Thursday, August 4, 2016

Green on the 13th Amendment's Crime Exception

Christopher R. Green, University of Mississippi School of Law, has posted Duly Convicted: The Thirteenth Amendment as Procedural Due Process, which is forthcoming in Georgetown Journal of Law & Public Policy:
Charles Sumner (LC)
This paper argues for four implications of the Thirteenth Amendment’s crime exception — “except as a punishment for crime, whereof the party shall have been duly convicted” — for assessing the influence of abolitionists’ radical understandings of the Fifth Amendment on the meaning originally expressed by the text of the Fourteenth Amendment’s Due Process Clause.

First, Charles Sumner presented radical-abolitionist substantive due process to the Senate in his condemnation of the crime exception in 1864, but his views were quite clearly rejected in favor of a Northwest-Ordinance-style prohibition. Second, “duly convicted” was seen as equivalent to “by due process of law,” but was taken not to require even that sentences be proportional. Third, mainstream-Republican fans of the Northwest Ordinance held that both slavery and fugitive re-enslavement could be simultaneously wrongful but “lawful.” Fourth, because “duly convicted” banned retroactive impositions of slavery, “due process of law” likewise requires prospectivity more generally in deprivations of life, liberty, or property. A procedurally- and rule-of-law-focused reading of the Due Process Clause thus receives support not just from the meaning of “process,” but from forms of “due” and “law” as well.