Convicted of a crime? Sold into chattel slavery

[UltraVires]

@Left_Hand_of_Dorkness

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.

Do I have case law that supports the very exact factual scenario that I am asking about? No, or else I wouldn’t be asking. But I think it is a decent question given the text. Again, I think the majority read is the better one, but it’s not one hundred percent IMHO.

@Little_Nemo

I said you apply all parts of the Constitution. You’re saying you pick which part negates a different part.

If something negates something, it would be the latter. That’s why the Eighth Amendment arguments are not helpful because they simply assume the “right” reading of the Thirteenth. IF (and only if) the Thirteenth allows chattel slavery as punishment for a crime, then by definition, it may not be unconstitutional because of a prior amendment.

[Max_S]

UltraVires, let’s try one more time.

Please imagine three items here.

1. Five years as a galley slave upon conviction of treason
2. Five years in a chain gang upon conviction of mopery
3. Five years as a chattel slave for being born to an enslaved mother

Now the year is 1791. The Eighth Amendment was just passed, and it reads,

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Let’s look at our three items and cross out the ones which are cruel and unusual punishments, by 1791 standards. Let’s say…

1. Five years as a galley slave upon conviction of treason
   A punishment, but neither cruel nor unusual given the nature of the crime.
2. Five years in a chain gang upon conviction of mopery
   A cruel and unusual punishment, given the nature of the crime. (just go with me on this)
3. Five years as a chattel slave for being born to an enslaved mother
   Not a punishment inflicted by man, but the work of God.

Therefore item #2 is repugnant to the Eighth Amendment.

Fast forward to 1865, when the Thirteenth Amendment is passed. It reads thus,

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.

Let’s look at our three items and cross out the ones which are either slavery or involuntary servitude, except as punishment for a convicted crime.

1. Five years as a galley slave upon conviction of treason
   Slavery, but punishment for a crime whereof the party was duly convicted.
2. Five years in a chain gang upon conviction of mopery
   Involuntary servitude, but punishment for a crime whereof the party was duly convicted.
3. Five years as a chattel slave for being born to an enslaved mother
   Slavery, but not punishment for a crime whereof the party was duly convicted.

Therefore item #3 is repugnant to the Thirteenth Amendment.

Now let us address your argument about construction. You do have a point, partially. The clause in the Thirteenth Amendment,

except as a punishment for crime

hints to the possibility that slavery or involuntary servitude may be allowed as punishment for crime. But strictly speaking, it is not implied as a matter of law. There may be other rules in the document that limit what punishments may be issued for crimes. Indeed there is one such rule: the Eighth Amendment.

Because both the Eighth and Thirteenth Amendments only prohibit acts, and because neither amendment allows anything, we may combine the prohibitions of both. To wit, the Eighth Amendment strikes item #2 while the Thirteenth strikes item #3:

1. Five years as a galley slave upon conviction of treason
   a. A punishment, but neither cruel nor unusual given the nature of the crime.
   b. Slavery, but punishment for a crime whereof the party was duly convicted.
2. Five years in a chain gang upon conviction of mopery
   a. A cruel and unusual punishment, given the nature of the crime. (just go with me on this) Repugnant to Amendment VIII.
   b. Involuntary servitude, but punishment for a crime whereof the party was duly convicted.
3. Five years as a chattel slave for being born to an enslaved mother
   a. Not a punishment inflicted by man, but the work of God.
   b. Slavery, but not punishment for a crime whereof the party was duly convicted. Repugnant to Amendment XIII.

Now finally, it is my opinion that the text “cruel nor unusual punishments” does not perpetuate the 1791 standards of what constitutes “cruel or unusual”. So in 1865 or any subsequent year, statements 1.a. and 2.a. may be reevaluated according to modern standards of “cruel” or “unusual”.

~Max

[Little_Nemo]

UltraVires, let me ask you a fundamental question. Do you feel, in current court cases, the eighth amendment prohibits punishments that would have been regarded as cruel and unusual in 1789 or do you feel it prohibits punishments that are regarded as cruel and unusual in 2021?

[UltraVires]

1789…flame away, but it has to be read for when it was written. If in 2021, we say “Oh my goodness, these other punishments shouldn’t happen!” then we pass another amendment.

[Little_Nemo]

@UltraVires

1789…flame away, but it has to be read for when it was written.

Do you feel cases like Buckley or Citizens United were wrongly decided?

[UltraVires]

Yes and no respectively. Why is that important?

[Little_Nemo]

They were cases which declared campaign donations were a protected form of speech. I find it doubtful that was James Madison’s intent.

[UltraVires]

It’s sort of a hijack but as I see it is my thread, okay. How can you speak without money? If money is not free speech, then is free speech only shouting like a town crier in 1789? No internet, no telephones. Just talking loud?

[Little_Nemo]

Are you seriously arguing that the amount of constitutional rights a person has should be based on how much money they have?

[UltraVires]

No, but you would agree that what a person purchases with money can allow speech? So if we are consistent, and the government says, no that money does not equal speech, then that means you can only speak as loud as your voice will carry. To be silly that is an equal protection problem as men with generally deeper voices will have more speech than women.

[Little_Nemo]

If you’ve read my past posts on this subject, you know my position. Buckley is one of the worst decisions the court ever handed down and it should be overruled by a constitutional amendment. It was nonsense from a legal standpoint and it has had disastrous consequences. I won’t derail the thread by going into details.

[UltraVires]

I think it is has played out and as the OP I don’t care as long as the mods don’t. Let’s roll with that if all permit it.

What was so bad about Buckley? If I pay you for a website to promote my speech, and the government says no way, then how are they not prohibiting free speech? I don’t get it.

[Little_Nemo]

Buckley had very little to do with paying for websites or other forms of media. It was about giving money to politicians. They may have cloaked it in the term “campaign contributions” but for all practical purposes, it’s legalized bribery. If I hand an elected official a check for fifty thousand dollars, I’m not expressing an idea; I’m paying him off for preferential treatment.

[UltraVires]

Are you? Suppose the race is between an NRA guy and a Brady Handgun Control person. I like to carry my gun. I give the NRA guy $50k. Did I bribe him or just contribute to someone that I wanted to win? I think there is much proving on your (general your) part to show bribery. I mean, the guy was already on my side. What did my $50k do?

[Little_Nemo]

@UltraVires

Are you?

Hard to prove, isn’t it? Was this guy going to support my agenda anyway or did he become a lot more enthusiastic about supporting it after I gave him fifty thousand dollars. I’m guessing ninety-nine percent of the time, it’s the latter.

Either way, most people don’t have fifty thousand dollars to give to lawmakers. Which means lawmakers listen to the handful of people that do a lot more than they listen to the majority of people who live in this country. And this country is supposed to be a democracy.

[UltraVires]

@Little_Nemo

Hard to prove, isn’t it? Was this guy going to support my agenda anyway or did he become a lot more enthusiastic about supporting it after I gave him fifty thousand dollars. I’m guessing ninety-nine percent of the time, it’s the latter.

No, I put the indisputable facts out there. I gave the guy the money because he was already a gun guy. I didn’t pay him to turn that way.

@Little_Nemo

Either way, most people don’t have fifty thousand dollars to give to lawmakers. Which means lawmakers listen to the handful of people that do a lot more than they listen to the majority of people who live in this country. And this country is supposed to be a democracy.

Yeah, it sucks that rich people get better stuff than us. Is the solution to have a government controlled free speech law?

[Little_Nemo]

@UltraVires

Yeah, it sucks that rich people get better stuff than us. Is the solution to have a government controlled free speech law?

No, the solution is simple and obvious; we overturn Buckley and stop pretending money is a form of speech. It’s a nonsensical idea that the country did quite well without for the first two hundred years of our existence.

[UltraVires]

But it simply is. How do you counter the basic argument?

[Little_Nemo]

@UltraVires

But it simply is. How do you counter the basic argument? .

Are you talking about the idea that money is a form of speech? I feel it’s pretty obvious that paying money for something and communicating an idea are two very different things. The fact that nobody thought of paying somebody money as a form of speech until 1976 demonstrates this.

Or are you arguing that this country lacked free speech for the first two hundred years of our existence?

[UltraVires]

I’m saying it is hand in glove. Sure, if you say “I dislike Joe Manchin” that is a form of free speech, but if you pay money to start a website that has a goal of outlawing assault weapons, for example, that is also free speech, and for the government to say that you can only pay so much money for that purpose, it is effectively saying that you can only speak so loudly against assault weapons.