Excerpted From: Etienne C. Toussaint, The Abolition of Food Oppression, 111 Georgetown Law Journal 1043 (May, 2023) (544 Footnotes) (Full Document)


EtienneCToussaintA middle-aged Black man stands in front of a window with a smile. “Hello,” he says with bouncing shoulders while pointing toward the glass pane. “Do you look good? Do you look good?” As the camera pans out, a young Black girl emerges next to him on the television screen, visibly embarrassed as the anxious man continues to speak to something or someone beyond the crystalline barrier. The girl utters in a hushed voice, “Daaaad,” as she listens to her father employ a tone of speech commonly associated with infants. “Yes, you do. Yeees yooou dooo,” the man sings before plucking his lips playfully while uttering cooing sounds. One presumes that the father and daughter are both peering through the window of a hospital nursery, until the camera pans out further still and several rows of miniature hamburger sliders come into view, each neatly organized upon a restaurant counter. A White man adorning a chef's apron and a coy smirk packages the burgers one by one into small cardboard boxes and the commercial ends abruptly with the company's logo and slogan plastered across the screen: White Castle. What you crave.

Growing up in the South Bronx, I spent several years obsessed with White Castle hamburger sliders. It became a weekly tradition, a cheap and savory reprieve from the monotony of Sunday afternoons before the sound of my grandmother's voice on Monday mornings would snap me back into my weekday routine. As one might expect, I was a chubby kid. Although my mother refused to purchase the latest Air Jordan sneakers for me, our fridge and snack cabinet were rarely empty. As a result, when I first heard the phrase food desert--a geographical area with “limited access to affordable and nutritious food” did not think of my home neighborhood in the South Bronx, a place where C-Town Supermarket was nestled between two corner store bodegas, and where Chinese food takeout spots dotted almost every avenue under the elevated train tracks. But, when I learned about the phrase food swamp--“a spatial metaphor to describe neighborhoods where fast food and junk food inundate healthy alternatives” immediately thought about White Castle, McDonald's, Subway, Popeyes, Kentucky Fried Chicken, and several other lesser known fast-food restaurants, all within a one-mile radius of my childhood home. Years later, I would question what it means for one to have grown up in a place referred to as a swamp--an overwhelming yet uncultivated place; a place inhabited by dangerous creatures; a place of transition--and emerge, I suppose, as one of America's swamp things.

These forgotten memories and unresolved questions resurfaced in early 2020 when the COVID-19 pandemic emerged. The world witnessed the disparate impact of the novel coronavirus on historically marginalized communities across the United States, rapidly exposing America's uneven geography of public health. The terror hit close to home as the spring of 2020 saw people living in the predominantly Black and Hispanic/Latinx low-income neighborhoods of the Bronx die at almost twice the rate of New York City's four other boroughs. Other historically marginalized communities across the country soon reported similar devastation, from Detroit, Michigan; to Chicago, Illinois; to the nation's capital, Washington, D.C. Public health experts have traced the heightened risk of mortality from COVID-19 among these populations to their high rates of diabetes, asthma, and hypertension, among other comorbidities. Many critics blame the prevalence of such coexisting conditions on the food consumption choices of these vulnerable populations, reflecting the politics of personal responsibility that “dominates medical, scientific, and social views of health.”

However, food justice activists and progressive scholars have deepened the analysis by calling attention to structural oppression levied by the U.S. food system. Pushing further than the traditional conception of oppression as the exercise of “tyranny of a ruling group over another,” the political theorist Iris Marion Young defined oppression as “systemic constraints on groups” and as “structural, rather than the result of a few people's choices or policies,” adding that such “oppressions are systematically reproduced in major economic, political, and cultural institutions.” Thus, the prevalence of unhealthy fast-food restaurants (and the lack of healthy alternatives) in low-income Black and Hispanic/Latinx neighborhoods nationwide suggests not merely the possibility of structural racism, but even more, the prospect of structural oppression rooted in the “exploitation, marginalization, powerlessness, cultural imperialism, and violence” produced by food ecosystems. The COVID-19 pandemic has only made matters worse. Prior to the pandemic, studies reported that food insecurity--defined by the U.S. Department of Agriculture (USDA) as “a lack of consistent access to enough food for every person in a household to live an active, healthy life” plagued more than thirteen million households across the United States, with a disparate impact on Black and Hispanic/Latinx households. Whereas in 2018, eleven percent of households experienced food insecurity, by March 2020, thirty-eight percent of households were experiencing food insecurity as global food systems grew increasingly fragile. Beyond the social determinants of health, the marginality and powerlessness experienced by such populations in relation to global food markets, this Article argues, find their roots in the antebellum political and economic system of chattel slavery.

To address food insecurity and boost public health in the wake of COVID-19's wrath, U.S. local governments have begun to emphasize local food production. Yet, even well-intentioned local food systems, such as urban farming programs, can entrench “neoliberal” norms into expanding food markets (for example, pro-business policies that promote entrepreneurialism and the privatization of local property through tax-based incentives). When such efforts overlook the benefits of community ownership models for land development and food production, such as community land trusts and worker-owned cooperatives, they tend to perpetuate the very systems of oppression they seek to overcome. For example, Washington, D.C.'s recent efforts to update its decades-old urban farming legislation has yet to resolve the pervasive food insecurity in the District's predominantly Black and Hispanic/Latinx wards, which also house the capital's lowest-income residents. Further still, even when lawmakers propose progressive food justice programs that address food insecurity in historically marginalized communities, such as the Biden Administration's federal debt relief program for socially disadvantaged farmers and ranchers under the American Rescue Plan Act of 2021, they are routinely challenged on constitutional grounds for preferencing non-White racial and ethnic groups.

As a result, food insecurity in the urban ghettos and rural towns of America persists as poverty cycles from generation to generation and structural oppression becomes increasingly normalized. However, this problem is not new. Since the abolition of chattel slavery in 1865, U.S. law and policy makers have been divided on the appropriate role for government in the battle against poverty and food insecurity, especially with respect to the plight of BlackAmericans. On the one hand, critics of progressive governmental programs during Reconstruction, such as the Redeemers and Bourbon Democrats, advocated for a libertarian approach to poverty alleviation that prioritizes free markets and private business development. Similar to the social theories advanced by many modern conservatives to explain the food insecurity of low-income neighborhoods, Redeemers and Bourbon Democrats likely contended that formerly enslavedBlack people were to blame for their poor diets, poor health, and high rates of food-related disease. As to be expected, nineteenth-century social conservatives viewed the race-based food programs initiated by The Bureau of Refugees, Freedmen, and Abandoned Lands (also known as the Freedmen's Bureau) with suspicion and contempt.

On the other hand, much like the Radical Republicans of the Reconstruction Era, modern progressives have advocated for a welfare state political system, whereby the government takes a hands-on approach toward bolstering the social and economic well-being of all citizens to establish the basis for equality under law. Modern researchers have shown that limited access to affordable, healthy, and nutrient-rich food, coupled with inadequate resources for health education, has routinely plagued impoverished communities across U.S. history. Such scholars emphasize the political and economic dimensions of poverty that drive food insecurity in historically marginalized communities, both urban and rural. There, residents routinely suffer from inadequate health care services, limited educational resources, housing instability, environmental insecurity, unstable and low-wage jobs, and other missing institutional structures necessary for resilience. Consequently, advocates have pushed for more aggressive relief and public assistance programs, and have increasingly turned to the Reconstruction Era's Thirteenth Amendment as a legislative weapon to address lingering badges of the antebellum system of chattel slavery in modern society.

This Article does not settle once and for all the age-old debate over the appropriate governmental stance toward the political, social, and economic well-being of the descendants of formerly enslavedAmericans and other marginalized populations in the United States, notwithstanding its salience to ongoing food justice efforts. Instead, it begins with a more fundamental question: has political debate over the legitimacy and scope of the American welfare state obscured the unfinished work of the Reconstruction Amendments? One might argue, as Professor Andrea Freeman asserts, that the persistence of food insecurity in historically marginalized communities across the United States reflects not merely the shortcomings of state-sponsored food distribution and nutrition programs, but more fundamentally, the stain of the antebellum system of chattel slavery. To Freeman, the saturation of unhealthy fast-food restaurants in low-income Black and Hispanic/Latinx neighborhoods nationwide, coupled with a lack of access to healthy and nutrient-rich alternatives, amounts to food oppression--“not the product of individual acts of discrimination,” but “the institutionalized practices and policies of government and the fast-food industry.” Beyond probing the reach of the welfare state, this assertion calls into question the very structure of the U.S. law and political economy that undergirds its modern food system. Does modern food insecurity reflect a type of structural oppression that stems from the antebellum era, and if so, can anything be done to abolish it?

As part of a recent wave of legal scholarship resurfacing the significance of the Reconstruction Amendments to the social, economic, and environmental crises of our modern age, this Article builds upon the work of Andrea Freeman and other food justice scholars to advance an abolition constitutionalist framing of food insecurity in the United States. It similarly argues that food insecurity in historically marginalized communities can and should be viewed as a vestige of the antebellum system of chattel slavery. As the Supreme Court declared in Jones v. Alfred H. Mayer Co., Congress is empowered to “pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” Still, as Professor William M. Carter, Jr. and other constitutional scholars have noted, there remains a lack of clarity on the scope of material conditions or forms of discrimination that constitute badges of Americanslavery, often rendering it “fool's gold” in the eyes of progressives as a tool for structural reform. When does food insecurity become a badge of the antebellum system of chattel slavery? Even if certain types of food insecurity are deemed badges of slavery, does the Amendment apply to non-racial classifications, such as groupings by gender? Further still, does the Amendment abolish those types of food insecurity that embody a badge of slavery even in the absence of implementing legislation? Can aggrieved parties bring a direct cause of action under the Amendment?

To begin resolving these discrepancies, this Article pursues two primary objectives. First, it describes how food oppression was used during the antebellum era to constitute the subordinate social status of enslavedBlack people. White enslavers not only expropriated the labor value of the enslaved population, but also used food access to inflict violence upon Black people and confine them to the margins of social life. Specifically, enslavers rationed nutrient-rich and fresh food to the enslaved class, exposed the enslaved class to food-related diseases, and isolated the enslaved class in communities of food deprivation. As this Article argues, these material conditions of structural food oppression signified the abjection of life, thereby legitimating the institution of slavery by casting Blackness as undeserving of equality, liberty, or bodily integrity. To put it bluntly, Blackness was conveyed as something less than human.

After emancipation, the U.S. government allowed these tools of state-sanctioned food oppression to persist in overt and surreptitious ways. In so doing, U.S. state and local governments perpetuated the food insecurity of marginalized BlackAmerican communities, as well as other minoritized and exploited populations. These practices inspired the development of the term “food-apartheid,” which describes neighborhoods where exploitative and inequitable food practices predominantly harm low-income and non-White groups, often in support of the profit-making ends of global food corporations. Efforts by the U.S. federal government to mitigate food insecurity-- for example, the USDA Food Stamps Program, now known as SNAP struggled to overcome the racial biases and stigmas embedded in modern food systems. As a result, residents of food insecure neighborhoods continue to endure the exploitation, marginalization, and violence of food oppression, not dissimilar from that experienced by the enslaved class during the antebellum era. Whether modern-day food oppression is state-sponsored or animated by private actors, it not only hinders public health, but calls into question both the spirit and letter of the Thirteenth Amendment. To be sure, this descriptive claim lacks an explicitly normative dimension, suggesting that food oppression in Black neighborhoods could be mere coincidence or a tenuous correlation. Indeed, not every hardship of antebellum life should be lumped under the mantle of slavery. What are the fundamental injustices of food oppression that render it a badge of slavery?

This Article's second objective, then, is to clarify the normative dimensions of modern food oppression that link it to the antebellum era. Specifically, it proposes a dignity-based normative framework to guide judges, legislators, prospective litigants, and scholars in deciding whether certain modern-day harms constitute a badge of slavery. Characterizing the lingering harms of slavery requires a more robust conception of the way the so-called peculiar institution oppressed enslaved people, individually, and shaped the lives of all antebellum era citizens, collectively. Unarmed with a clear legal framework to assess the nature of the harms that litigants claim are vestiges of chattel slavery, several lower courts have already limited the Thirteenth Amendment's Enforcement Clause to only literal slavery or involuntary servitude. William M. Carter, Jr. has advocated that: “[T]he badges and incidents of slavery prohibited by the Thirteenth Amendment be defined with reference to two primary issues: (1) the connection between the class to which the plaintiff belongs and the institution of chattel slavery, and (2) the connection the complained-of injury has to that institution.” Building upon Carter's two-pronged approach, this Article's dignity-based framework seeks to assess, more intentionally, the nature of injuries or material conditions that are proximately traceable to chattel slavery as a political economic system. Slavery's system of oppression influenced class-based relations during the antebellum era, shaping beliefs about the meaning of free and unfree labor in the United States. However, beyond coordinating the labor expropriation of enslavedBlack people who toiled under the threat of violence or death, as well as coordinating the labor exploitation of indentured and low-wage workers who faced the threat of poverty or starvation, the U.S. system of chattel slavery, this Article argues, also inflicted dignitary harms upon its marginalized workers, thereby shaping the meaning of human dignity that undergirds U.S. citizenship.

More specifically, the ubiquity of dignitary harms experienced by the enslaved population during the antebellum era framed broader discussions about human dignity in U.S. law and political economy. The dignitary harms of slavery not only established the social inferiority of Black people, but they also granted moral legitimacy to the ideology of White supremacy that both governed the southern plantation economy and bolstered free wage labor in northern industrial markets. Further, such harms contextualized constitutional debates after the Civil War on the meaning of liberty, equality, and bodily integrity in relation to U.S. citizenship. To be sure, the concept of human dignity can seem nebulous, deployed in various and sometimes contradictory ways by constitutional courts around the world. Indeed, the U.S. Constitution does not define the term. This Article proposes that three popular philosophical framings of human dignity--dignity as equality; dignity as liberty; and dignity as integrity--be integrated into a unified ontological conception of the human condition essential for democratic citizenship. Consequently, the constitutional rights of citizenship established by the Reconstruction Amendments, beginning with the Thirteenth Amendment's commitment to freedom from enslavement and indentured servitude, should be viewed, at a minimum, as a right to be free from the types of oppression that established the indignity of slavery.

This Article proceeds in three parts. Part I begins by describing how food insecurity was weaponized during the antebellum era to oppress enslavedBlack people and establish their status as less than human and thereby undeserving of citizenship. Then, it discusses the abolitionist purpose of the Thirteenth Amendment. Specifically, this Part notes the work of the Freedman's Bureau during Reconstruction to mitigate food insecurity, demonstrating a view that improving access to life-sustaining food was a necessary step toward dismantling the lingering vestiges of slavery. Finally, this Part discusses some of the ongoing efforts of racial justice activists toward using the Thirteenth Amendment's enforcement power to achieve the reconstructive goals of the Freedman's Bureau. A review of important case law shows how the Supreme Court has affirmed the power of Congress to abolish all lingering badges and incidents of slavery. Yet, the Court has failed to provide clarity on the scope of material conditions and forms of discrimination that are applicable to the Amendment.

Part II follows by building the causal link between modern food insecure neighborhoods and the oppressive culture of the plantation economy, thereby demonstrating how vestiges of antebellum food oppression have shaped food laws and public policies since emancipation. Through a historical survey of food justice efforts since Reconstruction, this Part highlights how food laws and public policies have failed to resolve the unmet food needs of marginalized communities. Specifically, local governments have enabled the rationing of nutrient-rich food to historically marginalized communities, the exposure of such communities to food-related disease, and the isolation of such communities within geographies characterized by food deprivation. These vectors of food oppression have operated collectively to further the capital accumulation and profit-making ends of large corporations that dominate the global food industry. By sanctioning a political economic system premised on exploiting the marginality of disempowered citizens, the U.S. government has allowed the injustices of the antebellum system of chattel slavery to haunt modern day life and frustrate the liberatory goals of Reconstruction.

Finally, Part III proposes a dignity-based normative framework to assess the nature of injuries or material conditions that are proximately traceable to chattel slavery as a political economic system. Drawing from a breadth of Supreme Court constitutional jurisprudence, it advances a legal conception of human dignity defined as: (i) the equal opportunity to express inherent human capacities (that is, dignity as equality); (ii) liberated from the unjustified constraints of others (that is, dignity as liberty); (iii) toward the full development of an integrated personhood (that is, dignity as integrity). Then, using the modern problem of food insecurity as a guiding explanatory thread, it clarifies how equality-based, liberty-based, and integrity-based dignitary harms that were central to the system of chattel slavery persist today. Such harms normalize an undignified human existence that, this Part argues, not only hinders public health, but also violates the spirit and letter of the Thirteenth Amendment.

Taken together, this Article's exploration of food insecurity and abolition constitutionalism through the lens of dignity suggests that the notion of a colorblind constitution and the politics of personal responsibility may be to blame for food insecurity's racial dilemma. Modern constitutional challenges to race-based food justice programs reflect an unwillingness to reckon with racialized structural oppression embedded in the very fabric of the modern U.S. food system. As this Article concludes, perhaps the answer to resolving the indignities of food insecurity provoked by gross inequities in modern food markets lies in embracing a progressive vision of the constitution that affirms social and economic rights as foundational to human dignity and equal protection under law.

[. . .]

Food insecurity remains a persistent problem in marginalized communities across the United States. In many ways, it reflects the politically divisive role of the U.S. government (at the federal, state, and local levels) in allaying the social and economic inequities that are produced by the nation's capitalist political economy. More fundamentally, as this Article has shown, political debates over the legitimacy and scope of the American welfare state obscures the unfinished work of the Reconstruction Amendments. Food oppression was used during the antebellum era to constitute and perpetuate the subordinate social status of enslavedBlack people, thereby justifying their labor expropriation toward furthering the profit-making ends of their enslavers. However, the material conditions of structural food oppression that signified the abjection of Black life and legitimated the institution of slavery also shaped the meaning of equality, liberty, and integrity in relation to human dignity and citizenship.

After emancipation, politicians were deeply divided on the goals of the Reconstruction Amendments. Some decried governmental assistance to formerly enslavedBlackAmericans, claiming that civil liberties and the opportunity to work via contract was sufficient for freedom. Others argued that social and economic constitutional rights were also necessary, not only for equal citizenship, but also as a corrective for the inequities wrought by the system of chattel slavery and indentured servitude. This Article has shown that the lens of human dignity offers a unique way to characterize the nature of injuries or material conditions that are proximately traceable to chattel slavery as a political economic system. This system was designed to expropriate and exploit labor by fashioning class-based relations of domination legitimated by White supremacist ideologies. Specifically, it deployed various dignitary harms that collectively produced structural oppression. Modern vestiges of the antebellum system of chattel slavery--viewed through the lens of political economy--emerge as those practices that perpetuate the types of dignitary harms that collectively sustained the plantation economy and shaped the lives of its oppressed workers.

The dignity-based normative framework offered in this Article suggests that the problem of food insecurity in marginalized communities across the United States can be viewed as a badge of the antebellum system of chattel slavery. Such a framing invokes the legislative potential of the Thirteenth Amendment's Enforcement Clause. While outlining the key steps for law and policymakers to deploy legislation toward such ends is beyond the scope of this Article, many states have already taken valiant steps to combat food injustice that show its potential. For example, the City of Los Angeles, California, passed an interim control ordinance prohibiting the establishment or expansion of fast-food restaurants in certain neighborhoods, while the City of Minneapolis, Minnesota, passed an ordinance requiring grocery stores to carry a minimum quantity and selection of perishable foods. Other cities like Madison, Wisconsin, and Scott County, Minnesota, have incorporated food-security considerations into their comprehensive regional plans through policies supporting locally grown food and community gardening. In some cities, such as Chicago, Illinois, non-profit organizations play an important role in providing healthy food to low-income and marginalized communities. Scholars remain divided on the best approaches toward resolving food insecurity, and a discussion of such debates is beyond the scope of this Article. Whether cities seek to address food insecurity through regulations, through tax incentives, through community-based initiatives, or through comprehensive regional planning, what remains clear is that these efforts are not framed as responses to food indignities tied to the antebellum system of chattel slavery. Doing so will not only clarify their salience, but also inspire other jurisdictions to follow suit. Much more can and should be done. As this Article has argued, change requires a reckoning with the structural oppression embedded in the very fabric of the modern U.S. food system, and the responsibility of the U.S. government--under the Thirteenth Amendment--to solve it.

Assistant Professor of Law, University of South Carolina School of Law; Massachusetts Institute of Technology, B.S.; The Johns Hopkins University, M.S.E.; Harvard Law School, J.D.; The George Washington University Law School, LL.M. 2023, Etienne C. Toussaint.