IS THERE A CONSTITUTIONAL REMEDY FOR THE ENTRAPMENT OF THE URBAN UNDERCLASS?
by Dawinder S. Sidhu, University of New Mexico School of Law
America’s urban underclass – extremely poor, largely nonwhite, and marginalized from the larger society – undercuts the nation’s promise of equal opportunity for all. In this brief, I offer a legally reasoned argument that the persistence of extreme, segregated urban poverty is offensive to and inconsistent with the U.S. Constitution. Enacted to outlaw slavery at the end of the Civil War, the Thirteenth Amendment to the Constitution is often thought to be a relic of the past, its work accomplished long ago. But arguably the Amendment empowers Congress to address the dire situation of the urban underclass – in order to restore freedom to people trapped in severely impoverished enclaves and ensure constitutionally mandated liberty to them and their offspring.
The Urban Underclass The “urban underclass” exists at the intersection of various disadvantages, first and foremost extreme poverty. Spatial and racial segregation also figure into the situation, as sociologists have found “urban underclass neighborhoods” to be enclaves disproportionately inhabited by African Americans and Hispanics cut off from easy access to transportation, services, and economic opportunities available to the rest of the urban area and American society as a whole. Sociological evidence shows that urban underclass people often lack the means to travel or commute beyond their enclaves, and have even been unable to flee pending natural disasters. Urban underclass poverty also tends to persist through generations. Sociologist Patrick Sharkey has discovered that “more than 70% of black children who are raised in the poorest quarter of American neighborhoods will continue to live in the poorest quarter of neighborhoods as adults.”
Not only do they tend to live apart, urban underclass residents often experience discriminatory treatment, both private and public. They are denied equal opportunities in housing and employment, and their schools lack essential resources and effective teachers. Police largely neglect underclass neighborhoods, except to target their residents in sweeps to grab (often low- level) drug offenders. Heavy handed law enforcement generates a cycle of criminality for residents of extremely poor, minority enclaves, especially the young men. Those who enter, and reenter, the criminal justice system are pushed further away from attaining additional education or stable employment. Finally, people trapped in the urban underclass tend to be politically marginalized, too, because they possess neither the money nor the social connections to encourage officials to pay attention to the conditions or problems of their neighborhoods.
Why the Thirteenth Amendment May be Relevant Ratified in 1865, the Thirteenth Amendment provides that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” It further states
that “Congress shall have power to enforce this article by appropriate legislation.” Enshrining the prohibition on slavery in the Constitution was necessary because, as the Supreme Court noted in 1872, the results of the Civil War and President Lincoln’s Emancipation Proclamation were insufficient assurance that the Union would be without slavery.
Advancing a broad view, the 1872 Court said the Thirteenth Amendment should be read to ban not only traditional notions of “slavery,” but also “oppressive practices” that do not rise to the level of slavery but which nonetheless constitute impermissible “shades and conditions of African slavery.” In 1883, the Court recognized that the Amendment gave Congress the “power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” Yet that Court also reasoned it would be “running the slavery argument into the ground” to apply the Amendment to “every act of discrimination,” and further narrowings occurred in 1906. But that was not the end of the judicial story, because in 1968, the Supreme Court broadened the Thirteenth Amendment’s enforcement power by holding that Congress has the authority “rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”
Although African-Americans were the primary beneficiaries of the Thirteenth Amendment, its protections extend to all individuals regardless of race. Further, the Thirteenth Amendment applies to both public and private conduct. Relying on Supreme Court cases and legislative history, legal scholars have argued that the Amendment affirmatively entitles each individual in the United States to a minimal amount of liberty to make freedom meaningful.
Entrenched Urban Poverty as a Thirteenth Amendment Violation If the Thirteenth Amendment protects all people within the United States from the “badges and incidents” of slavery as rationally determined by Congress, and if the Amendment is read affirmatively to entitle those it protects to a minimal threshold of liberty, then arguably Congress has the authority and mandate to remedy concentrated, entrenched urban poverty. In particular, the absence of meaningful economic opportunity and functional physical liberty for the urban underclass gives rise to a Thirteenth Amendment issue. To be clear, it is not so much the perpetual static economic disadvantage and physical isolation that offend the Thirteenth Amendment as it is the conditions that create this reality for members of the urban underclass and their offspring.
Appropriate Remedies If Congress were to deploy its Thirteenth Amendment enforcement powers to help the urban underclass, what would appropriate remedies be? The goal would be to remove obstacles that entrap residents in segregated and impoverished enclaves. Enhancements in housing, education, and infrastructure would be necessary to overcome economic and spatial isolation, and special measures might well include job training, early childhood education, and programs to help ex- felons reintegrate into society. The “war on drugs” would have to be reconsidered. Under the Thirteenth Amendment, to be sure, appropriate remedies could not be construed as individual entitlements. Instead, such remedies would free the residents of marginalized ghettos to participate fully in the liberties and opportunities guaranteed to all Americans.
Read more in Dawinder S. Sidhu, “The Unconstitutionality of Urban Poverty.” DePaul Law Review 62, no. 1 (2012). www.scholarsstrategynetwork.org June 2013