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Excerpted From: Cecil J. Hunt, II, Feeding the Machine: the Commodification of Black Bodies from Slavery to Mass Incarceration, 49 University of Baltimore Law Review 313 (Summer, 2020) (351 Footnotes) (Full document)


CecilJHuntIIToday the United States stands astride the world as an economic and political colossus. It heralds itself as the “land of the free” and the “land of opportunity.” But for many generations of people of color, America has never been either of those things. Since before America was even America, from the arrival of the first African slaves in British North America in 1619, and right up to today's era of mass incarceration, millions of black and brown bodies have been commodified and “treated as ... ordinary article[s] of merchandise,” in a capitalist economy, and have served as the fuel that feeds America's great economic profit machine.

Until recently, traditional historical narratives of the creation of American global dominance have emphasized the ingenuity, creative genius, perseverance, and grit of the white Europeans that settled this country as the key elements that gave rise to the modern American state. The story of the “legal enslavement of a substantial segment of its population has rarely figured in accounts of its rise to economic dominance.”

Since the late summer of 1619, the commodification of black bodies has always been in the service of creating massive wealth and a booming national and global economy for private white profit. This exploitation has been propelled by white racism, white supremacy, white privilege, and social, political, and economic dominance by institutional white power structures. In the past, from slavery through the end of Jim Crow, these power structures and dynamics were systemic, blatant, socially acceptable, and normalized to almost all white Americans. While the same power dynamics are still strong and systemic in American culture today, they have become more subtle over the past sixty years, since the beginning of the Civil Rights era. But, they are still here. The social, political, cultural, and economic benefits from this centuries-old exploitation have been massive and global in scope. As many scholars have demonstrated, these exploitations essentially built the modern capitalist system and laid the foundations for the vast disparities in economic, educational, social, and political distance that has existed between white and black people in America for the past 400 years. But, in moral terms, the question is: at what cost has this plunder of black economic wealth been extracted? And, what is its legacy on the soul of modern America and the lives of its citizens? Ta-Nehisi Coates has written elegantly about this legacy:

[T]he line dividing black and white America was neither phenotypical, nor cultural, nor even genetic. In fact, there was no line at all, no necessary division of any kind. We were not two sides of a coin. We were not the photonegative of each other. To be black in America was to be plundered. To be white was to benefit from, and at times directly execute, this plunder. No national conversation, no invocations to love, no moral appeals, no pleas for “sensitivity” and “diversity,” no lamenting of “race relations” could make this right. Racism was banditry, pure and simple. And the banditry was not incidental to America, it was essential to it.

From a historical perspective, there have been three distinct and recurring eras of this racialized profiteering of black bodies--this “banditry.” The first era was black chattel slavery. The second era started during Reconstruction in 1868 with the Black Codes and convict leasing. The third era, which is upon us now, is the age of racialized mass incarceration and its symbiotic offspring--the racialized industry of for-profit private prisons.

This article examines the historic scaffolding that was conceived of and deployed to exploit and control black bodies for white profit: from slavery, through convict leasing, and then to mass incarceration and private prisons. This linear structure helps to expose and contextualize the profit machine that continues to be hidden through this day by political and societal shadows, even as it churns out massive private profits for whites. Black bodies initially provided the compelled free labor source that was fundamental to building the foundation for the modern American capitalist state. This foundation gave rise to new and sophisticated management techniques created by slave owners to regulate, manage, account, measure, finance, prepare, and export vast amounts of cotton that were planted, tended to, and harvested by an army of slaves. These techniques were created and popularized by slave holders to maximize profits not only for the southern planter class, but also for a worldwide interconnected network of transportation, business, financial, and insurance institutions, as well as manufacturing, distribution, and consumption chains. Economic historians have pointed out that many of these business and management practices are still widely used today.

This paper is organized into five parts. Part I, the Introduction, presented a brief preview of the topics discussed in the body of this paper. P

art II examines the history of slavery in America from its humble beginnings in 1619; to the massive national and international dominance of American cotton in the nineteenth century; to the development of the American slavocracy of the late 1790s up to the end of the Civil War in 1865.

Part III analyzes the brutal and widespread impact of the Black Codes and its symbiotic offspring convict leasing, which former slaves described as “worse than slavery.”

Part IV examines the centrality of mass incarceration to the entire law enforcement system and the corrosive effects of the commodification of black bodies on every aspect of life in black inner-city communities.

Part V examines the symbiotic rise of the multi-billion dollar private prison industry and its connection to the financial heart and soul of the modern American industrialized and commercialized state.

Finally, Part VI offers some conclusionary remarks.

[. . .]

There is, indeed, a straight historical and causal line of the exploitation of black bodies for private white profit, from Slavery to the Black Codes and convict leasing, to Racialized Mass Incarceration, and finally to Private Prisons. What connects these three historical eras? This article suggests that the connective tissue that binds these three eras together is best described as the historic and deeply held American values of white racism, white supremacy, and white privilege, without which America could have neither survived nor thrived as an international political and economic power.

From this long historical legacy of the primacy of whiteness and its biological, genetic, and natural justifications based on racist tradition, then scientific racism to Jim Crow, back to racist social tradition in present day America and from its racist legacy; it is clear that in every era of American history, racism has run like a dark and permanent thread that is tightly woven within the national fabric of the country. So closely has this racism cleaved to the American mind and soul, that it is now as American as apple pie on the Fourth of July. But it didn't have to be this way. It was neither foretold nor predictable that America would enslave, exploit, profit from, vilify, and imprison such a large proportion of its population so as to become the most racially inflected and most carceral country the world has ever known.

Instead, America could have become and developed as an integrated nation that lived up to the liberties and rights that its founders expressed in the most coveted document, the Declaration of Independence, that states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

The writers of those words were very mindful that they were creating a new type of government, one that had never before seen its rival in the history of the world. They chose their words carefully, but without exception; they did not consider black people or women to be within the precepts and purview of that document. On those hot summer days in Philadelphia, when the Constitution was written and signed unanimously by all of the representatives of the United States of America, the vicious snake of racial and gender prejudice lay coiled up around the table on which the Constitution was signed. It held that document and those that signed it in its poisonous grip and infused its blatant hypocrisy deep in the souls of those signers and the legacy of race in America.

In his majority opinion of Dred Scott v. Sanford, Chief Justice Taney of the United States Supreme Court ruled that slavery was not only legal throughout America but that it was entirely in keeping with the intent of the constitutional framers. In support of this conclusion he wrote that black people in America were not really people but were instead “bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.”

By the time the Declaration of Independence and later the Constitution were signed, slavery had been legal in America for over 150 years. This racist legacy could not help but influence the drafters and signers of those documents. The racial bias that infected the Declaration of Independence and the Constitution was based on the greed, immorality, and racism of those who signed it, profited from it, and gave its blessing. While it professed to develop a country that was based on the values of freedom, liberty, and equality, it was also used as a tool to ensure another 100 years of enormously profitable slavocracy and another 88 years of Jim Crow segregation, violence, and disenfranchisement to the present.

So, what can we do now to live up to those beautiful and lofty words after almost 400 years of racism has stunted, suppressed, repressed, murdered, and terrorized the aspirations of an entire people? Like searching for any redemption, it must first begin with an acknowledgement of the original sin and the significance of the problem. It also requires a recognition of the historic and continuing benefits that the dominant race has had and continues to have at the expense of the dominated race, as well as an appreciation for the suffering of the people who have been intentionally excluded from the benefits of the American experiment. Healing and redemption requires proactive efforts to include a people who have been perpetually considered to be “strangers in our midst,” and who have somehow never been considered to be fully human or citizens of the American state yet, somehow survived it all and for a myriad of reasons are still proud to call themselves American citizens. These are the minimum thresholds to be overcome for real meaningful change and inclusion of an historically dominated people. Since before America was even America, these problems manifested their poisonous effects, through slavery, convict leasing, mass incarceration, and now, private prisons.

Given that history, how can you now persuade the large number of people that physically and economically benefitted, either directly or indirectly, from this tragic history? How can you convince them to voluntarily acknowledge the harm caused by their forebears and the benefits that they have reaped from those harms? How do you make them see the damage that history and its institutions have had on the descendants of those slaves? As Fredrick Douglass once declared: “Power concedes nothing without a demand; [i]t never has and it never will.”

The old South was willing to give up tens of millions of dollars, and hundreds of thousands of lives to hold on to their way of life, which was based on and fueled by slavery. They were made to give it up at a very high price. Even after the legal emancipation of the slaves, white southerners, calling themselves “redeemers” of the Southern way of life, did everything they could to re-impose slavery in everything but name through targeted waves of violence and manipulation of the ballot box. Even today, that legacy still simmers in the hearts of Southerners and those of many others who still yearn for a resurrection of the Lost Cause. Hopefully that fantasy is now permanently out of reach (although, never out of mind).

Sadly, the social, political, and economic penetration of the racialized carceral state in America is so deep that like the Southern belief in antebellum slavery, many people today cannot even imagine an America without it. The current racialized carceral state is making too much money for too many individuals and public and private institutions to end anytime within the foreseeable future.

It has taken America 400 years to get to this point in its racialized history, so it is not unreasonable to expect that it may take at least another 400 years to grow out of it. But the future is not hopeless. There are many small lights glowing in the distance. Many new voices are speaking out and speaking up to shine a light on the truth of America's past, and its impact on America's present and future. And many voices are speaking out for a vision for the future where we live up to the values expressed so eloquently in our founding documents, where all people are truly free and equal. As the great James Baldwin wrote:

[T]hose innocents who believed that your imprisonment made them safe are losing their grasp on reality. But these men are your brothers--your lost, younger brothers. And if the word integration means anything, this is what it means: that we, with love, shall force our brothers to see themselves as they are, to cease fleeing from reality and begin to change it .... [W]e can make America what America must become. It will be hard ... but you come from sturdy, peasant stock, men who picked cotton and dammed rivers and built railroads, and, in the teeth of the most terrifying odds, achieved an unassailable monumental dignity. You come from a long line of great poets ... since Homer. One of them said, the very time I thought I was lost, My dungeon shook and my chains fell off .... We cannot be free until they are free.

Cecil J. Hunt, II, 2018-2019 William T. and Noble Lee Professor of Constitutional Law, UIC John Marshall Law School.

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