From Racial Discrimination to Separate But Equal: The Common Law Impact of the Thirteenth Amendment
This is a revision of the 'ticket' submitted for the 2011 Maryland Constitutional Law Schmooze.
Many forces produced the shift in the United States from the acceptance of slavery and racial inequality to the doctrine of separate but equal. The 13th Amendment abolished slavery and authorized legislation to enforce that abolition, but these well-known direct effects are only part of the story. This paper examines the Amendment’s indirect impact on racial discrimination – furthering a standard of equality in public relationships without threatening the existing racial separation. The Amendment is evidence of a change in values that justified overturning prior decisions, and abolition created a new context for legislation and common law decisions. It reinforced the belief that African-Americans were entitled to fundamental rights including citizenship. The recognition of equal rights led courts and legislators to require equality on common carriers, but courts distinguished between civil rights and social relationships, and allowed carriers to segregate a s long as the facilities were physically equal. The Court subsequently incorporated the doctrine of separate but equal from common carrier law into a constitutional standard.
38 Ohio Northern University Law Review 117 (2011).