Yes, fair.
Not necessarily, no. Because as you say,
This is the Thirteenth Amendment. Slavery as punishment for crime is consistent with the Thirteenth Amendment. It does not follow that slavery as punishment for crime is consistent with the United States Constitution.
You are again mistaken. Slavery would not be a cruel and unusual punishment for all crimes, at least not in the early-mid nineteenth century. I gave an example of galley slaves as punishment for treason or desertion.
~Max
But what an odd insertion? To seem to imply that was already prohibited could possibly now be permitted.
It would be like a 28th Amendment that said, “The government shall not run a yearly budget deficit, excepting that saved rents from quartering soldiers in private homes during times of peace shall not count towards a deficit.” Would you say that everything after the comma was meaningless because the 3rd prohibits quartering?
IOW, here are the steps, which I believe are logically improper:
Do you see the legal thinker’s error? He bootstrapped his believe about the 13th on his opinion of the 8th which may have been incorrect. The only way his argument works is if he assumes his own proposition.
I deny this premise.
America has had a penal labor system longer than we’ve had chattel African slaves, starting with indentured servants.
I deny this conclusion, too. The Thirteenth Amendment does not prohibit slavery as a criminal punishment, but that does not mean slavery as a criminal punishment is allowed by the Constitution as a whole.
~Max
Nothing in the thirteenth amendment prohibits the government banning a particular religion, either, but that doesn’t mean the first amendment is thereby repealed. That’s one difference.
More importantly, though, the line between involuntary servitude and slavery is not entirely clear, and they may have wanted to make some form of involuntary servitude for crimes be forbidden, not considering it cruel and unusual punishment to, for example, make convicts work on railroads. But that doesn’t mean that forms of involuntary servitude that rely on torture–e.g., chattel slavery, aka the topic of this thread–are somehow allowed.
You don’t repeal an amendment by sly implication. Nobody up till now has thought so. You’re not finding the loophole that thousands of racist politicians and wardens and sheriffs missed. You’re not finding it because it ain’t there.
Apparently it was the interpretation used immediately after ratification, which suggests that it was the interpretation used before ratification.
People were sold (‘chattel’) into time-limited slavery, using the words ‘auction’ and ‘slave’, I haven’t seen ‘for the term of his natural life’ but I see no reason to exclude it: I think the objection was the other way around: that 6 months of slavery was being used for a minor crime, rather than life-slavery for major crimes.
I agreed that this interpretation of the thirteenth amendment is possible. But that doesn’t mean it’s the likeliest explanation.
I stand by my earlier statements. The thirteenth amendment recognizes a distinction between slavery and involuntary servitude. It says that slavery is prohibited. And it says that involuntary servitude is prohibited except as a legal punishment.
I feel this interpretation of the text is the best one because it is in accord with the actual practices that existed at the time of the amendment’s passage.
I was unable to find any examples of this happening. Can you point me in the right direction?
Another argument is the idea that society changes over time. (I realize some people reject this.) If so, we could argue that the thirteenth amendment recognized slavery as an acceptable punishment in 1865. But slavery is no longer be seen as acceptable in any form and it would be a cruel and unusual punishment in 2021 even if it had not been in 1865.
I agree with your general point, but not this.
Let’s say that I am on board with the evolving/living Constitution. Does that doctrine allow, say, that the President be at least 45 instead of 35?
If not, then why would something explicitly allowed become not allowed?*
*Again, assuming, which you (and I) disagree with, that the Thirteenth permits sale into chattel slavery as punishment for a crime.
Stated differently:
My understanding of the evolving/living Constitution was that values and the way we interpret them change. So if you take a phrase like “equal protection” or “due process” then perhaps in 1868 that didn’t mean that women had a right to be a lawyer or that gays could get married. But in 2021, we look at those words and say, “Oh, yes, those words mean that.”
That is my understanding of the evolving/living idea. But it doesn’t go so far as to change the words themselves, right? We couldn’t quarter soldiers if we evolved, could we?
Arguably, yes. If you could find some text in the Constitution that said nobody under the age of forty-five could hold federal office, then you could make the argument that this text requires the President to be at least forty-five even though a different section says thirty-five is old enough.
That is, respectfully, pretty dodgy. If the text says the president must be 35, can evolving things change that by implication? If people mature much faster or slower? Does 35 mean 35 under your jurisprudence?
The text doesn’t say that the president must be thirty-five. It says the president must be at least thirty five. Which is an important point.
Let’s say we enacted a twenty-eighth amendment that said “No person who is not at least six feet tall shall be eligible to the office of President.” It’s a dumb law but it’s now part of the Constitution.
Would you argue that Article II sets the requirements to be President and that no further requirements can be added? That a person who is five foot six can be President as long as they are a natural born citizen, at least thirty-five years old, and a resident of the United States for at least fourteen years. Or would you accept that the requirements have changed with the enactment of this twenty-eighth amendment and the President now has to be a natural born citizen, at least thirty-five years old, a resident of the United States for at least fourteen years, and at least six feet tall?
If you adopt the former position, I would ask you how you reconcile amendments like twelfth and the seventeenth and the twenty-second? Do you feel they are invalid because they change laws that had been set by the original text of the Constitution?
But I doubt you do adopt that position. I feel you probably accept the latter position that an amendment can add new text to the Constitution, even in cases which touch on issues already addressed in the text. And the new text is valid. So in the immortal words of Randy Newman, the American people would have said “Don’t want no short people.”
Now let’s say instead that this hypothetical twenty-eight amendment said “No person who has not attained the age of forty-five years shall be eligible to hold federal office.” And it’s been passed and ratified.
So we now have one part of the Constitution saying the President must be at least thirty-five years old. And we have another part of the Constitution saying that any federal office holder, which includes the President, must be forty-five years old. What do we do?
It’s simple. We do the same thing we would have done if one part of the Constitution said the President must be at least thirty-five years old and another part said the President must be at least six feet tall. We say the President must be both at least thirty-five years old and at least six feet tall.
Or in this case, we would say that the President must be both at least thirty-five years old and at least forty-five years old. Which effectively means the President must be at least forty-five years old.
To me, the more interesting case would be a later Amendment that said a natural-born citizen is eligible to hold the office of president if at least twenty-five years old.
I agree with all of this. It sort of supports what I said. If the Eighth says one thing and the Thirteenth another, the Thirteenth controls because it is added later and more specific than the Eighth.
Okay, 28th Amendment: “No person shall be struck with a lash more than five times for a misdemeanor.”
What does that tell us? That tells us that lashing per se is not prohibited by the Constitution/Eighth Amendment. If we have construed the Eighth Amendment to prohibit lashing, that was either wrong or has been changed by this Amendment.
It also almost certainly implies that more than five lashes may be used for felony punishments. The Eighth would likely kick back in for harshly more than five, but you would agree that, say, ten lashes would be implicitly allowed by the 28th for a felony?
Hell no. That’s not how these things work. Do you have any case law at all showing that any similar legal argument has been successful for any other amendment, in constricting the protections in the Bill of Rights?
Of course not. There is no similar amendment. I’m just wondering how you interpret these things. If no more than 5 can be had far a misdemeanor, then at least 6 must be allowed for a felony, no?
Do you have any caselaw at all that supports anything like you’re claiming–specifically, rights enshrined in one law that are understood to be constricted by an implication in a second law, when the second law is establishing new rights, and the implication is a restrictive clause in that establishment of new rights?
I think your claim is bananas, and I think a century and a half of jurisprudence backs up my belief. But I’m willing to be shown evidence to the contrary. If all you’ve got is your own tortured reading of the amendment, I ain’t convinced.
No, it does not. Your conclusion is the exact opposite of what I wrote.
I said you apply all parts of the Constitution. You’re saying you pick which part negates a different part.