What Lives Matter Under the Constitution?

• In Event: Women's Lives and Constitutional Rights

Abstract

“Blacks lives matter” and “all lives matter” often represent antagonistic claims. Drawing on the 13th and 14th Amendments, this essay shows that the Constitution affirms both, referencing two methodologies of racial justice. On one hand, the essay shows that the 13th Amendment does not simply abolish slavery but also endows Congress with the power to abolish its “badges and incidents.” Because only black people were enslaved in this country, this focus on the “badges and incidents of slavery” affirms the concept that black lives, in particular, matter. And the Court’s jurisprudence in this area leaves the scope of this concept, the definition of what counts as a badge or incident, to Congress. This, in turn, permits Congress to use this power to combat anti-blackness in society. In fact, this essay shows that this was something that the Framers of the 13th Amendment specifically contemplated. This informs an actual society approach to racial justice. On the other hand, the 14th Amendment’s commitment to equal protection affirms a broader concept that covers not just race but also sex, sexual orientation and national origin. That Amendment affirms the idea that all lives matter. This informs an ideal society approach to racial justice. Ultimately, the essay shows that the Reconstruction Amendments inform two methodologies of racial justice, affirming the idea that “black lives matter” and “all lives matter.”

Author

• Sonu Bedi, Dartmouth College