Suppressing Learning About Race and Law: A New Badge of Slavery? – A Brief Commentary

By Leroy Pernell

There is a war being waged against African Americans, and their ability to speak out against racial injustice, which is more intense than any past attempt at suppression, since post-reconstruction in America. This war has been characterized by state legislative initiatives aimed at denying consideration or discussion of Critical Race Theory. Under the guise of “Anti-WOKE,” states, such as Florida have sought not only to prevent serious discussion of Critical Race Theory, but to broaden the attack to deny advocacy or discussion of the more general issue of systemic role of race in our understanding of American jurisprudence, as well. These actions have, to date, resulted in legal challenges drawn from First and Fourteenth Amendment considerations. While these constitutional issues are currently in litigation and have yet to be determined, there has not been additional consideration of the possible impact of silencing voices of communities of color in ways reminiscent of the voiceless role of slaves. The Thirteenth Amendment prohibition of” Badges of Slavery” suggests an analytical perspective that has heretofore not been discussed. This brief commentary explores both the history and possible current application of the Badges of Slavery doctrine as a counter to current state legislative efforts at silencing. Because the author is currently involved in litigation challenging these attacks on First and Fourteenth Amendment grounds, discussion of those issues are not addressed here. Instead, this commentary focuses exclusively on an argument not made – the Thirteenth Amendment ban on badges of slavery. enter Abstract Body

Available at SSRN: https://ssrn.com/abstract=4633259