Constitutional Liberties and Race: Terms and Conditions Apply

A couple of weeks before the holiday, a robust debate emerged on the AAIHS blog about the Thirteenth Amendment, in particular the effects of its notorious “loophole” as described in the recent documentary 13th. Patrick Rael’s “Demystifying the Thirteenth Amendment and its Impact on Mass Incarceration” got the conversation started, and Dennis Childs’s “Slavery, the Thirteenth Amendment, and Mass Incarceration” was a scathing rejoinder to Rael’s post. For those who haven’t seen 13th, or are unfamiliar with the loophole, the Thirteenth Amendment, which “ended” slavery, reads as follows:

SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. SECTION 2. Congress shall have power to enforce this article by appropriate legislation.

The clause that begins with “except” is the loophole: slavery/involuntary servitude is allowed to exist for criminals. There are, as several of us argue quite clearly in 13th, exceptions to emancipation. But given the Thirteenth Amendment’s near-mythic image as the final victory over slavery (an image recently propagated by another film, Steven Spielberg’s Lincoln), this argument we make in 13th has ruffled some feathers, and led to pushback along the lines of Rael’s AAIHS post.

Rael argued, essentially, that 13th‘s focus on the “loophole” in the Thirteenth Amendment was overblown, that this clause was not intended to preserve chattel slavery in the guise of criminalization, and that the worst vestiges of Jim Crow and the carceral crisis would have happened anyway. The convict gangs of the 1880s, he asserts, were a fundamentally different labor regime than the slave gangs of the antebellum era, rather than the latter being an extension and preservation of the former. The notion of “intent” is especially problematic, I think. It doesn’t matter if the gasoline and matches in my shed were intended to burn my house down; the arsonist’s use of them is what’s ultimately decisive. Tools are neutral, but their users are not. The tangled history of the Thirteenth Amendment and racist mass incarceration is clear example of that.

In his rejoinder to Rael, Dennis Childs pointed to a welter of what he saw as questionable assumptions in Rael’s article. One of the most striking was Rael’s use of Charles Sumner’s objections to the amendment’s proposed language; Childs notes that Sumner predicted the very thing that Rael argues didn’t occur-the use of this loophole language to substitute mass incarceration of black people for the antebellum labor regime of slavery. Moreover, Childs argues, we can look at the notorious 1871 Ruffin decision in Virginia, with its decree that prisoners were “slaves of the state,” to see how useful racialized mass incarceration was in maintaining as much of the Old South’s chattel slavery as possible in the so-called “New South.”

Childs’s counter-arguments to Rael’s piece, I think, are both thorough and devastating. But there is one area that much of this debate has missed, and it’s an area I think lies at the root of the issue: as a society, our collective unwillingness to challenge what has become the sacral language of the Constitution has prevented us from reckoning with some of the fundamental truths of our history.

The Thirteenth Amendment, as evidenced by Spielberg’s hagiographic treatment, is emblematic of this dilemma. We all know that the Civil War ended slavery via the Thirteenth Amendment, the conventional wisdom goes. This amendment was the absolution for our nation’s original sin of slavery. But what if that absolution was, at best, incomplete? What if the Civil War didn’t really end slavery, and instead just ended one set of legal protections for a particular manifestation of unfreedom? That’s a more complicated set of questions, and there’s little room in the Cult of the Constitution for those, it appears. It seems to me that so much of the reluctance to recognize the loophole in the Thirteenth Amendment for what it really is-a means by which racial slavery was perpetuated, even after “emancipation”-stems from a collective inability to move past the mythology of the Constitution as Holy Writ and see the document as the product of very specific and powerful historical contexts.

In this light, should we be surprised that terms and conditions were attached to emancipation? Just as the 1954 Brown decision did not immediately desegregate American schools-because constitutional language and its judicial interpretations are not self-enforcing!-so too did the Thirteenth Amendment fail to completely end slavery. Slavery had been thoroughly interwoven into the US’s social, cultural, economic, and political fabric since the early 1600s. The racism which undergirded it was even more powerfully entrenched in white Americans’ collective psyche. It would take more than words to counter them, and the story of American history is in many ways the story of this gap between theory and practice, between noble ideals and racist realities. There’s little debate over the limits of Brown, but to take the position we did in 13th and posit that the Thirteenth Amendment had important limits was to invite significant resistance. What’s the difference? Brown wasn’t constitutional text itself, the Thirteenth Amendment is. One can criticize exegesis, but not the holy writ itself.

Here’s what really sets the Thirteenth Amendment apart, though, and what should raise a number of red flags regarding the “it-ended-slavery-and-brought-freedom-to-us-all” interpretation: its explicitly conditional language. As it existed in 1865, the Constitution and its first Twelve Amendments contained two types of limiting language. The first (and most common) type of this language is where limits are placed upon the powers of the state or its various components. The First Amendment’s stipulation that “Congress shall make no law” regarding the establishment of a religious doctrine or limiting free speech is a prime example of this limiting language. Indeed, one of the key features of the Constitution (including the Bill of Rights) is the specific and explicit limiting language it uses regarding state power. Of course, this reflects its eighteenth-century, post-revolutionary context, one in which Americans were leery of centralized political power. The Constitution may have vastly strengthened the central government’s powers, but the rhetorical attention it paid to the limits of those powers was a significant part of the charter’s substance. The Bill of Rights is the best example of this. The first ten amendments to the Constitution are remarkable in their blend of universal language when it comes to rights of American citizens and limiting language when it comes to governmental authority.

The second type of limiting language, though, focused on the other side of the equation: the governed, as opposed to the government. In contrast to the Bill of Rights, there are a few occasions in the Constitution where limits are placed not on state power, but on individual rights. The most emblematic-and notorious-of these are the three-fifths and fugitive slave clauses. In both of these instances, black Americans are made explicit exceptions to the Constitution’s guarantees of such things as freedom from unreasonable search and seizure and Article I’s protections of habeas corpus, to say nothing of the larger ideals of life and liberty that the new charter was ostensibly designed to preserve. These limits to individual liberty stand out for a number of reasons: they guaranteed that the Constitution was, if not fully proslavery, at least especially solicitous of the interests and wishes of the slaveholding class; they stand as a blatant contradiction to the larger promises of freedom and liberty that stood at the heart of revolutionary-era rhetoric; and they (as we see clearly in hindsight) planted the seeds of the Civil War not even eight decades hence. This second type of limiting language was far less common than the first, and it’s crucial to note that it only applied to certain classes of people living in the new republic: people of color in general, blacks in particular.

Other than the proslavery clauses of the original Constitutional text, we do not see this second type of limiting language-the exceptions to the constitution’s guarantees of rights and liberties-anywhere else…except for the loophole clause of the Thirteenth Amendment. The Bill of Rights-demanded by many Americans as a condition for their assent to the new governmental regime-created a precedent for constitutional amendments in which they were seen as improvements, elucidations, and refinements of the original text. And these were improvements, elucidations, and refinements of peoples’ rights and liberties, the protections inherent in a republican form of government. It is thus noteworthy that, even when packaged in a form that had up to that point been used to expand the scope of liberty, the Thirteenth Amendment contains clearly limiting language. We don’t see that type of limit placed upon, for example, the Eighth Amendment’s ban on cruel and unusual punishment. We don’t see limiting language on the Fifth Amendment’s prohibition on “double jeopardy.” We do see it, though, applied to an ostensible ban on slavery and involuntary servitude. Why? There are several answers to that question, many of them centering on racism.

Regardless of how it wound up there, however, the loophole did become a tool for the extension and perpetuation of race-based slavery. The nomenclature and numbers changed after 1865, but the principle did not: chattel slavery remained legal in the United States after the Civil War. The loophole became a tool with which to criminalize blackness and perpetuate unfreedom. Combined with the larger predilection towards racism and the desire for “reunion” (even if it meant abandoning reform) so prevalent in white culture during the late 1800s, this constitutional tool became the lever by which promises of freedom could be rolled back indefinitely.

The explicit limits the Thirteenth Amendment placed on emancipation were the exact same type of limits that the original constitutional text placed upon the rights and liberties of black people to begin with. In other words, the American constitutional tradition, for at least its first century, consistently wrote blacks out of its guarantees. There are only a few examples of terms and conditions being placed upon constitutional guarantees of individual rights. The fact that they all pertain to the rights of African Americans is no coincidence. Even in the amendment that self-consciously aims at such a sweeping historical change as emancipation, there are conditions attached, as if the full reality of completely abolishing slavery was too vast to apprehend. To treat the Constitution and its amendments as sacred texts, to refuse to see that they are products of flawed people from specific historical contexts, is to perpetuate the very problems those attitudes spawned in the first place. It is a failure of imagination, and the substitution of rote catechism for historical inquiry. We need to do better.

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Published by Kevin Gannon