Abstract

In recent years, the Supreme Court has placed restrictions upon congressional power to enact laws protecting rights of belonging, those rights that promote an inclusive vision of who belongs to the national community of the United States and that facilitate equal membership in that community. The Rehnquist Court restricted congressional power to enforce the two primary sources of those rights, the Commerce Clause Section Five of the Fourteenth Amendment. However, the oft-overlooked Section Two of the Thirteenth Amendment, which empowers Congress to enact appropriate measures to enforce the abolition of slavery accomplished by Section One of that Amendment, has considerable potential to resolve this dilemma. The Reconstruction Congress intended the enforcement power granted by Section Two to be a broad source of individual rights, and the Court generally has been deferential to that power.The broad vision of freedom held by the Framers of the Thirteenth Amendment encompasses both economic rights and the right to racial equality. This chapter considers legislation that Congress has enacted pursuant to its Section Two power, and examines Court rulings evaluating that legislation. While Congress has rarely exploited its Section two power, important civil rights statutes such as the 1866 Civil Rights Act, several Anti-peonage Acts, portions of the 1968 Fair Housing Act, and the 2000 Trafficking Victims Protection Act of 2000, are based in that power. The chapter concludes that Section Two of the Thirteenth Amendment holds great promise for a Congress seeking to define and protect our rights of belonging in the future.