Badges of Servitude

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There was truth in the claim of slavery's defenders that many a northern "wage slave" worked under conditions less favorable than those of his enslaved counterpart down South. The evil of slavery was not primarily its imposition of hard work but its treatment of a person as if he or she were a thing. The laws governing slaves carried out this basic theme by systematically imposing a wide range of legal disabilities on slaves, preventing them not only from entering into the public life of the community (by voting, being members of juries, or speaking in public meetings) but also from owning property, making contracts, or even learning to read and write. All these disabilities were designed not merely to preserve a system of bondage to service, but to serve as badges of servitude, symbolizing the slaves' degraded status. In a moment of racist candor, Chief Justice roger b. taney extended this view of the stigmatized status of slaves to all black persons, slave or free. His opinion for the Supreme Court in dred scott v. sandford (1857) spoke of blacks as "a subordinate and inferior class of beings," upon whom had been impressed "deep and enduring marks of inferiority and degradation."

Although slaves were often physically branded, the "marks" of which Taney spoke were metaphorical; they were the aggregate of legal restrictions imposed on slaves. When slavery was abolished by the thirteenth amendment (1865), those marks did not disappear. The amendment, however, did not stop with the abolition of slavery and involuntary servitude; it also empowered Congress to enforce the abolition. From an early time it was argued that the amendment authorized Congress to enact laws to eradicate not only slavery itself but the "badges of servitude" as well. This view was at first accepted in principle by the Supreme Court, and then rejected in the early twentieth century. However, in jones v. alfred h. mayer co. (1968), the Court reverted to the earlier interpretation, concluding that racial discrimination was the sort of "badge of servitude" that Congress could prohibit.

In the meanwhile, a parallel doctrinal development has become apparent. The civil rights act of 1866 and the fourteenth amendment both recognized the citizenship of the freed slaves. Both were designed to end the notion of superior and inferior classes of persons and to replace a system of sociopolitical subordination with the status of equal citizenship. (See equal protection of the laws.) Because the principle of equal citizenship protects against the imposition of stigma, it often operates in the same symbolic universe that produced badges of servitude. To give full effect to the symbol and substance of equal citizenship is one of the major challenges of the nation's third century.

Kenneth L. Karst


Kinoy, Arthur 1967 The Constitutional Right of Negro Freedom. Rutgers Law Review 21:387–441.

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