Tuesday, May 11, 2021

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B. Historical Analysis

Historically, the terms slavery and involuntary servitude were not synonymous. From the beginning of colonization, there was a difference in status between the two terms. The language of the Thirteenth Amendment was simply borrowed from prior federal enactments and therefore not a matter of great debate prior to adoption. Nevertheless, through the submission of alternate wordings and subsequent actions by Congress to address discriminatory state laws designed to resubordinate former slaves, it becomes clear that the early colonial distinction between the two terms continued. Leon Higginbotham contends that Africans were initially brought to the American colonies as involuntary-indentured servants. Although the terms "buying" and "selling" were used to refer to indentured servants, the terms referred only to the buying of services for a specific period of time, and not in regard to ownership of another individual. Certainly for Africans, the terminology was less salient because most could not speak, read, or write English, and therefore, their "services" were often sold for life. Not until the mid-1600s, according to Higginbotham, did slavery formally diverge as an institution different from indentured servitude on American soil. Indentured servitude became the status of white servants and slavery the status for Africans. Thus, well before ratification of the Thirteenth Amendment, the terms slavery and involuntary servitude referred to distinct practices. The language of Section 1 of the Thirteenth Amendment, including the prisoner-labor exception, was first used in the Northwest Ordinance. The Northwest Ordinance, passed by the Continental Congress and reenacted in 1789 by the First Congress, was a template for agreements limiting or abolishing slavery in the upper reaches of the Louisiana Purchase territory (the "Missouri Compromise") and in the District of Columbia. Article 6 of the Northwest Ordinance provided the following: "There shall be neither Slavery nor involuntary Servitude in the said territory otherwise than in the punishment of crimes, whereof the Party shall have been duly In later debates on the Thirteenth Amendment, Senator Sumner, an advocate of abolition, argued that the Northwest Ordinance's punishment clause was intended to recognize the right of states to continue the practice of imprisoning debtors for labor.

There is little congressional documentation surrounding the drafting and debate of Section 1. For example, there are no records of the debates occurring within the Senate Judiciary Committee--the committee that produced the text as adopted. Instead, the majority of concerns voiced during the recorded debates by the full Senate centered on the authority of the federal government to enact the Amendment, the power of Congress to enforce the Amendment under Section 2, and a late proposal by Senator Sumner to replace the committee's proposed text with language foreshadowing the Equal Protection Clause of the Fourteenth Amendment.

On the other hand, the debates and discussion leading up to the adoption of the Thirteenth Amendment, to the extent that they related to the Punishment Clause, do indicate a recognized difference between involuntary servitude and slavery. For instance, in December 1863, Representative Ashley proposed that the Thirteenth Amendment should read, "Slavery being incompatible with a free government is forever prohibited in the United States, and involuntary servitude shall be permitted only as a punishment for a His proposed text provides a distinction between the two practices and clearly limits the penalty of criminal conviction to involuntary servitude. Similarly, Ashley's proposed text mirrored amendments to state constitutions in Kansas and Iowa, which both explicitly prohibited slavery and used independent clauses to allow involuntary servitude as punishment for a crime.

The proposal by the Senate Judiciary Committee, however, reproduced the language found in previous federal documents limiting or abolishing slavery, such as the Northwest Ordinance. The text proposed by the Senate Judiciary Committee and eventually adopted by the Senate read, "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 The Punishment Clause in the proposed text did not elicit great debate. Indeed, the only recorded challenge to the Punishment Clause language came from Senator Sumner, who preferred an amendment that would recognize the equality of all persons before the law.

Congressional action after the adoption of the Thirteenth Amendment further supports both arguments that slavery and involuntary servitude are distinct, and that only involuntary servitude may be imposed as punishment for a crime. Congress passed the Thirteenth Amendment on January 31, 1865, and the states ratified it on December 6, 1865. In response, ten of the former slave states enacted a series of discriminatory criminal laws, known as the "Black Codes," to recreate slavery in all but name. These laws, though enacted by different states, created a legal structure to maintain the subordination of African-Americans. In particular, the new laws ensured a steady supply of labor though the convict-labor exception to the Thirteenth Amendment. The Black Codes created new offenses, such as "insolent gesture" or "malicious mischief," that deliberately targeted African-Americans. Sentences were statutorily extended or even newly created for misdemeanor offenses. Due process protections were summarily dispensed with, and the state became the largest "owner" of able-bodied men. As such, the state would auction inmates off to the highest private bidder under the "convict-lease" program. "[T]he southern leasing systems that arose after 1865 were unprecedented in the number of prisoners involved, in the heavy use of black prisoners and in the nearly unfettered control given to the leasing In turn, Douglas Blackmon wrote that during the post-Civil War period, these leasing parties subjected the leased convicts to the same types of punishment formerly meted out to slaves (e.g, whipping and

The use of the Punishment Clause to resubordinate the formerly enslaved was not the intended effect of the Thirteenth Amendment. For example, Representative Kasson argued that the "only kind of involuntary servitude known to the Constitution and the law" was when a prisoner was directly sentenced to hard labor in the state prison under the control of state officers. In response to the abuses of the convict-lease system, Congress enacted the Civil Rights Act of 1866 to specifically cure these--and other--abuses.

Despite the enactment of the Civil Rights Act, some courts equated prisoners with slaves. For example, in 1870, the Virginia Supreme Court in Ruffin v. Commonwealth declared prisoners, by virtue of their incarceration, "civilly dead." Specifically, the court notoriously concluded: For the time being, during his term of service in the penitentiary, he is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State.

The Ruffin case, decided only five years after ratification of the Thirteenth Amendment, clearly conflated the status of slavery with involuntary servitude. Although the opinion glaringly did not mention Ruffin's race, newspaper reports at the time indicate that Mr. Ruffin was an African-American prisoner. The Civil War had ended only five years prior to the Ruffin decision. Faced with an African-American defendant just a few years after emancipation, and still influenced by the racial legacy of slavery, the Virginia Supreme Court could see Mr. Ruffin as only a slave. Since Ruffin, courts routinely have failed to properly distinguish involuntary servitude from slavery. Although courts have taken pains to distance themselves from the Ruffin their efforts have not translated into a clear understanding of the differences between these two terms. In the Slaughter-House Cases, one of the first cases to examine the Thirteenth Amendment, the U.S. Supreme Court held that the Thirteenth Amendment applied to all forms of slavery, not just "African slavery." The Court appears to recognize a distinction between the two terms, noting that if "Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race ... this amendment may safely be trusted to make

In the Slaughter-House Cases, the Court defined slavery as a "legalized social relation" and just as quickly found that slavery was over following the Civil War. This vague definition of slavery, however, was accompanied by a broad definition of involuntary servitude. "Servitude," the Court held, is "of a larger meaning than slavery" and includes "all shades and conditions of African For example, the Court claimed that "apprenticeship for long terms, as it had been practiced in the West India Islands, ... or ... reducing the slaves to the condition of serfs attached to the plantation" would have been constitutional if Section 1 prohibited only slavery and not involuntary servitude. There is obvious confusion in the use of the terms "slaves" and "serfs." The Court implied a difference in the quality of bondage--that serfdom is a worse state of being than slavery. At the same time, the Court appeared to designate chattel slavery as the worst state of being, and involuntary servitude as a lesser form of chattel slavery. The Slaughter-House Cases, rather than providing a judicial framework for recognizing instances of slavery, instead provide very little insight into what conditions constitute slavery. The case appears to teach that slavery exists (and is therefore prohibited by the Thirteenth Amendment) only when the master calls it slavery. Just a few years later, the Court again confronted the definition of slavery and involuntary servitude in the Civil Rights While the Court indicated that it knew what slavery was, it failed to define the term. Instead, the Court concentrated on specific incidents of slavery, such as compulsory service, inability to hold property, lack of standing in court, and prohibitions against being a witness against a "white person." Nor did the Court meaningfully distinguish between the terms involuntary servitude and slavery. The Court, for example, failed to identify whether any specific circumstances apply to involuntary servitude. Although the opinion focused primarily on the extent of congressional authority to enact a law prohibiting racial discrimination under the enforcement provisions of the Thirteenth and Fourteenth Amendments, the Court continued to gloss over the distinctions between the two terms. The question before the Court in the Civil Rights Cases was whether Congress, under Section 2 of the Thirteenth and Fourteenth Amendment's enforcement provisions, had authority to pass the Civil Rights Act of 1875, making it illegal to discriminate on the basis of race. The Civil Rights Act prohibited discrimination in the provision of public transportation and accommodation. Without illuminating the difference between the two terms, the Court simply held, It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater or deal with in other matters of intercourse or business.

This trend of failing to distinguish between the two conditions of slavery and involuntary servitude continued in a series of cases through the modern era. For example, in Plessy v. Ferguson, the Court held that segregation of races on trains did not imply slavery or involuntary servitude. Most of the cases in the early-twentieth century focused solely on involuntary servitude. For example, the Court in Bailey v. Alabama held an Alabama statute unconstitutional under the Thirteenth Amendment because the law created the condition of involuntary servitude by requiring labor to repay a previously owed debt.

In the mid- to late-twentieth century, Thirteenth Amendment cases focused on the enforcement powers of Congress under Section 2. In Jones v. Mayer, the first case contemplating an expanded role for congressional action, the Court held that 42 U.S.C. 1982, barring private and public racial discrimination, was a "valid exercise of the power of Congress to enforce the Thirteenth Despite a series of cases centered on the rights created by the Thirteenth Amendment, the Court has provided little guidance on understanding how slavery and involuntary servitude are actually different. At most, courts have incorporated the American memory of slavery and have failed to provide a broader framework for understanding and distinguishing the terms slavery and involuntary servitude. While the American memory, or narrative, of slavery plays an important role in recognizing slavery, it does little to help us distinguish slavery from other conditions. Moreover, involuntary servitude is a much more nebulous concept in American history and therefore harder to identify. Accordingly, courts have refused to examine allegations of slavery behind prison walls, instead construing such claims as involuntary servitude and therefore constitutionally permitted. For example, the Fifth Circuit rejected a prisoner's claim that forced labor without compensation violated his Thirteenth Amendment rights. But instead of engaging in a deeper analysis of his claim, the Court preferred to apply "the Thirteenth Amendment precisely as it is

The actual text, the history, and the Court's jurisprudence all consistently, with few exceptions, explicitly recognize--but fail to concretely articulate--a difference between the terms slavery and involuntary servitude. One explanation for this failure to differentiate is that the distinction between the two terms is practically meaningless in the majority of Thirteenth Amendment claims. Many of the initial cases brought under Section 1 of the Thirteenth Amendment were not on behalf of actual slaves or prisoners. Instead, the initial Thirteenth Amendment cases concerned, for example, butchers or owners of restaurants or public accommodations. Both types of status--slavery and involuntary servitude--are forbidden, and therefore, nonprisoner plaintiffs suing for redress need to prove only one or the other. Courts, in providing or denying redress, are required to find only one of the above factors. The differences between the two are immaterial if a nonprisoner plaintiff only needs to prove either condition. Second, the courts and the public have relied too extensively on the legally formalistic notion of slavery as legal ownership. Courts have assumed that slavery is not claimed in Thirteenth Amendment challenges to forced labor. In part, this assumption results from the contested discourse on race and racial history in the United States. By safely tucking slavery away as a long-dead practice, issues of persistent socioeconomic inequality center not on history but on the personal characteristics associated with certain racial groups. In sum, Thirteenth Amendment jurisprudence indicates a difference between the terms slavery and involuntary servitude. Both the Amendment text and dicta in the jurisprudence, with few exceptions, confirm that only involuntary servitude may be imposed for punishment of a crime. But while acknowledging the distinction, judges and society have failed to give meaning to the content of the terms slavery and involuntary servitude.

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