I have just posted a new article on SSRN, Duly Convicted: The Thirteenth Amendment as Procedural Due Process, which was part of Randy Barnett's excellent Chase symposium last fall for the 150th anniversary of the Thirteenth Amendment and will be forthcoming in the Georgetown Journal of Law and Public Policy. Here is the abstract:
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.
Please let me know what you think!
Posted at 1:26 PM