Vanderbilt Law Review


Arthur Kinoy

First Page



The historic decision last June by the Supreme Court in Jones v. Alfred H. Mayer Co.,' reasserting for the first time in almost 100 years the constitutional mandate in the thirteenth amendment to abolish the badges and indicia of human slavery from all aspects of American society, has begun to meet with sharp criticism. This is, of course, no surprise. One might expect outcries from quarters of the country in which the far less abrasive vocabulary of Brown v. Board of Education still evokes memories of "Black Monday," "massive resistance" and "interposition.' What is perhaps more surprising is that the current attack on Jones emanates from the home territory of Wendell Phillips, William Lloyd Garrison and Charles Sumner. It has recently been suggested in the Harvard Law Review that the Court in Jones was "carried away by opportunity and temptation" to overreach its proper constitutional role by giving "the country statutes which no Congress ever enacted."' Moreover, in the traditional foreword to the Harvard summary of the work in the 1967 term, Professor Henkin goes on to characterize the constitutional restatement of the sweep of the thirteenth amendment as a "virtuoso performance," unnecessary and by clear implication unwise.' I disagree. I would suggest, as I have previously, that it is impossible to overstate the potentially profound importance to the nation of this bold and courageous reaffirmation of historical realities and legal concepts which have lain buried for years under the conceptual rubble of the 1877 betrayal of the first Reconstruction.