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A Resurgence of Constitutional scholarship on the Thirteenth Amendment has been emerging since the 1950s. In 1951, Jacobus tenBroek argued that courts could construe the Constitution's ban on slavery as not only an attack upon compulsory servitude but also as an assault on the harms and legacies associated with slavery. The Supreme Court adopted this view a decade later and held that the Thirteenth Amendment authortized Congress to eliminate purely private acts of racial discrimination in housing sales as a legacy of slavery...
Process theory interprets the Constitution as mainly providing procedural mandates rather than enumerating substantive rights. Although the theory is commonly associated with judicial review, this Commetn advocates its used as a congressional guide to identify and limit those situations calling for legislative action under Section Two of the Thirteenth Amendment. Instead of asking whether a fundamental right is at stake, process theory inquires whether the underlying procedures giving rise to legal relationships are fair.