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Child Abuse As Slavery: A Thirteenth Amendment Response to DeShaney

By Akhil Reed Amar

Abstract

The Thirteenth Amendment of the Constitution is a \u22grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government.\u22 In a single stroke, the Amendment outlawed the \u22peculiar institution\u22 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 \u22peculiar\u22 time and place. Its framers\u27 disgust with \u22the peculiar institution\u22 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\u27s 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 \u22private\u22 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\u27s financial profit, and (5) the child\u27s enslavement is de facto, and not de jure. One such slave child was Joshua DeShaney

Topics: Law
Publisher: Yale Law School Legal Scholarship Repository
Year: 1992
OAI identifier: oai:digitalcommons.law.yale.edu:fss_papers-2007
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