TEACHING AN OLD DOG NEW TRICKS: A THIRTEENTH AMENDMENT FRAMEWORK FOR CHALLENGING RACIAL DISCRIMINATION IN POLICING

By Steven Demarest^*

Introduction

Dissenting vigorously in the Civil Rights Cases¹ in 1883, Justice Harlan declared, "The Thirteenth Amendment did something more than to prohibit slavery as an institution, resting upon distinctions of race, and upheld by positive law. . . . [I]t established and decreed universal civil freedom throughout the United States."²

Reading Justice Harlan’s words, one would hardly expect that they refer to an amendment rarely at the forefront of civil rights litigation. The Thirteenth Amendment has long taken a backseat to its younger Reconstruction siblings as a tool for advancement in this field. This need not be so. The Thirteenth Amendment can reemerge on the legal stage as an important tool for social justice in general and for tackling one serious social ill in particular: racially discriminatory policing.