Today Senator Jeff Merkley (D-Oregon) announced the Abolition Amendment to end slavery in the United States once and for all. Legislation like this is long overdue at the state and federal level.
In the United States, slavery was and is a status-dependent state and will continue to be so. In its prehistory, slavery was largely imposed on colored people, despite the contractual servitude of Irish immigrants. Early on, the indigenous peoples had to accept brutal conquests of their property and bodies. In 1637 boys and men of the Pequot Indians were forcibly banished into slavery and shipped to the West Indies in a trade with abducted and deported blacks.
The Pequot women were enslaved, domesticated and also raped in the colonies. This would not be the last Native American account of enslavement in the United States today. But when the Native Americans became extinct or suffered so much that they had no value to the insatiable machines of slavery, the Africans served as an effective, expendable substitute until the ratification of the Thirteenth Amendment.
That is how people think.
Many people believe that the Thirteenth Amendment finally abolished slavery in 1865, because that is the story Americans should believe in. However, this important amendment has a clever loophole. It allows slavery when a person is convicted of a crime. This was the amendment that the slave owners in the South supported, and they won. In essence, they conditioned the abolition of slavery to the maintenance of slavery.
If you have doubts about their intentions, consider the following. Immediately prior to ratification, the parliaments of Mississippi, Georgia, Alabama, North Carolina, South Carolina and others filled their law books with penal laws specifically targeted at blacks who had just been freed from slavery. Southern lawmakers made it a crime for more than a few blacks to stand on a corner and create laws of vagrancy. If black farmers sold rice or corn, they could be charged with a crime.
If a black man stayed in a certain city for more than a few days, that too could be a crime. If a black man bought or owned a gun, that too was made a crime. Depending on the state, it was a crime if a black man bargained for better wages. The result was exactly what the legislators in the South had planned. If blacks could not afford the fines-$75, $100 or more-they could be imprisoned and then rented or leased by the government to plantations, coal mines, railroads, and any other company willing to provide cheap labor.
A conviction for a crime could result in them being leased for 20-30 years of forced labor. Gambling has paid off for the South. After slavery, plantations even grew in some states such as Alabama, Georgia, Louisiana, Mississippi and South Carolina. Irresponsible coal miners in Alabama sent endless numbers of young black children to the depths of the earth as convicts because they had been convicted of a new crime in the South. In addition, Southern lawmakers could now label black women, children and men as criminals and convicts and the broader white society as their victims.
The punishment clause was never lifted. Today, federal and state governments have preserved slavery, even though they have changed it. It has evolved.
It now manifests itself in a broken criminal justice system that monitors, arrests, prosecutes and convicts disproportionately many black and Latinx people. With over 2 million people incarcerated in the United States, there is a rich labor force. Reva Siegel describes this dynamic as “preservation through transformation.
In other words, even though the old cotton fields may no longer be populated by black workers from the humid dawn to the sweaty dusk, other practices that increase slavery continue. The imprisoned “convicts” extinguish dangerous California forest fires for less than two dollars an hour and sew COVID-19 masks that are not provided to them. In New York, they make the hand disinfectant, all for little or no pay. In some states they do not receive a wage, in others 11 or 17 cents per hour. Fortune 500 companies buy their cheap labor, avoid paying minimum wages to workers, and do not lobby for these individuals when they leave and return to society. And, make no mistake, detained people are expected to pay premiums for the basic goods they use while in prison, including basic necessities such as toothpaste, toothbrushes and soap.
This is why Senator Merkley’s proposal to amend the United States Constitution to ban slavery and involuntary servitude as punishment for crime is so important. I applaud him for it. As he knows, slavery in our nation should impose a persistent hierarchy, a hierarchy that would never be forgotten. It was meant to disparage, stigmatize and shame people. It was a badge that could never be thrown away.
The infamous opinion of Chief Justice Taney in the case of Dred Scott v. Sanford – which aimed to uphold slavery rather than denounce it – is a strong reminder of the social castes, legal barriers and political obstacles for blacks forged by a slave economy:
Black slaves] had previously been considered, for more than a century, as beings of inferior order, who were totally unfit to join the white race in either social or political relations; so inferior that they had no rights that the white man had to respect; and so inferior that the Negro could be justly and lawfully forced into slavery for his own benefit. He was bought and sold and treated as an ordinary commodity whenever a profit could be made from it.
Mr. President-elect Joe Biden, I hope you and your team are paying attention. The end of slavery in the United States is more than symbolic – it reflects the values of the nation and its full commitment to racial equality. The liberation of our nation from slavery is an important step in overcoming an ugly past that is kept alive in our nation’s constitution and, unfortunately, is also manifested in the culture of our society.
Michele Goodwin is Professor of Chancellorship at the University of California, Irvine, and author of Policing The Womb: Women and the Criminalization of Motherhood.
The views expressed in this article are the author’s own.