What Are “Badges of Slavery”?

In 2013, three men were convicted of kidnapping a disabled Navajo man and branding a swastika into his arm and shaving a swastika in his hair (above). The men worked in the same restaurant, and enticed their victim there to go their apartment, where they brutalized him.

Here is a summary of their criminal conduct:

At Beebe's apartment, the three white men drew on V.K.'s back with markers. They told him they would draw “feathers” and “native pride” but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.'s hair (pictured above). Finally, they heated a wire hanger on the stove and used it to brand a swastika into V.K.'s arm.

William Hatch challenged his conviction, arguing that the federal Hate Crimes Act was unconstitutional because it gave an overly broad definition to “badges of slavery” under the 13^th Amendment. Hatch’s point was that the 13^th Amendment ended slavery of blacks and did not extend to crimes against Navajos.

In a fascinating decision, the Tenth Circuit Court of Appeals rejected that narrow reading and said that the 13th Amendment authorized enactment of laws to do away with the effects of slavery—hence the metaphorical expression, "badges of slavery." (The metaphor related to actual badges that were assigned to slaves, such as this one in 1817 in Charleston South Carolina, somewhat like a dog tag.)

I now quote the Court’s historical research (for the full case, read here http://caselaw.findlaw.com/us-10th-circuit/1637502.html).

Slaves could not own property, could not enter into contracts, and so forth. Slaveowners, by contrast, had complete control over their slaves and even their slaves' children. These aspects of slavery, as well as the so-called Black Codes that attempted to perpetuate the master/slave relationship as much as possible after emancipation, are what were then considered to be “incidents of slavery.”

“Badges of slavery,” by contrast, had a somewhat looser meaning. In the antebellum years, it could refer literally to a badge worn by slaves, such as copper badges issued to certain slaves in Charleston, South Carolina (see picture above). See generally Harlan Greene et al., Slave Badges and the Slave–Hire System in Charleston, South Carolina 1783–1865 (2008); Rutherglen, Badges and Incidents, at 166 (noting that “badge,” in antebellum legal discourse, was sometimes used as shorthand for “evidence permitting an inference from external appearances to legal status”).

In addition, “badges of slavery” could refer to the psychological scars that slavery inflicted upon slaves, McAward, Defining the Badges, at 577, or to any “evidence of political subjugation,” Rutherglen, Badges and Incidents, at 166.

In postbellum legal discourse, “badges of slavery” came to be used primarily as a synonym for slavery's continuing “incidents,” as perpetuated by the Black Codes. McAward, Defining the Badges, at 581; Rutherglen, Badges and Incidents, at 165. But “badges of slavery” also arguably extended to “widespread [private] violence and discrimination, disparate enforcement of racially neutral laws, and eventually, Jim Crow laws.” McAward, Defining the Badges, at 581.

Later in the opinion, the court explained why the Hates Crimes Act applied to Hatch’s conduct:

“Congress could rationally conclude that physically attacking a person of a particular race because of animus toward or a desire to assert superiority over that race is a badge or incident of slavery…. Just as master-on-slave violence was intended to enforce the social and racial superiority of the attacker and the relative powerlessness of the victim, Congress could conceive that modern racially motivated violence communicates to the victim that he or she must remain in a subservient position, unworthy of the decency afforded to other races.”