That fact that nobody has been sold into chattel slavery as punishment for a crime since 1865. In fact, it was extremely rare before that. I did a quick online search and I couldn’t find any examples of chattel slavery being used as a punishment in the United States since the county was founded.
There was (is?) a documentary for free on Amazon Prime Video (sorry for the lack of a cite) that in the post-bellum south, in the early 1900s a judge was sentencing black people to slavery to work for him. He was convicted in federal court and given five years in prison, but Teddy Roosevelt commuted his sentence for some reason. Perhaps someone else has a cite.
ETA: In case you want to argue that it proves your point, the law didn’t authorize such a sentence, and the judge kept the guys working for him after their time had expired, basically telling him that they could be nice and keep working or get whipped and have their time miserable.
But there is a first time for everything, right? I mean, again, under my ridiculous hypo, there is no racial element to this. Leave out the jaywalking because it brings in other issues. But say that a state duly enacted a law that said for first degree murder, one can be sold into chattel slavery, citing the Thirteenth. They can’t be the first to do that? If they can’t, then who could ever? Why wouldn’t the first imprisonment or the first death sentence have been unconstitutional as someone has to be first.
I think you’re thinking of Slavery By Another Name, but I think you might be mixing up a detail or two.
The thirteenth neither explicitly forbids nor explicitly allows chattel slavery. If it said, “Chattel slavery shall be a permissible punishment for a crime,” you’d be correct. But it doesn’t. Therefore, there’s no “specific trumps general” claim here. And if you look at the Southern states after reconstruction and their multifarious ways they reinstated conditions very similar to slavery, you best believe they would’ve instituted chattel slavery if they could’ve gotten away with it.
You did not just find a sneaky loophole that escaped a century (at least) of White southern politicians.
“You cannot whip a murderer. That’s torture!” the constitution
“You can sell a murderer into slavery and THEN whip them. That’s fine!” also the constitution
Is that your argument, Ultravires?
I don’t think he made that argument at all, and I don’t think slavery (under this hypothetical situation) requires whipping. If someone were sold into slavery because they committed murder, and didn’t do what the owner told them to do, you could have the sheriff force the slave to do the work or put them back in jail, or whatever.
Let’s take a step back and define what chattel slavery is. I see it as a situation where a person is sold to another private individual, who then owns the first person as a piece of property and can treat them the same way they would be able to treat any other item of property.
Involuntary servitude is different. A person may be compelled to work but they are still regarded as a person and have some rights, albeit limited ones (which is true of prisoners in general). The person is regarded as working for the general public and not the individual government agent who is supervising their work. And there are government regulations in place which provided safeguards to the person who is working.
To me, the situation you described seems more like an abuse of involuntary servitude rather than a case of chattel slavery. Even if it did approach chattel slavery (and I don’t know the details of what happened) the judge had to maintain the appearance of involuntary servitude because he would not have been allowed to openly own slaves. Which to me reinforces the idea that involuntary servitude and chattel slavery are recognized as tow different things by the law.
As Left_Hand_of_Dorkness and Little_Nemo have pointed out,
The constitution does not explicitly allow chattel slavery as punishment for any particular crime. The Thirteenth Amendment may be interpreted such that it [the 13th amendment] explicitly does not prohibit chattel slavery as punishment for a crime.
That is not the same as allowing it. That is not the same as saying the Constitution does not prohibit chattel slavery as punishment for a crime.
If chattel slavery is a cruel and unusual punishment for a particular crime, it is prohibited by the Eighth Amendment. There is no conflict between equal provisions of the constitution here.
Arguably galley slaves would be a historical punishment of chattel slavery inflicted for certain crimes such as treason or desertion.
~Max
Many people have made excellent points, but the Eighth Amendment is not one. You only get there by begging the question that your point is correct in the first place. Assume my argument that Thirteenth reads (paraphrasing to match your wording): “Slavery is not prohibited as punishment for a crime.”
It would be absurd to then say that slavery is an unconstitutional punishment because sixty years prior, the Eighth Amendment prohibited cruel and unusual punishment, and as slavery is cruel and unusual, it is forbidden.
You see my point? If we interpret the Thirteenth to prohibit slavery. PERIOD. Then we can argue that it is additionally prohibited by the Eighth.
But if we interpret the Thirteenth to not prohibit slavery as punishment, then the Eighth is irrelevant, because the older doesn’t rule the newer and the general doesn’t rule the specific.
IOW, you only get to the Eighth argument if you assume the correctness of your Thirteenth argument.
I’m not going to assume that, because it doesn’t say that. It says something almost but not exactly the same: “It is not the case that this amendment prohibits slavery as punishment for a crime.”
If the situation is, “Work or you go back in jail,” that’s so fundamentally different from chattel slavery that it should almost have a different name, like, say, “Work Release” or “prison labor.”
Chattel slavery doesn’t and never did operate by saying, “If you don’t work, you’ll sit around in humane conditions in a penitentiary.” It always, 100% of the time, with zero exceptions, worked by saying, “If you don’t work, you’ll be physically tortured.” This is not controversial. Eliminate the threat of physical torture, and you have a different system.
That’s not what it reads in substance, you are mistaken in your paraphrasing and your argument rests on that mistake. You have taken the dependent clause and presented it as if it was independent.
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.
If you must shorten it, say ‘except as punishment for crime slavery shall not exist within the U.S’. It does not follow that slavery shall exist as punishment for crime.
(Maybe Left_Hand_of_Dorkness can correct me, I don’t remember if he was an English teacher.)
~Max
Again: chattel slavery operates because of the threat of physical torture. What’s absurd is to say:
- A restrictive clause in the amendment intended to end slavery is best read as carving out a “yay torture” exception to the eighth amendment that did not previously exist, an exception that allows slavery in conditions where it was previously forbidden; and
- None of the white supremacists that held power for more than a century after the thirteenth amendment was written ever noticed this.
Also, a really really important point: chattel slavery is not mentioned in the thirteenth amendment at all. There are other forms of slavery that do not rely so heavily on torture; for example, it’s reasonable to consider certain prison work programs to be slavery, because they compel people to work, but don’t use torture to do so.
There’s a decent argument that these are also prohibited, given the amendment’s weird use of a restrictive clause modifying to a compound “neither/nor” subject. But there’s no argument that chattel slavery is in any direction expanded by this amendment, nor that the eighth amendment is in any way circumscribed. That’s just nonsense.
I’m not an English teacher, but it is not an independent clauses, it is a question of what it modifies. Does it only modify involuntary servitude, slavery, or both. Many grammatical examples can be used where the modifier modifies the whole list.
It could be argued that slavery did exist under a racial caste system, and that we were eliminating that, but criminals? Me, hell with 'em. The Eighth didn’t protect slaves.
That is definitely a point in your favor. But again, there can’t be a first?
(I’m gonna assume that “Me” should be “Meh,” right?)
It circumscribed the rights of the government to inflict cruel punishment, not the rights of individuals to do so. Selling someone into chattel slavery necessarily inflicts the threat of torture on them, which is a cruel punishment. I don’t know about the existence of slaves owned or sold by governments, but I think they existed (this is a definite area of ignorance for me). Were there any enslaved people who raised an eighth-amendment claim against their government owners?
Also, the thirteenth amendment could have mentioned racial caste slavery. It didn’t.
No, I already assumed “except […]” modifies the word “slavery”. I am talking about your going from this
Slavery, except as punishment for crime, shall not exist in the U.S.
to this
Slavery is not prohibited as punishment for a crime
The two sentences are not equal, and between them is your mistake.
Watch these steps
Neither slavery nor […], except as punishment for crime […], shall exist in the United States […]
Slavery, except as punishment for crime, shall not exist in the U.S.
Slavery shall not exist within the U.S. except as punishment for crime.
Slavery shall be prohibited except as punishment for crime.
Now it is true that this last sentence does not prohibit slavery as punishment for crime.
It is not true that this sentence means slavery is allowed as punishment for crime.
ETA: An analogy.
- You are not allowed to eat peanut butter in class (because your classmate has an allergy).
- You are not allowed to eat snacks in class except after finishing your homework.
There is no conflict here, the second rule does not make it so that you are allowed to eat peanut butter in class. Nor does the second rule translate to, ‘you are allowed to eat any snacks in class after finishing your homework’.
~Max
I’m missing something…if it is not prohibited, it is allowed.
As to your analogy, I disagree with its form. I see it more as:
- Because many classmates have allergies, potentially dangerous snacks are not allowed.
- You are not allowed to eat peanut butter in class, except after finishing your homework.
If we read the two in harmony, it is clear that “peanut butter” is not encompassed under the definition of “potentially dangerous snacks” especially when the peanut butter clause came later.
It shows that the drafters of the rule, and we assume that they are fully aware of the last rule, did not think there was a conflict.
Do you mean to say “if it is not prohibited by any provision in the Constitution, it is allowed”? Because there was a previous provision which prohibits cruel and unusual punishments.
Or do you mean to say, “if it is not prohibited in the very same sentence, it is allowed”? Because to do so would literally make the exception the rule.
And you have substantially changed my analogy to the point of absurdity. Peanut butter is the dangerous snack, it makes no sense to allow it after finishing homework. The rationale for not having snacks before homework is to prevent distractions.
Unfortunately your reworked analogy shows me nothing.
~Max
I’ve quoted the text. Let me phrase it exactly, with ellipses added the way I am advocating it to be read:
“[Slavery]… except as a punishment for crime whereof the party shall have been duly convicted, shall [not] exist within the United States, or any place subject to their jurisdiction.”
Is that fair? Therefore, if correct, slavery may exist as a punishment for crime. This is the Thirteenth Amendment.
Whatever we said sixty years ago in the Eighth was either misconstrued or that portion you use to hold that slavery cannot be a punishment for a crime is not the case, because see what we just wrote there? It says that slavery can be a punishment for a crime.
I concede that the overall hypo I wrote is likely incorrect, but it cannot be the Eighth that takes away what the Thirteenth allows.
Why would the drafters, after having made cruel and unusual punishments a crime, and believing that slavery as a punishment for a crime was cruel and unusual, insert a clause which allows it (or does not prohibit it—I still don’t see the difference)?
Why would they say that slavery “is not prohibited” as punishment for a crime but secretly mean that it really was prohibited because of the Eighth and just leave the reader to do those mental gymnastics?