How To Read the Civil War Amendments

Just as the Roberts Court gave a clinic on how not to properly interpret the civil war amendments, Potter Stewart knew amendments that were designed to actually empower the federal government to protect rights when he saw them. Noting that the 13th Amendment was not intended solely to eliminate the formal legal relationship of chattel slavery but the incidents thereof, and hence Congress was empowered to pass the Civil Rights Act of 1866 (because the 13th Amendment plainly doesn’t have a state action requirement):

Surely Senator Trumbull was right. Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational one.

And do scroll up for the quotes from Trumbull, which provide good evidence that the 13th Amendment had generally been construed too narrowly. For some reason, this is an analysis of the civil war amendments the Deeply Principled Originalists Scalia and Thomas have never engaged in. (With, I must note, the exception of Thomas’s work on the privileges and immunities clause.)