I think the stronger argument is that chattel slavery would be prohibited as a cruel and unusual punishment.
Not always.
But putting that aside, I think the defining factor is that slavery is involuntary work rather than unpaid work.
Involuntary work is Constitutional as relates to the draft so there is precedent for it in theory. The concept of the penitentiary was basically unknown in 1867 so Im guessing that the language of the amendment was written to reflect punishment at that time.
No, the penitentiary system was around long before 1867. In fact, by that date it had already declined as people felt it hadn’t produced the promised results in reducing crime rates.
In my state, there is no such thing as an infraction. It is a misdemeanor crime. But regardless, it would seem a thin constitutional guarantee if the state legislature only had to pass a bill saying X was a crime before selling you into slavery.
But that is what we are here debating. If the 13th Amendment expressly permits it, it cannot be unconstitutional by definition.
Yes, and mandatory jury duty, and (food for another thread) forced vaccinations.
You asked if a conviction is overturned on appeal, should you get paid for the time you were kept in chattel slavery. Most of the time, when a conviction is overturned on appeal, you don’t get paid for the time you spent in prison. That was my point, so no, under “my” system, you don’t get paid for your slavery time.
Yeah, this illustrates my point. As you believe there is racial bias in the system, we can have punishment up to a certain level but not more because there is a chance some person was only convicted based on race or gender. If that happens, is it fair that he only pays $100 fine? It seems that you are arguing that if we keep penalties small, then that is okay, or we can keep them small while working on the racial injustice…but what we can’t have are harsh penalties…maybe…I’m not sure.
I disagree. The 13th Amendment allows involuntary servitude but it doesn’t explicitly allow chattel slavery. The two are distinct (as witnessed by the fact you started the OP asking if the latter would be allowed).
So would the courts rule that chattel slavery as a criminal punishment is sufficiently different from involuntary servitude in a penal setting to violate the eighth amendment? In my opinion, they would.
It certainly would qualify as unusual. Being sentenced to being somebody’s slave has not been a common practice.
But is it cruel? Or at least cruel in a way that penal servitude is not? In my opinion, yes. Prisoners serving in a penal system are working in an organized government setting, with regulations and safeguards in place. This would not be true for a person serving in chattel slavery to another individual.
There’s also the psychological aspect. Our history has placed a great stigma on slavery. Sentencing a person to the status of being a slave would therefore be a severe moral blow to that person - even worse than being sentenced to the status of being a prisoner.
I don’t disagree with you. What I am saying is that IF the courts look at the text and say that you can be sold into chattel slavery as punishment for a crime, then the Eighth Amendment argument is a nullity. The Thirteenth is an equal part of the Constitution as the Eighth, and as it was passed later, one could argue that anything related to slavery as punishment for a crime being cruel and unusual was implicitly overruled by the Thirteenth.
Again, I don’t think that’s what the framers meant, but it sure reads that way.
By definition. The courts are the arbitrators of what’s constitutional. If the court system ruled that being flayed alive wasn’t cruel and unusual, then flaying would not be a violation of the eight amendment. But I don’t feel the courts would issue that ruling.
No, but that would be a clearly wrong opinion and we could come on here and say how wrong it is.
But how about this opinion:
"We believe that the drafters of the Thirteenth Amendment did not believe that they were permitting [this state law] to allow punishment by being sold into chattel slavery. However this Court does not judge intentions, it judges the plain text. And the plain text clearly prohibits slavery…except as punishment for crime. Petitioner was convicted of a crime.
As such, Petitioner’s Eighth Amendment arguments are without merit. What the Constitution specifically allows as punishment cannot be contrary to the Constitution. We find the Petitioner entitled to no relief."
Now, you may disagree with that ruling, but you cannot come here and say the Court just went crazy and made a terrible ruling as if flaying alive didn’t violate the Eighth Amendment.
I would suggest that the Justice who wrote that decision should be required to read the Constitution. The “plain text” he is quoting does not exist.
The thirteenth amendment does not say chattel slavery can be imposed as a punishment. It says involuntary servitude can be imposed as a punishment. I have already addressed the issue of why I feel the two are not the same thing.
So every single person who has a moving violation, or even worse, a parking ticket, is a criminal? Generally those are considered civil infractions. They are actions that are against the law and punishable, but not under criminal law, but instead civil law. I suppose there’s no reason why a state would have to have that distinction, but the fact that generally you hear about how there is such a distinction makes it seem like it’s true and most states, and there’s probably a good reason for it.
Yeah. Some states have a separate “civil infraction” or “traffic infraction” code. Not my state. They are all misdemeanor crimes, but are under a traffic code section where they can be dealt with through citations. Six of one and half a dozen of the other, I guess, but yes, I suppose you would have to admit that you committed a criminal offense.
However, everything around here that I have seen that asks the question says something along the lines of “Have you ever been convicted of a criminal offense, other than a minor traffic violation?” And they usually go on to explain that a DUI is NOT a minor traffic violation.
I’ve asked this myself; I don’t have a sure answer. My guess however is that if sold-on-the-block chattel slavery were legal by any means whatsoever, it would have been done in the post-bellum South.
I think that is just question begging. Here is the text again:
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.
How can you look at that and say that unambiguously, no doubt at all, that it doesn’t permit chattel slavery as a punishment for a crime? I think the better reading is that it does, even though I concede it was not the intent.
The thirteenth amendment doesn’t prohibit chattel slavery as punishment for a crime. The eighth amendment does, and the thirteenth amendment doesn’t explicitly repeal the eighth (as the 21st repeals the 18th) in whole or part.
Chattel slavery is enforced, 100% of the time, through torture or the threat of torture. When you don’t pay someone to work, you have to threaten them; and there’s not a lot to threaten them with besides torture. There were no exceptions to this rule.
If you sell me into slavery, and Bill buys me, why would I work for Bill? Why don’t I laze around?
If it’s going to be chattel slavery, Bill’s purchasing not only my body and my labor, but also the right to torture my body to obtain my labor.
And the eighth amendment prohibits the cruel and unusual punishment that’s vital to motivating those who are enslaved to work for their slavers.
I will concede the point. I’ve always thought of the clause “except as a punishment for crime whereof the party shall have been duly convicted” as modifying “involuntary servitude”. This interpretation would say that slavery cannot exist in the United States and involuntary servitude cannot exist in the United States except as a punishment for crime whereof the party shall have been duly convicted. (And I think you will agree that this is the way that the text has been interpreted in legal decisions since 1867.)
But when you approach the text as a whole, I can see the argument that “except as a punishment for crime whereof the party shall have been duly convicted” modifies “slavery nor involuntary servitude”. And that interpretation would allow either to be imposed as a legal sentence.
I don’t feel this is the best interpretation but I will agree it is a possible one.
I was unaware of any legal decisions that addressed the OP question, at least directly. What indirect precedents do you know of?
Can we agree that the Thirteenth Amendment and the Eighth Amendment are equally valid parts of the Constitution?
If we can, and we read the Thirteenth to allow chattel slavery as punishment for a crime, then by definition the Eighth cannot prohibit it.
The specific controls the general. Can you say that the 14th Amendment equal protection clause prohibits the US Senate? No. Because whatever “equal protection” means, it doesn’t mean that we can’t have 2 and only 2 senators per state because another provision specifically allows for it.
I wonder if there are rules of grammatical construction for this. Say a law said, “No alcohol or other drugs, except by a prescription from a physician, shall be allowed on school grounds.”
You really wouldn’t think the lawmakers were concerned with medicinal whiskey, but that is my reading of it. Would you think that a student could not possess alcohol prescribed by a physician?