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Article

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"Child Abuse As Slavery: A Thirteenth Amendment Response to DeShaney," 105 Harv. L. Rev. 1359 (with Daniel Widawsky) (1992)

Abstract

The Thirteenth Amendment of the Constitution is a "grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government." In a single stroke, the Amendment outlawed the "peculiar institution" of southern chattel slavery - auction blocks, overseers, iron chains, and all. Yet the Amendment is more than a mere nineteenth-century relic, written only to reform a "peculiar" time and place. 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. Emancipation did not discriminate by age; the Amendment freed minors as well as adults. Nor did the Amendment discriminate on the basis of familial status; many slaves in 1865 were mulattoes fathered by white slavemasters, yet they were also plainly protected. The Amendment embraced not only those slaves with some African ancestry, but all persons, whatever their race or national origin. Its sweeping words and vision prohibited not only forced labor for the master's economic enrichment, but all forms of chattel slavery - whether the ultimate motive for such domination, degradation, and dehumanization was greed (as in the cotton market) or sadism (as at the end of a lash). Finally, the Amendment compelled abolition of even "private" enslavement perpetuated not by the force of law, but by the violence of master over slave. The de facto condition of slavery, the Amendment commanded, shall not exist in America.

Therefore, as we shall show in greater detail below, the Thirteenth Amendment in both letter and spirit extends its affirmative protection to a slave even if: (1) the slave is a child, (2) the slave child is the offspring of the master, (3) the slave child has no African roots, (4) the slave child is not used to maximize the master's financial profit, and (5) the child's enslavement is de facto, and not de jure. One such slave child was Joshua DeShaney.

Date of Authorship for this Version

1992

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