(Re)Birth of a Nation: Reconstruction’s Unfinished Business

Zanita E. Fenton September, 2025

I. Introduction

People are not property. A person owns herself. This may seem an evident part of the Constitution¹ and further confirmed by ratification of the Thirteenth Amendment,² which broadened the class of individuals treated as persons.³ This Article seeks to acknowledge the proposition of self-ownership as emanating from Amendment Thirteen⁴ and that such a proposition includes personal autonomy over sexual and reproductive choices.⁵ It also strives to demonstrate how this recognition is consistent with original meaning.⁶ It identifies how the application of coverture predisposed the outcome in Dred Scott ⁷ and points out the arguments, made during its implementation, favoring application of the Thirteen Amendment to gender equality.⁸ It then makes comparisons and connections between antebellum practices⁹ and modern forms of subordination and exploitation.¹⁰ It identifies areas in which the vestiges of enslavement continue¹¹ and those in which direct slavery exists in the United States. These substantive comparisons of practices in different eras includes a discussion of how Dobbs v. Jackson Women’s Health Organization¹² replicates Dred Scott v. Sanford.¹³ The strength of these overall comparisons provides an incentive to reimplement the Thirteenth Amendment as a means to address the vestiges of antebellum slavery and modern-day human trafficking.¹⁴

The gendered significance of Amendment Thirteen begins by examining the story of Harriet Robinson. Robinson was legally married to Dred Scott, the named plaintiff in the landmark case, Dred Scott v. Sanford .¹⁵ Harriet’s life, glimpsed via scholarship on Scott’s legal battle, ¹⁶ connect the various threads of this Article. The legality of her marriage was confirmation of her free status and stands in contrast to prohibitions of slave marriage, intended to aid in slave sexual subordination and slave breeding for plantation profit.¹⁷ Sanctioned marriage provides the counter propositions for the conditions elemental to its prohibition but also demonstrates how marital law operated to maintain the subordination of women.¹⁸ In Harriet’s case, these laws facilitated her return to slave status.¹⁹

While sexual subordination and control over reproductive activity were constitutive elements of slavery and therefore covered by Amendment Thirteen,²⁰ the possibility of including marriage within that coverage was debated at the first implementing legislation.²¹ Interpreting Amendment Thirteen and consistent case law, professor Alexander Tsesis maintains that it is a source for women’s equality and for protections against gender discrimination.²² Scholar Andrew Koppelman asserts that pregnancy, when coerced, is itself a form of involuntary servitude; therefore compelling a woman to continue a pregnancy and give birth against her will is impermissible under the Thirteenth Amendment.²³ This Article does not directly address pregnancy as a form of involuntary servitude, but instead concentrates on plantation breeding operations, the sexual demands on enslaved women,²⁴ and points out the subordination of women created by the traditional laws of marriage.²⁵ Using these two points of reference, this Article compares antebellum impositions on women pre-dating the passage of Amendment Thirteen to modern contexts in which the vestiges of slavery are perpetuated or otherwise implicated.²⁶

Part II begins with the case relevance of Harriet Robinson, Dred Scott’s wife. It describes how the laws of coverture, or “marital unity,”²⁷ enabled Justice Taney to subsume Harriet’s claims into those of Dred. Since slaves could not legally marry, Taney could have recognized Harriet’s marriage in support for her and Dred’s freedom and citizenship,²⁸ but instead used coverture to subordinate Harriet’s claims with her fate tied to Dred’s – as property.²⁹ Critiques of how the Dred Scott opinion define personhood and citizenship status have greater significance when read against this backdrop.³⁰ Scholars have not given much attention to the dynamic of subordinations presented by the operation of coverture as it affected the Dred Scott decision.³¹ It is only because Lea VanderVeldet and Sandhya Subramanian have illuminated Robinson’s history in their important work, Mrs. Dred Scott, that there are more apparent avenues for study and analysis.

Justice Taney defines personhood in his sophistical interpretation of Due Process.³² An adequate accounting of his approach requires acceptance of the disparagement of persons of African descent and a recognition of the prevailing social class structures.³³ The importance of marriage for community inclusion, freedom, and citizenship³⁴ was highlighted when Taney disparages interracial unions.³⁵ Separately, since there were limitations on the ability of (White) married women to own property, the idea of marriage in an opinion tying property ownership to personhood status makes personhood status suspect for (White) women.³⁶ Finally, in order to exclude Dred’s and Harriet’s free born daughters from the category of persons,³⁷ Taney overruled the Compromise of 1820.³⁸ This abrogation confounded almost forty years of popular expectations from that compromise.³⁹ With non-person status determined and rights recognition avoided,⁴⁰ Taney could then defer the matter of citizenship to the states. Deference to the states on matters of individual rights avoids judicial responsibility for individual rights protection.⁴¹ Cases significant to legal history have followed this judicial tactic often with the purpose of returning to pre-Reconstruction norms, affecting both the rights of emancipated persons and the rights of presumptively free (White) women.⁴²

Part III focuses on the role of marriage in the perpetuation of slavery as well as in how traditional laws supporting marriage served to foster the dependency and subservience of (White) married women. It demonstrates how marriage prohibitions promoted slave compliance and facilitated the plantation enterprises for brothels and breeding.⁴³ With prohibitions on slave marriage marital presumptions regarding sexual exclusivity could not be impediments to sexual servitude;⁴⁴ the sale of family members, including infants,⁴⁵ could not be challenged;⁴⁶ and the authority of the master was not be impeded by any presumed familial to slaves obligations that would otherwise arise from biological relations.⁴⁷ Without the obstacle of marriage, the lines of profit were clear⁴⁸ and White, inheritable family wealth was secure.⁴⁹ Similarly, the presumptive illegitimacy of slave children avoided any obstacle to family division or sale.⁵⁰ Part III goes on to show how the laws forming traditional marriage created conditions that denied married women the ability to own or control property and relegated married (White) women to a status of property.⁵¹ Further, marriage was important to ensure the legitimacy of (White) children and to secure inheritable family wealth.⁵² Race-based legitimacy⁵³ further served to police White women’s extra-marital sexual activity.⁵⁴

Part IV employs relevant philosophy and economic theory predating the writing of the Constitution. These philosophies influenced the writing of the constitution and ground the assertions of self-ownership within the founding conversations regarding Constitutional ideals as well as for Amendment Thirteen, as advanced in the latter section of this Part. The metaphysical perspective of Enlightenment philosopher Emmanuel Kant, important for the concept of individual rights,⁵⁵ stands as a challenge to the definition of personhood in Dred Scott ,⁵⁶ as well as to the concepts of personhood⁵⁷ relied upon in Dobbs and discussed in Part V. Enlightenment thinker and democratic theorist John Locke provides additional notions of personhood consistent with self-ownership. Influenced by Locke, Adam Smith pioneered theories in political economy and is regarded as the father of modern economics. Like Locke, Smith relies on concepts self-ownership in his theories.⁵⁸ Authors inspired by John Locke penned the Constitution and the national economic system is based on the insights of Adam Smith. With the facts present at the time of Amendment Thirteen’s ratification described in Part III, the latter section of Part IV asserts its subject matter coverage based in those facts as consistent with the ideals of these philosophers. It further situates Amendment Thirteen’s role with the Reconstruction Amendments.⁵⁹ Since the concepts of personhood, even in the negative, are central to the opinion in Dred Scott, ⁶⁰ the ideas developed by Locke and Smith are relevant⁶¹ and provide the basis for its critique in Part II and, later in Part V, critiques of the centrality of personhood the decision in Dobbs. ⁶²

Part V endeavors to relate antebellum legal forms and business to modern structures for exploitation, commodification, and enslavement. In focusing on the economics of exploitation, it discusses prostitution, humantrafficking, and pornography as comparable to old plantation enterprises. In identifying the plantation as an early kind of brothel,⁶³ Part V advocates for decriminalization of prostitution as a means to undercut trafficking markets⁶⁴ but also as consistent with the principle of self-ownership.⁶⁵ Part V also recognizes that forced pregnancy is the modern equivalent of breeding and then segues into discussion of Dobbs v. Jackson Women’s Health Organization .⁶⁶ The Dobbs opinion determines that gender is irrelevant to reproduction, obscures the particularity of a life function, and diminishes the personhood status of women. Dobbs is politically one-sided⁶⁷ in overruling the fifty-yearold Roe v. Wade,⁶⁸ deferring reproductive rights to the vagaries of state legislation.⁶⁹ Instead of confirming the equality of women as it professes to do,⁷⁰ the Dobbs decision regresses the personhood and citizenship status of women.⁷¹ In keeping with the comparisons between antebellum and modern gendered subordination, this Part perfects the task by likening key aspects of Dobbs to similar ones in Dred Scott . In brief, both the Dobbs decision and Dred Scott support one side in a politically contentious matter⁷² causing upset to the relevant popular expectations from prior compromise.⁷³ Both decisions also rely on a surreptitious definition of personhood,⁷⁴ empowering the Court to find no relevant individual right and deflect the matter to state authority.⁷⁵ In a final comparison, if Dred Scott prompted the writing and ratification of Amendment Thirteen, then perhaps Dobbs might inspire a reinvigoration of its applicability. Part V concludes that the Thirteenth Amendment covers sexual exploitations and subordination, reproductive rights and freedoms, and therefore Congress should access its Section 2 authority to apply the principle of self-ownership through legislation in these areas.⁷⁶ The ability of Amendment Thirteen to reach private conduct⁷⁷ is significant and may prove best able to prevent modern slavery⁷⁸ and protect individual reproductive freedoms.⁷⁹

II. Designated Property

A. Harriett Robinson – Mrs. Dred Scott

Harriet Robinson independently filed suit, seeking freedom and citizenship.⁸⁰ With the terms of the 1850 Compromise in effect, Harriet Robinson claimed domicile in a free state⁸¹ and asserted Article III diversity jurisdiction by which “females and minors may sue in the Federal courts, and so may any individual who has a permanent domicile in the State.”⁸² At that time, people generally believed that a freed slave was a state citizen and could claim domicile.⁸³ Because Harriet claimed manumission, not exclusively derived from a permissive change in her residence,⁸⁴ but also by operation of law including through her marriage and thereby made her claims stronger than those of her husband.

During this time, Slaves could not legally marry.⁸⁵ Thus, because Harriet was able to marry⁸⁶ and did so by consent of her former owner,⁸⁷ Harriet only could be considered free.⁸⁸ In addition, a free person could not legally marry a slave; therefore, her marriage to Dred confirmed his free status.⁸⁹ Barbara Bennett Woodhouse expresses the proposition most clearly: “if Harriet was free, then Dred himself was free, since no man could be both a slave and a ‘free’ woman’s husband.”⁹⁰ Had her marriage-based claims been the Court’s focus, Dred’s claims would have been positively resolved.⁹¹ As such, Harriet’s and Dred’s marriage should have been sufficient to support assertion of diversity jurisdiction and allow their respective cases to move forward on the merits.⁹²

However, their marital status also allowed Justice Taney to apply coverture, a legal structure forming the marital unity,⁹³ to relegate Harriet’s claims to be part of her husband’s.⁹⁴ Furthermore, the merger of claims that not only enabled the Court to disregard the facts of Harriet’s claim but also altered what could have been a positive outcome.⁹⁵

In his opinion, Justice Taney proclaims the citizenship status of (White) women.⁹⁶ Neither women nor marriage are mentioned in the Constitution,⁹⁷ making Taney’s assertion that (White) women were citizens⁹⁸ a shrewd deceit,⁹⁹ obscuring the inability of (White) women to vote, to hold office, or to participate in a public profession.¹⁰⁰ Nonetheless, by applying coverture to merge Harriet’s case into Dred’s, Taney treats Harriet as any other married woman and, therefore, as a “citizen.” Still, Taney’s use of coverture effectively erased Harriet’s person; he erases her further when he declares Dred and her, through their marriage, not a person.¹⁰¹ Through the operation of coverture, by which a wife was all but owned by her husband,¹⁰² Harriet was denied her claims to freedom from slavery. Despite the legitimacy of her claims, the parallel institutions for human ownership – slavery and marriage – blended to her detriment.

Harriet’s case was in pursuit of the right to raise her children without facing forced separation from them.¹⁰³ Harriet’s plea, had it been successful, would have permitted her the autonomy needed to keep her family together.¹⁰⁴ As VanderVelde & Subramanian point out in their article, Mrs. Dred Scott:

What was lost in the Dred Scott case was not simply an individual man’s claim to go where he pleased, nor simply the opportunity to recognize racial equality or even racially neutral legal rules. What was lost was the opportunity to recognize a new kind of freedom-a freedom of family continuity, cohesion, autonomy, and privacy.¹⁰⁵

Significantly, Harriet’s daughters, who were born in a free state, filed their own claims.¹⁰⁶ To include the children of Harriet and Dred in his ruling, Justice Taney had to assert that Congress held no power to prohibit slavery in the territories,¹⁰⁷ overruling the Missouri Compromise of 1820.¹⁰⁸ This Act had been in effect for almost forty years.¹⁰⁹

Taney proclaims that only citizens may be regarded as persons¹¹⁰ under the Due Process Clause¹¹¹and indicates that the two are synonymous.¹¹² Yet, for Justice Taney, free status confirms neither personhood¹¹³ nor citizenship;¹¹⁴ these terms he defines only in the negative.¹¹⁵ In describing who citizens are not, he engages in the denigration of African descendants.¹¹⁶ Taney’s reading of Due Process only accords full citizenship to property-holders, especially those holding human property. Being that women were routinely dispossessed of their property through the operation of coverture and inheritance laws,¹¹⁷ in using Taney’s reading of Due Process, women would not have qualified as persons.¹¹⁸

In considering the overrule of Dred Scott by the Reconstruction Amendments,¹¹⁹ Amendment Thirteen most directly addresses personhood status and the principle of self-ownership.¹²⁰ Dred Scott was the spark that influenced the ideals written into Amendment Thirteen and the public that supported the Amendment had access to the accounts of Harriet Robinson’s plight.¹²¹ With this awareness, original public meaning endorsing this Amendment repudiates not only Harriet’s slave status but also her subordination as wife as used to return her to chattel slavery.¹²² Furthermore, original meaning could have renounced the laws codifying the subordinating effects of marriage.¹²³ To the extent these questions were open, the drafters accounted for any resistance to the principles embodied in Amendment Thirteen and included Section 2 for Congress to address any unfinished business.¹²⁴

B. A Blueprint for Rights Avoidance

Justice Taney acknowledges that states may define citizenship and may place conditions on the right to vote.¹²⁵ He further points out that a citizen may be “a member of the community who form the sovereignty, although he exercises no share of the political power….”¹²⁶ Still, Taney is dogged in his narrow view of citizenship. His casuistry denied negroes the privileges and immunities of citizenship because they might exercise those rights.¹²⁷ They would have had

the right to enter every [state and] to sojourn there as long as they pleased, . . . and it would give them the full liberty of speech in public and in private upon all subjects … to hold public meetings upon political affairs, and to keep and carry arms wherever they went . . .¹²⁸

The Civil Rights Cases¹²⁹ are most often cited for identifying state governance as the proper authority to protect individual rights, but just as easily, Dred Scott may represent this proposition.¹³⁰ Rather than accepting responsibility for protecting individual rights,¹³¹ Justice Taney defers to state prerogative on those rights, allowing the popular majority to fuel state government action.¹³² His ruling is a judicial blueprint for Court abdication of protection for individual rights, especially when those rights conflict with majoritarian preferences.¹³³ After Reconstruction, this blueprint is reflected in such notable decisions as The Slaughterhouse Cases,¹³⁴ Bradwell v. State of Illinois,¹³⁵ and United States v. Cruikshank.¹³⁶ The technique was not limited to Reconstruction Era decisions but also includes Minersville School District v. Gobitis ,¹³⁷ Lochner v. New York ,¹³⁸ and Dobbs v. Jackson Women’s Health Organization .¹³⁹

Two cases particularly significant in following Taney’s general blueprint are Bradwell v. State of Illinois ¹⁴⁰ and United States v. Cruikshank .¹⁴¹ Bradwell was decided one day after the Slaughterhouse Cases ¹⁴² and, replicated its ruling. Slaughterhouse is infamous for eviscerating the Privileges and Immunities Clause.¹⁴³ Slaughterhouse deferred to a city monopoly that hindered the ability of butchers to work, while Bradwell deferred to state licensing that deprived women of the right to work as attorneys, even when qualified.¹⁴⁴ Bradwell insisted that it was “an axiomatic truth,” that “ men make, apply, and execute the laws.”¹⁴⁵ In allowing states an outright denial of the right to work , the direct effect on individual rights of Bradwell is more extreme than that of the more famous Slaughterhouse decision.

United States v. Cruikshank¹⁴⁶ extends the blueprint from Dred Scott and furthered the enfeeblement of the Privileges and Immunities Clause accomplished by Slaughterhouse and Bradwell to a context cruel in fact and result.¹⁴⁷ The Colfax Massacre of Easter Sunday, 1873, was the backdrop for the prosecutions in Cruikshank. ¹⁴⁸ This single event of racially targeted violence, in which more than two-hundred eighty unarmed Black men and women were murdered in a white-supremacist rampage,¹⁴⁹ was so severe that it came to be known as “the bloodiest single act of racial carnage in the Reconstruction era.”¹⁵⁰ Rapes and sexual violence were a significant aspect of the campaign terrorizing the Black population in Colfax¹⁵¹ and characteristically demonstrative of the “incidents of slavery.”¹⁵² Perpetrators of sexual violence in a racialized contexts, use it as a tool of domination that exhibits the victim as subhuman;¹⁵³ it instead the perpetrator exposes his own inhumanity.¹⁵⁴ Today, these purposeful rapes and use of sexual violence would be regarded as war crimes or genocidal and the massacre would be denounced as terrorism.¹⁵⁵

With the known participation of state actors in the commission of violence,¹⁵⁶ Cruikshank legitimated the use of violence for social and political control over individuals.¹⁵⁷ In this context, Cruikshank deferred to state authority and asserted that states are in the best position to protect individual rights.¹⁵⁸ The Cruikshank Court eschewed protection of rights safe-guarded by the Bill of Rights and the Reconstruction Amendments and controverted the Enforcement Act of 1870.¹⁵⁹ This approach to individual rights protection is in harmony with Justice Taney’s treatment in Dred Scott that uses marriage to subordinate and categorizes some people as property.¹⁶⁰

III. Complementary Institutions—Marriage and Slavery

A. Marriage Forbidden – Of Brothels and Breeding . . . clearly written in the slave codes. Slaves . . . . could not

legally marry ¹⁶¹

W.E.B. DuBois

Black women were not entitled to the “protections” of marriage,¹⁶² the legitimacy of their children,¹⁶³ nor the continuity of their familial bonds.¹⁶⁴ Harriet Robinson would have welcomed marital protection from sexual abuse, often suffered by both enslaved and freed Black women.¹⁶⁵ But neither freedom nor legal marriage guaranteed that she, nor any other Black woman, could escape such abuses.¹⁶⁶

Marriage was inconsistent with slavery and recognition of other family bonds was contrary to the plantation interests.¹⁶⁷ Slave obedience to the master was indispensable for the institution of slavery;¹⁶⁸ the expected obedience from a wife to her husband, if permitted amongst slaves, would have been inconsistent with the dictates of slavery.¹⁶⁹ That is, a slave-woman could not obey orders from both her master and her husband, when in conflict.¹⁷⁰ As Margaret Burnham states, “In the eyes of the law, each slave stood as an individual unit of property, and never as a submerged partner in a marriage or family.”¹⁷¹ Even when slave owners encouraged “marriage” to promote stability on the plantation, slavefamilies were still subject to breakup by sale.¹⁷² Whether fathered by a plantation master,¹⁷³ by a partner chosen for her to breed, or by a partner of her choice, a slave-woman’s children were born to the status of the mother¹⁷⁴ and therefore subject to sale as part of the breeding enterprise. Both because children born into slavery were regarded as chattel,¹⁷⁵ as were their biological Black fathers,¹⁷⁶ and because their mothers were not entitled to marry,¹⁷⁷ these children were regarded as illegitimate.¹⁷⁸ The biological White fathers of children born into slavery were not required to acknowledge their slave children¹⁷⁹ nor any other children born out of wedlock.¹⁸⁰ Illegitimacy status was expedient for furthering the sale of children away from family¹⁸¹ and was convenient in guaranteeing that White children of White wives would inherit family wealth.¹⁸²

The plantation economy depended, in part, on the interrelated enterprises of sexual services and breeding, both of which were incongruous with the presumed sexual exclusivity of marriage. In running a profitable breeding enterprise, the plantation owner controlled sexual activity and access to slaves.¹⁸³ Female slaves were not entitled to refuse sexual advances from practically any man.¹⁸⁴ Black women and girls routinely endured rape, though rarely acknowledged as such,¹⁸⁵ and without legal consequence.¹⁸⁶ Enslaved Black women were dehumanized by the effects of breeding operations. When slave imports were banned, income from the sale of the resulting commodities (aka children), sustained the markets in humans and provided a continuous labor supply.¹⁸⁷ And, whether in furtherance of the breeding enterprise or to satisfy male sexual gratification, plantations functioned as brothels.¹⁸⁸ When slaveowners forced enslaved women to perform sexual favors, some promised less beatings or more favorable conditions.¹⁸⁹ For the plantation/brothel, profit often accrued through a barter system with favors or trade owed to the master.¹⁹⁰ Having the ability not only to perform manual labor¹⁹¹ but also to produce human commodities for sale, Harriet and her daughters would have commanded a price at auction, exceeding that commanded for Dred Scott.¹⁹²

The unfettered sexual access of White masters to female slaves¹⁹³ confirms that miscegenation laws did not alter White male sexual entitlement.¹⁹⁴ Nonetheless, the existence of interracial unions also served as an interrogation of White self-identity.¹⁹⁵ Taney’s focus on the punishment for these unions was consistent with defenses of White supremacist patriarchy.¹⁹⁶ Even when aware of their paternity, Black children did not have legal fathers¹⁹⁷ and were therefore illegitimate.¹⁹⁸ A Black mother could not marry the father of her children, regardless of his race or status.¹⁹⁹ White fathers benefitted from the labor of their biological slave children,²⁰⁰ and were not required to acknowledge paternity of nonmarital children.²⁰¹ Commodification of these children not only sustained slave markets but also guaranteed White control over any inheritable wealth.²⁰² After Reconstruction, state governments were required to recognize Black unions and in fulfilling the obligation, encouraged Black mothers to name a Black man to take responsibility for their children.²⁰³ Thus, former slave masters could escape responsibility for their children fathered with slave women.

B. Mrs. (aka Mr.’s) ²⁰⁴ – Marriage Transacted

Marriage, for respectable (White) women,²⁰⁵ was regarded as necessary for their security, protection, and social standing. However, women paid dearly for these presumptive benefits and had to meet the expectations²⁰⁶ imposed by metaphoric pedestals.²⁰⁷ The vast majority of women could not own property²⁰⁸ and for those who did, at marriage, coverture functioned to retitle her assets in her husband’s name.²⁰⁹ Coverture, also known as the marital unity, prohibited a married woman from entering contract,²¹⁰ required that her husband decide their residence,²¹¹ and made him entitled to her services, including labor and exclusive sexual services.²¹² Through the operation of chastisement, a husband could “correct” his wife²¹³ and was exempted from prosecution for raping his wife.²¹⁴ Original rape law²¹⁵ was not an offense against her “person,” but instead was an offense against her husband’s or father’s property.²¹⁶ Any assault a woman endured diminished her “value” and caused doubt about the legitimacy of a resulting child.²¹⁷ If a wife left her husband, she risked losing custody of legitimated children.²¹⁸

Without property holdings and with limited options for employment, women relied upon marriage for the necessities of survival. For men of the propertied class,²¹⁹ marriage was an advantageous business transaction used to raise capital, to solidify political alliances, and to ensure a legacy for their estate.²²⁰ The marriage transaction provided that for a wife’s part of the bargain, she received physical protection and assurance of a single, required sexual partner;²²¹ the arrangement handsomely rewarded a husband with physical and financial control over his wife’s assets and gave him unrestricted sexual access to her. In effect, a wife paid a husband for the sexual services he sought.²²²

(White) husbands were only responsible for children born under the marital presumption of paternity;²²³ otherwise, the status of the child followed that of the mother.²²⁴ As part of the marital “bargain,” a child born to a (White) wife was considered a debt for which the husband was responsible²²⁵ and was the primary reason he was entitled to the child’s labor.²²⁶ The labor of legitimate (White) children was owed to fathers,²²⁷ obliging wives to produce multiple children as labor for family farms and businesses.²²⁸ As early as age thirteen,²²⁹ girls were deemed sufficiently mature to marry, have sex, and reproduce.²³⁰ (White) daughters possessed sexual capital owned by their fathers and devisable through marriage to a husband.²³¹ A daughter’s marriage relieved the father of her care by obligating her to a husband,²³² making marriage a form of barter.

The marital presumption of paternity guaranteed that, regardless of actual paternity,²³³ children born during marriage were the husband’s legitimate heirs.²³⁴ Within racial limits, this presumption operated to afford a measure of sexual freedom for married (White) women.²³⁵ Even though divorce was rare in the nineteenth century,²³⁶ a dark child born within a White marriage was sufficient cause for a man to procure a divorce.²³⁷ Such a child served to override the marital presumption and was proof positive of the wife’s adulterous, racial transgression.²³⁸ In instances when the marriage remained intact, the Black-appearing child was abandoned or was the subject of infanticide.²³⁹ Under any other circumstance, divorce followed the paternal preference rule to award custody to the husband, protecting his interest in the child’s labor.²⁴⁰

In poor families, there was no precise, gender-based allocation between public, market-oriented labor and private, household-centered subsistence activities. Women were often employed in income-generating activities conventionally labelled “men’s work.”²⁴¹ Married poor women also carried the burden of reproduction, child rearing, household maintenance, and care of ill or elderly relatives.²⁴² Poor wives bartered produce from the family garden or livestock they raised to subsidized household income and to acquire medical and other services for the family.²⁴³ Frequently in farming households, a husband contracted out the wife’s labor and obligated her to complete cash crops beyond his own responsibilities.²⁴⁴

During the early 1800s, every state passed a Married Women’s Property Act.²⁴⁵ The first Married Women’s Property Act was legislated in 1839 Mississippi.²⁴⁶ To abet the effects of economic crises and to protect marital assets from creditors,²⁴⁷ these Acts prevented a husband’s creditors from accessing property held in the wife’s name, but also prevented a woman from controlling property titled in her name.²⁴⁸ Of the Married Women’s Property Acts, one Illinois Supreme Court Judge said, “it is simply impossible that a married woman should be able to control and enjoy her property as if she were sole, without practically leaving her at liberty to annul the marriage.”²⁴⁹

Restrictions on the control over property was a perpetuation of coverture and was especially prominent in Southern states. Married Women’s Property Acts were enacted during the same time frame for both free and slave states, but no southern state allowed control of assets by a married woman.²⁵⁰ In Confederate states at the start of the Civil War, departing soldiers were motivated to transfer their assets to other men who remained at home.²⁵¹ The post-war disarray of the Southern economy, caused by heavy Confederate casualties,²⁵² created opportunity for Northern scavengers²⁵³ and other opportunists to realize financial gain through marriage.²⁵⁴ During Reconstruction, the reforms intended by the Married Women’s Property Acts instead facilitated the exploitation of women through marriage and the corresponding structural subordination that allowed for the retitling of a wife’s property.

A positive reform of Reconstruction was the abrogation of chastisement, a husband’s entitlement to physically “correct” his wife. Because Reconstruction imposed requirements on states to legalize Black marriages, one court took the opportunity to end the chastisement in a case in which a Black husband tried to “correct” his Black wife. In a context that would have granted to Black men the same privilege previously enjoyed exclusively by White men, the court invalidated chastisement.²⁵⁵ Thus, even though chastisement evokes comparison to the physical abuses of chattel slavery,²⁵⁶ its repudiation was not purposeful in improving the status of women.

Analogizing marriage to slavery risks a pernicious relativism that devalues the brutalities experienced under slavery²⁵⁷ and obscures the participation of White women in the perpetuation of the norms of slavery.²⁵⁸ Marriage, denied to slaves, was a tool for the perpetuation of slavery by facilitating sexual exploitation and the related control over reproduction and family propinquity. The story of Harriet Robinson,²⁵⁹ and those of countless other [married?] women, provide the basis to assert that passage of the Thirteenth Amendment not only should have ended formal slavery and indentured servitude, but also should have ended coverture and the other marriage-related laws codifying women’s subordination.²⁶⁰ The nature of debate surrounding passage of the Civil Rights Act of 1866, the first implementing legislation of Amendment Thirteen, suggests that the exclusion of marriage from the Act’s coverage was to mollify its opponents, not because the inclusion was an unfair reading.²⁶¹ Such a reading could have ended the laws of marriage codifying the subordination of women²⁶² without necessarily eliminating the institution.

IV. Fundamental Self-ownership

. . . women can’t have as much rights as men, ‘cause Christ wasn’t a woman. . . . Where did your Christ come from? . . . From God and

a woman. Man had nothing to do with him. ²⁶³

Sojourner Truth A. Personhood—Part of Democratic Capitalism

Self-ownership, inherent to personhood status, is essential both for the functioning of a democratic society and for a free market economy.²⁶⁴ The Constitution, a liberal document,²⁶⁵ establishes a republican form of democracy,²⁶⁶ protects private wealth, and endorses capitalism.²⁶⁷ Republican democracy functions best when the people fully participate in electing representatives, holding office, sitting on juries, and influencing fellow citizens through opinion and deed.²⁶⁸ Similarly, a capitalist free market economy relies on self-interested participants, and presumes their self-ownership.²⁶⁹

Theorists influential for the ideas embedded in the Constitution are helpful in clarifying the relevancy of personhood status. Enlightenment philosopher Immanuel Kant has been influential in advancing concepts for individual rights²⁷⁰ and is known for his treatment of ethics and transcendental metaphysics.²⁷¹ Kant believes rational beings are ends in themselves” and rational beings ‘are called persons because their nature already marks them out as ends in themselves . . . and imposes … a limit on all arbitrary treatment of them.’”²⁷² Moral action begins with the ability to distinguish between persons and things and to treat them accordingly.²⁷³

John Locke, the founder of “liberalism,”²⁷⁴ and influential in the writing of the Declaration of Independence²⁷⁵ and the Constitution,²⁷⁶ opposed slavery.²⁷⁷ Locke believes that all persons own themselves:²⁷⁸ “‘every Man has Property in his own Person. This no Body has any Right to but himself.”²⁷⁹ Furthermore, people create value in things;²⁸⁰ things may be constitutive of the person, but not the reverse.²⁸¹

Adam Smith published The Wealth of Nations ²⁸² in the same year as the ratification of the Declaration of Independence.²⁸³ Smith postulates that human well-being and self-worth derive not only from the acquisition of material goods but also from moral self-betterment.²⁸⁴ Most often identified with Smith’s theories for a free market, is reliance on “self-interest.”²⁸⁵ Self-ownership ensures the purest form of self-interest and therefore is key to efficient operations.²⁸⁶

As discussed in Part II, Justice Taney in his reading of Due Process in Dred Scott , defines personhood and citizenship in the negative: first through the direct commodification of individuals of African descent,²⁸⁷ but also by leaving implicit the qualifications for personhood and citizenship held by financially established White males.²⁸⁸ Denying personhood status to even free Blacks²⁸⁹ the Dred Scott decision rejected the existence of any related rights thereby circumventing protection for any claimed. In comparison, Part V discusses the Court’s ruling in Dobbs , in which it rationalizes the gendered nature of pregnancy and related reproductive matters by using the labels “pregnant” and “nonpregnant” persons as though these labels eliminate the biological process of gestation and equalize men and women in reproductive concerns.²⁹⁰ Quite the opposite, by obscuring the medical and emotional costs of pregnancy experienced by women, the Court treats women as one-dimensional vessels, dehumanized things that are objects and property.²⁹¹ Thus, like Dred Scott ,²⁹² the Dobbs court uses imaginative interpretation to treat some people as property, not entitled to rights.²⁹³

B. A Person Owns Herself

. . . yet every Man has Property in his own Person. This no Body has any Right to but himself. The Labor of his Body,

and the Work of his Hands, we may say, are properly his. . . and

thereby makes it his Property.

John Locke ²⁹⁴

A presumption of self-ownership²⁹⁵ is part of the Thirteenth Amendment’s role in conferring personhood status. Amendment Thirteen was regarded as complete at its ratification;²⁹⁶ whereas the Fourteenth²⁹⁷ and the Fifteenth Amendments²⁹⁸ were written to clarify rights already embodied by Amendment Thirteen.²⁹⁹ If collectively the Reconstruction Amendments overruled Dred Scott , then the text of the Fourteenth Amendment designating citizenship and confirming Due Process³⁰⁰ is most coherent if personhood is previously accorded by the Thirteenth.

The Thirteenth Amendment’s reach³⁰¹ contemplated a broad extension of rights for former slaves and all other people in the United States.³⁰² Though the gendered component of slavery is not routinely acknowledged,³⁰³ sexual subordination was significant to the business of slavery.³⁰⁴ Furthermore, legislators recognized early that Amendment Thirteen coverage might include marriage and gender oppression. In attempts to undermine the Civil Rights Act of 1866,³⁰⁵ legislation relying on the Enforcement Clause of the newly ratified Thirteenth Amendment,³⁰⁶ opponents alleged that the Act would implicate the status of married women.³⁰⁷In ridiculing the opposition’s beliefs, Civil Rights Act supporter Senator Edgar Cowan makes an oblique reference to sexual servitude when he asks, “What was the involuntary servitude mentioned there? . . . Was it the right the husband had to the service of his wife?”³⁰⁸

The Amendment was intended to reach all forms of servitude or indenture.³⁰⁹ When marriage is regarded as a contract, the legally required servitude of women³¹⁰ was a form of indenture.³¹¹ Abolitionist Harriet Beecher Stowe argued:

[T]he position of a married woman . . . is, in many respects, precisely similar to that of the negro slave. She can make not contract and hold no property; whatever she inherits or earns becomes at that moment the property of her husband . . . . Though he acquired a fortune through her, or though she earn [ sic ] a fortune through her talents, he is the sole master of it, and she cannot draw a penny . . . . [I]n the English common law a married woman is nothing at all. She passes out of legal existence.³¹²

Advocates for Abolition and advocates for Women’s Suffrage substantially were comprised of the same individuals.³¹³ Perhaps this association lead some Suffragists to exaggerate the comparisons between marriage and slavery.³¹⁴ Alexander Tsesis, who advocates for reliance on Amendment Thirteen for protection of women’s rights³¹⁵ points out that Suffragists “were purposefully hyperbolic to draw attention to woman’s degraded status.”³¹⁶ Abolitionist and women’s suffrage supporter Frederick Douglass disapproved of the term “slavery” in describing the conditions of women that did not routinely result in violent death.³¹⁷ Suffragist and Abolitionist Sojourner Truth believed that full women’s rights were essential for Constitutional emancipation to be complete and for avoidance of the exchange of one subordinated status for another.³¹⁸ Specifically, for Black women, post-emancipation marriage substituted one patriarchal master for another while retaining the ubiquitous oppressions of White supremacy. Truth’s views were prophetic: Justice Taney used Harriett’s marital status to combine her fate with Dred’s and return them both to slavery; post-Reconstruction’s release on marriage prohibitions was but a false promise for equality,³¹⁹ as it instead continued the subordination of married emancipated slave women.³²⁰

Amendment Thirteen was designed to address state action as well as private discriminatory conduct³²¹ with its Enforcement Clause empowering Congress to prevent all forms of servitude.³²² The ability to reach private conduct is what distinguishes Amendment Thirteen from Fourteen.³²³ While the courts have historically read the Thirteenth Amendment narrowly,³²⁴ its reach may be especially important for addressing modern sex slavery and trafficking. Furthermore, the language of Amendment Thirteen mirrors that in McCullough v. Maryland ,³²⁵ a case interpreting Congressional authority as broad. These textual points along with its ideological roots make Amendment Thirteen a better resource for certain individual rights protection than the more commonly used Amendment Fourteen.³²⁶

That the Thirteenth Amendment is questioned as a source for gender equity demonstrates a lack of concern for the condition of slave women.³²⁷ Gender discrimination amounting to slavery, servitude, or indenture implicate the “badges or incidence of slavery.”³²⁸ In spite of the pleas of Sojourner Truth’s “Aint I a Woman,”³²⁹ society, then and now, separates race and gender advocacy.³³⁰ At Reconstruction, gender-specific discrimination was experienced by all women, though by differing degrees and circumstance, it has been routinely excluded from the “badges or incidence of slavery.”³³¹ Modern forms of slavery may affect any person, regardless of gender,³³² but the victims remain disproportionately female.³³³ In retrospect, with the persistence of modern-day human-trafficking and sex-slavery,³³⁴ the exclusion of gender-specific discrimination from Thirteenth Amendment protection must be regarded as an ill-considered omission.

V. Neo-Plantation

A. Plantation Economics

Modern sex commodification is inspired by the sexual economy of the plantation.³³⁵ The complexion of modern prostitution and its clientele replicates the plantation;³³⁶ the exploitation-based economics of the plantation³³⁷ are perpetuated by the criminalization of sex work. Criminalization both disregards the principle of self-ownership and avoids the provision of protections for sex workers. Comparable to conditions on the plantation, nonregulation limits sex workers’ access to health care;³³⁸ places them at risk for the removal of their children;³³⁹ and, without police protection, subjects them to a greater risk of rape. Meanwhile, prosecution for offenses against sex workers seldom occurs,³⁴⁰ especially against the frequent demands for sexual “favors”³⁴¹ from powerful men, including police and politicians.While “Johns” are infrequently detained, poor women, who are disproportionately Black and Brown,³⁴² are arrested.

So long as sex work remains illegal, the bargaining power of the sex worker is significantly reduced.³⁴³ However, organizations, including corporate enterprises and black-market organizations, reap hefty profits from marketing sex workers.³⁴⁴ The corporate interests in pornography are strong enough for an industry-wide exemption from criminalization.³⁴⁵ Pornography is sexual acts and services for compensation; it is indistinguishable from the acts performed for prostitution. Because these acts are recorded, the pornography industry enjoys legal protection,³⁴⁶ and copyright “validation”³⁴⁷ for the artistic endeavor.³⁴⁸ In that the talent does not receive royalties, treatment of the sex worker remains consistent with prostitution.³⁴⁹ However, porn workers may receive police protection, and may access health care,³⁵⁰ and may avoid parental fitness presumptions.³⁵¹ Further, the public health benefits from regulations requiring routine medical testing of porn workers.³⁵²

Sex and human traffickers may find a guide for success by following prior U.S. marriage laws codifying subservience.³⁵³ Obliquely stated, early marriage kept a wife financially dependent; restricted her physical location; enforced her submission through the specter of sexual, physical, psychological, and emotional abuse; and obliged her dependence on third parties to “voice” her concerns.³⁵⁴ Further, the economics of traditional marriage are often hailed for their efficient division of labor,³⁵⁵ but only may be so regarded because of their reliance on the uncompensated labor of the “home-maker” wife.³⁵⁶ Trafficking is also efficient in how it exploits the free labor of vulnerable persons.³⁵⁷ Smugglers offer trafficked labor at rates below market³⁵⁸ or offer workers and services in scarce supply.³⁵⁹

Human trafficking, including sex slavery, is an international crisis of which the United States is a part.³⁶⁰ Niklas Jakobsson & Andreas Kotsadam compare economic studies that compare county approaches to prostitution, whether criminalization, legalization, or a regulatory scheme, and their effect on reducing trafficking.³⁶¹ They conclude that countries that criminalize prostitution have the fewest trafficking entry-points;³⁶² the supporting studies do not, however, account for the civil rights accorded to sex workers in those same countries nor whether these countries serve as “staging points” for trafficking. Countries that regulate legal prostitution have a smaller reduction in trafficking but directly provide police protection for vulnerable sex workers, have a reduction in abuse of authority, and safeguard public health through the provision of health benefits.³⁶³ Effects on the reduction of victim abduction from origincountries is not addressed by the included studies, nor do these studies account for the relationship of a victim-supplier nation’s political regime or its economic stability.³⁶⁴ Unique to the other approaches is Sweden’s, which permits the sale of sex but criminalizes its purchase.³⁶⁵ Using this approach, Sweden reports significant reduction in trafficking:³⁶⁶ between 1999 and 2004, “the number of women involved in street prostitution has decreased by at least 30% to 50%, and the recruitment of new women has come almost to a halt,” and out of nine million inhabitants, approximately 500 were actively engaged in street prostitution in 2004³⁶⁷ and stabilized between 200 and 250 individuals by 2014.³⁶⁸ The Swedish approach addresses both aspects of exploitation by confirming a sex-worker’s ownership of her/his body and simultaneously reducing the control held by Johns by altering the power balance in contracts for sex.

Amendment Thirteen, Section 2 of the United States Constitution is designed to reach private actors and their conduct.³⁶⁹ Indeed, sex slavery and trafficking most closely replicate pre-Reconstruction chattel slavery and should be addressed within its reach.³⁷⁰ Enforcing the right to own oneself with the same rigor applied to the right of others to own another³⁷¹ would go a long way to ending modern forms of slavery. That the plantation serves as the model for street prostitution and traditional marriage serves as a template for successful trafficking, demonstrates the need to recognize the principle of self-ownership and to reject sexual subordination. Interested business organizations thrive on sexual exploitation, with the corporate interests in pornography also enjoying legal shelter. Eliminating sexual exploitation from the market resonates with the theories of Adam Smith, commencing with his writings The Theory of Moral Sentiments and supplemented by The Wealth of Nations .³⁷² If each individual owns themselves, then Human capacity for compassion is just as important as self interest in the marketplace.³⁷³ More importantly, directly addressing market influences is the best way to achieve the humanist objectives of Smith and is most consistent with a Lockean democratic form.³⁷⁴

B. Forced Pregnancy—A Breeding Enterprise

Coerced pregnancy is a form of involuntary servitude³⁷⁵ that harkens back to slavery. During slavery, coerced pregnancy was a function of the breeding enterprise.³⁷⁶ Control over the reproduction of Black women³⁷⁷ is a characteristic function of slavery. This control fueled and supplied plantation labor and the products for the domestic slave trade.³⁷⁸ In endorsing the inclusion of abortion under the Thirteenth Amendment, Andrew Koppelman states that

The idea of self-ownership is inextricably linked with our society’s ideals of individual worth and dignity. To give control of even part of my body to someone else is to treat me as property, as a thing rather than a person.³⁷⁹

Slave women sometimes chose abortion as an act of resistance.³⁸⁰ They resisted “mandatory motherhood,”³⁸¹ part of the breeding enterprise that determined the enslavement state of their future child.³⁸²

Unfortunately, the political economy of sexual access and reproductive control continues. The assertion of “interest” in the fetus by non-gestators, especially those made by the state, are tantamount to an assertion of ownership. Assuming women, including pregnant women,³⁸³ are full persons under the Constitution and therefore not owned by any person other than themselves,³⁸⁴ then no one, including the state, should make reproductive decisions on their behalf. Questions regarding how to understand the stages of reproduction within the complex and emotional relationship that a mother has with the being developing within, is for her to determine. When the state takes an “interest” in anything other than ensuring that medical procedures are performed by licensed professionals,³⁸⁵ it takes the place of the plantation in its breeding enterprise.³⁸⁶

C. Commodification of the Fetus

Healthy White infants are persistently in limited supply,³⁸⁷ leading to a robust industry for adoption and assisted reproduction. Competition for the available supply has obscured the distinctions between legal and illegal adoptions, with adoption often labelled as “baby-selling.”³⁸⁸ Before Reconstruction, baby markets meant the sale of slave-bred children. But today this has transformed into the pursuit of healthy White infants. It has evolved into a pursuit for “White-appearing” infants, encouraging international adoption³⁸⁹ and stimulating international surrogacy transactions.³⁹⁰ The geography and power imbalance inherent in these practices resemble former colonialist practices.³⁹¹ In other words, market structures initiated to support colonialism continue through the “north-south” exploitation of a subjugated labor force (child-bearing women)³⁹² for production of the valued commodities of White³⁹³ or “White-appearing” children.

Abortion bans may serve to increase the supply of healthy White infants available for adoption and may tacitly facilitate the economic interests of prospective parents.³⁹⁴ Efforts by abortion opponents to assign “personhood” status to the fetus therefore contribute to its commodification.³⁹⁵ Cynically, abortion bans also increase the future labor supply necessary to support corporate and individualized wealth³⁹⁶ comprised of impoverished children, who are disproportionately Brown and Black.³⁹⁷ Cynicism aside, to accompanying the identifiable dearth of health White infants,³⁹⁸ the infant and maternal mortality rates for Black and Brown mothers and children are disproportionally high.³⁹⁹

D. Dobbs – Dred Scott Redux

Significant to the badges and incidents of slavery, the breeding enterprise mandated control over a slave’s sexual and reproductive activity. Therefore, reproductive freedom as part of a right to self-ownership is covered under Amendment Thirteen. Infringement on individual reproductive choice is consequently prohibited by Amendment Thirteen.⁴⁰⁰ So understood, the rights covered by Amendment Thirteen are complementary to the natural rights covered by the succeeding two Amendments.⁴⁰¹

The Bill of Rights⁴⁰² does not specifically address reproductive rights. Similarly, the Fourteenth Amendment was not devised with reproductive freedoms specifically contemplated,⁴⁰³ requiring the landmark decisions of Griswold v. Connecticut⁴⁰⁴ and Roe v. Wade⁴⁰⁵ to rely upon the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments to find rights to contraception⁴⁰⁶ and to terminate early-staged pregnancy.⁴⁰⁷ After Griswold , Eisenstadt v. Baird⁴⁰⁸ clarified that the right to contraception belongs to the individual and after Roe, Planned Parenthood v. Danforth⁴⁰⁹ explained that other persons could not veto the personal right to terminate a pregnancy.⁴¹⁰ Eisenstadt and Danforth , by recognizing the individual quality of rights, brought Constitutional interpretations closer to recognizing the full personhood status of women.⁴¹¹

Dobbs v. Jackson Women’s Health Organization⁴¹² replicates Dred Scott in significant ways, including the manner of denying personhood status by treating some people as property;⁴¹³ engaging in the politics of the overriding context through the misapplication of doctrinal principles⁴¹⁴ then subsequently finding no relevant right;⁴¹⁵ and upsetting popular expectations by overruling existing compromise,⁴¹⁶ permitting abdication of judicial responsibility through deference to state province.⁴¹⁷

Dobbs v. Jackson Women’s Health Organization⁴¹⁸ overruled Roe v. Wade and in the process indefinitely forestalled the interpretive trajectory for the recognition of women as “persons.”⁴¹⁹ In fact, the Dobbs decision relies, in part, on Geduldig v. Aiello, a case widely criticized for delineating “nonpregnant persons.”⁴²⁰ Like Geduldig , Dobbs declines to find that pregnancy triggers gender scrutiny. Such an approach to the reproductive process serves to obscure the nature of biology attributable only to women and reduces women to single-function vessels designated for breeding, which is consistent with the treatment of women on the plantation.⁴²¹ By de-gendering pregnancy,⁴²² the court diminishes species-sustaining function to insignificance in its accomplishment.⁴²³ Once human specificity is removed, denial of the existence of any related rights⁴²⁴ is all but a foregone conclusion as the Court avoids protection for those rights.⁴²⁵ The move to de-gender reproduction is consistent with how Dred Scott defined personhood and citizenship through exclusion.⁴²⁶ In Dobbs , de-gendering pregnancy denies individual control over reproduction, casts doubt on women’s personhood status,⁴²⁷ and regresses protection for individual rights.⁴²⁸

In overruling Roe, Dobbs denies women self-ownership and control of their own reproductive capacities. By denying the gendered characteristics of abortion legislation, Dobbs reinforces the “second class” status of women.⁴²⁹ The stance in Dobbs is resonant with Dred Scott in its deliberate non-recognition of personhood status and in its choice to deny protection of rights for all individuals. While Dred Scott ’s analysis focusses on an interest in “property,”⁴³⁰ the Dobbs analysis focuses instead on “liberty”⁴³¹ as it rejects an interest in reproductive freedom.⁴³² This variation is purely formalistic:⁴³³ a liberty interest cannot be found when the objects⁴³⁴ are not free.⁴³⁵

Dobbs criticizes Roe for a decision in advance of popular acceptance;⁴³⁶ however, by abruptly changing the landscape created by Roe in the prior fifty years, it makes the same miscalculation.⁴³⁷ Reminiscent of Dred Scott’s overrule of the 1820 Compromise , the Dobbs Court does not account for the breadth of political disagreement in the relative context and is one-sided in its view of a contentious political matter, choosing to be deliberately pro-slavery.⁴³⁸ Also politically one-sided, the Dobbs ruling is unmistakably “pro-life.”⁴³⁹ This stance does not account for intendant medical complexities, multiple religious or philosophical perspectives, and divergent populist viewpoints.⁴⁴⁰ When Dobbs overrules Roe, a case in which the Court strikes a balance between competing interests,⁴⁴¹ Dobbs dismisses the compromise represented by Roe . In doing so, Dobbs not only ignores differences in personal circumstance,⁴⁴² it also does not acknowledge the medical complexities relevant for reproductive decisions.⁴⁴³

Dobbs uses the same judicial strategy for managing socially divisive issues as was used in Dred Scott :⁴⁴⁴ it determines that abortion is a matter for the states to regulate as they choose.⁴⁴⁵ The Dobbs Court announces that it is doing its job⁴⁴⁶ but disregards the judiciary’s role in the protection of individual rights from majoritarian oppression.⁴⁴⁷ And while the judicial branch is politically independent,⁴⁴⁸ the Dobbs Court repeatedly references the democratic process to justify its decision.⁴⁴⁹ In the most patronizing fashion, the Dobbs Court points to the ability of women to vote as meliorative of its deference to state legislation on abortion.⁴⁵⁰ This suggestion is patronizing because it assumes that female citizens do not comprehend the nuances of political representation and engage in single-issue voting when selecting representation.⁴⁵¹ Or perhaps the Court is making an oblique reference to the right to vote gained under the Nineteenth Amendment as adequate protection for any other rights asserted by women.⁴⁵² Unfortunately, just as the Nineteenth Amendment⁴⁵³ did not equalize the participation of women in governance, it also did not erase the long history of women’s inequality and subordination.

VI. Conclusion – A Need for Thirteen

Harriet Robinson’s story continues to be important. Harriet’s gender and her marital status comprised the vehicle used to return her to enslavement. The status by which she was permitted citizenship and was the same means by which it was revoked,⁴⁵⁴ her personhood status was twice erased.⁴⁵⁵ Her resulting treatment is consistent with the overall denial of slave marriage in furtherance of plantation-based exploitations, including sexual servitude. Her story provides the opportunity to examine plantation practices and the ways in which they continue. This article may then focus on two comparisons from plantation enterprises: reproductive control and sexual exploitation.

A sobering reality is that state control over reproductive rights and freedoms is consistent with old plantation breeding practices. Complete prohibitions on abortion and other reproductive procedures displace individuals’ control over their own bodies. Similarly, resemblances between plantation sexual exploitation and modern prostitution are troubling, as are analogies between the legal structures for traditional marriage and modern sex trafficking.⁴⁵⁶

Yet in keeping with old plantation practices, modern prostitution law in the United States punishes the sex worker for income-earning activity while permitting the conduct of Johns and the organizations that profit.⁴⁵⁷ With the subordinating effects and economic incentives arising from criminalized prostitution, the United States contributes to the international problem of human and sex trafficking.

Furthermore, and in significant ways, the Dobb’s decision channels that of Dredd Scott. Whereas Dred Scott uses a sophistical reading of Due Process Clause and marital coverture to exclude some people from personhood and thus citizenship, the Dobbs decision considers gender to be irrelevant to reproduction and obscures the particulars of this life-sustaining function thereby regressing the personhood and citizenship status of women.⁴⁵⁸ Second, Dred Scott is notably pro-slavery; Dobbs is unmistakably pro-life.⁴⁵⁹ In it had overturning a forty-year-old compromise,⁴⁶⁰ the Dred Scott decision precipitated the Civil War;⁴⁶¹ in overruling Roe v. Wade, Dobbs upset popular expectations and has precipitated discord between the states.⁴⁶² After defining the plaintiffs as property (without rights), Dred Scott found no jurisdiction and could defer the matter of citizenship to the states;⁴⁶³ after obscuring the personhood status of women, Dobbs found no relevant individual right and then could defer to state choices.⁴⁶⁴

Amendment Thirteen embodies the fundamental principle that a person owns herself. The Thirteenth is the appropriate Amendment to prevent sexual so exploitation in that it reaches individual conduct,⁴⁶⁵ so it is best suited to protect reproductive rights and freedoms.⁴⁶⁶ This recognition ought also to prompt the Court’s reimagining of how to understand and protect reproductive freedoms. It should also remind Congress that it holds authority under Section 2 of the Thirteenth Amendment to legislate for protection of reproductive freedoms and to end sexual exploitation.⁴⁶⁷ If legislatures and courts apply a Thirteenth Amendment principle of self-ownership, they could progress towards ending human and sexual trafficking more effectively.⁴⁶⁸

Results in Dred Scott inspired the Thirteenth Amendment and the other Reconstruction Amendments.⁴⁶⁹ The Thirteenth Amendment imagines a nation free from slavery and involuntary servitude; however, its work is incomplete. And while it did not discuss Amendment Thirteen in its ruling, perhaps Dobbs will continue to emulate Dred Scott and inspire a reinvigoration of Thirteenth Amendment prohibitions and protections.