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Saturday, August 06, 2011

The Urban Underclass and the Constitution

Those close to me are well-aware of my fascination with "The Wire," an HBO television series (2002-2008) that explored the relationship between crime, drugs, law enforcement, politics, public schools,  and the media in Baltimore, Maryland.  For example, I've given DVDs of the complete series to a friend as a housewarming gift.  When the ABA Journal omitted "The Wire" from its list of "The 25 Greatest Legal TV Shows" (and from its list of honorable mentions), I was sufficiently agitated such that I wrote a letter to the editor, complaining that while "The Wire" suggested that the devastating consequences of various structural failures on those in Baltimore were going unnoticed, it seemed rather ironic and unfortunate that "a national journal of attorneys overlooked Baltimore's story too."  (To the journal's credit, the letter was published.)  In my view, "The Wire" is an amazing series because it compellingly demonstrates how several institutions reinforce and perpetuate social pathologies in the city, how the dire circumstances of those in the city call out for solutions, and yet how entrenched systems and interests render progress improbable.  It may be the closest we have to a documentary on the various actors and entities that spin their wheels while some urban residents continue to languish.

My latest research focuses on whether the conditions of the urban underclass -- as depicted in "The Wire" and as studied by William Julius Wilson, Sudhir Venkatesh, and others -- implicate the Constitution, specifically the Thirteenth Amendment.  The term "urban underclass" is not without its controversy or shortcomings, but it is generally understood to refer to those who are marginalized economically and spatially in American inner cities ( the term "inner city," too, has its definitional issues).  The Thirteenth Amendment was designed to formally end slavery and eliminate the vestiges of this institution, however it has been read to apply to modern circumstances and to guarantee individuals some minimal ability to participate in society. Sociological works appear to demonstrate that the urban poor are not meeting this basic threshold, with some scholars even suggesting that the urban poor are “extraneous” to our economy and society.  Sociologists further make clear that the urban poor are “trapped” economically and in their physical locations, and that urban poverty is transmitted over generations.   I argue that the limited economic opportunity and physical liberty of the urban poor, where the urban poor are disproportionately African-American, and where at least some of the conditions of the urban poor stem from overt discrimination, activate the legal protections contemplated by the Thirteenth Amendment.  It seems that the sociological analyses of the urban poor can be plausibly translated into a legal basis for relief.  I suggest in particular that Congress may invoke its broad enforcement powers under the Thirteenth Amendment to enact remedial action that will give the urban poor a meaningful chance to compete in mainstream society. 

This week, Mayor Bloomberg announced a $127m program, the "Young Men's Initiative," which aims to provide greater opportunity to black and Latino males.   While I have not yet studied the details of this program, I do commend the general (and apparently genuine) interest of an actual mayor to address the limited opportunities possessed by some members of our society.

Posted by Dawinder "Dave" S. Sidhu on August 6, 2011 at 09:18 PM in Constitutional thoughts, Television | Permalink


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Great advice. I'm a long-time veteran. I had to figure out these lessons on my own over a long period of time.

Posted by: google street view | May 17, 2019 12:02:20 AM

Jay, thanks for your comment. The examples I used in the passage you quoted were all proposed by scholars. That said, Congress has enacted laws pursuant to the Thirteenth Amendment that reach conduct unrelated to forced labor. For example, Congress has passed laws that focus on holding property, making contracts, and prohibiting conspiracies to deprive one of individual rights. These laws have been upheld by the Supreme Court as valid exercises of Congress's Thirteenth Amendment enforcement power. This is all to say that the scope of the Thirteenth Amendment, as recognized by Congress, the Court, and scholars, is greater than prohibiting forced labor.

Posted by: Dawinder "Dave" S. Sidhu | Aug 11, 2011 1:32:25 AM

"For years, the Thirteenth Amendment has been interpreted to reach circumstances completely unrelated to labor, such as racial profiling, domestic violence, child abuse, and hate speech."

It's been so interpreted by courts, or other academics have written articles theorizing that it should be applied to those things?

Posted by: Jay | Aug 11, 2011 12:46:55 AM

Thanks again for these excellent comments. Mr von der Heydt wonders why, if evidence of discrimination can help strengthen the case for Thirteenth Amendment protection, why not just rely on the Fourteenth Amendment for relief. The Thirteenth Amendment does not require the challenged situation to be premised on a protected class to be covered. As an example, the Amendment has been read to reach child abuse, and this is not so because the abuse is discriminatory. The Amendment is triggered, as I suggested above, because of the circumstances or condition of the beneficiary. Dr. Martin Luther King Jr., famously remarked that the right to eat at a restaurant means little if one can't purchase a hamburger. Generally, the Fourteenth Amendment would speak to that right to be served, the Thirteenth Amendment to the absence of a minimal stake in society. That said, discrimination would strengthen the beneficiary's entitlement to the safeguards of the Amendment. There are other reasons why one may prefer the Thirteenth Amendment over the Fourteenth. As noted above, the Thirteenth Amendment does not have a state action requirement. In addition, there may be some symbolic value in seeking relief pursuant to the Thirteenth Amendment, as the message is that the situation affecting the urban underclass is sufficiently close to slavery and its vestiges (i.e., limited economic opportunity, limited de facto physical liberty as a result) to warrant remedial efforts.

DBL2 suggests that we should examine also the impact that state and local government actions have on the urban underclass. I agree. My research thus far looks into the relationship between the conditions of the urban underclass and the federal government's constitutional obligation to improve those conditions.

Posted by: Dawinder "Dave" S. Sidhu | Aug 9, 2011 2:33:25 PM

Carissa, I'm pretty certain that Adam Gershowitz is teaching a class on the Wire. He's at UHouston.

Posted by: Dan Markel | Aug 8, 2011 9:03:10 PM

I've heard rumors that various law profs are teaching seminars about The Wire. If anyone has any information about such seminars (or better yet, a syllabus!), could you please contact me offline? Thanks!!

Posted by: carissa | Aug 8, 2011 6:15:18 PM

To the extent that you are interested in improving economic conditions in the inner cities, attention should be paid to the role that urban and state government play in inhibiting economic growth. For example, Walmart has been trying to open stores in NY and Chicago for years that would employ many people at very attractive wages, but local governments have barred the door. More generally, the extensive regulatory, licensing, and tax regimes in such cities all but outlaw low margin, small-scale service and manufacturing businesses that could also provide jobs. I don't suppose, though, that you would consider those anti-job actions to violate the Thirteenth Amendment.

Posted by: DBL2 | Aug 8, 2011 8:38:20 AM

How about something on the "Urbane Overclass" to determine how many rich persons can dance on the tip of a needle?

Posted by: Shag from Brookline | Aug 8, 2011 6:43:31 AM

"Discrimination committed by or traceable to the government would seem to make the case for Thirteenth Amendment stronger"
Surely in this case you just use the FOURTEENTH Amendment. No?
Looking up cases...

Jim vdH

Posted by: Jim von der Heydt | Aug 7, 2011 10:10:13 PM

Many thanks to everyone for their comments -- please excuse me for not responding sooner, I was away from my computer for a bit. Briefly:

* DBL2's inquiry speaks generally to the relationship between the urban underclass's position and their responsibility for that position. I do not quarrel with the notion that some members of the urban poor engage in anti-social behavior or in conduct that does not help elevate their economic capabilities. That said, sociological studies on the urban poor, by Wilson and Massey for example, cut against any idea that personal responsibility is the entire story. There is, by contrast, a confluence of factors that can help explain the urban underclass's position, of which personal responsibility is but part. A "spatial mismatch" between the inner city areas and where jobs are situated is cited as a significant reason for the limited economic opportunities of the urban poor -- and this cause does not relate to personal conduct. I share Wilson's view, whether one may want to categorize it as "progressive" or "do-gooder," that improvements in the economic opportunities of the urban underclass will yield improvements in behavior and applicable norms. Wilson spends a fair deal of time discussing families and attitudes, though he maintains nonetheless and repeatedly that institutional failures are more significant than "cultural causes" for the underclass.

* Mr von der Heydt asks whether my scholarship invents a new test for the Thirteenth Amendment in that it divorces the targets of Thirteenth Amendment protection from those who are working. My work is not this ambitious. For years, the Thirteenth Amendment has been interpreted to reach circumstances completely unrelated to labor, such as racial profiling, domestic violence, child abuse, and hate speech. Professor Chip Carter, who has posited that the Amendment covers racial profiling, argues that the closer the underlying situation comes to slavery, the closer it falls within the Amendment's safeguards. Labor is not, however, a prerequisite for the Amendment to be triggered.

* Finally, Mr Steinberg seems to be interested in whether the Thirteenth Amendment mandates that there be a distinct perpetrator of the actions or conditions giving rise to the Thirteenth Amendment problem. The Thirteenth Amendment has been construed to apply to contexts (e.g., human trafficking, child abuse), where there is a clear person or persons directly placing others in a position of subjugation or domination. These examples would lend credence to Mr Steinberg's apparent construction of the scope of the Amendment. I would point out, though, that the Amendment is not limited to settings or situations in which there is this direct power dynamic. For example, the Amendment has been read to justify compensatory or remedial action in education and housing opportunities, which are more about the general state of the beneficiaries than addressing only an immediate harm committed by or traceable to specific actors. That there is no state action requirement seems to me to suggest that the concern underlying the Amendment has more to do with the circumstances of those seeking its protection, rather having the ability to point fingers. Discrimination committed by or traceable to the government would seem to make the case for Thirteenth Amendment stronger, but its absence does not render the Thirteenth Amendment totally inapplicable.

Thanks for these wonderful comments.

Posted by: Dawinder "Dave" S. Sidhu | Aug 7, 2011 4:43:00 PM

Doesn't slavery require, at the least, an enslaver? For example, under the Civil Rights Act, a synagogue can sue vandals who desecrate the synagogue, on the theory that the vandals are impairing their right to own property on the basis of race. (Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987)). Now that's extraordinarily attenuated from the Thirteenth Amendment in my view, but there at least someone is doing the "enslaving" - namely, the vandals. Whereas in your case, at most you have government participation in redlining and the like decades ago, the effects of which persist today.

Posted by: Asher Steinberg | Aug 7, 2011 12:29:59 PM

I thought the test for a Thirteenth Amendment violation was "badges and incidents of slavery.". Isn't the problem that these populations are NOT being put to work?

Question being, are you proposing a new test or an extended definition of slavery?

Posted by: Jim von der Heydt | Aug 7, 2011 11:07:47 AM

How, pray tell, is the Government going to make young ghetto dwellers (1) graduate high school and (2) wait to get married to have children? If they do those two things, they will live middle class lives. If they don't, they won't. I don't see what the 13th Amendment has to do with any of this; indeed, the generation-to-generation problems of the underclass seem to have arisen precisely from the efforts of do-gooders and progressives like our host to undermine character and personal responsibility.

Posted by: DBL2 | Aug 7, 2011 12:59:59 AM

Only if Ladies Night is unconstitutional.

Posted by: Praetor | Aug 7, 2011 12:14:28 AM

Although I would hardly begrudge the mayor, George Soros, et al., any accolades for what appears to be a very valuable initiative, won't some of these programs violate the *Fourteenth* Amendment if (as appears) the services are available only to young men?

Posted by: Marty Lederman | Aug 6, 2011 9:40:24 PM

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