The 13th Amendment Created Legal Slavery Through Incarceration

Slavery didn’t end, it evolved. That’s the powerful argument made in Slaves of the State: Black Incarceration From the Chain Gang to the Penitentiary by Dennis Childs. Ever since a clause in the 13th Amendment allowed for enslavement as “punishment for crime,” the groundwork has been laid for the prison industrial complex to function as the 21st century equivalent of chattel slavery. Order your copy of this eye-opening book by making a donation to Truthout today!

In this excerpt from Slaves of the State, Dennis Childs illustrates how the 13th Amendment played a primary role in perpetuating slavery:

One of the most devastating documents of liberal legal sorcery ever produced under occidental modernity [is] the Thirteenth Amendment to the US Constitution itself. … [T]he very amendment to the Constitution that was to have performed the miraculous conversion of “chattel into man” actually facilitated his and her re-chattelization through imprisonment: “Neither slavery nor involuntary servitude, except as punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The grandest emancipatory gesture in US history contained a rhetorical trapdoor, a loophole of state repression, allowing for the continued cohabitation of liberal bourgeois law and racial capitalist terror; the interested invasion of “objective,” “color-blind,” and “duly” processed legality by summary justice and white supremacist custom; and the constitutional sanctioning of state-borne prison-industrial genocide.

That my attachment of such gravity and epochal meaning to the exception clause is no case of political hyperbole is registered by the publicly aired debate it caused, both at the time of its passage and in the years surrounding the implementation of the postbellum Black Codes. Carl Schurz spoke directly to the imminent reenslaving purposes to which postemancipation statutory law would be marshaled in filing a report on southern race relations just after the Civil War:

The emancipation of the slaves is submitted to only in so far as chattel slavery in the old form could not be kept up. But although the freedman is no longer considered the property of the individual master, he is considered the slave of society, and all the independent state legislation will share the tendency to make him such. The ordinances abolishing slavery passed by the conventions under the pressure of circumstances will not be looked upon as barring the establishment of a new form of servitude.

(Image: University of Minnesota Press)An explicit account of the primary role of the Thirteenth Amendment in the reenslavement of free black people was offered at the Joint Committee on Reconstruction in 1866, the same year that the neoslave auctions advertisements were posted in Maryland newspapers. In his testimony, a northern clergyman testified to having had a conversation with a white southern preacher who made a brazen declaration regarding the surreptitiously terroristic utility of the emancipation amendment, one that in its brutal accuracy expresses how the white supremacist opportunity afforded by the exception clause was a matter of southern common sense: “Alluding to the amendment to the Constitution that slavery should not prevail, except as punishment for a crime, [the southern preacher said] ‘we must now make a code that will subject many crimes to the penalty of involuntary servitude, and so reduce the Negroes under such penalty again to practical slavery.'”

While the southern minister’s reference to a “code” of virtual reenslavement obviously refers to the openly racist Black Codes that would immediately begin to terrorize the black population after the war’s cessation, in the remainder of this chapter I will explore the ways in which the exception clause had temporal reverberations that extended long after the apparent demise of openly racist statutory law, as well as a geographical reach that was in no way cordoned to points south of the Mason-Dixon line. Through my discussion of congressional debates, the peonage cases, and the hybrid formations of public/private neoslavery that placed free black people in a constant state of collective jeopardy, I underline the degree to which “color-blind” juridical, legislative, and penal law all played central roles in constructing an overall code of reenslavement – states of legalized and racialized exception made possible in large measure by the Thirteenth Amendment’s punitive exception.

Aside from episodic interventions by prisoners, antiprison activists, and a small number of scholars in respect to its dominative effectivity, the exception clause has received very little in the way of sustained treatment within legal, social, and political histories of Reconstruction, southern neoslavery, and the national system of racial capitalist patriarchal punishment that continues to ravage black, brown, Indigenous, and poor people. Legal histories that do not simply laud the amendment as a marker of liberal legal progress have focused almost entirely on some aspect of the shifting juridical interpretation of its prohibitory dimensions relative to slavery and its “badges.” Read collectively, these discussions focus on the ways in which the amendment’s common law construction during the first fifty years of emancipation vacillated from a relatively expansive view during Reconstruction (marked by cases upholding the constitutionality of the Civil Rights Act of 1866); to a restrictive view in keeping with Lochner-Era laissez-faire ideology and the liberal white supremacist sanctioning of Jim Crow apartheid (signaled most infamously with the Civil Rights Cases [1883]); to a moment of brief reexpansion in the early twentieth century with the Supreme Court’s rulings in the peonage cases (Bailey v. Alabama [1911] and US v. Reynolds [1914]).

Copyright (2015) by the Regents of the University of Minnesota. Not to be republished without permission of the publisher, the University of Minnesota Press.