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"Remember the Thirteenth," 10 Const. Comm. 403 (1993)


My idea in this essay is simple, but I hope significant. It can be summed up in three words: Remember the Thirteenth. (By which I mean, of course, the Thirteenth Amendment to the United States Constitution.) My proposition is that however true generally the notion that the Constitution applies only to action of the state-the government-the Thirteenth Amendment is an important counterexample, and its significance is underappreciated in a wide range of contexts where issues of state action and private power have been problematic. I will discuss three applications today: first, the DeShaney case involving child abuse; second, the racial hate speech and cross-burning at issue in last term's R.A. V v. City of St. Paul; and third, the notion of minimal entitlements-what I like to call 40 acres and a mule.

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