Slavery Law Today
An oxymoron? Not in Virginia
Slavery was ended by the Emancipation Declaration in the third year of the U.S. Civil War,1 and made permanent with the ratification of the 13th Amendment.2 Any reference to slavery in state constitutions was considered void, and states slowly began to remove those offending parts of their state’s constitution. And I mean slowly.
Just in November 2022, Alabama, Louisiana, Oregon, Tennessee and Vermont voted on state constitutional amendments prohibiting slavery and involuntary servitude; and Colorado, Nebraska and Utah voted on it since 2018.3 As for ratification of the 13th Amendment, Mississippi did not actually ratifiy the 13th Amendment until 1995, and then failed to submit the required documentation to the U.S. Archives. In 2013, they submitted the required documentation and finally made slavery officially illegal in Mississippi.4
That said, the Supremacy Clause and the jurisprudential requirement that states incorporate all of the U.S. Constitutional Amendments into their state laws and actions, means it was merely a formality to amend their Constitutions. But because slave laws in the state might have been still legal under the state constitution in modern times, could slave law be validly used by a state court as precedent for analogous situations in the off chance you ever found a case analogous to slavery? Or if state slave laws have not been repealed are they still law? In Virginia, the answer is “yes.”
Ruling in March 2023, Fairfax, Virginia
In a long-running case concerning the fate of embryos held by a divorcing couple, a judge considered whether they might be “property” so that they could be divided. The wife wanted to use them because cancer treatment had left her unable to have children. The husband objected. The judge found that slave law in Virginia made humans property that was divisible in property distributions like inheritance matters and so held that the embryos were “property”, hence divisible.5
But is this case law and statute still law? Would it not have been preempted by the 13th Amendment?
Native American Laws Repealed
This year, a group of federal laws that are no longer valid that target Native America were all repealed by a statute, The RESPECT Act,6 that repealed outdated and dsicriminatory federal laws like laws taking children from Native families to attend residential schools that were destructive to tribal nations, culture and families.
While it may not have been necessary to repeal the residential schools law, since the end of the genocidal policies of forced taking of children from their families to “kill the Indian and save the man”. Or is it the end? Even as I write, the U.S. Supreme Court is considering whether to repeal the federal law that was passed to correct this terrible genocidal program with the residential schools and forced placement of Native children with white families.7
So the risk of keeping these old laws may be real. Repealing these laws was a safety measure that they could never be used again —which suggests they were still valid laws.
Other future cases?
Is this judge living in the past or ahead of his time?
What do we do with robots that are prescient? They live with their families and take on an anthropomorphic presence. Or genetically engineered humans in experimentation (perhaps in our future)? Will a judge find these analogous to slaves?
Dogs are considered property but this has been fiercely argued as inadequate and outdated. So is this opinion moving us in the wrong direction? If dogs are not property what are they? The U.S. Constitution protects the rights of “a person” so since corporations have been deemed to have “personhood” status in some cases is there a way to also designate dogs with at least a right to exist and to live, for example? Requiring some kind of due process ?
In the 1970s the famous article by Christopher Stone entitled “Do Trees Have Standing?” asked whether trees should have a guardian to represent their best interests? Just in the last decade the Whanganui River in New Zealand has been granted rights as to its existence and health overseen by a mix of people on the rivers edge including the indigenous peoples who advocates for its rights. Since then rivers in India and Ecuador have had rights acknowledged. Even in the United States a case was filed to give similar rights to the Colorado River, though not successful, I think it is probably likely in our future.
International law and slave law
The Slavery Convention, an international treaty that was entered into force 25 Sept. 1927, defines slavery in international law in its first Article 1:
(1) Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.8
In international law there are at least two examples of areas of law that are always considered illegal and will not be recognized in any international agreement. These are genocide and slavery.9 These are called peremptory norms, and they are accepted and recognized by the international community as “one from which no derogation is permitted.”10 No state can opt out of a peremptory norm, no matter how much they object. Further, peremptory norms supercede all treaties even those pre-dating the emergence of the norm, and invalidate any treaty in conflict with them.
So in international law, any new law will supercede slavery law or any treaty that deals with slavery. However, in Virginia, no new law exists to supercede slavery law, at least according to a judge in Virginia.
Analogies
Was slavery the right analogy for embryos?
Precedent and jurisprudence depend on analogies in law. Analogies are more of a term of art in law. For example, would you have thought a cigarette pack was analogous with a pager device? The US Supreme Court found that a pager was analogous to a pack of cigarettes because of their size and placement in pockets on a person with similar concepts of privacy around their location. Without a statute that specifically addresses the set of facts we ask judges to draw from precedent and existing laws, hence the way our common law system works. Judges cannot make up laws they must apply existing laws or analogous cases.
So why do we not have statutes addressing the status of embryos? Legislatures are so far behind in understanding technology that in a sense it is good they do not legislate in the area until it is well understood by most of society. But it does leave judges on the front lines of deciding for society from laws and cases that already exist as analogies in making their decisions.
So until the Virginia legislature speaks to this issue (where jurisdiction over family law and property law lies) we really have to rely on the wisdom and jurisprudential skill of our judiciary. They have to make decisions on cases in the time we find ourselves, and do not have the luxury of exploring legislative possibilities or writing about the possibilities in a law review or journal. They have to make decisions that affect real people today, and this judge worked with what he had, and if Virginians want another outcome, they will need to focus on legislation — and that’s how legislation is often made.
https://museum.archives.gov/featured-document-display-emancipation-proclamation-and-juneteenth#:~:text=President%20Abraham%20Lincoln%20issued%20the,year%20of%20the%20Civil%20War. (See my previous post on Feb 12, that this was probably beyond the constitutional Art. II power of the President, but given the nation was in Civil War, legislation would likely be impossible. )
In Decemberr 1865, the required 3/4ths of the states had ratified the 13th Amendment. https://abcnews.go.com/blogs/headlines/2013/02/mississippi-officially-abolishes-slavery-ratifies-13th-amendment
https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/08/22/yes-slavery-is-on-the-ballot-in-these-states
https://abcnews.go.com/blogs/headlines/2013/02/mississippi-officially-abolishes-slavery-ratifies-13th-amendment
https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/opinions/cl-2021-15372-honeyhline-heidemann-v-jason-heidemann.pdf
https://www.rounds.senate.gov/newsroom/press-releases/rounds-respect-act-signed-into-law The RESPECT Act, signed into law Dec. 22, 2022.
Brackeen v. Haaland , opinion expected in June.
https://www.ohchr.org/en/instruments-mechanisms/instruments/slavery-convention
https://www.cairn-int.info/journal-les-cahiers-de-la-justice-2020-2-page-197.htm
https://en.wikipedia.org/wiki/Peremptory_norm