is best understood along a spectrum rather than as a binary phenomenon. Coercion is actually much contested and highly contextual across many legal categories. Federal coercion—also described as commandeering or dragooning— has become a particular constitutional focus in recent decades.

Part II briefly describes the Court’s particular concern regarding the need for agreements by states to be intelligent, voluntary, and uncoerced, which entails maintaining the equal dignity of all states and state officials. It compares this politesse, generally proclaimed to be anchored in federalism, with the Court’s considerably more relaxed acceptance of federal coercive power over individuals. Part III considers the jagged edges around decisions about what could or should qualify as “voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise.” Starting with the recognition, at one end of the spectrum, that any contract could be considered coercive, Part III briefly compares and contrasts the doctrine of duress in mainstream standard contract law doctrine with the historic evisceration of the very concept of freedom from voluntary peonage. This evisceration was perpetrated by U.S. Supreme Court Justices as well as by innumerable employers imposing harsh realpolitik as a devastating form of law in action.

In looking more deeply into the Thirteenth Amendment and statutes based upon it, I found that on the last day of the lame-duck 39th Congress, the authors of what became the Fourteenth Amendment passed the Peonage Abolition Act of 1867. They did so on March 2, 1867, the same day that Congress divided the South into five districts and sent in federal troops.