(Re)Birth of a Nation: Reconstruction’s Unfinished Business

Michigan Journal of Race and Law Michigan Journal of Race and Law

(Re)Birth of a Nation: Reconstruction’s Unfinished Business (Re)Birth of a Nation: Reconstruction’s Unfinished Business

Zanita E. Fenton University of Miami School of Law

Part of the Constitutional Law Commons, Law and Race Commons, and the Legal History Commons

https://doi.org/10.36643/mjrl.30.2.rebirth

(RE)BIRTH OF A NATION: RECONSTRUCTION’S UNFINISHED BUSINESS

Zanita E. Fenton*

Prologue

The irony, alluding to the title of the 1915 silent movie Birth of a Nation,1 seeks to make conspicuous the counter-stories that more authentically account for the “birth” and development of American society.2 Ku Klux Klan-sponsored3 propaganda designed to evoke hyper-racist fearmongering and perpetuate sexual paternalism over White women, the plot from Birth of a Nation reflects the paradigmatic race-bait: relentless pursuit of a White woman by a Black man. This storyline was fictionalized, culturally unrealistic4 and deliberately omitted the very real sexual exploitation of Black women and girls. Birth of a Nation parallels Constitutional history that marginalizes supplemental accounts and obscures counter-histories.

I. INTRODUCTION

People are not property. A person owns herself. This may seem an evident part of the Constitution5 and further confirmed by ratification of

* Professor of law, University of Miami School of Law. There are innumerable colleagues and friends I must thank for listening and providing feedback during the development of this article. I appreciate Martha Minow, Caroline Mala Corbin and Patrick Gudridge for being especially supportive of this endeavor.

2. “Birth” is first a metaphor for the founding of the United States and the contributions from the full range of individuals to its development. See infra notes 114-19; but see infra notes 120-22. It is also a metaphor for the changes meant to be part of Reconstruction. Literally, it is a reference to the breeding enterprise that was the basis for the slave economy and the self-generating labor supply sustaining it. See infra Part III.A

3. The silent film Birth of a Nation was “an epic about the American Civil War (1861–65) and the Reconstruction era that followed, [and] has long been hailed for its technical and dramatic innovations but condemned for the racism inherent in the script and its positive portrayal of the Ku Klux Klan (KKK).” Lee Pfeiffer & Dick Lehr, The Birth of a Nation, BRITANNICA (Jan. 17, 2025), https://www.britannica.com/topic/The-Birth-of-a-Nation.

4. Any interaction by a Black man with a White woman, or even the rumor or idea of one, was sufficient “cause” to lynch the “offending” Black man as retribution. See, e.g., STEPHEN J. WHITFIELD, A DEATH IN THE DELTA: THE STORY OF EMMETT TILL (Johns Hopkins Univ. Press 1991). See generally, Kendall Thomas, Strange Fruit, in RACING JUSTICE, EN-GENDERING POWER: ESSAYS ON ANITA HILL, CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY 364, 370 (TONI MORRISON ed., 1992); IDA B. WELLS-BARNETT, SOUTHERN HORRORS: LYNCH LAW IN ALL ITS PHASES 6, 13-4, 24 (1892), in ON LYNCHINGS (2002).

5. See SEAN WILENTZ, NO PROPERTY IN MAN: SLAVERY AND ANTISLAVERY AT THE NATION’S FOUNDING (Harvard Univ. Press 2018) at 45, 217 (identifying a right to self-ownership in the proposed constitution of 1787).

the Thirteenth Amendment,6 which broadened the class of individuals treated as persons.7 This Article seeks to acknowledge the proposition of self-ownership as emanating from Amendment Thirteen8 and that such a proposition includes personal autonomy over sexual and reproductive choices.9 It also strives to demonstrate how this recognition is consistent with original meaning.10 It identifies how the application of coverture predisposed the outcome in Dred Scott11 and points out the arguments, made during its implementation, favoring application of the Thirteen Amendment to gender equality.12 It then makes comparisons and connections between antebellum practices13 and modern forms of subordination and exploitation.14 It identifies areas in which the vestiges of enslavement continue15 and those in which direct slavery exists in the United States. These substantive comparisons of practices in different eras includes a discussion of how Dobbs v. Jackson Women’s Health Organization16 replicates Dred Scott v. Sanford.17 The strength of these overall comparisons provides an incentive to reimplement the Thirteenth Amendment as a means to address the vestiges of antebellum slavery and modern-day human trafficking.18

The gendered significance of Amendment Thirteen begins by examining the story of Harriet Robinson. Robinson was legally married to Dred Scott, the named plaintiff in the landmark case, Dred Scott v. Sanford.19 Harriet’s life, glimpsed via scholarship on Scott’s legal battle, 20 connect the various threads of this Article. The legality of her marriage

6. U.S. CONST., amend. XIII. See infra-Part IV. 7. See infra notes 114-22. 8. See infra note 124. 9. See infra Part III.A and text accompanying notes 24, 311-19.

10. See infra notes 266-69. 11. See infra notes 97-99,105-06. 12. See infra notes 308-25. 13. See infra Part III. 14. See infra Part V. 15. See infra Part V.B and V.C. 16. 597 U.S. 2015 (2022). 17. 60 U.S. (19 How.) 393 (1857). 18. See infra Part V.A. This Article discusses sex and labor trafficking as explicit forms of slavery but does not intend to exclude other forms of modern slavery in practice or theory. 19. Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 431 (1857). 20. Lea VanderVelde & Sandhya Subramanian, Mrs. Dred Scott, 106 YALE L.J. 1033, 1034 (1997). See generally, WALTER EHRLICH, THEY HAVE NO RIGHTS: DRED SCOTT’S STRUGGLE FOR FREEDOM (1979) (examining the Dred Scott litigation in context, including research on the backgrounds and possible motives of the Scott family, their enslavers, and their lawyers); VINCENT C. HOPKINS, DRED SCOTT’S CASE (1951) (detailing the Scott family’s legal proceedings).

was confirmation of her free status and stands in contrast to prohibitions of slave marriage, intended to aid in slave sexual subordination and slave breeding for plantation profit.21 Sanctioned marriage provides the counter propositions for the conditions elemental to its prohibition but also demonstrates how marital law operated to maintain the subordination of women.22 In Harriet’s case, these laws facilitated her return to slave status.23

While sexual subordination and control over reproductive activity were constitutive elements of slavery and therefore covered by Amendment Thirteen,24 the possibility of including marriage within that coverage was debated at the first implementing legislation.25 Interpreting Amendment Thirteen and consistent case law, professor Alexander Tsesis maintains that it is a source for women’s equality and for protections against gender discrimination.26 Scholar Andrew Koppelman asserts that pregnancy, when coerced, is itself a form of involuntary servitude; therefore compelling a woman to continue a pregnancy and give birth against her will is impermissible under the Thirteenth Amendment.27 This Article does not directly address pregnancy as a form of involuntary servitude, but instead concentrates on plantation breeding operations, the sexual demands on enslaved women,28 and points out the subordination of women created by the traditional laws of marriage.29 Using these two points of reference, this Article compares antebellum impositions on women pre-dating the passage of Amendment Thirteen to modern contexts in which the vestiges of slavery are perpetuated or otherwise implicated.30

Part II begins with the case relevance of Harriet Robinson, Dred Scott’s wife. It describes how the laws of coverture, or “marital unity,”31

21. See infra Part III.A. 22. See infra Part III.B. 23. See infra text accompanying notes 97-99. 24. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439 (1968) (holding that the Thirteenth Amendment authorized Congress to legislate private and public conduct to prohibit “the badges and incidents of slavery”). See also infra text accompanying notes 187-94, 388-89 (describing the “sexual services” and “breeding enterprise” aspects of chattel slavery). 25. See infra text accompanying notes 311-15. 26. Alexander Tsesis, Gender Discrimination and the Thirteenth Amendment, 112 COLUM. L. REV. 1641, 1685-87 (2012). 27. Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U. L. REV. 480, 487 (1990). 28. See infra Part III.A. 29. See infra Part III.B. 30. See infra Part V. 31. See generally, Norma Basch, Invisible Women: the Legal Fiction of Marital Unity in Nineteenth-Century America, 5 FEMINIST STUD. 346 (1979); Claudia Zaher, When a Woman’s Marital Status Determined Her Legal Status: A Research Guide on the Common Law Doctrine of Coverture, 94 LAW LIBR. J. 459 (2002).

enabled Justice Taney to subsume Harriet’s claims into those of Dred. Since slaves could not legally marry, Taney could have recognized Harriet’s marriage in support for her and Dred’s freedom and citizenship,32 but instead used coverture to subordinate Harriet’s claims with her fate tied to Dred’s – as property.33 Critiques of how the Dred Scott opinion define personhood and citizenship status have greater significance when read against this backdrop.34 Scholars have not given much attention to the dynamic of subordinations presented by the operation of coverture as it affected the Dred Scott decision.35 It is only because Lea VanderVeldet and Sandhya Subramanian have illuminated Robinson’s history in their important work, Mrs. Dred Scott, that there are more apparent avenues for study and analysis.

Justice Taney defines personhood in his sophistical interpretation of Due Process.36 An adequate accounting of his approach requires acceptance of the disparagement of persons of African descent and a recognition of the prevailing social class structures.37 The importance of marriage for community inclusion, freedom, and citizenship38 was highlighted when

32. See infra notes 84-98. 33. See infra notes 97-98. 34. Perhaps because of the psychological discomfort elicited by the topic, most constitutional scholars avoid the question of personhood. As Jack Balkin and Sanford Levinson point out, “We continue to be haunted, even 150 years later, by the linkages among race, status, citizenship and community that Dred Scott described. The case stands as a perpetual symbol and reminder of what we flee . . . [Taney] accurately pointed out the realities of life in America, both North and South, in which blacks were legal inferiors to a dominant white majority. Echoes of these assumptions in Dred Scott are still with us whenever we assume that one race is more centrally “American” than others and more clearly and obviously a part of the American people and the American political community.” Jack M. Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 CHI.-KENT L. REV. 49, 54 (2007). But see Henry L. Chambers Jr., Dred Scott: Tiered Citizenship and Tiered Personhood, 82 CHI.-KENT L. REV. 209 (2007).

Further, since scholars tend to analyze through a singular lens, they miss the constructs arising from the intersections of race and gender and of any other categories. For examples of intersectional approaches. See infra note 337. 35. While W. William Hodes in a discussion of Minor v Happerset, a case in which the Court rules that citizenship does not confer a right to vote, notes that “After such a study, a startling conclusion is almost inescapable: that the entire opinion, including its very weightiness, is a deliberate copy of Chief Justice Taney’s opinion in DRED SCOTT v. SANDFORD, 60 U.S. (19 How.) 393 (1857). A Disgruntled Look at Reed v. Reed from the Vantage Point of the Nineteenth Amendment, 1 WOMEN’S RTS. L. REP. 10-11 (1972). Cf. Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 YALE L. J. 2117, 2135 (1996) (discussing the abrogation of chastisement). 36. See infra notes 114-20. 37. The equation of personhood status and citizenship is comprehensible only if there is a tiering of personhood. See infra notes 120-22. 38. Cf. infra Part III.

Taney disparages interracial unions.39 Separately, since there were limitations on the ability of (White) married women to own property, the idea of marriage in an opinion tying property ownership to personhood status makes personhood status suspect for (White) women.40 Finally, in order to exclude Dred’s and Harriet’s free born daughters from the category of persons,41 Taney overruled the Compromise of 1820.42 This abrogation confounded almost forty years of popular expectations from that compromise.43 With non-person status determined and rights recognition avoided,44 Taney could then defer the matter of citizenship to the states. Deference to the states on matters of individual rights avoids judicial responsibility for individual rights protection.45 Cases significant to legal history have followed this judicial tactic often with the purpose of returning to pre-Reconstruction norms, affecting both the rights of emancipated persons and the rights of presumptively free (White) women.46

Part III focuses on the role of marriage in the perpetuation of slavery as well as in how traditional laws supporting marriage served to foster the dependency and subservience of (White) married women. It demonstrates how marriage prohibitions promoted slave compliance and facilitated the plantation enterprises for brothels and breeding.47 With prohibitions on slave marriage marital presumptions regarding sexual exclusivity could not be impediments to sexual servitude;48 the sale of family members, including

39. See infra note 120. 40. See infra discussion of Married Women’s Property Acts, notes 252-61 and accompanying text. 41. Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 403 (1857). 42. The Compromise of 1820, also known as the Missouri compromise (Pub. L. No. 16–22, 3 Stat. 545 (1820 , was attempted to settle conflicts over the extension of slavery in new states and territories. The admission of Missouri as a slave state, accompanied by a ban on slavery in the remainder of the Louisiana Purchase north of latitude 36°30′ and the admission of Maine as a free state. See Britannica, Editors of Encyclopaedia Britannica. Missouri Compromise, BRITANNICA (Dec. 18, 2024), https://www.britannica.com/event/MissouriCompromise. The Compromise of 1850 (CONG. GLOBE, 31st Cong. (1850) (statement of Sen. Henry Clay further attempted to settle the extension of slavery in western territories, including land now encompassed by California, Texas, New Mexico and Utah. This compromise included a strengthening of the Fugitive Slave Law. See Melvin I. Urofsky, Compromise of 1850, BRITANNICA (Dec. 31, 2024), https://www.britannica.com/event/ Compromise-of-1850. See infra notes 110-13. 43. Cf. infra text accompanying note 444. 44. See infra note 111 and accompanying text. 45. See infra Part II.B. 46. See, e.g., Bradwell v State of Illinois, 83 U.S. (16 Wall.) 130 (1873); United States v. Cruikshank, 92 U.S. 542 (1876). See infra text accompanying 144-49 and 150-64. 47. See infra Part III.A. 48. See infra text accompanying notes 188-90.

infants,49 could not be challenged;50 and the authority of the master was not be impeded by any presumed familial to slaves obligations that would otherwise arise from biological relations.51 Without the obstacle of marriage, the lines of profit were clear52 and White, inheritable family wealth was secure.53 Similarly, the presumptive illegitimacy of slave children avoided any obstacle to family division or sale.54 Part III goes on to show how the laws forming traditional marriage created conditions that denied married women the ability to own or control property and relegated married (White) women to a status of property.55 Further, marriage was important to ensure the legitimacy of (White) children and to secure inheritable family wealth.56 Race-based legitimacy57 further served to police White women’s extra-marital sexual activity.58

Part IV employs relevant philosophy and economic theory predating the writing of the Constitution. These philosophies influenced the writing of the constitution and ground the assertions of self-ownership within the founding conversations regarding Constitutional ideals as well as for Amendment Thirteen, as advanced in the latter section of this Part. The metaphysical perspective of Enlightenment philosopher Emmanuel Kant, important for the concept of individual rights,59 stands as a challenge to the definition of personhood in Dred Scott,60 as well as to the concepts of personhood61 relied upon in Dobbs and discussed in Part V. Enlightenment thinker and democratic theorist John Locke provides additional notions of personhood consistent with self-ownership. Influenced by Locke, Adam Smith pioneered theories in political economy and is regarded as the father of modern economics. Like Locke, Smith relies on concepts selfownership in his theories.62 Authors inspired by John Locke penned the Constitution and the national economic system is based on the insights of Adam Smith. With the facts present at the time of Amendment Thirteen’s ratification described in Part III, the latter section of Part IV asserts its subject matter coverage based in those facts as consistent with the ideals of

49. See infra text accompanying note 179. 50. See infra text accompanying notes 177-84. 51. See infra text accompanying note 173. 52. See infra text accompanying notes notes 177-84. 53. See infra text accompanying notes 185-86. 54. See infra Part III.A. 55. See infra Part III.B. 56. See infra text accompanying notes 205, 230, and 241. 57. See infra text accompanying notes 179-86. 58. See infra text accompanying note 124. 59. See infra text accompanying note 277. 60. See infra text accompanying notes 114-22. 61. See infra text accompanying notes 297-300 and 429-35. 62. See infra text accompanying notes 291-93.

these philosophers. It further situates Amendment Thirteen’s role with the Reconstruction Amendments.63 Since the concepts of personhood, even in the negative, are central to the opinion in Dred Scott,64 the ideas developed by Locke and Smith are relevant65 and provide the basis for its critique in Part II and, later in Part V, critiques of the centrality of personhood the decision in Dobbs.66

Part V endeavors to relate antebellum legal forms and business to modern structures for exploitation, commodification, and enslavement. In focusing on the economics of exploitation, it discusses prostitution, humantrafficking, and pornography as comparable to old plantation enterprises. In identifying the plantation as an early kind of brothel,67 Part V advocates for decriminalization of prostitution as a means to undercut trafficking markets68 but also as consistent with the principle of self-ownership.69 Part V also recognizes that forced pregnancy is the modern equivalent of breeding and then segues into discussion of Dobbs v. Jackson Women’s Health Organization.70 The Dobbs opinion determines that gender is irrelevant to reproduction, obscures the particularity of a life function, and diminishes the personhood status of women. Dobbs is politically one-sided71 in overruling the fifty-yearold Roe v. Wade,72 deferring reproductive rights to the vagaries of state legislation.73 Instead of confirming the equality of women as it professes to do,74 the Dobbs decision regresses the personhood and citizenship status of women.75 In keeping with the comparisons between antebellum and modern gendered subordination, this Part perfects the task by likening key aspects of Dobbs to similar ones in Dred Scott. In brief, both the Dobbs

63. See infra text accompanying notes 302-07. 64. See infra text accompanying notes 114-22. 65. See infra Part IV.A. 66. See infra text accompanying notes 297-300 and 429-35. 67. See infra text accompanying notes 192-94. 68. See infra text accompanying notes 367-75. 69. See infra text accompanying notes 376-81. 70. 597 U.S. 215 (2022). 71. Dobbs v. Jackson Women’s Health Organization, (2022) (Alito, J.). 72. Id. at 231 (overruling Roe v. Wade, 410 U. S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Cf note 113 (discussing Dred Scott’s overrule of the Missouri Compromise). 73. See infra Part II.B. 74. Dobbs, at 236 (“the ‘goal of preventing abortion’ does not constitute ‘invidiously discriminatory animus’ against women (citing Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 273–74 (1993 . 75. See infra note 435 and accompanying text.

decision and Dred Scott support one side in a politically contentious matter76 causing upset to the relevant popular expectations from prior compromise.77 Both decisions also rely on a surreptitious definition of personhood,78 empowering the Court to find no relevant individual right and deflect the matter to state authority.79 In a final comparison, if Dred Scott prompted the writing and ratification of Amendment Thirteen, then perhaps Dobbs might inspire a reinvigoration of its applicability. Part V concludes that the Thirteenth Amendment covers sexual exploitations and subordination, reproductive rights and freedoms, and therefore Congress should access its Section 2 authority to apply the principle of self-ownership through legislation in these areas.80 The ability of Amendment Thirteen to reach private conduct81 is significant and may prove best able to prevent modern slavery82 and protect individual reproductive freedoms.83

II. DESIGNATED PROPERTY

A. Harriett Robinson – Mrs. Dred Scott

Harriet Robinson independently filed suit, seeking freedom and citizenship.84 With the terms of the 1850 Compromise in effect, Harriet Robinson claimed domicile in a free state85 and asserted Article III diversity

76. See Walter Ehrlich, The Origins of the Dred Scott Case, 59 J. NEGRO HIST. 132 (1974) (identifying the pro-slavery nature of Dred Scott). In overruling the interest balancing of Roe v. Wade, Dobbs only acknowledges the moral issues presented by abortion, but nowhere the biological process, concerns, or dangers, nor does he identify the medical issues making abortion the best solution among a range of hard decisions, much less the social challenges that may obviate the choice for an individual. See infra note 448-50. 77. Compare infra text accompanying notes 111-13, with infra text accompanying notes 446-48. 78. Compare text accompanying notes 114-22, with infra text accompanying notes 427-35. 79. Compare infra text accompanying note 134, with infra text accompanying note 452. 80. See infra text accompanying notes 461-62. 81. See infra text accompanying notes 328-33, 376. 82. See infra Part V. 83. See, e.g., Martha Minow, The Unraveling: What Dobbs May Mean for Contraception, Liberty, and Constitutionalism, in ROE V. DOBBS: THE PAST, PRESENT AND FUTURE OF A CONSTITUTIONAL RIGHT TO ABORTION, (Lee Bollinger & Geoffrey R. Stone eds., 2024). 84. See Barbara Bennett Woodhouse, Dred Scott’s Daughters: Nineteenth Century Urban Girls at the Intersection of Race and Patriarchy, 48 BUFF. L. REV. 669, 685 (2000) (citing Dred Scott, Plaintiff in Error, v. John F. A. Sandford 60 U.S. (19 How.) 393 (1856), reprinted in 3 PAUL FINKELMAN, SOUTHERN SLAVES IN FREE STATE COURTS: THE PAMPHLET LITERATURE 3-4 (Paul Finkelman ed. 1988 . 85. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (Curtis. J., dissenting). See also VanderVelde & Subramanian, supra note 20 at 1091-100 (1997).

jurisdiction by which “females and minors may sue in the Federal courts, and so may any individual who has a permanent domicile in the State.”86 At that time, people generally believed that a freed slave was a state citizen and could claim domicile.87 Because Harriet claimed manumission, not exclusively derived from a permissive change in her residence,88 but also by operation of law including through her marriage and thereby made her claims stronger than those of her husband.

During this time, Slaves could not legally marry.89 Thus, because Harriet was able to marry90 and did so by consent of her former owner,91 Harriet only could be considered free.92 In addition, a free person could not legally marry a slave; therefore, her marriage to Dred confirmed his free status.93 Barbara Bennett Woodhouse expresses the proposition most clearly: “if Harriet was free, then Dred himself was free, since no man

86. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 532 (1857) (McClean. J, dissenting). His assertion is confirmed some years later in Minor v. Happersett, 88 U. S. 162, 169 (1875). However, these presumptions did not appear to apply to the Article IV requirements for republican forms of governance. Not for another forty-five years was the 19th A passed in the face of opposition to the citizenship status of women. Consider debate on need for 15th Amendment. 87. “Free Blacks were also plainly encompassed by Article III and IV as originally understood. Several states in 1787 not only openly regarded free Blacks as citizens, but also allowed them to vote on equal terms with white men and thereby wielded a political privilege that even white women, though citizens, generally lacked.” See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 252 (2005). 88. See Woodhouse, supra note 84, at 683 (“Had Harriet remained in Pennsylvania, the state of her birth, she would have been manumitted by law at age twenty-seven. Her removal by her master to another jurisdiction arguably could not defeat this statutory right to manumission. The fact that Harriet and Dred were married at Fort Snelling (in free territory) by the military officer who was Harriet’s master also supported her claim to freedom. Since slaves were prohibited from marrying, the officer’s act in performing and making a written record of her civil marriage ceremony was tantamount to freeing her.”) See also VanderVelde & Subramanian, supra note 20, at 1100-03. 89. See W.E.B. DUBOIS, BLACK RECONSTRUCTION IN AMERICA 7 (Transaction Publishers 2013) (1935) (“The proof of this lies clearly written in the slave codes. Slaves . . . . could not legally marry nor constitute families; they could not control their children . . .”). 90. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 398 (1857) (“In the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling, with the consent of Dr. Emerson, who then claimed to be their master and owner. Eliza and Lizzie, named in the third count of the plaintiff’s declaration, are the fruit of that marriage.”) See also Woodhouse, supra note 84, at 683; VanderVelde & Subramanian, supra note 20, at 1050-51. 91. Dr. Emerson sold the plaintiffs to the defendant in Dred Scott who claimed ownership of Mr. Scott, prompting Justice Taney’s analysis of the Due Process Clause. Id. at 450-51. 92. See VanderVelde & Subramanian, supra note 20, at 1041 (“[I]n most Northern states that a slave’s marriage to a free woman was deemed to emancipate the slave. In contrast, facing the same incompatibility between marriage and slavery, Southern states resolved the contradiction by denying the institution of marriage as a civil contract to slaves who married other slaves or even free persons.”). 93. Id.

could be both a slave and a ‘free’ woman’s husband.”94 Had her marriagebased claims been the Court’s focus, Dred’s claims would have been positively resolved.95 As such, Harriet’s and Dred’s marriage should have been sufficient to support assertion of diversity jurisdiction and allow their respective cases to move forward on the merits.96

However, their marital status also allowed Justice Taney to apply coverture, a legal structure forming the marital unity,97 to relegate Harriet’s claims to be part of her husband’s.98 Furthermore, the merger of claims that not only enabled the Court to disregard the facts of Harriet’s claim but also altered what could have been a positive outcome.99

In his opinion, Justice Taney proclaims the citizenship status of (White) women.100 Neither women nor marriage are mentioned in the Constitution,101 making Taney’s assertion that (White) women were citizens102 a shrewd deceit,103 obscuring the inability of (White) women to vote, to hold office, or to participate in a public profession.104 Nonetheless, by applying coverture to merge Harriet’s case into Dred’s, Taney treats

94. See Woodhouse, supra note 84, at 684; see also VanderVelde & Subramanian, supra note 20, at 1034. 95. See VanderVelde & Subramanian, supra note 20, at 1100-03. 96. Id. 97. Coverture was a legal doctrine by which a married woman’s legal existence was merged into that of her husband. She had no independent legal existence and did not have the right to own property or make contracts in her own name. See Blackstone infra note 175. See also Part III.B. 98. See Dred Scott, 60 U.S. (19 How.) at 598 (Curtis. J., dissenting). See also VanderVelde & Subramanian, supra note 20, at 1034 (“Harriet Robinson brought her own case for freedom, a case that was submerged in his.”). 99. “Slaveholders within the South differed in their visions of slave marriage and its attendant rights and responsibilities for slaves and their owners. In fact, these competing visions appear in different Justices’ opinions in the 1857 Dred Scott opinion itself. The Dred Scott majority opinion, however, obscured this multiplicity of perspectives on the social and legal implications of slave marriage, by treating one interpretation of slave marriage among many as the only possible option. Accordingly, we argue that because the consequences of slave marriage were highly unsettled before the Supreme Court handed down Dred Scott, choosing another interpretation from the multiple views on slave marriage transforms Dred Scott from a foregone conclusion to a historically contingent possibility.” VanderVelde & Subramanian, supra note 20 at 1103. 100. 60 U.S. (19 How.) at 422 (“Women and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualification cannot vote or hold the office, yet they are citizens.”). 101. U.S. CONST. (1787). Cf. Iroquois constitution, from which the US. Constitution borrows heavily. ARTHUR C. PARKER, THE CONSTITUTION OF THE FIVE NATIONS, OR, THE IROQUOIS BOOK OF THE GREAT LAW (Ohsweken, Ont.: Iroquois, 1991). 102. 60 U.S. (19 How.) at 422. 103. See infra notes 100 and 119. 104. See Bradwell v. Illinois, 83 U.S. 130 (1872).

Harriet as any other married woman and, therefore, as a “citizen.” Still, Taney’s use of coverture effectively erased Harriet’s person; he erases her further when he declares Dred and her, through their marriage, not a person.105 Through the operation of coverture, by which a wife was all but owned by her husband,106 Harriet was denied her claims to freedom from slavery. Despite the legitimacy of her claims, the parallel institutions for human ownership – slavery and marriage – blended to her detriment. Harriet’s case was in pursuit of the right to raise her children without facing forced separation from them.107 Harriet’s plea, had it been successful, would have permitted her the autonomy needed to keep her family together.108 As VanderVelde & Subramanian point out in their article, Mrs. Dred Scott:

What was lost in the Dred Scott case was not simply an individual man’s claim to go where he pleased, nor simply the opportunity to recognize racial equality or even racially neutral legal rules. What was lost was the opportunity to recognize a new kind of freedom-a freedom of family continuity, cohesion, autonomy, and privacy.109

Significantly, Harriet’s daughters, who were born in a free state, filed their own claims.110 To include the children of Harriet and Dred in his ruling, Justice Taney had to assert that Congress held no power to prohibit slavery in the territories,111 overruling the Missouri Compromise of 1820.112 This Act had been in effect for almost forty years.113

105. See infra notes 114-22. 106. Woodhouse, supra note 84, at 684 (“Ironically, Harriet’s claims to freedom, on which her daughters’ claims depended, were made invisible because her abolitionist lawyers treated her as Dred Scott’s wife—defining her not as a free person, but as the consort of a man claiming his freedom. Viewed by laws of slavery as a chattel, she belonged to her owner, and so did her children.”). 107. Id. at 1073 (citations omitted). 108. There is information to suggest that keeping the family together was Harriet’s primary focus. See VanderVelde & Subramanian, supra note 20, at 1074 (citation omitted). See also Jennifer M. Chacon, Citizenship and Family: Revisiting Dred Scott , 29 IMMIGR. & NAT’Y L. REV. 633 (2008). 109. Id. at 1036. 110. See Woodhouse, supra note 84, at 669 (citing Dred Scott Free at Last: Himself and His Family Emancipated, ST. LOUIS DAILY EVENING NEWS, May 26, 1857, at 2). 111. 60 U.S. (19 How.) at 464. 112. 60 U.S. (19 How.) at 455. 113. Conference Committee Report on the Missouri Compromise, 16th Cong. (Mar. 1, 1820), NAID: 306524, https://www.archives.gov/milestone-documents/missouri-compromise. Taney ignores or misreads other relevant compromises in the Dred Scott opinion. Compromises made after 1780 only permitted slave-state status in exchange for promises to respect rights of free Blacks from free sister states. See Amar, supra note 87, at 253. In fact, in

Taney proclaims that only citizens may be regarded as persons114 under the Due Process Clause115and indicates that the two are synonymous.116 Yet, for Justice Taney, free status confirms neither personhood117 nor citizenship;118 these terms he defines only in the negative.119 In describing

1787 several states regarded free Black (men) as citizens and permitted them the vote and political participation, equally with White men. Id. at 252. 114. 60 U.S. (19 How.) at 444, 403-40. 115. Despite distinct meanings for “person” and “property,” Justice Taney determines that Mr. Scott is property, not a person, of which Dr. Emerson may not be deprived 60 U.S. (19 How.) 393. 116. 60 U.S. (19 How.) at 404, 444 (“The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing.”). 117. 60 U.S. (19 How.) at 408 (“…a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence.”). However, in the dissent, Justice McLean points out:

Several of the States have admitted persons of color to the right of suffrage, and in this view have recognized them as citizens; and this has been done in the slave as well as the free States. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida. No one ever doubted, and no court ever held, that the people of these Territories did not become citizens under the treaty. They have exercised all the rights of citizens, without being naturalized under the acts of Congress.

Id. at 531 (McLean, J., dissenting); and then,

Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term citizen is ‘a freeman.’ Being a freeman, and having his domicile in a State different from that of the defendant, he is a citizen within the act of Congress, and the courts of the Union are open to him.

Id. at 533 (McLean, J., dissenting). 118. “Citizen” is used five 5 times in the Original Constitution, including the first ten Amendments. It is a referent for age restrictions for members of the House of Representatives and for the age of Senators, Article I, sec. 2; it is a referent in the requirement that the President be a natural born citizen, Article II, sec.; it is used to describe the requirement for diversity jurisdiction, Article III, section II; and as a referent in describing privileges and immunities, Article IV sec 2. “Citizen is not used again until the Eleventh Amendment, then for the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. In general, “citizen” has been fused in contexts regarding the obligations and privileges of citizenship, such as voting, becoming an elected official, or standing to use the federal courts. 119. 60 U.S. (19 How.) at 398-99, 450-51.

who citizens are not, he engages in the denigration of African descendants.120 Taney’s reading of Due Process only accords full citizenship to propertyholders, especially those holding human property. Being that women were routinely dispossessed of their property through the operation of coverture and inheritance laws,121 in using Taney’s reading of Due Process, women would not have qualified as persons.122

In considering the overrule of Dred Scott by the Reconstruction Amendments,123 Amendment Thirteen most directly addresses personhood status and the principle of self-ownership.124 Dred Scott was the spark that influenced the ideals written into Amendment Thirteen and the public that supported the Amendment had access to the accounts of Harriet Robinson’s plight.125 With this awareness, original public meaning endorsing this Amendment repudiates not only Harriet’s slave status but also her subordination as wife as used to return her to chattel slavery.126 Furthermore, original meaning could have renounced the laws codifying the subordinating effects of marriage.127 To the extent these questions were open, the drafters accounted for any resistance to the principles embodied in Amendment Thirteen and included Section 2 for Congress to address any unfinished business.128

120. See id. at 408-09 (discussing punishments for interracial unions imposed by the laws of Maryland); id. at 413 (discussing punishments for interracial unions imposed by the laws of Massachusetts); id. at 414-15 (discussing punishments for interracial unions imposed by the laws of Rhode Island). See also, Chambers supra note 34, at 218. 121. See infra discussion of Married Women’s Property Acts, notes 252-61 and accompanying text. 122. Id. Demonstrating that the right to hold property is secondary to the characterization of someone as property, Justice Taney provides extensive details to distinguish Legrand v. Darnall (2 Peters, 664), whereby the validity of the land conveyance to Darnell was dependent on Darnell’s legal manumission, see 60 U.S. (19 How.) 393, 423-24. Taney distinguishes this case even though it was brought under diversity jurisdiction with that court equating free status with citizenship and deciding the conveyance of property to a free person. This mode of thinking is instructive in understanding the position of women, including the limited number of women who owned their own property. Cf. supra note 100 and accompanying text. 123. Amar, supra note 87, at 380-88. 124. See Rebecca E. Zietlow, The Ideological Origins of the Thirteenth Amendment, 49 HOUS. L. REV. 393, 396 (2012) [hereinafter, Ideological Origins]; Rebecca E. Zietlow, Conclusion: The Political Thirteenth Amendment, 71 MD. L. REV. 283, 284-87 (2011). 125. See generally, Zietlow, Ideological Origins, supra note 124. 126. See supra notes 85 and 99 and accompanying text. 127. See infra text accompanying notes 215-25. 128. See infra text accompanying note 462.

B. A Blueprint for Rights Avoidance

Justice Taney acknowledges that states may define citizenship and may place conditions on the right to vote.129 He further points out that a citizen may be “a member of the community who form the sovereignty, although he exercises no share of the political power….”130 Still, Taney is dogged in his narrow view of citizenship. His casuistry denied negroes the privileges and immunities of citizenship because they might exercise those rights.131 They would have had

the right to enter every [state and] to sojourn there as long as they pleased, . . . and it would give them the full liberty of speech in public and in private upon all subjects … to hold public meetings upon political affairs, and to keep and carry arms wherever they went . . .132

The Civil Rights Cases133 are most often cited for identifying state governance as the proper authority to protect individual rights, but just as easily, Dred Scott may represent this proposition.134 Rather than accepting responsibility for protecting individual rights,135 Justice Taney defers to state prerogative on those rights, allowing the popular majority to fuel state government action.136 His ruling is a judicial blueprint for Court abdication of protection for individual rights, especially when those rights conflict with majoritarian preferences.137 After Reconstruction, this blueprint is

129. Dred Scott, 60 U.S. (19 How.) 393, 422 (1857)(“So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to vote.”) See also, U. S. Const. Article IV. 130. 60 U.S. (19 How.) at 422. 131. Justice Taney’s pro-slavery mindset that heralded the events of the Colfax massacre and its acceptance through the Supreme Court decision, United States v. Cruikshank ( (1876 , presaged the decision in the post-Reconstruction case, Slaughterhouse Cases (83 U.S. 36 (1873 , and foreshadowed doctrinal protection for speech advocating illegal conduct in Brandenburg v. Ohio (395 U.S. 444 (1969 . 132. 60 U.S. at 417. 133. 109 U.S. 3 (1883). 134. 60 U.S. at 422-23 (“the State . . . may then, unquestionably, determine … status or condition, . . . recognize … citizens, … and may deny … the privileges and immunities enjoyed by its citizens.”). 135. Judicial resp. 136. Cf. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16-22 (1962) (Judicial review is intended to be a check on majoritarian politics of legislatures). 137. Taney effectively ceded control over slavery to each of the states, allowing populist tyranny to prevail. See, e.g., CLINT BOLICK, GRASSROOTS TYRANNY: THE LIMITS OF FEDERALISM 54 (1993) (“Yet it was the failure of . . . the belief that state governments would continue to safeguard individual liberty following the ratification of the Constitution – that led to cataclysmic conflict during the nation’s first century and thereupon led to the most

reflected in such notable decisions as The Slaughterhouse Cases,138 Bradwell v. State of Illinois,139 and United States v. Cruikshank.140 The technique was not limited to Reconstruction Era decisions but also includes Minersville School District v. Gobitis,141 Lochner v. New York,142 and Dobbs v. Jackson Women’s Health Organization.143

important changes in our constitutional system since the Bill of Rights”); Sheryll D. Cashin, Federalism, Welfare Reform, and the Minority Poor: Accounting For the Tyranny of the State Majorities, 99 COLUM. L. REV. 552, 555 (1999) (using empirical data to demonstrate the “tyranny of the majority” allows local prejudices to go unchecked); Harry N. Scheiber, Redesigning the Architecture of Federalism—An American Tradition: Modern Devolution Policies in Perspective, 14 YALE L. & POL’Y REV. 227, 233-34, 239-40 (1996) (Symposium Issue) (explaining the “federalism creed” whereby in the late nineteenth century “most American political leaders regularly paid lip service to the idea that smaller government was better than larger” and that power rightly resided in the states). 138. Slaughterhouse Cases, 83 U.S. 36 (1873). 139. Id. at 130. 140. United States v. Cruikshank, (1876). 141. Minersville School District v. Gobitis, 310 U.S. 586 (1940). Only three years later, Gobitis was overturned by West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) to uphold individual rights in religious belief, and in the ability to raise and educate one’s children as desired. 142. Lochner v. New York,198 U.S. 45 (1905). The Lochner era was significant for judicial support of “economic” rights over more social rights and concerns. The Lochner era is generally understood to have ended with West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (upholding state minimum wage legislation). The Lochner era also coincided with an era of judicial restriction on Congressional Commerce Clause authority. U.S. CONST. art. I, § 8, cl.3. See, e.g. United States v. E. C. Knight Co., 156 U.S. 1 (1895); Shreveport Rate Cases, 234 U.S. 342 (1915); Hammer v. Dagenhart, 247 U.S. 251 (1918). For cases emblematic of the “new deal” era, see Nat’l Lab. Relations Bd. v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937) (upholding the National Labor Relations Act of 1935) and United States v. Darby Lumber Co., 312 U.S. 100 (1941) (overruling Hammer v Dagenhart) ushered in deference for congressional commerce authority, ending an era of judicial unpredictability.

It may be that today heralds a new era of judicial restriction on congressional commerce authority. See, e.g, United States v. Lopez, 514 U.S. 549 (1995) (placing limits on Congress’ authority under the commerce clause); United States v. Morrison, 529 U.S. 598 (2000) (restricting the breadth of the Violence Against Women Act); Nat’l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (finding the Patient Protection and Affordable Care Act of 2010 valid, but not under Congress’ Commerce authority) (Ginsburg, J., concurring in part and dissenting in part) (“The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it,”) citing R. R. Bd. v. Alton R. Co., 295 U. S. 330, 362, 368 (1935 .

It may also be that today heralds a neo-Lochner phase of unpredictable substantive due process. See e.g., New York State Rifle & Pistol Ass’n v. Bruen, 97 U. S. ____ (2022) (slip op.) (finding that New York’s proper-cause requirement violates the Second and Fourteenth Amendments); Dobbs v. Jackson Women’s Health Org., (2022) (overruling abortion rights previously conferred under Roe v. Wade, 410 U.S. 113 (1973 . 143. (2022) (overruling Roe v. Wade, (1973 .

Two cases particularly significant in following Taney’s general blueprint are Bradwell v. State of Illinois144 and United States v. Cruikshank.145 Bradwell was decided one day after the Slaughterhouse Cases146 and, replicated its ruling. Slaughterhouse is infamous for eviscerating the Privileges and Immunities Clause.147 Slaughterhouse deferred to a city monopoly that hindered the ability of butchers to work, while Bradwell deferred to state licensing that deprived women of the right to work as attorneys, even when qualified.148 Bradwell insisted that it was “an axiomatic truth,” that “men make, apply, and execute the laws.”149 In allowing states an outright denial of the right to work , the direct effect on individual rights of Bradwell is more extreme than that of the more famous Slaughterhouse decision.

United States v. Cruikshank150 extends the blueprint from Dred Scott and furthered the enfeeblement of the Privileges and Immunities Clause accomplished by Slaughterhouse and Bradwell to a context cruel in fact and result.151 The Colfax Massacre of Easter Sunday, 1873, was the backdrop for the prosecutions in Cruikshank.152 This single event of racially targeted violence, in which more than two-hundred eighty unarmed Black men and women were murdered in a white-supremacist rampage,153 was so severe that it came to be known as “the bloodiest single act of racial carnage

144. Bradwell v. The State, 83 U.S. 130 (1872). 145. United States v. Cruikshank, (1875). 146. 83 U.S. 36 (1873). Notably, Slaughterhouse also read the Thirteenth Amendment narrowly. See Jack M. Balkin & Sanford Levinson, The Dangerous Thirteenth Amendment, 112 COLUM. L. REVIEW 1459, 1463, n. 17 (2012). 147. U.S. Const. amend. XIV, §1, cl.2. See Wilson R. Huhn, The Legacy of Slaughterhouse, Bradwell, and Cruikshank in Constitutional Interpretation, 42 AKRON L. REV. 1051 (2009). 148. Myra Bradwell passed the bar but was not permitted admission to practice. 83 U.S. 130 (1872). 149. Id. at 132 (emphasis added). 150. (1876). 151. Cruikshank gave deference to the states on matters of criminal justice, even violence committed with the cooperation of state actors. (1876). See generally, Robin D. Barnes, Blue by Day and White by (K)night: Regulating the Political Affiliations of Law Enforcement and Military Personnel, 81 IOWA L. REV. 1079 (1995–1996); WYN CRAIG WADE, THE FIERY CROSS: THE KU KLUX KLAN IN AMERICA (1998). See also Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309, 349–58 (1991); ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863–77 at 425–44, 593–94 (HENRY STEELE COMMAGER and RICHARD B. MORRIS eds., 1st ed. 1988). 152. (1876). For discussion of the setting, see Eric Foner, Reconstruction: America’s Unfinished Revolution 1863-1877, 530 (1988) (“… this case arose from the Colfax massacre, the bloodiest single act of carnage in all of Reconstruction.”); Rebecca Hall and Angela P. Harris, Hidden Histories, Racialized Gender, and the Legacy of Reconstruction: The Story of United States v. Cruikshank in WOMEN AND THE LAW STORIES, ELIZABETH M. SCHNEIDER AND STEPHANIE M. WILDMAN eds. (2011). 153. See Foner, supra note 151, at 437.

in the Reconstruction era.”154 Rapes and sexual violence were a significant aspect of the campaign terrorizing the Black population in Colfax155 and slavery.”156 characteristically demonstrative of Perpetrators of sexual violence in a racialized contexts, use it as a tool of domination that exhibits the victim as subhuman;157 it instead the perpetrator exposes his own inhumanity.158 Today, these purposeful rapes and use of sexual violence would be regarded as war crimes or genocidal and the massacre would be denounced as terrorism.159

the “incidents of

With the known participation of state actors in the commission of violence,160 Cruikshank legitimated the use of violence for social and

154. Id. 155. See Hall and Harris, supra note 152; Hannah Rosen, “Not That Sort of Women”: Race, Gender and Sexual Violence During the Memphis Riot of 1866, in SEX, LOVE, RACE: CROSSING THE BOUNDARIES IN NORTH AMERICAN HISTORY 267, 280 (MARTHA HODES ed., 1999). See also, Lisa Cardyn, Sexualized Racism/Gendered Violence: Outraging the Body Politic in the Reconstruction South, 100 MICH. L. REV. 675 (2002) (Lynching blazed through the South after the Civil War, frequently employing gruesome sexualized torture of Black men’s bodies.). 156. Jones v. Alfred H. Mayer Co., , 439 (1968) (holding that the Thirteenth Amendment authorized Congress to prohibit “the badges and incidents of slavery”). See also U.S. CONST. Amend. XIII. 157. See Hall and Harris, supra note 152, at 22-23 (“The terror that Frances Thompson and the other women experienced during the Memphis Riots . . . was meant to remind them that as women, they were not full persons”). Kant suggests that those who hold human beings in bondage and regard others as less than human prove their own inhumanity. See Robin S. Dillon, Arrogance, Self-Respect and Personhood, 14 (No. 5–6) JOURNAL OF CONSCIOUSNESS STUDIES, pp. 101, 120 (2007) citing KANT, I. (1785/1996), GROUNDWORK OF THE METAPHYSICS OF MORALS, IN PRACTICAL PHILOSOPHY, ed. and trans. M. J. GREGOR (Cambridge: Cambridge University Press). 158. See Dillon, supra note 157. 159. See Richard J. Goldstone, Prosecuting Rape as a War Crime, 34 CASE W. RES. J. INT’L L. 277 (2002) (“[T]he two Tribunals set important precedents in enumerating rape as a crime against humanity, and … the crime of genocide”) (discussing the Rwandan and Yugoslavian war crimes tribunals) through the denial of “social rights.”. 160. In her testimony, Frances Thompson identified her gang of rapists as policemen. See Hall and Harris, supra note 152, at 13 (citing H.R. Rep. No. 39–101(1866) (testimony of Frances Thompson , reprinted in U.S. Congress, House, Select Committee on the Memphis Riots, Memphis Riots and Massacres (New York, 1969 .

No doubt believing they were thwarting the “tyrannical” imposition of

Reconstruction, the KKK and law enforcement often colluded with one another. See generally Robin D. Barnes, Blue by Day and White by (K)night: Regulating the Political Affiliations of Law Enforcement and Military Personnel, 81 IOWA L. REV. 1079 (1995–1996); See generally WYN CRAIG WADE, THE FIERY CROSS: THE KU KLUX KLAN IN AMERICA (1998); see also Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309, 349–58 (1991); Foner, supra note 151, at 425–44, 531, 593–94 (The Colfax massacre, ultimately “gave a green light to acts of terror where local officials either could not or would not enforce the law.”).

political control over individuals.161 In this context, Cruikshank deferred to state authority and asserted that states are in the best position to protect individual rights.162 The Cruikshank Court eschewed protection of rights safe-guarded by the Bill of Rights and the Reconstruction Amendments and controverted the Enforcement Act of 1870.163 This approach to individual rights protection is in harmony with Justice Taney’s treatment in Dred Scott that uses marriage to subordinate and categorizes some people as property.164

III. COMPLEMENTARY INSTITUTIONS—MARRIAGE AND SLAVERY

A. Marriage Forbidden – Of Brothels and Breeding

. . . clearly written in the slave codes. Slaves . . . . could not legally marry165

W.E.B. DuBois

Black women were not entitled to the “protections” of marriage,166 the legitimacy of their children,167 nor the continuity of their familial

161. Questions of legitimacy are raised even when the means for violence are in the hands of the government. See SUSAN ROSE-ACKERMAN, CORRUPTION AND GOVERNMENT: CAUSES, CONSEQUENCES, AND REFORM 1–38 (Cambridge University Press,1999); LAWRENCE W. SHERMAN, SCANDAL AND REFORM: CONTROLLING POLICE CORRUPTION xxii–xli, 187–202 (1978); Roger Bowles & Nuno Garoupa, Casual Police Corruption and the Economics of Crime, 17.1 INT’L REV. L. ECON. 75, 84–85 (1997). 162. United States v. Cruikshank, , 553-555 (1875) (“the fundamental rights which belong to every citizen as a member of society” remained the responsibility of the states to protect; the Due Process Clause only gave the national government the power “to see that the States do not deny the right.”) 163. By restricting the reach of the Enforcement Act of 1870, the Cruikshank Court removed the teeth from Section 5 of Amendment Fourteen or from Section 2 of Amendment Thirteen. Id. See also Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 MICH. L. REV. 1323, 1339 (1952) (“What the Court had done to the Fourteenth Amendment in the Slaughterhouse Cases it had now done to the civil rights legislation of Congress.”). 164. See supra notes 89-98 and accompanying text. 165. W.E.B. DUBOIS, BLACK RECONSTRUCTION IN AMERICA 7 (Transaction Publishers 2013) (1935). 166. See infra text accompanying notes 210-25 for the fallibility of the “protections” of marriage. 167. Compare infra text accompanying notes 179-84, with infra text accompanying notes 232-40.

bonds.168 Harriet Robinson would have welcomed marital protection from sexual abuse, often suffered by both enslaved and freed Black women.169 But neither freedom nor legal marriage guaranteed that she, nor any other Black woman, could escape such abuses.170

Marriage was inconsistent with slavery and recognition of other family bonds was contrary to the plantation interests.171 Slave obedience to the master was indispensable for the institution of slavery;172 the expected obedience from a wife to her husband, if permitted amongst slaves, would have been inconsistent with the dictates of slavery.173 That is, a slave-woman could not obey orders from both her master and her husband, when in conflict.174 As Margaret Burnham states, “In the eyes of the law, each slave stood as an individual unit of property, and never as a submerged partner in a marriage or family.”175 Even when slave owners

168. For a discussion of the importance of marriage in establishing rights and protections for women and children, see Laura F. Edwards, “The Marriage Covenant is at the Foundation of All Our Rights”: The Politics of Slave Marriages in North Carolina After Emancipation, 14 L. & HIST. REV. 81 (1996); MARY ANN MASON, FROM FATHER’S PROPERTY TO CHILDREN’S RIGHTS: THE HISTORY OF CHILD CUSTODY IN THE UNITED STATES 2, 7-8, 31-36 (1994). 169. See VanderVelde & Subramanian, supra note 20, at 1073. 170. Rape of Black women was not legally cognizable. See Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV. WOMEN’S L.J. 103, 121 (1983). See also infra text accompanying notes 188-90. 171. See VanderVelde & Subramanian, supra note 20 at 1073. 172. See, e.g., EUGENE D. GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE SLAVES MADE (1976); THE AMERICAN SLAVE: A COMPOSITE AUTOBIOGRAPHY, SUPPLEMENT SERIES 1 (GEORGE P. RAWICK ed., GREENWOOD PUBL’G CO. 1977); BULLWHIP DAYS: THE SLAVES REMEMBER (JAMES MELLON ed., GROVE PRESS 1988). 173. WILLIAM BLACKSTONE, COMMENTARIES, ONLINE LIBRARY OF LIBERTY: COMMENTARIES ON THE LAWS OF ENGLAND IN FOUR BOOKS, VOL. 1, *442-55 (MasterServant; Husband-Wife; Parent-Child). However, Blackstone repudiates the institution of slavery as “repugnant to… the principles of natural law” and “repugnant to reason.” Id. at *423; See also, VanderVelde & Subramanian, supra note 20 at 1103 (quoting Blackstone at *410-54); accord, JOHN LOCKE, infra notes 281-287 and accompanying text.

Nonetheless and by most accounts, slave marriages functioned as egalitarian, companionate marriages. See PETER KOLCHIN, AMERICAN SLAVERY, 1619-1877 140-41(1993) (describing relative, egalitarian marital standards among slaves). 174. VanderVelde & Subramanian, supra note 20, at 1104 (“A dual system of ‘mastery’ would produce conflicts if the wife (or children) received orders from their respective husband (or father) that were contradicted by orders given by the husband’s master . . . . American legal society was not receptive to the type of subinfeudation that would have accommodated such a nested series of authorities.”); See Adrienne D. Davis, The Private Law of Race and Sex: An Antebellum Perspective, 51 STAN. L. REV. 221, 284–85 (1999) (explaining that even after Emancipation, “[m]arriage and slavery were classified as mutually exclusive legal relationships, as ‘fanciful conceit[s]’ in the strongest articulation of the marriage-as-contract rule.”) (citation omitted . 175. See Margaret A. Burnham, An Impossible Marriage: Slave Law and Family Law, 5 MINN. J.L. LAW & INEQ. 187, 189 (1987).

encouraged “marriage” to promote stability on the plantation, slavefamilies were still subject to breakup by sale.176 Whether fathered by a plantation master,177 by a partner chosen for her to breed, or by a partner of her choice, a slave-woman’s children were born to the status of the mother178 and therefore subject to sale as part of the breeding enterprise. Both because children born into slavery were regarded as chattel,179 as were their biological Black fathers,180 and because their mothers were not entitled to marry,181 these children were regarded as illegitimate.182 The biological White fathers of children born into slavery were not required to acknowledge their slave children183 nor any other children born out of wedlock.184 Illegitimacy status was expedient for furthering the sale of children away from family185 and was convenient in guaranteeing that White children of White wives would inherit family wealth.186

The plantation economy depended, in part, on the interrelated enterprises of sexual services and breeding, both of which were incongruous with the presumed sexual exclusivity of marriage. In running a profitable breeding enterprise, the plantation owner controlled sexual activity and access to slaves.187 Female slaves were not entitled to refuse

176. See FONER, supra note 151, at 82-85; HERBERT G. GUTMAN, THE BLACK FAMILY IN SLAVERY AND FREEDOM, 1750-1925, at 23 (1976); Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV. 1297, 1330-31 n.122 (1998); JOHN W. BLASSINGAME, THE SLAVE COMMUNITY: PLANTATION LIFE IN THE ANTEBELLUM SOUTH 173, 177, 341, 361 (2d ed. 1979 . “[I]n most states that permitted bondage[] marriage conferred no legally enforceable protections upon slaves. It did not keep a slave from being sold away from his or her spouse or separated from his or her children.” RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION 166 (2003) (citing THOMAS R. R. COBB, AN INQUIRY INTO THE LAW OF NEGRO SLAVERY IN THE UNITED STATES OF AMERICA 246 (1858 . 177. Including his male family members and guests. Easily, plantations could be regarded as brothels and bastions of forced prostitution. 178. See Burnham, supra note 175, at 215 (“In contradistinction to the common law, the slaveholding states all adopted the civil rule, partus sequitur ventrem—the issue and descendants of slaves follow the status of the mother.”) (citing THOMAS R. R. COBB, AN INQUIRY INTO THE LAW OF NEGRO SLAVERY IN THE UNITED STATES OF AMERICA 68 (1858 . 179. See Burnham, supra note 175 or: See id. at 197. (“The slaveholder had two principal interests in promoting slave unions, both of which were tied to the plantation economy. First, he was in the business of producing crops and of reproducing capital in the form of slaves.”) 180. See supra notes 117-20. 181. Enslaved back women were not legally permitted to marry. See supra note 89. 182. See Burnham supra note 175 at 208. 183. See id. 184. See infra note 229-37 and accompanying text. 185. See supra note 182. 186. Compare infra text accompanying notes 205, 230, and 241, with supra notes 166-68, 202. 187. See Pamela D. Bridgewater, Ain’t I a Slave: Slavery Reproductive Abuse, and Reparations, 14 UCLA WOMEN’S L.J. 89, 115–25 (2005) [hereinafter, Ain’t I A Slave]; Pamela D. Bridgewater,

sexual advances from practically any man.188 Black women and girls routinely endured rape, though rarely acknowledged as such,189 and without legal consequence.190 Enslaved Black women were dehumanized by the effects of breeding operations. When slave imports were banned, income from the sale of the resulting commodities (aka children), sustained the markets in humans and provided a continuous labor supply.191 And, whether in furtherance of the breeding enterprise or to satisfy male sexual gratification, plantations functioned as brothels.192 When slaveowners

Un/Re/Dis Covering Slave Breeding in Thirteenth Amendment Jurisprudence, 7 WASH. & LEE RACE & ETHNIC ANC. L.J. 11 (2001). 188. The planation master controlled sexual access and chose sexual partners amongst his slaves. See Bridgewater, Ain’t I A Slave, supra note 187, at 120 (citing WILSON ARMISTEAD, FIVE HUNDRED THOUSAND STROKES FOR FREEDOM (WILSON ARMISTEAD ed., Mnemosyne Pub. Co. 1969) (1853 . The overabundant sexual access, albeit by direction, sustained the myth of Black women’s promiscuity. See EMILY WEST, CHAINS OF LOVE: SLAVE COUPLES IN ANTEBELLUM SOUTH CAROLINA 117 (2004) (“[S]tereotyping served to rationalize interracial sexual liaisons in the minds of slaveholders, while removing the blame for sexual contact from [W]hite members of society . . .”); Wriggins, supra note 170, at 120–21 (“These attitudes reflect a set of myths about Black women’s supposed promiscuity which were used to excuse [W]hite men’s sexual abuse of Black women.”). 189. See Kennedy, supra note 176, at 162-82; VICTORIA E. BYNUM, UNRULY WOMEN: THE POLITICS OF SOCIAL AND SEXUAL CONTROL IN THE OLD SOUTH 109 187 n.75 (1992) (“During the 1850s the courts of Granville, Orange, and Montgomery counties recorded only one indictment for a rape of a black woman and three indictments for rapes committed or attempted on White women. In April 1856, Sarah Ware Nuttall charged a ‘slave boy’ belonging to Mary Wagstaff with having raped her slave Rosa, described in the indictment as ‘under the age of 10 years.”’); Patricia Hill Collins, Introduction to IDA B. WELLS-BARNETT, ON LYNCHINGS 11–12 (2002); Wriggins, supra note 170, at 117–20; THOMAS R. R. COBB, AN INQUIRY INTO THE LAW OF NEGRO SLAVERY IN THE UNITED STATES OF AMERICA 99 (1858) (“Another consequence of slavery is, that the violation of the person of a female slave, carries with it no other punishment than the damages which the master may recover for the trespass upon his property.”). See generally RACHEL F. MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE AND ROMANCE (2001) (providing a comprehensive study of the history of interracial relationships and the legal regulation of such relationships). 190. See, e.g., George v. State, 37 Miss. 316 (1859) (overturning a male slave’s conviction for raping a nine-year old female slave for want of legislation prohibiting the rape of slave girls). See also Kennedy, supra note 176, at 34–35. 191. U.S. Const. art. I, § 9, cl. 1. The U.S. Congress prohibited the importation of slaves as soon as constitutionally allowed, January 1, 1808. The Act Prohibiting the Importation of Slaves, Pub. L. No. 9-21, 2 Stat. 424 (1807). Plantation owners engaged in slave-breeding to counter the effects of the prohibitions on slave imports. See Pamela D. Bridgewater, Reproductive Freedom as Civil Freedom: The Thirteenth Amendment’s Role in the Struggle for Reproductive Rights, 3 J. GENDER RACE & JUST. 401, 411–12 (2000); JOHN HOPE FRANKLIN & ALFRED A. MOSS, JR., FROM SLAVERY TO FREEDOM: A HISTORY OF AFRICAN AMERICANS 115–17 (7th ed. 1994). 192. See Bridgewater, supra note 191, at 411; Richard Sutch, The Breeding of Slaves for Sale and the Westward Expansion of Slavery, 1850-1860, in RACE AND SLAVERY IN THE WESTERN HEMISPHERE: QUALITATIVE STUDIES 173, 173–75 (STANLEY L. ENGERMAN &

forced enslaved women to perform sexual favors, some promised less beatings or more favorable conditions.193 For the plantation/brothel, profit often accrued through a barter system with favors or trade owed to the master.194 Having the ability not only to perform manual labor195 but also to produce human commodities for sale, Harriet and her daughters would have commanded a price at auction, exceeding that commanded for Dred Scott.196

The unfettered sexual access of White masters to female slaves197 confirms that miscegenation laws did not alter White male sexual entitlement.198 Nonetheless, the existence of interracial unions also served as an interrogation of White self-identity.199 Taney’s focus on the punishment for these unions was consistent with defenses of White

EUGENE D. GENOVESE eds., 1972) (explaining that slaveholders used force and coercion to increase the slave birth rate for profit). 193. See id. 194. Several Black autobiographers describe how slave women were forced to submit to White men. For example, “Henry Bibb’s master forced one slave girl to be his son’s concubine. MF Jamison’s overseer raped a pretty slave girl, and Solomon Northup’s owner forced one slave, Patsy,’ to be his sexual partner. See ANGELA Y. DAVIS, WOMEN, RACE & CLASS 25 (Vintage Books 1981) (1981) (quoting JOHN W. BLASSINGAME, THE SLAVE COMMUNITY: PLANTATION LIFE IN THE ANTEBELLUM SOUTH 83 (1979 ; ELIZABETH FOX-GENOVESE, WITHIN THE PLANTATION HOUSEHOLD 325 (1988) (describing slaveholders’ efforts to sexually exploit enslaved women, and the resistance by enslaved women). For additional descriptions of White masters’ sexual predation, see HARRIET (BRENT) JACOBS, INCIDENTS IN THE LIFE OF A SLAVE GIRL 46 (L. MARIA CHILD & JEAN FAGAN YELLIN ed., 1861); MELTON A. MCLAURIN, CELIA, A SLAVE (1991) (reconstructing the life of an enslaved woman, kept as concubine, who killed her master). 195. Sojourner Truth said it best:

ar’n’t I a woman! Look at me! Look at my arm! I have plowed, and planted and gathered into barns, and no man could head me—and ar’n’t I a woman? I could work as much and eat as much as a man (when I could get it), and bear de lash as well—and ar’n’t I a woman? I have borne thirteen chilern and seen ‘em mos’ all sold off into slavery, and when I cried out with a mother’s grief, none but Jesus heard—and ar’n’t I a woman?

Truth, Sojourner. Narrative Of Sojourner Truth. Ed. by Olive Gilbert. Champaign: Project Gutenberg ; NetLibrary, 2000. Print. 196. See VanderVelde & Subramanian, supra note 20, at 1062-63. 197. See supra note 187. This unfettered sexual access was not restricted by gender. See, e.g., TREVOR BURNARD, MASTERY, TYRANNY, AND DESIRE: THOMAS THISTLEWOOD AND HIS SLAVES IN THE ANGLO-JAMAICAN WORLD 216 (2004); Mary Frances Berry, The Crime That Had No Name - Narratives of Gay and Lesbian Sex, in THE PIG FARMER’S DAUGHTER AND OTHER TALES OF AMERICAN JUSTICE: EPISODES OF RACISM AND SEXISM IN THE COURTS FROM 1865 TO THE PRESENT 49–78 (1999). 198. See supra notes 191-92. 199. See Hall & Harris, supra note 152, at 26.

supremacist patriarchy.200 Even when aware of their paternity, Black children did not have legal fathers201 and were therefore illegitimate.202 A Black mother could not marry the father of her children, regardless of his race or status.203 White fathers benefitted from the labor of their biological slave children,204 and were not required to acknowledge paternity of nonmarital children.205 Commodification of these children not only sustained slave markets but also guaranteed White control over any inheritable wealth.206 After Reconstruction, state governments were required to recognize Black unions and in fulfilling the obligation, encouraged Black mothers to name a Black man to take responsibility for their children.207 Thus, former slave masters could escape responsibility for their children fathered with slave women.

200. See Aisha M. Beliso‐De Jesús & Jemima Pierre, Anthropology of White Supremacy, 122 AM. ANTHROPOLOGIST 65 (2020); Tanya Golash-Boza, Maria D. Duenas, and Chia Xiong, White Supremacy, Patriarchy, and Global Capitalism in Migration Studies, 63 AM. BEHAVIORAL SCIENTIST 1741 (2019). 201. White fathers were not required to acknowledge their children born into slavery and were able to sell them. See Burnham, supra note 175, at 197. 202. See supra text accompanying notes 179-84. 203. It was not until miscegenation was allowed that Black mothers could marry the White father of her child. See Loving v. Virginia, 388 U.S. 1, 12 (1967). 204. See Burnham, supra note 175, at 197. In contrast, Black fathers could not recover monetarily for his child’s labor from a slave master. See id. at 219 (“[T]he father ‘had no just claim whatever on the administrator for taking care of his own child . . .’”) (citing Prince v. Cole, 28 Mo. 486, 487 (Mo. 1859 . 205. See Mary Louise Fellows, The Law of Legitimacy: An Instrument of Procreative Power, 3 COLUM. J. GENDER & L. 495 (1993). 206. See KIRSTEN E. WOOD, MASTERFUL WOMEN: SLAVEHOLDING WIDOWS FROM THE AMERICAN REVOLUTION THROUGH THE CIVIL WAR 1–13, 35–60 (2004). 207. Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform ‘s Marriage Cure as the Revival of Post-Bellum Control, 93 CALIF. L. REV. 1647, 1660 (2005) (citing LEON F. LITWACK, BEEN IN THE STORM SO LONG: THE AFTERMATH OF SLAVERY 233-34 (1979 ; See also, Solangel Maldonado, Illegitimate Harm: Law, Stigma, and Discrimination Against Nonmarital Children, 63 FLA. L. REV. 345, 382 (2011); W.E.B. DUBOIS, THE NEGRO AMERICAN FAMILY (1970); E. FRANKLIN FRAZIER, THE NEGRO FAMILY IN THE UNITED STATES (1939); JACQUELINE JONES, LABOR OF LOVE, LABOR OF SORROW: BLACK WOMEN, WORK, AND THE FAMILY, FROM SLAVERY TO THE PRESENT (1985); JOYCE LADNER, TOMORROW’S TOMORROW: THE BLACK WOMAN (1971); CAROL STACK, ALL OUR KIN: STRATEGIES FOR SURVIVAL IN A BLACK COMMUNITY (1975); CHARLES VERT WILLIE, THE FAMILY LIFE OF BLACK PEOPLE (1970).

B. Mrs. (aka Mr.’s)208 – Marriage Transacted

Marriage, for respectable (White) women,209 was regarded as necessary for their security,210 protection,211 and social standing.212 However, women paid dearly for these presumptive benefits and had to meet the expectations213 imposed by metaphoric pedestals.214 The vast

208. See Tsesis, supra note 26, at 1665 (“They rebelled against the accepted marital norm of a woman taking on her husband’s identity along with his name, whereby a woman became ‘nameless, for a woman has no name! She is Mrs. John or James, Peter or Paul, just as she changes masters; like the Southern slave, she takes the name of her owner.’”) (quoting Letter from Elizabeth Cady Stanton to Lucy Stone, National Woman’s Rights Convention (Nov. 24, 1856) in 1 HISTORY OF WOMAN SUFFRAGE 70-71 (Arno & The New York Times, 1969) (1881 . 209. See Hall & Harris, supra note 152, at 40 (“White women in Southern planter elite culture were imagined to be nearly sexless in their refinement and sophistication, and the stereotype of the frail, ethereal ‘Southern belle’ was contrasted with her opposite, the lusty ‘black wench.’) (citing SAIDIYA HARTMAN, SCENES OF SUBJECTION: TERROR, SLAVERY, AND SELF–MAKING IN NINETEENTH CENTURY AMERICA (1997 . 210. Even with the advent of the Married Women’s Property Acts, the financial security and future of women was determined by men. See Angela Boswell, Married Women’s Property Rights and the Challenge to the Patriarchal Order: Colorado County, Texas, in NEGOTIATING BOUNDARIES OF SOUTHERN WOMANHOOD: DEALING WITH THE POWERS THAT BE, 89, 92 (Janet L. Coryell et al., eds., 2000). See infra text accompanying notes 252-55. 211. Since rape was originally a property crime and an offense to the man who was able to own property (her sexual and reproductive capacity was owned by him). See SUSAN BROWNMILLER, AGAINST OUR WILL 17-18 (1975). Women therefore had to rely on men to defend them from the sexual advances of other men. 212. Any rights and protections for women and children were intimately tied to formal, see Laura F. Edwards, “The Marriage Covenant is at the Foundation of Our Rights”: The Politics of Slave Marriages in North Carolina After Emancipation, 14 L. & HIST. REV. 81 (1996). 213. For discussions of independent counterculture by White women of privilege, compare Joan E. Cashin, “Decidedly Opposed to the Union”: Women’s Culture, Marriage, and Politics in Antebellum South Carolina, 78 THE GA. HIST. Q. 735 (1994), and SUZANNE LEBSOCK, THE FREE WOMEN OF PETERSBURG: STATUS AND CULTURE IN A SOUTHERN TOWN, 1784-1860, at xi, 112-45 (1984) with ELIZABETH FOX-GENOVESE, WITHIN THE PLANTATION HOUSEHOLD: BLACK AND WHITE WOMEN IN THE OLD SOUTH (1988), and GEORGE C. RABIE, CIVIL WARS: WOMEN AND THE CRISIS OF SOUTHERN NATIONALISM (1989). See also JEAN E. FRIEDMAN, THE ENCLOSED GARDEN: WOMEN AND THE COMMUNITY IN THE EVANGELICAL SOUTH, 1830-1900 (1985); CATHERINE CLINTON, THE PLANTATION MISTRESS: WOMAN’S WORLD IN THE OLD SOUTH (1982). 214. See Frances Olsen, Feminism and Critical Legal Theory: An American Perspective, 18 INT’L J. SOCIO. L. 199(1990) (“[Men] have . . . also placed [White] women on a pedestal and treasured them in a fantasy world . . . simultaneously exalt[ing] and degrad[ing] women . . . .”); See Brownmiller, supra note 211, at 220 (“[Men] have also placed [White] women on a pedestal and treasured them in a fantasy world . . . . simultaneously exalt[ing] and degrad[ing] women …”); Mae C. King, The Politics of Sexual Stereotypes, 4 BLACK SCHOLAR 12, 15 (1973) (citations omitted); Kathryn L. Seidel, The Southern Belle as an Antebellum Ideal, in THE PAST IS NOT DEAD: ESSAYS FROM THE SOUTHERN QUARTERLY 87 (Douglas B. Chambers et al., 1977) (using early American literature as a reflection of

majority of women could not own property215 and for those who did, at marriage, coverture functioned to retitle her assets in her husband’s name.216 Coverture, also known as the marital unity, prohibited a married woman from entering contract,217 required that her husband decide their residence,218 and made him entitled to her services, including labor and exclusive sexual services.219 Through the operation of chastisement, a husband could “correct” his wife220 and was exempted from prosecution for raping his wife.221 Original rape law222 was not an offense against her “person,” but instead was an offense against her husband’s or father’s property.223 Any assault a woman endured diminished her “value” and

southern attitudes and expectation for the “southern belle”). See also Tsesis, supra note 26, at 1667 (“Truth pointed out that black women did not receive the comforts of chivalryfor example, being helped into a carriage, over a mud puddle, and being ushered into the “bes[t] place” to which White women were accustomed”) (citing SOJOURNER TRUTH, 14 UNITY 434 (1885 . 215. Tsesis, supra note 26, at 24 (“‘For women, asserted Lucy Stone, marriage was “a state of slavery. It takes from her the right to her own property, and makes her submissive in all things to her husband.’”(citing Editor’s Notes, THE UNA: A PAPER DEVOTED TO THE ELEVATION OF WOMAN 254 (1854 . 216. See Amy Louise Erickson, Coverture and Capitalism, 59 HIST. WORKSHOP J. 1, 3 (2005); Zaher, supra note 31, at 462, at 460-61. 217. Zaher, supra note 31, at 462. See also Tsesis, supra note 26, at 23 (“Furthermore, neither wives nor slaves were permitted to enter into independent contracts without first gaining their ‘masters’ permission.” (citing Letter from Sarah Grimke to Angelina Grimke (Sept. 6, 1837), in LETTERS ON THE EQUALITY OF THE SEXES AND THE CONDITION OF WOMAN 74, 75 (1838 . 218. For an explanation of the essentials of marriage, see, e.g., Graham v. Graham, 33 F. Supp. 936, 938 (E.D. Mich. 1940) (“As a result of the marriage contract, for example, the husband has a duty to support and to live with his wife and the wife must contribute her services and society to the husband and follow him in his choice of domicile”). 219. See id. 220. See Siegel, supra note 35, at 2123. See also NORMA BASCH, FRAMING AMERICAN DIVORCE: FROM THE REVOLUTIONARY GENERATION TO THE VICTORIANS 154 ( 1999); HENDRIK HARTOG, MAN AND WIFE IN AMERICA: A HISTORY 116 (2000). 221. Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CALIF. L. REV. 1373, 1375 (2000); Elaine K. Martin, Casey T. Taft, and Patricia A. Resick, A Review of Marital Rape, 12 AGGRESSION AND VIOLENT BEHAVIOR 329, 331 (2007). 222. See generally Burnham, supra note 175, at 220-22 (providing a history of original rape law). 223. See BROWNMILLER, supra note 211, at 18.

caused doubt about the legitimacy of a resulting child.224 If a wife left her husband, she risked losing custody of legitimated children.225

limited options

Without property holdings and with

for employment, women relied upon marriage for the necessities of survival. For men of the propertied class,226 marriage was an advantageous business transaction used to raise capital, to solidify political alliances, and to ensure a legacy for their estate.227 The marriage transaction provided that for a wife’s part of the bargain, she received physical protection and assurance of a single, required sexual partner;228 the arrangement handsomely rewarded a husband with physical and financial control over his wife’s assets and gave him unrestricted sexual access to her. In effect, a wife paid a husband for the sexual services he sought.229

slave does

224. See id. at 20. It was automatically presumed that she had an affair with a Black man. Genetically, it was equally plausible that the child’s genetic make-up was inherited from either (White) parent from several generations prior. See generally, PASSING AND THE FICTIONS OF IDENTITY 1, 5 (ELAINE K. GINSBERG ed. 1996). 225. See Brownmiller, supra note 211, at 17; Rebecca M. Ryan, The Sex Right: A Legal History of the Marital Rape Exemption, 20 LAW & SOC. INQUIRY 941, 949 (1995) (“The wife who inherits no property holds about the same legal position as does the slave of the Southern plantation. She can own nothing, sell nothing. She has no right even to the wages she earns; her person, her time, her services are the property of another”) (quoting Elizabeth Cady Stanton, Address to the Legislature of New York on Women’s Rights (Feb. 14, 1854) in ELIZABETH CADY STANTON, SUSAN B. ANTHONY: CORRESPONDENCE, WRITINGS, SPEECHES 48 (Ellen Carol Dubois ed., 1992 ; see also CAROLE PATEMAN, THE SEXUAL CONTRACT 2 (1988); Tsesis, supra note 208, at 1665 (“In 1853, Antoinette Brown similarly deplored, “The wife owes service and labor to her husband as much and as absolutely as (citing NANCY F. COTT, PUBLIC VOWS: the to his master.”) A HISTORY OF MARRIAGE AND THE NATION 64 (2000 . 226. See Thomas E. Will, Weddings on Contested Grounds: Slave Marriage in the Antebellum South, 62 THE HISTORIAN 101 (1999) (“In white society, marriage served the vital function of determining property distribution; by stripping women of their property and codifying female dependence, marriage effectively solidified white male dominance.”). 227. See Stephanie Coontz, The World Historical Transformation of Marriage, 66 J. MARRIAGE AND FAMILY 977 (2004) (“For the propertied classes, marriage was the main way of consolidating wealth, transferring property, laying claim to political power, even concluding peace treaties. When upper-class men and women married, dowry, bride wealth, or tribute changed hands, making the match a major economic investment by the parents and other kin of the couple.”). 228. See supra note 223. However, the formal structure did not consider her agency in sexual activity outside of marriage. 229. “Marriage was ‘the main means of transferring property, occupational status, personal contacts, money, tools, livestock and women across generations and kin groups’” See Coontz, supra note 227, at 977 (quoting MARGARET HUNT, THE MIDDLING SORT: COMMERCE, GENDER, AND THE FAMILY IN ENGLAND, 1680-1780, 151 (1996 . For a discussion of slavery-focused dowry and inheritance available to women in the antebellum South, see KIRSTEN WOOD, MASTERFUL WOMEN: SLAVEHOLDING WIDOWS FROM THE AMERICAN REVOLUTION THROUGH THE CIVIL WAR 1–13, 35–60 (2004).

(White) husbands were only responsible for children born under the marital presumption of paternity;230 otherwise, the status of the child followed that of the mother.231 As part of the marital “bargain,” a child born to a (White) wife was considered a debt for which the husband was responsible232 and was the primary reason he was entitled to the child’s labor.233 The labor of legitimate (White) children was owed to fathers,234 obliging wives to produce multiple children as labor for family farms and businesses.235 As early as age thirteen,236 girls were deemed sufficiently mature to marry, have sex, and reproduce.237 (White) daughters possessed sexual capital owned by their fathers and devisable through marriage to a

230. See Burnham, supra note 175, at 216 n.120 (“[W]here the slave owner’s extra-marital sex might carry a social and financial penalty if the child he fathered were [W]hite, he stood to gain in every way from the sexual abuse of slave women.”) 231. For the status of nonmarital White children, see Trimble v. Gordon, 430 U.S. 762, 766 (1977) (rejecting the reasoning in Labine v. Vincent, 401 U.S. 532 (1971), that found illegitimate children were not “prevented . . . from sharing in the estates of their fathers”); for the status of children born into slavery, see Burnham, supra note 175, at 215 (“In contradistinction to the common law, the slaveholding states all adopted the civil rule, partus sequitur ventrem-the issue and descendants of slaves follow the status of the mother.”) (citing COBB, supra note 189, at 68; Wilbert E. Moore, Slave Law and the Social Structure, J. NEGRO HIST. 171, 185-87 (1941 . 232. See Dianne Avery & Alfred S. Konefsky, The Daughters of Job: Property Rights and Women’s Lives in Mid-Nineteenth-Century Massachusetts, 10 LAW & HIST. REV. 323, 336-37, 343 (1992) (explaining that even though most women did not hold any debt at marriage, “the responsibility of a wife’s debt was a burden that made up for the benefit that a husband gained by having access to her wealth.”) See also SUSAN LEBSOCK, THE FREE WOMEN OF PETERSBURG: STATUS AND CULTURE IN A SOUTHERN TOWN, 1784-1860, at 126-27 (1984). 233. See generally Woodhouse, supra note 84. 234. Woodhouse, supra note 84, at 676; Mason, supra note 168 at 7-8, 31-36. Children of unmarried (White) mothers were subject to indenture until the age of majority. Woodhouse, supra note 84, at 675-76 (“Although single mothers were more likely to be destitute, the laws applied to all families unable to care for their young, and many children with two living, married parents found themselves involuntarily indentured.”). 235. Just as black women and girls were valuable and marketable for sex and breeding, see supra text accompanying notes 187-91, so too were White daughters valued for the economic benefit of these abilities. 236. See 1 J. BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE §§ 143-47, at 122-24 (6th ed. 1881); 1 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 186 (Gavitt ed. 1941); 2 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 389-92 (2d ed. reissued 1968); H. CLARK, THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES § 2.9 at 77-79 (1968). See also, Lynn D. Wardle, Rethinking Marital Age Restrictions, 22 J. FAM. L. 1, 9-14 (1983) (detailing state legislative requirements for the age of consent to marry). 237. See supra note 236.

husband.238 A daughter’s marriage relieved the father of her care by obligating her to a husband,239 making marriage a form of barter.

The marital presumption of paternity guaranteed that, regardless of actual paternity,240 children born during marriage were the husband’s legitimate heirs.241 Within racial limits, this presumption operated to afford a measure of sexual freedom for married (White) women.242 Even though divorce was rare in the nineteenth century,243 a dark child born within a White marriage was sufficient cause for a man to procure a divorce.244

238. See Brownmiller, supra note 211 at 19-24. 239. See supa text accompanying notes 209-24. Cf. Kathleen Barry, The Underground Economic System of Pimping, 35 J. OF INTERNATIONAL AFFAIRS 117 (1981) (“Almost all the money derived from prostitution is controlled and used by the pimps. The commodity which is bought and sold through this system is the female body.”). 240. See A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L.J. 1967, 1998-2000 (1989) (discussing Watkins v. Carlton, 37 Va. 560 (Va. 1840), and genealogical possibilities). Rather than imagine that a White man could have Black heritage, the “blame” was placed on the wife and mother for her presumed infidelity. See, e.g., Mark Golub, Plessy As “Passing”: Judicial Responses to Ambiguously Raced Bodies in Plessy v. Ferguson, 39 LAW & SOC’Y REV. 563 (2005); Randall Kennedy, Racial Passing, 62 OHIO ST. L.J. 1145 (2001) (“Passing is a deception that enables a person to adopt certain roles or identities from which he would be barred by prevailing social standards in the absence of his misleading conduct.”); Christian B. Sundquist, Signifying on Passing: (Post) Post-Racialism, (Post) PostModernism, and (Post) Post-Marxism, I COLUM. J. RACE & L. 482 (2012). Thus, the marital presumption of paternity was an effective means of gender subordination and of ensuring White supremacy. 241. The marital presumption, designating the husband of a married woman as the father of any child she births during the marriage has its origins in Lord Mansfield’s rule. See The King v. Luffe, (1807) 103 Eng. Rep. 316 (K.B.). Interestingly, William Murray, first Earl of Mansfield, who helped dismantle slavery in England (see Somerset v. Stewart, (1772) 98 Eng. Rep. 499 (K.B. , created the legal rule to protect the status of children born within a marriage. See also, Susan Frelich Appleton, Presuming Women: Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era, 86 B.U. L. REV. 227, 228, 233-34 (2006); Leslie Joan Harris, Voluntary Acknowledgements of Parentage for Same-Sex Couples, 20 AM. U. J. GENDER SOC. POL’Y & L. 467 (2012). 242. In the era before adequate scientific testing, the marital presumption of paternity sometimes served as a blanket of protection for discrete, intra-racial, sexual indiscretions by White wives. See id. 243. Mason, supra note 168, at 15-18. L.J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA. New York: Free Press, 1985. M.A. GLENDON, THE TRANSFORMATION OF FAMILY LAW, Chicago: University of Chicago Press, 1989. 244. See, e.g., Kennedy, supra note 176, at 62; Joshua D. Rothman, ‘To Be Freed from Thate Curs and Let at Liberty’: Interracial Adultery and Divorce in Antebellum Virginia, 106 THE VA. MAG. HIST. & BIOGRAPHY 443, 445 (1998); PETER BARDAGLIO, RECONSTRUCTING THE HOUSEHOLD: FAMILIES, SEX, AND THE LAW IN THE NINETEENTH-CENTURY SOUTH 48-64 (1995); Karen A. Getman, Sexual Control in the Slaveholding South: The Implementation and Maintenance of a Racial Caste System, 7 HARV. WOMEN’S L.J. 115, 122-42 (1984); Higginbotham & Kopytoff, supra note 240. See also, Rachel Feinstein, Intersectionality and

Such a child served to override the marital presumption and was proof positive of the wife’s adulterous, racial transgression.245 In instances when the marriage remained intact, the Black-appearing child was abandoned or was the subject of infanticide.246 Under any other circumstance, divorce followed the paternal preference rule to award custody to the husband, protecting his interest in the child’s labor.247

In poor families, there was no precise, gender-based allocation between public, market-oriented labor and private, household-centered subsistence activities. Women were often employed in income-generating activities conventionally labelled “men’s work.”248 Married poor women also carried the burden of reproduction, child rearing, household maintenance, and care of ill or elderly relatives.249 Poor wives bartered produce from the family garden or livestock they raised to subsidized household income and to acquire medical and other services for the family.250 Frequently in farming

the Role of White Women: An Analysis Of Divorce Petitions from Slavery, 30 JOURNAL OF HISTORICAL SOCIOLOGY 545 (2017). 245. See Mary Louise Fellows, The Law of Legitimacy: An Instrument of Procreative Power, 3 COLUM. J. GENDER & L. 495, 502 (1993):

If a child who had African-American features was born to a woman who was believed to be of the white race and whose husband was also believed to be of the white race, the nineteenth-century courts refused to apply the marital presumption. The courts held that that the presumption could be rebutted by ‘evidence which clearly and conclusively shows that the procreation by the husband was impossible; and that, . . . according to the course of nature, the husband could not be the father of the child . . . An African-American child becoming a white man’s legal heir . . . was unacceptable.’

(citing Bullock v. Knox, 11 So. 339, 340 (Ala. 1891 . 246. See Kennedy, supra note 176, at 367 (citing HARRIET A. JACOBS, INCIDENTS IN THE LIFE OF A SLAVE GIRL, WRITTEN BY HERSELF (JEAN FAGAN YELLIN ed., 1987) (1861 . 247. See Joan B. Kelly, The Determination Of Child Custody, 4 THE FUTURE OF CHILDREN 121, 122 (1994) (“In divorce, until the mid-nineteenth century, fathers had a right to custody …, regardless of circumstances, and mothers had very restricted access to their children after divorce.”); Mason, supra note 168, at 6 (“Thus fathers, without dispute, had almost unlimited authority of custody and control over their natural, legitimate children, leaving almost no room for maternal authority, at least during the father’s lifetime.”). 248. See id. at 99. 249. Wilma A. Dunaway, The “Disremembered” of the Antebellum South: A New Look at the Invisible Labor of Poor Women, 21 CRITICAL SOCIOLOGY 89, 93 (1995) (“In poor women’s lives, however, there is not a sharp gender division between private, household-based subsistence labor and public, market-oriented labor. In the poorest families, everyone is working to generate minimal survival of the kinship unit, and the gender division of labor breaks down in the face of the constant barrage of crises and the unstable employment of male members. Around the world, poorer farm women must move back and forth continually between multiple roles that include household subsistence work, activities to generate a few market commodities, and semi-waged labor arrangements. (citations omitted). 250. See id. at 93.

households, a husband contracted out the wife’s labor and obligated her to complete cash crops beyond his own responsibilities.251

During the early 1800s, every state passed a Married Women’s Property Act.252 The first Married Women’s Property Act was legislated in 1839 Mississippi.253 To abet the effects of economic crises and to protect marital assets from creditors,254 these Acts prevented a husband’s creditors from accessing property held in the wife’s name, but also prevented a woman from controlling property titled in her name.255 Of the Married Women’s Property Acts, one Illinois Supreme Court Judge said, “it is simply impossible that a married woman should be able to control and enjoy her property as if she were sole, without practically leaving her at liberty to annul the marriage.”256

Restrictions on the control over property was a perpetuation of coverture and was especially prominent in Southern states. Married Women’s Property Acts were enacted during the same time frame for both free and slave states, but no southern state allowed control of assets by a married woman.257 In Confederate states at the start of the Civil War,

251. See id. (citing Jeanne Boydston, To Earn Her Daily Bread: Housework and Antebellum Working-Class Subsistence, 35 RADICAL HISTORY REVIEW 7 (1986 . See also FLETCHER M. GREEN & HAHN, FERRY HILL PLANTATION JOURNAL: LIFE ON THE POTOMAC RIVER AND CHESAPEAKE AND OHIO CANAL: JANUARY 4, 1838-JANUARY 15, 1839 15-17, 19, 22, 25, 33, 41, 65 (Thomas F. & Natalie W. eds., 2nd ed. 1975). 252. In 1839, Mississippi was the first state to grant married women the right to own (but not control) property in their own name. See Angela Boswell, Married Women’s Property Rights and the Challenge to the Patriarchal Order: Colorado County, Texas, in JANET L. CORYELL (ed.), NEGOTIATING BOUNDARIES OF SOUTHERN WOMANHOOD: DEALING WITH THE POWERS THAT BE 92 (2000). Of the existing thirty-one states, fourteen legislated relevant reforms before 1857. See MELISSA J. HOMESTEAD, AMERICAN WOMEN AUTHORS AND LITERARY PROPERTY 1822-1869, 29 (2005). By the end of the Civil War in 1865, 29 states had passed a Married Women’s Property Act. See Linda E. Speth, The Married Women’s Property Acts, 1839-1865: Reform, Reaction, or Revolution?, in J. RALPH LINDGREN, ET AL., THE LAW OF SEX DISCRIMINATION 12-5 (2011). 253. “An Act for the protection and preservation of the rights of Married Women,” Mississippi Married Women’s Property Law (1839), Miss. Laws, 1839, ch. 46, p. 72. Relying on Chickasaw laws and customs which titled land in her name, Betsy Love Allen avoided seizure of her land by her husband’s creditor. See Fisher v. Allen, 3 Miss. 611 (1837) (2 Howard 611). 254. See ZORINA B. KHAN, THE DEMOCRATIZATION OF INVENTION: PATENTS AND COPYRIGHTS IN AMERICAN ECONOMIC DEVELOPMENT, 1790-1920, at 163, 166–68 (Cambridge UP 2005). 255. See Boswell, supra note 252, at 92; LeAnne Howe, Betsy Love and the Mississippi Married Women’s Property Act of 1839, MS HISTORY NOW (June 2005), Mississippi Department of Archives and History (archived from the original on 14 May 2022; retrieved 4 April 2023). 256. Cole v. Van Riper, 44 Ill. 58, 64 (1867). 257. See Boswell, supra note 252, at 92-93.

departing soldiers were motivated to transfer their assets to other men who remained at home.258 The post-war disarray of the Southern economy, caused by heavy Confederate casualties,259 created opportunity for Northern scavengers260 and other opportunists to realize financial gain through marriage.261 During Reconstruction, the reforms intended by the Married Women’s Property Acts instead facilitated the exploitation of women through marriage and the corresponding structural subordination that allowed for the retitling of a wife’s property.

A positive reform of Reconstruction was the abrogation of chastisement, a husband’s entitlement to physically “correct” his wife. Because Reconstruction imposed requirements on states to legalize Black marriages, one court took the opportunity to end the chastisement in a case in which a Black husband tried to “correct” his Black wife. In a context that would have granted to Black men the same privilege previously enjoyed exclusively by White men, the court invalidated chastisement.262 Thus, even though chastisement evokes comparison to the physical abuses of chattel slavery,263 its repudiation was not purposeful in improving the status of women.

Similarly, on the trail leading to women’s suffrage, no southern state permitted unqualified voting rights for women before the Nineteenth Amendment in 1920. U.S. Const. Amendment XIX. See ELNA C. GREEN, SOUTHERN STRATEGIES: SOUTHERN WOMEN AND THE WOMAN SUFFRAGE QUESTION 6-7 (Chapel Hill: Univ. of North Carolina Press 1997) (identifying four states that allowed women to vote on specific issues). 258. See Boswell, supra note 252, at 102 (“As husbands began leaving to fight in the Civil War, they at first hoped to transfer their responsibilities not to their wives or the single women for whom they cared, but to men who stayed behind.”). 259. See J. David Hacker, Libra Hilde, & James Holland Jones, The Effect of the Civil War on Southern Marriage Patterns, 76 J. S.HIST. 39, 39-40 (2010) (“The death rate was especially great in the Confederacy, which lost approximately one in five white men of military age in the conflict.”). 260. See id. at 46 (“Historians of the occupied South have written, “Letters and diaries of Union men in every occupied community reveal considerable social intercourse between Federals and ‘secesh’ girls which in a good many instances led to romances and marriages.”). See also, HENDRICK HARTOG, MAN AND WIFE IN AMERICA: A HISTORY, 20-23, 32, 87 (2000). 261. See Hacker et. al., supra note 259, at 47 (“The shortage of suitable men after the war gave those remaining many choices of women to marry, allowing widowers to remarry and others to try to escape their former obligations. Though more evidence is needed to draw concrete conclusions, a few northern and southern men may have attempted to remarry without divorce.”). See also supra text accompanying notes 216-17. 262. See Siegel, supra note 35, at 2135 (“Was [this outcome] to ensure that the woman was not treated like a ‘slave,’ or to prevent her recently emancipated husband from asserting the ‘privileges’ of a master?”) (citing Fulgham v. State, 46 Ala. 143 (1871 ; Cf. Burnham, supra note 175. 263. See supra text accompanying note 169.

Analogizing marriage to slavery risks a pernicious relativism that devalues the brutalities experienced under slavery264 and obscures the participation of White women in the perpetuation of the norms of slavery.265 Marriage, denied to slaves, was a tool for the perpetuation of slavery by facilitating sexual exploitation and the related control over reproduction and family propinquity. The story of Harriet Robinson,266 and those of countless other [married?] women, provide the basis to assert that passage of the Thirteenth Amendment not only should have ended formal slavery and indentured servitude, but also should have ended coverture and the other marriage-related laws codifying women’s subordination.267 The nature of debate surrounding passage of the Civil Rights Act of 1866, the first implementing legislation of Amendment Thirteen, suggests that the exclusion of marriage from the Act’s coverage was to mollify its opponents, not because the inclusion was an unfair reading.268 Such a reading could have ended the laws of marriage codifying the subordination of women269 without necessarily eliminating the institution.

IV. FUNDAMENTAL SELF-OWNERSHIP

. . . women can’t have as much rights as men, ‘cause Christ wasn’t a woman. . . . Where did your Christ come from? . . . From God and a woman. Man had nothing to do with him.270

Sojourner Truth

264. See supra note 172 and accompanying text. 265. See, e.g., STEPHANIE E. JONES-ROGERS, THEY WERE HER PROPERTY: WHITE WOMEN AS SLAVE OWNERS IN THE AMERICAN SOUTH (2019); VRON WARE, BEYOND THE PALE: WHITE WOMEN, RACISM, AND HISTORY (2015); DREW GILPIN FAUST, MOTHERS OF INVENTION: WOMEN OF THE SLAVEHOLDING SOUTH IN THE AMERICAN CIVIL WAR 53-79 (1996). 266. See supra Part II A. 267. See supra notes 215-25, and accompanying text. See also, Debra A. Viles, Disabilities of Marriage: Gender and Law in Antebellum Michigan, 28 MICH. HIST. REV. 1 (2002) (examining the conceptual connections between property and divorce). 268. The Civil Rights Act of 1866, Pub. L. No. 39-26, 14 Stat. 27; see also, Jennifer Mason McAward, McCulloch and the Thirteenth Amendment, 112 COLUM. L. REV. 1769 (2012) (arguing that Section 2 of the Thirteenth Amendment uses the language of McCullough v. Maryland and contemplates Congressional regulation with limited judicial review). 269. See supra notes 215-25. 270. SOJOURNER TRUTH, SPEECH AT WOMEN’S CONVENTION IN AKRON, OHIO: AIN’T I WOMAN? (May 29, 1851).

A. Personhood—Part of Democratic Capitalism

Self-ownership, inherent to personhood status, is essential both for the functioning of a democratic society and for a free market economy.271 The Constitution, a liberal document,272 establishes a republican form of democracy,273 protects private wealth, and endorses capitalism.274 Republican democracy functions best when the people fully participate in electing representatives, holding office, sitting on juries, and influencing fellow citizens through opinion and deed.275 Similarly, a capitalist free market economy relies on self-interested participants, and presumes their self-ownership.276

Theorists influential for the ideas embedded in the Constitution are helpful in clarifying the relevancy of personhood status. Enlightenment philosopher Immanuel Kant has been influential in advancing concepts for individual rights277 and is known for his treatment of ethics and transcendental metaphysics.278 Kant believes rational beings are ends in

271. See, e.g., Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (1990) (examining the importance of private property under the United States Constitution). 272. See, e.g., Morton J. Horowitz, Republicanism and Liberalism in American Constitutional Thought, 29 WM. & MARY L. REV. 57 (1987). 273. U.S. Const. Art. IV; See also, THE FEDERALIST NO. 39 (James Madison) (“a government which derives all its powers directly or indirectly from the great body of the people”); THE FEDERALIST NO. 22 (Alexander Hamilton) “[T]he fundamental maxim of republican government . . . requires that the sense of the majority should prevail.”); THE FEDERALIST NO. 57 (James Madison) (“The elective mode of obtaining rulers is the characteristic policy of republican government.”). 274. For more detailed perspectives on the economics of the Constitution, see Richard A. Posner, The Constitution as an Economic Document, 56 GEORGE WASHINGTON LAW REVIEW 4 (1987); F. MCDONALD, WE THE PEOPLE: THE ECONOMIC ORIGINS OF THE CONSTITUTION (1958); and C. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES (1913). 275. See Joel D. Wolfe, A Defense of Participatory Democracy, 47 REV. POL. 370 (1985) (proposing a modernized theory of participatory democracy based in community and collective action to withstand a pull toward oligarchy) 276. See infra text accompanying notes 292-93. 277. See Theresa A. Creighton, Freedom and the Ideal Republican State: Kant, Jefferson, and the Place of Individual Freedom in the Republican Constitutional State, (June 12, 2008) (M.A. thesis, Georgia State University) (on file with ScholarWorks @ Georgia State University) https://doi.org/10.57709/1059773https://doi.org/10.57709/1059773 (“Both Thomas Jefferson and Immanuel Kant attempted to answer the question of what constitutes right government, in particular by basing the system upon the idea of human freedom as an inalienable right.”); ALFRED C. EWING, A SHORT COMMENTARY ON KANT’S “CRITIQUE OF PURE REASON,” University of Chicago Press 218 (1996; original: 1938). 278. See, e.g., KANT, I., THE METAPHYSICS OF MORALS, IN PRACTICAL PHILOSOPHY, trans. and ed. by M. J. GREGOR (Cambridge: Cambridge University Press); KANT, I. (1797/1996), THE METAPHYSICS OF MORALS, IN PRACTICAL PHILOSOPHY, trans. and ed. by M. J. GREGOR

themselves” and rational beings ‘are called persons because their nature already marks them out as ends in themselves . . . and imposes … a limit on all arbitrary treatment of them.’”279 Moral action begins with the ability to distinguish between persons and things and to treat them accordingly.280

John Locke, the founder of “liberalism,”281 and influential in the writing of the Declaration of Independence282 and the Constitution,283 opposed slavery.284 Locke believes that all persons own themselves:285 “‘every Man has Property in his own Person. This no Body has any Right to but himself.”286 Furthermore, people create value in things;287 things may be constitutive of the person, but not the reverse.288

(Cambridge: Cambridge University Press); Religion Within the Boundaries of Mere Reason, trans. by G. DI GIOVANNI, in RELIGION AND RATIONAL THEOLOGY, ed. A. WOOD AND G. DI GIOVANNI (Cambridge: Cambridge University Press ; KANT, I. (1788/1956), CRITIQUE OF PRACTICAL REASON, trans. LEWIS WHITE BECK (Indianapolis: Bobbs-Merrill Company).5:74). 279. Dillon, supra note 157 at 112-13 (quoting KANT, I. (1785/1996), GROUNDWORK OF THE METAPHYSICS OF MORALS IN PRACTICAL PHILOSOPHY, ED. AND TRANS. M. J. GREGOR (CAMBRIDGE: CAMBRIDGE UNIVERSITY PRESS). 280. Id. at 116 (citing KANT, I. (1797/1996), THE METAPHYSICS OF MORALS, IN PRACTICAL PHILOSOPHY, TRANS. AND ED. BY M. J. GREGOR (CAMBRIDGE: CAMBRIDGE UNIVERSITY PRESS). ). For Kant, roughly, “thing” equates to “property.”. (“[Kant] regards [arrogant peoples] as annoying obstacles he has to deal with, or as incompetent or dim-witted idiots that he has to take in hand, or as things he might use to further his desires, or simply as morally irrelevant.”) (emphasis mine). 281. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT AND A LETTER CONCERNING TOLERATION (Oxford University Press, 2016). 282. See Kenneth D. Stern, John Locke and the Declaration of Independence, 15 CLEV.MARSHALL L. REV. 186 (1966) (remarking on the similarities between Lock’s writings and the text of the Declaration of Independence, Thomas Jefferson’s expressed ideologies, and the justification for the American Revolution). 283. See id. Harold J. Berman, The Impact of the Enlightenment on American Constitutional Law, 4 YALE J.L.& HUMANITIES 311(1992) (discussing how the American Revolution and the United States Constitution were inspired by the contrasting ideals and goals that drove the French Revolution and the English Revolution). 284. See JOHN W. LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT AND A LETTER CONCERNING TOLERATION (John Gough ed., 1948) (making clear Locke’s condemnation of slavery). 285. “Though the Earth, and all inferior Creatures be common to all Men, yet every Man has Property in his own Person’ (Locke, 1963[1690]: 2.5.27).” Lisa Hill and Prasanna Nidumolu, 34 HIST. OF THE HUM. SCI. 3-4 (2021) (discussing “The influence of classical Stoicism on John Locke’s theory of self-ownership.”). 286. See Karl Olivecrona, Appropriation in the State of Nature: Locke on the Origin of Property, 35 J. HIST. OF IDEAS 111 (1974) (discussing the influence of Grotius on Locke). 287. See id. at 211. 288. See Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982).

Adam Smith published The Wealth of Nations289 in the same year as the ratification of the Declaration of Independence.290 Smith postulates that human well-being and self-worth derive not only from the acquisition of material goods but also from moral self-betterment.291 Most often identified with Smith’s theories for a free market, is reliance on “self-interest.”292 Selfownership ensures the purest form of self-interest and therefore is key to efficient operations.293

As discussed in Part II, Justice Taney in his reading of Due Process in Dred Scott, defines personhood and citizenship in the negative: first through the direct commodification of individuals of African descent,294 but also by leaving implicit the qualifications for personhood and citizenship held by financially established White males.295 Denying personhood status to even free Blacks296 the Dred Scott decision rejected the existence of any related rights thereby circumventing protection for any claimed. In comparison, Part V discusses the Court’s ruling in Dobbs, in which it rationalizes the gendered nature of pregnancy and related reproductive matters by using the labels “pregnant” and “nonpregnant” persons as though these labels eliminate the biological process of gestation and equalize men and women in reproductive concerns.297 Quite the opposite, by obscuring the medical

289. ADAM SMITH, THE WEALTH OF NATIONS (Mar. 1776). 290. THE DECLARATION OF INDEPENDENCE. (U.S. 1776). Retrieved from the Library of Congress, www.loc.gov/item/mtjbib000159/. 291. ADAM SMITH, THE THEORY OF MORAL SENTIMENTS 833 (2d ed., 1761) (discussing the comprehensive theory derived from, as he indicates, The Theory of Moral Sentiments and The Wealth of Nations), reprinted for A. MILLAR, SABIN AMERICANA: HIST. AM., 1500-1926, link.gale.com/apps/doc/CY0101453448/SABN?u=miami_richter&sid= bookmark-SABN&xid=e30857e3&pg=1 (last visited 18 Aug. 2023) (“Nothing is so mortifying as to be obliged to expose our distress to the view of the public, and to feel, that though our situation is open to the eyes of all mankind, no mortal conceives for us the half of what we suffer. Nay, it is chiefly from this regard to the sentiments of mankind, that we pursue riches and avoid poverty.”). 292. See Warren J. Samuels, The Political Economy of Adam Smith, 87 ETHICS 189, 193-4 (1977) (“it was Smith’s view that what transpired in the life of the individual and society was a synthesis of a number of forces. These included self-love, self-interest, self-command, sympathy, benevolence, moral rules, and legal control. Individual thought and behavior represented a balance or synthesis of motives, each of which had complex origins.”). 293. See id. 294. See supra notes 114-20. 295. See supra notes 117 and 122. 296. Taney clarifies that there is little distinction between slaves and free blacks as this class of individuals has no rights the government is “bound to respect.” 60 U.S. at 407. This is perhaps Justice Taney’s most infamous statement from Dred Scott. 297. The Court even affirms suggestions in Geduldig that biological differences used to sustain gender-based scrutiny is a “mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.” 142 S.Ct. at 2246 (quoting Geduldig v. Aiello, 417 U. S. 484, 496, n. 20 (1974 .

and emotional costs of pregnancy experienced by women, the Court treats women as one-dimensional vessels, dehumanized things that are objects and property.298 Thus, like Dred Scott,299 the Dobbs court uses imaginative interpretation to treat some people as property, not entitled to rights.300

B. A Person Owns Herself

. . . yet every Man has Property in his own Person.

This no Body has any Right to but himself. The Labor of his Body, and the Work of his Hands, we may say, are properly his. . . and thereby makes it his Property.

John Locke301

A presumption of self-ownership302 is part of the Thirteenth Amendment’s role in conferring personhood status. Amendment Thirteen was regarded as complete at its ratification;303 whereas the Fourteenth304 and the Fifteenth Amendments305 were written to clarify rights already embodied by Amendment Thirteen.306 If collectively the Reconstruction Amendments overruled Dred Scott, then the text of the Fourteenth Amendment designating citizenship and confirming Due Process307 is most coherent if personhood is previously accorded by the Thirteenth.

298. See supra note 280 and accompanying text. 299. See supra notes 36-37 and accompanying text. 300. See supra note 280 and accompanying text. 301. ROBERT A. DAHL, A PREFACE TO ECONOMIC DEMOCRACY (1985). 302. See supra Part IV. See WILENTZ, supra note 5 at 45, 217 (identifying such a right in the proposed constitution of 1787) Cf. supra notes 114-20. 303. See Zietlow, Ideological Origins, supra note 124, at 396. 304. U.S. CONST. Amend. XIV. 305. U.S. CONST. Amend. XV. 306. For a discussion of the equal rights theory of the Thirteenth Amendment, see Rebecca E. Zietlow, James Ashley’s Thirteenth Amendment, 112 COLUM. L. REV. 1697, 1708–12 (2012). See also CONG. GLOBE, 38th Cong. 1st Sess. 521 (1864) (statement of Sen. Charles Sumner); MICHAEL VORENBERG, FINAL FREEDOM: THE CIVIL WAR, THE ABOLITION OF SLAVERY, AND THE THIRTEENTH AMENDMENT 49–53 (2001) (discussing the initial proposals for the inclusion of rights within the amendment); Foner, supra note 151, at 504–05 (1988). 307. The Due Process Clause in the Fourteenth Amendment, U.S. CONST. Amend. XIV, cl. 1, is essentially identical to the Due Process Clause of the Fifth Amendment, U.S. CONST. Amend V, cl. 1, and ensures that the rights accorded to persons under the Fifth Amendment would also apply to all citizens and are enforceable against the states.

the Enforcement Clause of

The Thirteenth Amendment’s reach308 contemplated a broad extension of rights for former slaves and all other people in the United States.309 Though the gendered component of slavery is not routinely acknowledged,310 sexual subordination was significant to the business of slavery.311 Furthermore, legislators recognized early that Amendment Thirteen coverage might include marriage and gender oppression. In attempts to undermine the Civil Rights Act of 1866,312 legislation relying on ratified Thirteenth Amendment,313 opponents alleged that the Act would implicate the status of married women.314In ridiculing the opposition’s beliefs, Civil Rights Act supporter Senator Edgar Cowan makes an oblique reference to sexual servitude when he asks, “What was the involuntary servitude mentioned there? . . . Was it the right the husband had to the service of his wife?”315 The Amendment was intended to reach all forms of servitude or indenture.316 When marriage is regarded as a contract, the legally required servitude of women317 was a form of indenture.318 Abolitionist Harriet Beecher Stowe argued:

the newly

308. The Thirteenth Amendment ended slavery and all other forms of involuntary servitude. See Zietlow, Ideological Origins, supra note 124, at 396 (2012) (“First, the Amendment not only ended slavery, but it was also a transformative amendment that established freedom.”); AMAR, supra note 87, at 281. 309. See also Zietlow, supra note 306 at 1697 (“They believed that the Thirteenth Amendment not only ended slavery, but also established fundamental human rights for freed slaves and other people in the United States.”). 310. See Tsesis, supra note 26, at 1641–42. 311. See supra Part III.A. 312. Civil Rights Act of 1866, 42 U.S.C. § 1981 (1866). 313. U.S. CONST. Amend. XIII, § 2 (“Congress shall have power to enforce this article by appropriate legislation.”). 314. See JOYCE W. WARREN, WOMEN, MONEY, AND THE LAW: NINETEENTHCENTURY FICTION, GENDER, AND THE COURTS. 51–53 (2005); Tsesis, supra note 26, at 1662 (“‘Marriage,’ wrote the proslavery apologist George Fitzhugh, ‘is too much like slavery not to be involved in its fate.’” (citation omitted . 315. Warren, supra note 314, at 53; Tsesis, supra note 26, at 1662 (“The subjection of slaves to the master of the house, explained Reverend Benjamin M. Palmer, is closely tied to the obedience wives owed to the head of the household.” (citation omitted . 316. See Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 HARV. L. REV. 1359, 1359 (1992) (“Its framers’ disgust with ‘the peculiar institution’ led them to announce a more universal, transcendent norm: slavery, of all forms and in all places, shall not exist.”); Zietlow, supra note 306, at 1697. 317. See supra text accompanying notes 209-51. 318. As indenture was a contractual binding for services, it is especially applicable to marriage, often regarded as a contract. See, e.g., Clifford J. Sager, Helen S. Kaplan, Ralph H. Gundlach, Malvina Kremer, Rosa Lenz, and Jack R. Royce, The Marriage Contract, 10 FAM. PROCESS 311 (1971); Karl Fleischmann, Marriage By Contract: Defining The Terms Of Relationship, 8 FAM. L.Q. 27 (1974). See also Shannon Miller, Maternity, marriage, and contract:

[T]he position of a married woman . . . is, in many respects, precisely similar to that of the negro slave. She can make not contract and hold no property; whatever she inherits or earns becomes at that moment the property of her husband . . . . Though he acquired a fortune through her, or though she earn [sic] a fortune through her talents, he is the sole master of it, and she cannot draw a penny . . . . [I]n the English common law a married woman is nothing at all. She passes out of legal existence.319

Advocates for Abolition and advocates for Women’s Suffrage substantially were comprised of the same individuals.320 Perhaps this association lead some Suffragists to exaggerate the comparisons between marriage and slavery.321 Alexander Tsesis, who advocates for reliance on Amendment Thirteen for protection of women’s rights322 points out that Suffragists “were purposefully hyperbolic to draw attention to woman’s degraded status.”323 Abolitionist and women’s suffrage supporter Frederick Douglass disapproved of the term “slavery” in describing the conditions of women that did not routinely result in violent death.324 Suffragist and

Lucy Hutchinson’s Response to Patriarchal Theory in Order and Disorder, ASHGATE CRITICAL ESSAYS ON WOMEN WRITERS IN ENGLAND, 1550-1700, 295 (2017). Cf. Melissa Murray, Marriage as Punishment, 112 COLUM. L. REV. 1 (2012). Despite the use of marriage as a form of punishment, marriage does not qualify as an exception to Thirteenth Amendment coverage. U.S. CONST. Amend. XIII (“. . . except as a punishment for crime whereof the party shall have been duly convicted . . .”). 319. Homestead, supra note 252, at 29. 320. See Nina Morais, Sex Discrimination and the Fourteenth Amendment: Lost History, 97 YALE L.J. 1153 (1987). 321. For several examples of how the comparison was made, see Tsesis, supra note 26 at 1661-1668. 322. Tsesis, supra note 26, at 1665. 323. Tsesis, supra note 208, at 1665 (“Taken literally, however, they overlooked the fact that marriage itself was a contractual relationship barred to slaves. Unlike white women, slaves were regarded as actual property and therefore unable to enjoy privileges associated with marriage, like intestate succession or dower rights.”) (citations omitted). 324. See Tsesis, supra note 26, at 666 n. 120:

Frederick Douglass was an abolitionist who, like Truth, had escaped from slavery, but he believed it was too much to use the word “slavery” for women’s condition. He argued: “Slavery must be regarded as something different; it must be regarded as one man holding property in another, subjected to the destroying of all the higher qualities of his nature, deprived of his own body, his own soul. A slave is one who is to all intents and purposes a marketable commodity-common goods and chattels.

Abolitionist Sojourner Truth believed that full women’s rights were essential for Constitutional emancipation to be complete and for avoidance of the exchange of one subordinated status for another.325 Specifically, for Black women, post-emancipation marriage substituted one patriarchal master for another while retaining the ubiquitous oppressions of White supremacy. Truth’s views were prophetic: Justice Taney used Harriett’s marital status to combine her fate with Dred’s and return them both to slavery; post-Reconstruction’s release on marriage prohibitions was but a false promise for equality,326 as it instead continued the subordination of married emancipated slave women.327

Amendment Thirteen was designed to address state action as well as private discriminatory conduct328 with its Enforcement Clause empowering Congress to prevent all forms of servitude.329 The ability to reach private conduct is what distinguishes Amendment Thirteen from Fourteen.330 While the courts have historically read the Thirteenth

(citing Frederick Douglass, International Moral Force Can Destroy Slavery: An Address Delivered in Paisley, Scotland (Mar. 17, 1846), in 1 FREDERICK DOUGLASS PAPERS 183, 183-85 (John W. Blassingame, ed., 1979 . 325. Tsesis, supra note 26, at 1667 (“Truth also believed that pressing the nation to protect women’s rights was intrinsic to constitutional emancipation. She was, of course, keenly aware that black women suffered greater oppression than white women, and, indeed, than black men. Truth, nevertheless, warned that if only black men gained the right to vote they might become “masters over the women, and it will be just as bad as it was before.”) (citations omitted). 326. See Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 YALE J.L. & HUMANITIES 251, 302-03 (1999); Onwuachi-Willig, supra note 207, at 1657 (citing Dorothy E. Roberts, Welfare and the Problem of Black Citizenship, 105 YALE L.J. 1563, 1569-70 (1996 . 327. See supra note 105-106 and accompanying text. 328. See Zietlow, supra note 306, at 1708. Alexander Tsesis encourages the application of the Thirteenth Amendment to gender discrimination, employment discrimination, human trafficking, and gender-motivated violence. Tsesis, supra note 26 at 1684-95. 329. See supra note 328. Since Section 2 of the Thirteenth Amendment is patterned after the language in McCulloch v. Maryland, Congress’s enforcement authority should be interpreted broadly. 330. Jennifer Mason McAward, Defining the Badges and Incidents of Slavery, 14 U. PA. J. CONST. L. 561 (2012); George Rutherglen, Private Action, and the Thirteenth Amendment, 94 VA. L. REV. 1367, 1367 (2008) (“Unlike its close cousin, the Fourteenth Amendment, the Thirteenth Amendment restrains not only government actors, but also private individuals. Private forms of “in voluntary servitude” violate the self-executing provisions of the Amendment, and private attempts to perpetuate the “badges and incidents of slavery” can be prohibited by Congress in legislation to enforce the Amendment”); James Gray Pope, The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957, 102 COLUM. L. REV. 1, 18 (2002) (“Unlike the Fourteenth Amendment, which applied only to state action, the Thirteenth made no distinction between governmental and private conduct, and thus could support legislation banning employers as well as government from interfering with labor rights.”).

Amendment narrowly,331 its reach may be especially important for addressing modern sex slavery and trafficking. Furthermore, the language of Amendment Thirteen mirrors that in McCullough v. Maryland,332 a case interpreting Congressional authority as broad. These textual points along with its ideological roots make Amendment Thirteen a better resource for certain individual rights protection than the more commonly used Amendment Fourteen.333

That the Thirteenth Amendment is questioned as a source for gender equity demonstrates a lack of concern for the condition of slave women.334 Gender discrimination amounting to slavery, servitude, or indenture implicate the “badges or incidence of slavery.”335 In spite of the pleas of Sojourner Truth’s “Aint I a Woman,”336 society, then and now, separates race and gender advocacy.337 At Reconstruction, gender-specific discrimination was experienced by all women, though by differing degrees

331. Jack M. Balkin and Sanford Levinson, supra note 146, at 1470-71(“The Thirteenth Amendment ban on slavery is the mirror image of another much neglected clause: the Guarantee Clause of Article IV, Section 4, under which the United States endeavors to guaran- tee the states “a Republican form of Government.”. . . . Both clauses have been limited because both are “dangerous”: Their reach seems unlimited and, taken to their logical conclusions, they require a serious rethinking of public and private power in the States.”) 332. 17 U.S. 316 (1819). See Mason, supra note 268 at 1769. It is commonly assumed that the text of Section 2 alludes to language in McCulloch v. Maryland explicating Congress’s executory powers: “all means which are appropriate, which are plainly adapted to [a legitimate] end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 333. Alexander Tsesis suggests that “if Congress were to use this grant of authority to combat gender discrimination, courts would likely review challenges under rational basis scrutiny,” but does not consider whether the interests covered by Amendment Thirteen are fundamental. See Tsesis, supra note 26, at 1684 (citing Jones v. Alfred H. Mayer Co., , 440 (1968). and McCulloch v. Maryland, 17 U.S. 316 (1819 . 334. See, e.g., Hall and Harris, supra note 152; cf. U.S. CONST. amend. XV did not include female suffrage. For a discussion of the complexities on the pathway to universal suffrage, see Danielle M. Conway, Black Women’s Suffrage, the 19th Amendment, and the Duality of a Movement, 13 ALA. C.R. & C.L. L. REV. 1 (2021). 335. Jones v. Alfred H. Mayer Co., , 439 (1968) (the Thirteenth Amendment authorizes Congress to prohibit “the badges and incidents of slavery”). While this is the case most often cited for the phrase, “badges and incidents of slavery,” it originated in The Civil Rights Cases, 109 U.S. 3, 20 (1883). 336. TRUTH, supra note 270. 337. Kimberlé Crenshaw founded “Intersectionality” to address these matters. See Kimberlé W. Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STANFORD L. REV. 1241 (July 1991); Kimberlé W. Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139 (1989). See also Patricia Hill Collins, BLACK FEMINIST THOUGHT: KNOWLEDGE, CONSCIOUSNESS, AND THE POLITICS OF EMPOWERMENT (1990) (describing how the categories of difference function as interlocking systems of domination and emancipation).

and circumstance, it has been routinely excluded from the “badges or incidence of slavery.”338 Modern forms of slavery may affect any person, regardless of gender,339 but the victims remain disproportionately female.340 In retrospect, with the persistence of modern-day human-trafficking and sex-slavery,341 the exclusion of gender-specific discrimination from Thirteenth Amendment protection must be regarded as an ill-considered omission.

V. NEO-PLANTATION

A. Plantation Economics

Modern sex commodification is inspired by the sexual economy of the plantation.342 The complexion of modern prostitution and its clientele replicates the plantation;343 the exploitation-based economics of the

338. Jones v. Alfred H. Mayer Co., , 439 (1968). 339. See, e.g., David S. Bimbi, Male Prostitution: Pathology, Paradigms and Progress in Research, 53 J. OF HOMOSEXUALITY 7 (2007). 340. See MICHAEL SHIVELY ET AL., A NATIONAL OVERVIEW OF PROSTITUTION AND SEX TRAFFICKING DEMAND REDUCTION EFFORTS, FINAL REPORT (June 2012); Prostitution Statistics, SEX-CRIMES.LAWS.COM, https://sex-crimes.laws.com/prostitution/prostitutionstatistics (last visited Sept. 28, 2023) (“Due to the underground nature of the illegal commercial sex industry, summing up the exact statistics on prostitution in the United States is difficult.”); Gus Lubin,There Are 42 Million Prostitutes In The World, And Here’s Where They Live, Business Insider (Jan 17, 2012) https://www.businessinsider.com/there-are42-million-prostitutes-in-the-world-and-heres-where-they-live-2012-1 (There are 40 to 42 million prostitutes in the world, . . . Three quarters of them are between the ages of 13 and 25, and 80% of them are female). 341. See Niklas Jakobsson & Andreas Kotsadam, The Law and Economics of International Sex Slavery: Prostitution Laws and Trafficking for Sexual Exploitation, 35 EUR. J.L. & ECON. 87, 88 (2013). 342. Cf. supra note 173 and accompanying text. 343. See rights4girls, Racial & Gender Disparities in The Sex Trade (found at: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://rights4girls.org/wp-content/ uploads/r4g/2016/08/Racial-Disparities-Fact-Sheet-11.2017.pdf); Elizabeth Nolan Brown, Reason, 15 Facts About the Underground Sex Economy in America (Mar. 14, 2014) (found at: https://reason.com/2014/03/14/economics-of-sex-work-in-americancities/) (“Of the respondents, 33 percent identified as black, 17 percent as white, 11 percent as Latino, and 8 percent as multiracial. More than three-quarters (78 percent) were cis-gender females, 19 percent transgender females, and 3 percent were male). See also, Sexual Violence Against Sex Workers, https://swp.urbanjustice.org/wpcontent/uploads/sites/14/2020/08/Fact-Sheet-Sexual-Violence-Against-Sex-Workers1-1-1.pdf (last visited Sept. 8, 2023) (“Sex workers of color, migrant sex workers, transgender sex workers experience even greater risk of sexual violence and assault.”)

plantation344 are perpetuated by the criminalization of sex work. Criminalization both disregards the principle of self-ownership and avoids the provision of protections for sex workers. Comparable to conditions on the plantation, nonregulation limits sex workers’ access to health care;345 places them at risk for the removal of their children;346 and, without police protection, subjects them to a greater risk of rape. Meanwhile, prosecution for offenses against sex workers seldom occurs,347 especially against the

344. See supra notes 187-95 and accompanying text. 345. Under the Affordable Care Act, 42 U.S.C. 18001 et seq., after the ruling in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), many Americans do not have health care insurance, including the undocumented, under-employeds, and unemployed. Benjamin D. Sommers, Health Insurance Coverage: What Comes After The ACA? An Examination of the Major Gaps in Health Insurance Coverage and Access to Care That Remain Ten Years After the Affordable Care Act, 39 HEALTH AFFAIRS 502 (2020); Sara Rosenbaum and Gail Wilensky, Closing the Medicaid Coverage Gap: Options for Reform: A Review of Options that Could Make Health Insurance More Affordable for 2.5 Million Poor Working Age Adults Who Live in States That Have Not Expanded Medicaid Under The Affordable Care Act, 39 HEALTH AFFAIRS 514 (2020). As long as sex work remains illegal, sex workers do not qualify for employment-based options under the ACA. However, sex-workers are still required to pay income tax. See, e.g., Brian Palmer, How Do Prostitutes Pay Their Taxes? With 1040 Schedule C, of Course, SLATE (Sept. 21, 2009), https://slate.com/news-andpolitics/2009/09/acorn-gave-tax-advice-to-a-fake-prostitute-how-would-a-real-onepay-her-taxes.html) (“[Sex workers] report their income on IRS Form 1040 Schedule C (PDF) and pay self-employment tax in addition to ordinary income taxes.”); Peter Szekely, Sex And Taxes: A Seattle Tax Preparer Is Intimate With Both, REUTERS.COM (Feb. 18, 2020), https://www.reuters.com/article/us-usa-tax-sexwork/sex-and-taxes-a-seattle-tax-prepareris-intimate-with-both-idUSKBN20C1CH). 346. See Timothy Ross, Ajay Khashu & Mark Wamsley, Hard data on hard times: An empirical analysis of maternal incarceration, foster care and visitation (Aug. 2004), https://repositories. lib.utexas.edu/bitstream/handle/2152/15169/HardData_HardTimes_Vera.pdf?sequence=2; Polly H.X. Ma, Zenobia C.Y. Chan & Alice Yuen Loke, Conflicting Identities Between Sex Workers and Motherhood: A Systematic Review, 59 WOMEN & HEALTH 53 (2019). Cf. infra notes 394-397 (discussing “baby-selling”). 347. See Quick Facts, PROSTITUTION RESEARCH & EDUCATION, https:// prostitutionresearch.com/quick-facts/ (“60% of women have been physically assaulted; 40% have suffered sexual violence; 40% were coerced into the commercial sex trade. Women involved in street prostitution are 60 to 100 times more likely to be murdered than are nonprostituted females.”); Sexual Violence Against Sex Workers, SEX WORKERS PROJECT, https://swp.urbanjustice.org/wp-content/uploads/sites/14/2020/08/Fact-Sheet-SexualViolence-Against-Sex-Workers-1-1-1.pdf (last visited Sept. 8, 2023) (“Because of the stigmatizing notion that “sex workers cannot be sexually assault,” sex workers are usually left out of the national conversation around #MeToo.”). Katherine Koster, 17 Facts About Sexual Violence and Sex Work, HUFFPOST, https://www.huffpost.com/entry/16-facts-about-sexual-ass_b_8711720 (“Sometimes sex workers are arrested when they report violence, including trafficking to the police.”). See also Brian Simpson, Murder, Prostitution and Patriarchy: Why Serial Killing is a Feminist Issue, 26 ALTERNATIVE LAW JOURNAL 278 (2001); Jane Caputi, The Sexual Politics of Murder, 3 GENDER & SOCIETY 473 (1989).

frequent demands for sexual “favors”348 from powerful men, including police and politicians.While “Johns” are infrequently detained, poor women, who are disproportionately Black and Brown,349 are arrested.

So long as sex work remains illegal, the bargaining power of the sex worker is significantly reduced.350 However, organizations, including corporate enterprises and black-market organizations, reap hefty profits from marketing sex workers.351 The corporate interests in pornography are strong enough for an industry-wide exemption from criminalization.352 Pornography is sexual acts and services for compensation; it is indistinguishable from the acts performed for prostitution. Because these acts are recorded, the pornography industry enjoys legal protection,353 and copyright “validation”354 for the artistic endeavor.355 In that the talent does not receive royalties, treatment of the sex worker remains consistent with prostitution.356 However, porn workers may receive police protection, and

348. See Prostitution in the United States, https://www.hg.org/legal-articles/prostitutionin-the-united-states-30997 (“In fact, in the U.S., prostitutes get busted more often than Johns or pimps by a huge margin. Every year in the U.S., between 70,000 and 80,000 people are arrested for prostitution, costing taxpayers approximately $200 million. The breakdown of arrests: 70% female prostitutes and madams, 20% male prostitutes and pimps, and just 10% Johns.”) See also Sexual Violence Against Sex Workers, SEX WORKERS PROJECT, https://swp.urbanjustice.org/wp-content/uploads/sites/14/2020/08/Fact-Sheet-SexualViolence-Against-Sex-Workers-1-1-1.pdf (last visited Sept. 8, 2023) (“According to a report submitted to the United Nations by three sex worker advocacy organizations in 2004, police violence against sex workers has a pattern that includes “assault, sexual harassment, public ‘gender searches’ (police strip searches for the purpose of viewing genitalia) and rape.”). 349. See Criminal Justice Information Services Division, U.S. Department of Justice, Federal Bureau of Investigation, Crime in the U.S. 2019, tbl. 43 (found at https:// ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-43). 350. Koppelman, supra note 27, at 495 (“Inasmuch as I am not permitted to sell myself, it may be argued that I am not fully the owner of myself.”). 351. This includes gangs, organized crime and corporate entities subsidizing trafficking. See Kathleen Barry, The Underground Economic System Of Pimping, 35 J. INT’L AFFAIRS 117, 121-23 (1981); Jakobsson & Kotsadam, supra note 341, at 88-90. 352. See SHIRA TARRANT, THE PORNOGRAPHY INDUSTRY: WHAT EVERYONE NEEDS TO KNOW. Oxford University Press, 28-48 (2016); A. McKee, Pornography as a creative industry: challenging the exceptionalist approach to pornography. 3 PORN STUDIES, 107 (2016). (found at: https://doi.org/10.1080/23268743.2015.1065202). See also Eko Susanto Tejo et al., Application of Corporate Crime Sanctions in Pornography Crimes (Study of the Porn Film Industry and Trade) 12 INT’L J. OF SCI RSCH. & MGMT. 508 (2024); FREDERICK LANE, OBSCENE PROFITS: ENTREPRENEURS OF PORNOGRAPHY IN THE CYBER AGE (2001). 353. Prostitution is not often problematized but instead is reproduced by political priorities. See generally, SHEILA JEFFREYS, THE IDEA OF PROSTITUTION (1997). ”) 354. Copyright Act of 1976, U.S. Code Title 17. 355. See Jenkins v. Georgia, 418 U.S. 153 (1974); Miller v. California, 413 U.S. 15 (1973). 356. Even on the legal side of the sex industry, compensation is still consistent with plantation hierarchy. Cf. Sophie Browner, There Are No Royalties in Porn: An Interview with

may access health care,357 and may avoid parental fitness presumptions.358 Further, the public health benefits from regulations requiring routine medical testing of porn workers.359

Sex and human traffickers may find a guide for success by following prior U.S. marriage laws codifying subservience.360 Obliquely stated, early marriage kept a wife financially dependent; restricted her physical location; enforced her submission through the specter of sexual, physical, psychological, and emotional abuse; and obliged her dependence on third parties to “voice” her concerns.361 Further, the economics of traditional marriage are often hailed for their efficient division of labor,362 but only may be so regarded because of their reliance on the uncompensated labor of the “home-maker” wife.363 Trafficking is also efficient in how it exploits

Cindy Gallop, CEO of Make Love Not Porn, LOS ANGELES REVIEW OF BOOKS (Nov. 15, 2016), https://lareviewofbooks.org/article/no-royalties-porn-interview-cindy-gallop-ceomake-love-not-porn/. 357. For example, the California Occupational Safety and Health Act requires safe working conditions. California Occupational Safety and Health Act, Cal. Lab. Code, §§ 6300–6332 (1973), http://caselaw.lp.findlaw.com/cacodes/lab/6300-6332.html) (last visited Oct. 7, 2023). 358. See Lentz, Susan A., and B. Grant Stitt, Women as Victims in “Victimless Crimes” The Case of Prostitution, 12 J. CONTEMPORARY CRIMINAL JUSTICE 173, 179 (1996). See also, Christine M. Sloss, and Gary W. Harper, When Street Sex Workers are Mothers, 33 ARCHIVES OF SEXUAL BEHAVIOR 329 (2004); Putu Duff, et al., Sex work and motherhood: Social and structural barriers to health and social services for pregnant and parenting street and off-street sex workers, 36 HEALTH CARE FOR WOMEN INTERNATIONAL 1039-1055 (2015). 359. Global HIV, Hepatitis and STIs Programmes: Sex workers, WORLD HEALTH ORGANIZATION, https://www.who.int/teams/global-hiv-hepatitis-and-stis-programmes/ populations/sex-workers (last visited Sept. 28, 2023). (“Sex workers face an increased burden of sexually transmitted infections (STIs) and blood-borne infections. Globally, female sex workers are estimated to be 30 times more likely to be living with HIV than other women of reproductive age.”) (“Modelling studies indicate that decriminalizing sex work could lead to a 46% reduction in new HIV infections in sex workers over 10 years, while eliminating sexual violence against sex workers could lead to a 20% reduction in new HIV infections.”). 360. See Jakobsson & Kotsadam, supra note 341, at 88 (“People are trafficked for the purpose of sexual or labour exploitation and it is estimated that 87 percent of trafficking is for sexual exploitation.”) (citing UNITED NATIONS OFFICE ON DRUGS AND CRIME (UNODC), Trafficking in persons: global patterns (Apr. 2005), https://www.unodc.org/pdf/ traffickinginpersons_report_2006ver2.pdf). 361. Cf. supra note 100. See also text accompanying notes 97-98. 362. See Shelly Lundberg and Robert A. Pollak, Efficiency in Marriage, 1 REVIEW OF ECONOMICS OF THE HOUSEHOLD 1153 (2003); Ann Laquer Estin, Economics and the Problem of Divorce, 2 U. CHI. L. SCH. ROUNDTABLE 517, 524-26 (1995). 363. See, e.g., Carol S. Bruch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers’ Services, 10 FAMILY LAW QUARTERLY 101, 109-14 (1976). These considerations do not include the emotional support, career assistance or liberal sexual access. If a homemaker wife’s contributions were calculated in accordance with market rates, they would far exceed the average income from the breadwinner husband. That the

the free labor of vulnerable persons.364 Smugglers offer trafficked labor at rates below market365 or offer workers and services in scarce supply.366

studies

that compare county approaches

Human trafficking, including sex slavery, is an international crisis of which the United States is a part.367 Niklas Jakobsson & Andreas Kotsadam compare economic to prostitution, whether criminalization, legalization, or a regulatory scheme, and their effect on reducing trafficking.368 They conclude that countries that criminalize prostitution have the fewest trafficking entry-points;369 the supporting studies do not, however, account for the civil rights accorded to sex workers in those same countries nor whether these countries serve as “staging points” for trafficking. Countries that regulate legal prostitution have a smaller reduction in trafficking but directly provide police protection for vulnerable sex workers, have a reduction in abuse of authority, and safeguard public health through the provision of health benefits.370 Effects on the reduction of victim abduction from origincountries is not addressed by the included studies, nor do these studies account for the relationship of a victim-supplier nation’s political regime

family benefits from the discounted services of the wife is the reason family economics may be deemed efficient. 364. See Jakobsson & Kotsadam, supra note 341, at 88 (“The profitability of trafficking to a given country hinges on the characteristics of that country’s market for commercial sex.”). 365. The “discount” includes avoidance from regulation and taxation. Cf. Gary S. Becker, Kevin M. Murphy & Michael Grossman, The Market for Illegal Goods: The Case of Drugs, 114 JOURNAL OF POLITICAL ECONOMY 38 (2006). 366. Supply issues are caused by legal barriers (e.g., immigration laws) and prohibited practices (e.g., prostitution) or created through buyer preferences (e.g., virginal White girls). 367. See, e.g., Stephanie Hepburn & Rita J. Simon, Hidden In Plain Sight: Human Trafficking In The United States, 27 GENDER ISSUES 1 (2010). 368. Jakobsson & Kotsadam supra note 341, at 101 (“The prostitution group in Stockholm argues in their evaluation that there were almost no foreign women seen in street prostitution in 2001 and the National Rapporteur for Trafficking in Women in Sweden writes in her reports from 2003 and 2004 that it is clear that the law has limited the amount of trafficking to Sweden.”) (citing Gunilla Ekberg, The Swedish Law That Prohibits the Purchase of Sexual Services [Lag om förbud mot köp av sexuella tjänster] 10 VIOLENCE AGAINST WOMEN 1187 (2004 . 369. Id. at 89 (“Danailova, Trainor and Belser (2006) study what determines trafficking flows. Using country level estimates of trafficking victim data they find that countries that are more open to globalization and countries with more prostitution are more likely to be destination places for trafficking victims.”). 370. Corita R. Grudzen & Peter R. Kerndt, The Adult Film Industry: Time to Regulate?, PUBLIC LIBRARY OF 2007, https://www.ncbi.nlm.nih.gov/ pmc/articles/PMC1892037/ (last visited Oct. 7, 2023); Centers for Disease Control and industry—Los Angeles, California, Prevention. HIV 2004, MMWR MORB MORTAL WKLY REP. 2005, 54:923–926 (last visited October 7, 2023); Health and Safety in the Adult Film Industry, STATE OF CAL. DEPT OF INDUSTRIAL RELATIONS, http://www.dir.ca.gov/DOSH/AdultFilmIndustry.html.

transmission

the adult

June

film

in

or its economic stability.371 Unique to the other approaches is Sweden’s, which permits the sale of sex but criminalizes its purchase.372 Using this approach, Sweden reports significant reduction in trafficking:373 between 1999 and 2004, “the number of women involved in street prostitution has decreased by at least 30% to 50%, and the recruitment of new women has come almost to a halt,” and out of nine million inhabitants, approximately 500 were actively engaged in street prostitution in 2004374 and stabilized between 200 and 250 individuals by 2014.375 The Swedish approach addresses both aspects of exploitation by confirming a sex-worker’s ownership of her/his body and simultaneously reducing the control held by Johns by altering the power balance in contracts for sex.

Amendment Thirteen, Section 2 of the United States Constitution is designed to reach private actors and their conduct.376 Indeed, sex slavery and trafficking most closely replicate pre-Reconstruction chattel slavery

371. See Katherine Koster, 17 Facts About Sexual Violence and Sex Work, HUFFPOST (Dec. 6, 2017), https://www.huffpost.com/entry/16-facts-about-sexual-ass_b_8711720 (“Rates of sexual and physical violence against sex workers are lower in contexts where sex work is not criminalized.”). 372. Gunilla Ekberg, The Swedish Law That Prohibits the Purchase of Sexual Services [Lag om förbud mot köp av sexuella tjänster] 10 VIOLENCE AGAINST WOMEN 1187 (2004). (“In Sweden, it is understood that any society that claims to defend principles of legal, political, economic, and social equality for women and girls must reject the idea that women and children, mostly girls, are commodities that can be bought, sold, and sexually exploited by men. To do otherwise is to allow that a separate class of female human beings, especially women and girls who are economically and racially marginalized, is excluded from these measures, as well as from the universal protection of human dignity enshrined in the body of international human rights instruments developed during the past 50 years.”) (citing Ministry of Social Affairs (2001). Socialtjänstlagen [Social welfare legislation] Stockholm). See also, Jakobsson & Kotsadam, supra note 341. 373. Jakobsson & Kotsadam supra note 341, at 99 (“According to the Swedish government, trafficking was reduced following this criminalization. [Some reports] argue that the Swedish law decreased the demand for buying sex and thereby made the Swedish market less lucrative for traffickers.”) (citations omitted). 374. Ekberg, supra note 372, at 1193. Ekberg goes on to compare favorably these number to greater numbers in proximately located Denmark with half the population of Sweeden. Id. 375. Jay Levy, CRIMINALISING THE PURCHASE OF SEX: LESSONS FROM SWEDEN 101 (1st ed. 2014). See also, May-Len Skilbrei, & Charlotta Holmström, Is there a Nordic prostitution regime? 40 CRIME AND JUSTICE 479 (2011) (discussing the success of Nordic countries following similar policies as Sweden’s). But see, Susanne Dodillet & Petra Östergren, The Swedish Sex Purchase Act: Claimed Success and Documented Effects, INTERNATIONAL WORKSHOP: DECRIMINALIZING PROSTITUTION AND BEYOND: PRACTICAL EXPERIENCES AND CHALLENGES, The Hague (Mar. 3-4 2011 (while noting that Sweden’s policy approach is unique (punishing purchasers but not sellers), points out that Sweden has been no more effective than the approaches of other nations attempting to reduce or eliminate prostitution). 376. See supra text accompanying notes 328-33, 376.

and should be addressed within its reach.377 Enforcing the right to own oneself with the same rigor applied to the right of others to own another378 would go a long way to ending modern forms of slavery. That the plantation serves as the model for street prostitution and traditional marriage serves as a template for successful trafficking, demonstrates the need to recognize the principle of self-ownership and to reject sexual subordination. Interested business organizations thrive on sexual exploitation, with the corporate interests in pornography also enjoying legal shelter. Eliminating sexual exploitation from the market resonates with the theories of Adam Smith, commencing with his writings The Theory of Moral Sentiments and supplemented by The Wealth of Nations.379 If each individual owns themselves, then Human capacity for compassion is just as important as self interest in the marketplace.380 More importantly, directly addressing market influences is the best way to achieve the humanist objectives of Smith and is most consistent with a Lockean democratic form.381

B. Forced Pregnancy—A Breeding Enterprise

Coerced pregnancy is a form of involuntary servitude382 that harkens back to slavery. During slavery, coerced pregnancy was a function of the breeding enterprise.383 Control over the reproduction of Black women384 is a characteristic function of slavery. This control fueled and supplied

377. See McAward, supra note 330, at 630 (“[A] badge and incident of slavery for Thirteenth Amendment purposes is public or widespread private action, based on race or previous condition of servitude, that mimics the law of slavery and has significant potential to lead to the de facto re-enslavement or legal subjugation of the targeted group”). 378. See, e.g., Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 379. See supra note 289. 380. See id. 381. See supra notes 281-88. 382. See Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 COLUM. L. REV. 1917, 1930, 1936, 1945 (2012) (“The Thirteenth Amendment, properly read, declares that one cannot do to human beings the precise things that were done to slaves under antebellum slavery. Those things include compulsory childbearing.”) (quoting Bailey v. Alabama, 219 U.S. 219, 241 (1911) (“[T]hat control by which the personal service of one man is disposed of or coerced for another’s benefit which is the essence of involuntary servitude.”); Hodges v. United States, 203 U.S. 1, 16 (1906) (“[A] condition of enforced compulsory service of one to another.” . 383. See supra notes 187–95 and accompanying text. 384. Id.; Koppelman, supra note 27, at 508 (“Unlike (unmarried) white women, they had no right even in theory to avoid pregnancy through abstinence; they were often raped with impunity, by their masters and others.”) (citing JOHN D’EMILIO & ESTELLE B.FREEDMAN, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA 100-04 (1988); EUGENE D. GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE SLAVES MADE 413-31 (1976 .

plantation labor and the products for the domestic slave trade.385 In endorsing the inclusion of abortion under the Thirteenth Amendment, Andrew Koppelman states that

The idea of self-ownership is inextricably linked with our society’s ideals of individual worth and dignity. To give control of even part of my body to someone else is to treat me as property, as a thing rather than a person.386

Slave women sometimes chose abortion as an act of resistance.387 They resisted “mandatory motherhood,”388 part of the breeding enterprise that determined the enslavement state of their future child.389

Unfortunately, the political economy of sexual access and reproductive control continues. The assertion of “interest” in the fetus by non-gestators, especially those made by the state, are tantamount to an assertion of ownership. Assuming women, including pregnant women,390 are full persons under the Constitution and therefore not owned by any person other than themselves,391 then no one, including the state, should make reproductive decisions on their behalf. Questions regarding how to understand the stages of reproduction within the complex and emotional relationship that a mother has with the being developing within, is for her to determine. When the state takes an “interest” in anything other than

385. See supra note 191 (discussing the Importation Clause). 386. See Koppelman, supra note 27, at 485. 387. See Bridgewater, supra note 191; DOROTHY ROBERTS, KILLING THE BLACK BODY 46-49 (1997) (describing various abortion techniques said to be practiced by slaves and noting that some slave women practiced infanticide to prevent their children from living as chattel); DEBORAH GRAY WHITE, AR’N’T I A WOMAN?: FEMALE SLAVES IN THE PLANTATION SOUTH 84-86 (1985) (“Some Southern whites were certain that slave women knew how to avoid pregnancy as well as how to deliberately abort a pregnancy . . . [An 1869 South Carolina court case revealed that a slave woman sold as ‘unsound’ and barren in 1857 had three children after emancipation].”). 388. See Koppelman, supra note 27, at 508 (“But mandatory motherhood and loss of control over one’s reproductive capacities were partially constitutive of slavery for most black women of childbearing age, whose principal utility to the slaveholding class lay in their ability to reproduce the labor force.”) (citing HERBERT G. GUTMAN, THE BLACK FAMILY IN SLAVERY AND FREEDOM, 1750-1925, at 75-80 (1976 . 389. Id. 390. Cf. Geduldig v. Aiello, 417 U. S. 484, 496, n. 20 (1974) (comparing “pregnant persons” to “nonpregnant persons”). 391. See supra Part IV.B

ensuring that medical procedures are performed by licensed professionals,392 it takes the place of the plantation in its breeding enterprise.393

C. Commodification of the Fetus

Healthy White infants are persistently in limited supply,394 leading to a robust industry for adoption and assisted reproduction. Competition for the available supply has obscured the distinctions between legal and illegal adoptions, with adoption often labelled as “baby-selling.”395 Before Reconstruction, baby markets meant the sale of slave-bred children. But today this has transformed into the pursuit of healthy White infants. It has evolved into a pursuit for “White-appearing” infants, encouraging international adoption396 and stimulating international surrogacy transactions.397 The geography and power imbalance inherent in these practices resemble former colonialist practices.398 In other words, market structures initiated to support colonialism continue through the “north-south” exploitation of a subjugated labor force (child-bearing women)399 for production of the valued commodities of White400 or “White-appearing” children.

Abortion bans may serve to increase the supply of healthy White infants available for adoption and may tacitly facilitate the economic interests of

392. See Lawrence O. Gostin, Jacobson v. Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, 95 AM. J. PUB. HEALTH 576, 576 (2005) (“Despite intervening scientific and legal advances, public health practitioners still struggle with Jacobson’s basic tension between individual liberty and the common good.”) (citing Jacobson v. Massachusetts, 197 US 11 (1905 . 393. See supra notes 187-95 and accompanying text; or on a different level, participants in the coerced production of heirs by married (White) women. See supra notes 227-28 and accompanying text. 394. See Kimberly D. Krawiec, Altruism and Intermediation in the Market for Babies, 66 WASH. & LEE L. REV. 203, 231 (2009). 395. See id. at 203. 396. See, e.g., LAURA BRIGGS, INTERNATIONAL ADOPTION: GLOBAL INEQUALITIES AND THE CIRCULATION OF CHILDREN (Diane Marre, ed., 1st ed.,2009); Richard H. Weil, International Adoptions: The Quiet Migration, 18 MIGRATION REV. 276 (1984). 397. See id. 398. See Twila L. Perry, Transracial and International Adoption: Mothers, Hierarchy, Race, and Feminist Legal Theory, 10 YALE J. L. & FEMINISM 101. 107, 131-38 (1998). 399. This structure replicates the reproductive enterprises of slave plantations (see supra text accompanying notes 187-96). There were women held and sold for their labor, see id. Women were valued to create progeny and perpetuate family wealth created through the labor of others (see supra text accompanying notes 179-186, 241). In modern manifestations, relevant economic values include preferred family composition and the related enjoyment. 400. See generally Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1993).

prospective parents.401 Efforts by abortion opponents to assign “personhood” status to the fetus therefore contribute to its commodification.402 Cynically, abortion bans also increase the future labor supply necessary to support corporate and individualized wealth403 comprised of impoverished children, who are disproportionately Brown and Black.404 Cynicism aside, to accompanying the identifiable dearth of health White infants,405 the infant and maternal mortality rates for Black and Brown mothers and children are disproportionally high.406

401. See supra notes 394-95 and accompanying text. 402. Cf. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404 (1857) (deciding that persons of African descent are not entitled to the legal status of “person”). 403. Juliana Menasce Horowitz, Ruth Igielnik & Rakesh Kochhar, Trends in Income and Wealth Inequality, Pew Res. Ctr. (Jan. 9, 2020), https://www.pewresearch.org/socialtrends/2020/01/09/trends-in-income-and-wealth-inequality/ (“The richest families in the U.S. have experienced greater gains in wealth than other families in recent decades, a trend that reinforces the growing concentration of financial resources at the top. . . . the wealth gap between America’s richest and poorer families more than doubled from 1989 to 2016. In 1989, the richest 5% of families had 114 times as much wealth as families in the second quintile, $2.3 million compared with $20,300. By 2016, this ratio had increased to 248…”); Vincent A. Fusaro &H. Luke Shaefer, How should We Define “Low-Wage” Work? An Analysis Using the Current Population Survey, Monthly Lab. Rev. (Oct. 2016), : https://www.bls.gov/opub/mlr/2016/article/how-should-we-define-low-wage-work. htm#top (“In particular, workers in the lowest wage bracket are more likely to work less than full time, are more likely to identify as members of a racial or ethnic minority group, are younger, are more likely to experience poverty and to use public support programs, and are less likely to be covered by health insurance.”)

See text accompanying notes 291-95 (identifying Smith’s moral theories). Here, Karl Marx’s theories of regarding the morality of capitalist societies may also be instructive. See Karl Marx et al. CAPITALA CRITIQUE OF POLITICAL ECONOMY (Paul North, ed., 2024). 404. See Em Shrider, Poverty Rate for the Black Population Fell Below Pre-Pandemic Levels, U.S. Census Bureau (Sep.12, 2023), https://www.census.gov/library/stories/2023/09/ black-poverty-rate.html (“ Black individuals made up 20.1% of the population in poverty in 2022 but only 13.5% of the total population . . . . the Black population was overrepresented in poverty. The Hispanic population was also overrepresented in poverty . . . The American Indian and Alaska Native population (ratio of 2.2) was the most overrepresented in poverty.”). See also, Angela Davis, Masked Racism: Reflections on the Prison Industrial Complex [article reprinted from COLORLINES], 4 INDIGENOUS L. BULL. 4 (2000). See also MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2012). 405. See Krawiec, supra note 394, at 256. 406. Centers for Disease Control and Prevention, Infant Mortality, https://www.cdc.gov/ reproductivehealth/maternalinfanthealth/infantmortality.htm#print (last visited May 29, 2023); Ashley M. Woodall, M.P.H., & Anne K. Driscoll, Ph.D., Centers for Disease Control and Prevention, Racial and Ethnic Differences in Mortality Rate of Infants Born to Teen Mothers: United States, 2017–2018 (NCHS Data Brief No. 371, July 2020) https://www. cdc.gov/nchs/products/databriefs/db371.htm#print (last visited May 29, 2023); Caleb J. Jang, and Henry C. Lee, A Review of Racial Disparities in Infant Mortality in the US (Waldemar A. Carlo, Editor), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8870826/ (last visited May 29, 2023).

D. Dobbs – Dred Scott Redux

Significant to the badges and incidents of slavery, the breeding enterprise mandated control over a slave’s sexual and reproductive activity. Therefore, reproductive freedom as part of a right to self-ownership is covered under Amendment Thirteen. Infringement on individual reproductive choice is consequently prohibited by Amendment Thirteen.407 So understood, the rights covered by Amendment Thirteen are complementary to the natural rights covered by the succeeding two Amendments.408

The Bill of Rights409 does not specifically address reproductive rights. Similarly, the Fourteenth Amendment was not devised with reproductive freedoms specifically contemplated,410 requiring the landmark decisions of Griswold v. Connecticut411 and Roe v. Wade412 to rely upon the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to find rights to contraception413 and to terminate early-staged pregnancy.414 After Griswold, Eisenstadt v. Baird415 clarified that the right to contraception

407. See supra Koppelman note 27; Part IV 408. Locke follows “natural rights” as his foundations, with a primary focus is on civil and political rights, a humanist reading of Marx suggests that “if humans, by nature, are creative laboring beings, and if meaningful productive work is required to realize their potential (in a way analogous to the need for an unfettered intellect and conscience), then a natural right to work clearly follows.” Jack Donnelly, Human Rights as Natural Rights, 4 HUM. RTS. Q. 391, 399 (1982). 409. U.S. Cont. Amendments I-X.

When the (White) founders held Black citizenship to be normatively repugnant, see supra note 120 and accompanying text, the same male authors of the Constitution did not consider the citizenship of women, see text accompanying notes 100, and 253-261. 410. See, e.g., Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 73 (1993) (explaining that John Bingham believed the Fourteenth Amendment was designed to apply the Bill of Rights to the states). 411. 381 U.S. 479, 484 (“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance”) (refencing the First, Third, Fourth, Fifth, and Ninth Amendments in the discussion of marital privacy). 412. ,153 (“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”). 413. Griswold v. Connecticut, 381 U. S., 479, 484 (1965). 414. Roe v. Wade, 410 U. S. 113, 152-53 (1973). 415. 405 U.S. 438 (1972) (extending right to contraception by married couples to include access by individuals).

belongs to the individual and after Roe, Planned Parenthood v. Danforth416 explained that other persons could not veto the personal right to terminate a pregnancy.417 Eisenstadt and Danforth, by recognizing the individual quality of rights, brought Constitutional interpretations closer to recognizing the full personhood status of women.418

Dobbs v. Jackson Women’s Health Organization419 replicates Dred Scott in significant ways, including the manner of denying personhood status by treating some people as property;420 engaging in the politics of the overriding then context subsequently finding no relevant right;422 and upsetting popular expectations by overruling existing compromise,423 permitting abdication of judicial responsibility through deference to state province.424

the misapplication of doctrinal principles421

through

Dobbs v. Jackson Women’s Health Organization425 overruled Roe v. Wade and in the process indefinitely forestalled the interpretive trajectory for the recognition of women as “persons.”426 In fact, the Dobbs decision relies, in part, on Geduldig v. Aiello, a case widely criticized for delineating “nonpregnant persons.”427 Like Geduldig, Dobbs declines to find that

416. 428 U.S. 52, 69 (1976) (“the State cannot ‘delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising’”). 417. 428 U.S. 52, 71. 418. Cf. text accompanying notes 89-98. 419. No. 19-1392, 597 U.S. ___ (2022). 420. Compare supra text accompanying notes 114-20, with infra, text accompanying notes 427-32. 421. Compare supra notes 114-20, with infra, text accompanying notes 427-29. 422. Compare supra text accompanying notes 114-20, with infra, text accompanying notes 427-32. 423. Compare supra text accompanying notes 113-14, with infra, text accompanying notes 448-50. 424. Compare supra text accompanying note 136, with infra, text accompanying note 457. 425. No. 19-1392, 597 U.S. ___ (2022) (overruling Roe v. Wade, (1973 . 426. See supra text accompanying notes 97-98. See also supra text accompanying notes 277-80 and text accompanying notes 285-88. 427. Dobbs No. 19-1392, 597 U.S. ___ (2022) at *11 (citing Geduldig v. Aiello, 417 U. S. 484, 496, n. 20 (1974) to support their view that while abortion is a procedure “only one sex can undergo [it] does not trigger heightened constitutional scrutiny.”).

In a commentary on Geduldig, Maya Manian points out that: “Geduldig’s notoriously obtuse declaration that pregnancy exclusions differentiate not between women and men but between ‘pregnant women and nonpregnant persons’” led Congress to overturn the decision in the Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, §1, 92 Stat. 2076 (1978) (codified at 42 U.S.C. §2000e). See Maya Manian, Commentary on Geduldig v. Aiello, FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT (LINDA BERGER, BRIDGET CRAWFORD, KATHY STANCHI eds., 2016). See also, Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 983, 1037 (1984) (describing pervasive criticism of Geduldig); Victoria Nourse, Ladies: You Really Do Not Have the Constitutional Rights You Think You Have, 43 COLUMBIA JOURNAL OF GENDER AND LAW

pregnancy triggers gender scrutiny. Such an approach to the reproductive process serves to obscure the nature of biology attributable only to women and reduces women to single-function vessels designated for breeding, which is consistent with the treatment of women on the plantation.428 By de-gendering pregnancy,429 the court diminishes species-sustaining function to insignificance in its accomplishment.430 Once human specificity is removed, denial of the existence of any related rights431 is all but a foregone conclusion as the Court avoids protection for those rights.432 The move to de-gender reproduction is consistent with how Dred Scott defined personhood and citizenship through exclusion.433 In Dobbs, de-gendering pregnancy denies individual control over reproduction, casts doubt on women’s personhood status,434 and regresses protection for individual rights.435

In overruling Roe, Dobbs denies women self-ownership and control of their own reproductive capacities. By denying the gendered characteristics of abortion legislation, Dobbs reinforces the “second class” status of

26, 31-33 (2022); Neil S. Siegel and Reva B. Siegel, Struck By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, 59 DUKE LAW JOURNAL 771 (2010); Ruth Bader Ginsburg & Susan Deller Ross, Pregnancy and Discrimination, N.Y. TIMES, Jan. 25, 1977, at A33 (“The Supreme Court decision was a stunning rejection of the position that had been taken by the Federal Equal Employment Opportunity Commission and six Federal courts of appeals. These authorities had identified discrimination against the pregnant worker at the essence of sex discrimination.”); Deborah L. Markowitz, In Pursuit of Equality: One Woman’s Work to Change the Law, 11 WOMEN’S RTS. L. REP. 73 (1989). 428. See supra Part III.A & Part V.A. 429. Read in the most positive light, Dobbs’ rejection of the gendered nature of pregnancy foretells technological advance to enable men to gestate; or perhaps this Court is affirming the reproductive capacities and rights of transgender individuals. See, e.g., Timothy F. Murphy, Assisted Gestation and Transgender Women, 29 BIOETHICS 389 (2015) (discussing uterine transplant); Alexis D. Light, et al., Transgender Men Who Experienced Pregnancy After FemaleTo-Male Gender Transitioning, 124 OBSTETRICS & GYNECOLOGY 1120 (2014). See also, Katie Eyer, Transgender Equality and Geduldig 2.0, 55 ARIZ. ST. L.J. 475 (2023). 430. See, e.g., Katharine T. Bartlett, Pregnancy And The Constitution: The Uniqueness Trap, 62 CAL. L. REV. 1532 (1974) (“pregnancy’s unique identifiability facilitates drafting laws and regulations based on exactly those generalizations, stereotypes, and assumptions that constitutional doctrine in the area of sex discrimination was intended to curb.”). 431. 597 U. S. ____ at * 69. See also supra note 119 (Dred Scott denies personhood before finding no rights). 432. 597 U. S. ____ at * 69 (“[T]he authority to regulate abortion must be returned to the people and their elected representatives.”). See also supra note 137. 433. See supra notes 114-20. 434. See supra text accompanying notes 121-22. 435. See 597 U.S. ___ (2022) (Breyer, J., dissenting) *23-24 (“And equal citizenship, Casey realized, was inescapably connected to reproductive rights. “The ability of women to participate equally” in the “life of the Nation”—in all its economic, social, political, and legal aspects—“has been facilitated by their ability to control their reproductive lives.”).

women.436 The stance in Dobbs is resonant with Dred Scott in its deliberate non-recognition of personhood status and in its choice to deny protection of rights for all individuals. While Dred Scott’s analysis focusses on an interest in “property,”437 the Dobbs analysis focuses instead on “liberty”438 as it rejects an interest in reproductive freedom.439 This variation is purely formalistic:440 a liberty interest cannot be found when the objects441 are not free.442

Dobbs criticizes Roe for a decision in advance of popular acceptance;443 however, by abruptly changing the landscape created by Roe in the prior fifty years, it makes the same miscalculation.444 Reminiscent of Dred Scott’s

436. See supra text accompanying notes 210-24. See also 597 U.S. ___ * 14 (Breyer, J., dissenting) (“‘People’ did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.). 437. See supra notes 36-40. 438. No. 19-1392, 597 U.S. ___* 38. 439. Without specific reference, the court has found the Constitution protects personal liberty including marriage, Zablocki v. Redhail, 434 U.S. 374 (1977); child-rearing, Pierce v. Society of Sisters, 269 U.S. 510,(1925); Wisconsin v. Jonas Yoder, 406 U.S. 205(1972); and prohibits state forced sterilizations, Skinner v. State of Oklahoma, ex rel. Williamson, 316 U.S. 535 (1942). 440. Ironically, “substantive due process is often wielded to “disastrous ends.” Gamble, 587 U. S., slip op. at 16 (Thomas, J., concurring). For instance, in Dred Scott, 60 U.S. (19 How.) 393 (1857), the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories. See id. at 452. Dobbs (Thomas, J., concurring). 441. When people are treated like property, they are treated as objects, rather than autonomous individuals. 442. Harriet Robinson was freed, but her status as “property” ensured she could not exercise the rights of citizenship. See supra text accompanying note 106. 443. No. 19-1392, 597 U.S. ___* 3 (citing R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. REV. 1185, 1208 (1992 . 444. One year after the Dobbs decision, legal abortions increased. This is despite bans by fourteen states and new restrictions in an additional seven. See Claire Cain Miller and Margot Sanger-Katz, Despite State Bans, Legal Abortions Didn’t Fall Nationwide in Year After Dobbs, NEW YORK TIMES (Oct. 24, 2023), https://www.nytimes.com/2023/10/24/upshot/ abortion-numbers-dobbs.html. Other states, including Vermont, California, Michigan, and Minnesota have instituted abortion protections or have rejected constitutional amendments prohibiting abortion, like in Kentucky. See, Jasmine Cui, Chloe Atkins and Sarah Kaufman, One Year Without Roe: Data Shows How Abortion Access Has Changed In America, NBC NEWS (June 22, 2023), https://www.nbcnews.com/data-graphics/dobbs-abortion-access-data-roe-vwade-overturned-rcna88947. Bans in the wake of Dobbs create new questions regarding the right to travel in the U.S., see Naomi Cahn, June Carbone, and Nancy Levit, Is it Legal to Travel for Abortion After Dobbs?, BLOOMBERG LAW (July 11, 2022) (https://news.bloomberglaw. com/us-law-week/is-it-legal-to-travel-for-abortion-after-dobbs); Paige Minemyer, More Employers To Add Travel Benefits For Abortion In Wake Of Dobbs Decision: Survey, FIERCE HEALTHCARE (Aug. 12, 2022), https://www.fiercehealthcare.com/payers/more-employers-

overrule of the 1820 Compromise, the Dobbs Court does not account for the breadth of political disagreement in the relative context and is onesided in its view of a contentious political matter, choosing to be deliberately pro-slavery.445 Also politically one-sided, the Dobbs ruling is unmistakably “pro-life.”446 This stance does not account for intendant medical complexities, multiple religious or philosophical perspectives, and divergent populist viewpoints.447 When Dobbs overrules Roe, a case in which the Court strikes a balance between competing interests,448 Dobbs dismisses the compromise represented by Roe. In doing so, Dobbs not only ignores differences in personal circumstance,449 it also does not acknowledge for reproductive decisions.450

the medical complexities relevant

add-travel-benefits-abortion-wake-dobbs-decision-survey; or compliance with human rights, see Human Rights Watch, Briefing Paper —Human Rights Crisis: Abortion in the United States After Dobbs, (Apr. 18, 2023), https://www.hrw.org/news/2023/04/18/humanrights-crisis-abortion-united-states-after-dobbs. One might say that state responses were exactly what the Dobbs court intended, but it also created unpredictability and a lack of national uniformity in the treatment of rights between states, and further endangers other settled individual rights relying on the same theory relied upon by Roe, see Minow, supra note 83. 445. See, e.g., Timothy S. Huebner, The Unjust Judge: Roger B. Taney, the Slave Power, and the Meaning of Emancipation, 2015 J. SUP. CT. HIST. 249, 250-53 (2015). 446. The Dobbs decision does not recognize the unpredictability of the gestational process and does not recognize instances of medical necessity. See supra text accompanying notes 414-18. See generally Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). 447. See Dobbs, 142 S. Ct. at 2317 (Breyer, Sotomayor, & Kagan, JJ., dissenting) (“Roe and Casey well understood the difficulty and divisiveness of the abortion issue. The Court knew that Americans hold profoundly different views about the “moral[ity]” of “terminating a pregnancy, even in its earliest stage.”) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U. S. 833, 850. (1992 . 448. Roe v. Wade, , 164-66 (1973). 449. The choice confronting mothers in poverty regarding how to raise a child in a violent, white-supremacist, patriarchal world is not unlike the choices slave mothers confronted. See supra note 194 and accompanying text. See also Dobbs, 142 S. Ct. at 2318 (Breyer, Sotomayor, & Kagan, JJ., dissenting) (“[T)he woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s— no matter if doing so will destroy her life.”). 450. The Court has no independent medical knowledge and should not make blanket rulings affecting patient care and decisions regarding how to handle preeclampsia. See, e.g., Gérard Chaouat, et al., Early Regulators in Abortion and Implications for a Preeclampsia Model, 82 J. REPRODUCTIVE IMMUNOLOGY 131 (2009), multiple birth, Radhika Rao, Selective Reduction: “A Soft Cover for Hard Choices” or Another Name for Abortion?, 43 J. L., MED. & ETHICS 196, 201 (2015); nonsurvivable birth defects, see, e.g., Maciej Słodki and Maria Respondek-Liberska, New Classifications Of Prenatally Diagnosed Congenital Heart Defects And Their Influence On Neonatal Survivability, 2015 PRENATAL CARDIOLOGY 6, 8 (2015); cancer, David Pereg et al., Cancer In Pregnancy: Gaps, Challenges and Solutions, 34 CANCER TREATMENT REVIEWS 302, 302, 309 (2008); advanced age, Rosaly Correa-de-Araujo and Sung Sug Yoon, Clinical Outcomes in High-Risk Pregnancies Due to Advanced Maternal Age, 30 J. WOMEN’S HEALTH 160, 162 (2021). See also Dobbs, 142 S. Ct. at 2328 (Breyer, Sotomayor, & Kagan, JJ., dissenting) (“an American

Dobbs uses the same judicial strategy for managing socially divisive issues as was used in Dred Scott:451 it determines that abortion is a matter for the states to regulate as they choose.452 The Dobbs Court announces that it is doing its job453 but disregards the judiciary’s role in the protection of individual rights from majoritarian oppression.454 And while the judicial branch is politically independent,455 the Dobbs Court repeatedly references the democratic process to justify its decision.456 In the most patronizing fashion, the Dobbs Court points to the ability of women to vote as meliorative of its deference to state legislation on abortion.457 This suggestion is patronizing because it assumes that female citizens do not comprehend the nuances of political representation and engage in singleissue voting when selecting representation.458 Or perhaps the Court is making an oblique reference to the right to vote gained under the Nineteenth Amendment as adequate protection for any other rights asserted by women.459 the Nineteenth Unfortunately, Amendment460 did not equalize the participation of women in governance, it also did not erase the long history of women’s inequality and subordination.

just as

woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion”) (citing Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016 . 451. See supra text accompanying notes 137-43. 452. Dobbs, 142 S. Ct. at 2246 (“[L]aws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures.”). 453. See Dobbs, 142 S. Ct. at 2279 (“We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.”). 454. “[The Supreme Court] is not a democratic institution, either in makeup or function…its primary function…is to protect the individual against the Leviathan of government and to protect minorities against oppression by majorities.” Philip B. Kurland, Toward a Political Supreme Court, 37 U. CHI. L. REV. 19, 44-45 (1969). See also ALEXANDER BICKEL, Establishment and General Justification of Judicial Review, in THE LEAST DANGEROUS BRANCH 1, 16 (1962); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4 (1938). 455. See BICKEL, supra note 454, at 4. 456. Dobbs, 142 S. Ct. at 2277. 457. Id. (“women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.”) The Court’s patronizing tone is especially notable in juxtaposition to its discussion that neither pregnancy nor abortion are gendered issues. See supra text accompanying notes 425-28. 458. See Edward G. Carmines and James A. Stimson, The Two Faces of Issue Voting, 74 AM. POL. SCI. REV. 78 (1980). 459. Nowhere does the Dobbs Court mention the Nineteenth Amendment. See (2022). 460. U.S. CONST. Amend. XIX. See Dobbs, 597 U.S. at 372–73.

VI. CONCLUSION – A NEED FOR THIRTEEN

Harriet Robinson’s story continues to be important. Harriet’s gender and her marital status comprised the vehicle used to return her to enslavement. The status by which she was permitted citizenship and was the same means by which it was revoked,461 her personhood status was twice erased.462 Her resulting treatment is consistent with the overall denial of slave marriage in furtherance of plantation-based exploitations, including sexual servitude. Her story provides the opportunity to examine plantation practices and the ways in which they continue. This article may then focus on two comparisons from plantation enterprises: reproductive control and sexual exploitation.

A sobering reality is that state control over reproductive rights and freedoms is consistent with old plantation breeding practices. Complete prohibitions on abortion and other reproductive procedures displace individuals’ control over their own bodies. Similarly, resemblances between plantation sexual exploitation and modern prostitution are troubling, as are analogies between the legal structures for traditional marriage and modern sex trafficking.463

Yet in keeping with old plantation practices, modern prostitution law in the United States punishes the sex worker for income-earning activity while permitting the conduct of Johns and the organizations that profit.464 With the subordinating effects and economic incentives arising from criminalized prostitution, the United States contributes to the international problem of human and sex trafficking.

Furthermore, and in significant ways, the Dobb's decision channels that of Dredd Scott. Whereas Dred Scott uses a sophistical reading of Due Process Clause and marital coverture to exclude some people from personhood and thus citizenship, the Dobbs decision considers gender to be irrelevant to reproduction and obscures the particulars of this life-sustaining function thereby regressing the personhood and citizenship status of women.465 Second, Dred Scott is notably pro-slavery; Dobbs is unmistakably pro-life.466 In it had overturning a forty-year-old compromise,467 the Dred Scott decision precipitated the Civil War;468 in overruling Roe v. Wade, Dobbs upset

461. See supra text accompanying notes 92, and 97-99. 462. See supra text accompanying notes 105. 463. U.S. CONST. Amend. XIII. 464. See supra text accompanying notes 349 and 351. 465. See supra note 442. 466. See supra note 446. 467. See supra, text accompanying notes 111-13. 468. See Balkin & Levinson, supra note 34, at 54. (2007).

popular expectations and has precipitated discord between the states.469 After defining the plaintiffs as property (without rights), Dred Scott found no jurisdiction and could defer the matter of citizenship to the states;470 after obscuring the personhood status of women, Dobbs found no relevant individual right and then could defer to state choices.471

Amendment Thirteen embodies the fundamental principle that a person owns herself. The Thirteenth is the appropriate Amendment to prevent sexual so exploitation in that it reaches individual conduct,472 so it is best suited to protect reproductive rights and freedoms.473 This recognition ought also to prompt the Court’s reimagining of how to understand and protect reproductive freedoms. It should also remind Congress that it holds authority under Section 2 of the Thirteenth Amendment to legislate for protection of reproductive freedoms and to end sexual exploitation.474 If legislatures and courts apply a Thirteenth Amendment principle of self-ownership, they could progress towards ending human and sexual trafficking more effectively.475

Results in Dred Scott inspired the Thirteenth Amendment and the other Reconstruction Amendments.476 The Thirteenth Amendment imagines a nation free from slavery and involuntary servitude; however, its work is incomplete. And while it did not discuss Amendment Thirteen in its ruling, perhaps Dobbs will continue to emulate Dred Scott and inspire a reinvigoration of Thirteenth Amendment prohibitions and protections.

469. No. 19-1392, 597 U.S. ___ (2022) (overruling Roe v. Wade, (1973 . Cf note 113 and accompanying text. 470. See supra text accompanying note 134. 471. See supra Part II. B. 472. Compare supra Part III. A. with supra Part V A. 473. See supra Parts III. A. and V. A. See also, Koppelman, supra note 27; Tsesis, supra note 26; Bridgewater, supra note 187. 474. See, e.g., supra, Parts VA and B. 475. See supra text accompanying note 373. 476. See REBECCA E. ZIETLOW, ENFORCING EQUALITY: CONGRESS, THE CONSTITUTION, AND THE PROTECTION OF INDIVIDUAL RIGHTS 29-36 (2006); WALTER EHRLICH, THEY HAVE NO RIGHTS: DRED SCOTT’S STRUGGLE FOR FREEDOM 179–80 (1979).

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1. FRANCIS J. GRIMKÉ, THE BIRTH OF A NATION (1915) reprinted in FRANCIS J. GRIMKÉ

AND DANIEL MURRAY COLLECTION.

SCIENCE,