Opinion

Harvard Law Prof Basically Just Called Trump a Slaveowner

US President Donald Trump gives a thumbs up as he leaves the Elysee Palace in Paris on November 10, 2018 following bilateral talks with the French President on the sidelines of commemorations marking the 100th anniversary of the 11 November 1918 armistice, ending World War I. (Photo by ludovic MARIN / AFP) (Photo credit should read LUDOVIC MARIN/AFP/Getty Images)

Ho boy. People are talking about the 13th Amendment again, and this time, it’s not Kanye.

Harvard Law professor Laurence Tribe just tweeted out his take on the government shutdown:

Interesting take, I’ll give the professor that. The 13th Amendment, ratified in 1865, abolished the practice of slavery as had been common in the American South, and allowed for Congress to pass any follow-up laws necessary on the subject. It also carved out a little exception to allow involuntary servitude as criminal punishment, which was customary at that time.

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.

I suppose the logic goes that the federal employees who have been deemed “essential” for purposes of the showdown are now engaged in involuntary servitude. Disgusting as it is to see thousands of federal workers expected to work without pay for a government eager to sacrifice them in exchange for political capital, let’s get a grip. This isn’t slavery. And while I share Mr. Tribe’s outrage, a suggestion that it’s even like slavery is hyperbolic bordering on offensive.

If the federal government is a crap employer that can’t be counted on to pay its workers, those workers can (and probably should) quit. I’m not minimizing the personal cost of giving up employment to anyone; the economic consequences of the shutdown to individual families are nothing short of appalling. But bad working conditions do not a slave-driver make. Just ask anyone who’s ever worked on a doc review at a white-shoe law firm. So long as federal employees enjoy the liberty to leave their jobs without fear of arrest or imprisonment, we’re all good on any 13th Amendment violations.

For some extra fun, though, we’ll get to see Tribe’s theory tested in court soon. On January 10, a group of unidentified federal employees (workers for the DOJ, the DOT, DHS, and the Department of Agriculture) sued the federal government alleging that the shutdown deprived them of their 13th Amendment rights.

Professor Tribe’s case for the shutdown violating Section 4 of the 14th Amendment, though, is even more compelling.

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.

The point of this section was to turn the federal government into House Lannister; it would always pay its debts, even if those debts were connected to the losing side in the Civil War. Usually, questions about Section 4’s “public debt clause” relate to broad economic policy, such as the raising of the debt ceiling, as Professor Tribe himself wrote about during the 2013 crisis – and not to federal wages due. But here, Tribe’s comparison is a good one.

No clearer example of “public debt” could exist than debt incurred by the government to members of the public who work for that government. If the Constitution required the treasury to make good on IOUs to the former Confederacy, it sure as hell demands that TSA agents get their paychecks.

[Image via Ludovic Marin/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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