Monday, April 1, 2013

Meta-EE and the Constitution Part 10: Thirteenth and Fourteenth Amendments

I won't waste too much time with the meta-EE of the Thirteenth Amendment. It should be obvious to even the most casual observer*. I will say that to the extent that the "right" to enslave undergirded the US Civil War, fighting pitched battles over the issue seems a savage solution to what probably should have been an organized buyout of slaveowning elites. But history's pen fell as it did, there's no sense to scolding the dead.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
The economics of work farms and chain gangs are fascinating. There's a bunch of bureaucratic disconnect between law enforcement, corrections, the bench, and the legislature. It seems there's a great public choice question in there about the relationship between public finance and the use of prisoner labor. The 13th Amendment as a treatment effect could be used to inform a discontinuity regression somehow. It's not exactly in my wheelhouse, but it sounds like there could be a really cool paper in there.

Anyway, so far so good. Slavery is clearly non-euvoluntary, so huzzah for the Senate for that simple recognition, even if it took 80 years to get there.

Amendment the 14th is a bit blabbier, and it rigorously established jus soli in the US (compared to the more common jus sanguinis). The quick-n-dirty difference is that under jus soli, if you're born on US soil (including embassies and whatnot), you're an American citizen. Under jus sanguinis, if your parents are Cambodian (eg.), so are you, no matter where you happen to be delivered. Here's the text of the amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
So far, so good. Following on the heels of the previous amendment, there were a bunch of folks who were, until a few years prior, counted as 3/5ths of a person, and who were afforded all the legal protection as might have been given an ox. Note especially the final clause of this section, "nor deny to any person within its jurisdiction the equal protection of the laws." Under what reasonable theory of jurisprudence could any Jim Crow law have possibly stood after the ratification of this amendment? "Separate but Equal" in the presence of the 14th should cast at least a little bit of doubt on the ability of a Constitution to properly constrain the marginal propensity for vicissitude of the median voter. It takes heroic levels of political and judicial kayfabe to deny the gulf between de jure and de facto legal equality. The same might be said of any ongoing tussles for equality in legal recognition.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Sure, equal protection, unless you happen to be female, or live on a reservation. Charming. I've got no prior objection to age restrictions, because that at least comports well with a reasonable doctrine of legal fairness, where all constituents are treated the same until they themselves abdicate such rights.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
What counts as an insurrection, I wonder? I'm sure there's legal precedence for defining the terms "insurrection" and "rebellion", but I'm also sure that McCarthy's Red Scare witchhunts showed that such definitions are at least partly open to some creative legislative interpretation. Do ol' Joe's antics pour a little icewater down the backs of folks who might be a wee bit critical of DC skullduggery?
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
If you ask me, this is the exact opposite of the right way to end slavery. A (directionally) euvoluntary method would be tax-funded, peaceful, universal manumission. Paying in cash, even if that cash is expropriated, strikes me as unquestionably better in a normative sense, and more efficient in a positive sense than by doling out wages of blood. This is doubly true when that blood is conscripted. Refusing to compensate former owners (even if the claim on human chattel is immoral in all ways) also fails to acknowlegde that the institution of slavery was fully capitalized. Imagine the ire you'd draw if you rode into NYC and just up and stripped cab drivers of their medallions, declaring that there would be an immediate free market in livery services. You'd have a rather large contingent of upset (voting) cabbies on your hands. They might even set to making life miserable for the medallions you just freed in any way they could.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Does the 14th Amendment have anything useful to offer euvoluntaryists? I think it does. Equal protection under the law is a great way to broaden the scope of exchange. If we're all equal in the enshrouded eyes of  Themis and Dike, then ex ante we've got more opportunities to find ways to serve one another. I like the sound of that. I also think it's a good idea that it's up to us as responsible euvoluntaryists to keep government on a short leash, as politicians have a curious habit of gnawing the blindfold that keeps law and trade anonymous and impersonal.

Three cheers for the 13th, two and a half for the 14th.

*his name is Cliff and he has a horseshoe pit in his backyard

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Do you have suggestions on where we could find more examples of this phenomenon?