DARYL MICHAEL SCOTT
The Scandal of Thirteentherism
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.
Congress shall have power to enforce this article by
In our age of roiling discontent, liberalism and its historical achievements are under assault from all sides. For the past four years, Donald Trump had little use for truth, science, progress, mutual respect among races and identities — all the liberal ideals embodied in the founding documents and embed-ded in the history of American politics. Despite overseeing the military that long ago defeated the Confederacy, Trump nonetheless made the Lost Cause his own, becoming the protector of Confederate monuments and place names, and this support has gained him the appreciation of white nationalists and other “good people” like the ones who marched on Charlottesville. Trump had little use for the colorblind state that liberals associate with the Party of Lincoln.
Even with Trump out of the Oval Office, Trumpism continues to be the perfect ideological provocation for those on the other side now questioning America’s central political tradition. It sets the mood for their revisionism. At war with classical liberalism and “neo-liberalism” alike, the progressives are busy rewriting American history. They want a past that reflects their dim view of the American record and justifies certain policies to address racial grievances. American history, they now instruct, is dominated by topics that liberals allegedly marginalized, including settler colonialism, slavery, white supremacy, whiteness, and peoples of color. The editor of the eminent American Historical Review writes that he aims to “decolonize” American history. Ibrahim X. Kendi’s book Stamped from the Beginning described racism as our very origins. Reducing four hundred years of black history to victimhood, the New York Times’ 1619 Project echoed this sentiment. Racism explains slavery, which in turn explains the American Revolution and much else worth knowing about American history. Internal conflicts among whites — based on religion, ethnicity, or class — hardly explain anything, and there is certainly nothing exceptional about America.
Rather than claiming their own version of the liberal tradition articulated in the Declaration of Independence, the Reconstruction Amendments, the promise of the New Deal, and the Civil Rights Acts of the 1960s, the progressives play up the failures and the betrayals of previous generations of liberals, even as they are suspicious or grudging about the Biden victory. Unwittingly taking their cue from the Nation of Islam, they view American liberalism itself as a species of white supremacy, national in scope and operation: in their view, white supremacy is not an aberrant tradition rooted in the American South, as most twentieth century liberals saw it. They feel little solidarity with American liberals, except those they have dubbed radical and incorporated into what they call the “black radical tradition,” especially Fredrick Douglass, Ida B. Wells, and Martin Luther King, Jr. Like some of the activists in the street, they would topple Jefferson, Lincoln, and Grant along with the Confederate generals. They see liberalism, past and present, as a huge obstacle to the remaking of America into what amounts to a fully integrated society with a social welfare state for all.
One of the pillars of American liberalism under assault is the Thirteenth Amendment. Many Americans now believe that slavery never ended — not despite but because of the amendment that fulfilled the promise of the Emancipation Proclamation. In the words of Bryan Stevenson, the head of the Equal Justice Initiative turned historian, slavery never ceased, it merely “evolved.” In his thinking and that of other Thirteenthers, it was the great amendment of 1865 that led to the re-enslavement of black people and mass incarceration. The key to understanding its “evolution” is the exception clause in the amendment, which ended slavery and involuntary servitude “except as a punishment for crime.” Under cover of those words, the Thirteenthers claim, ownership of slaves shifted from individuals to the state, even as the Thirteenth Amendment gave the American people, especially its newly freed people, the false impression that America had ended slavery once and for all. Some Thirteenthers do not simply believe that the amendment led to mass incarceration; they also hold that the loophole represented a diabolical scheme concocted by whites as a race. What all Thirteenthers share is the belief that the loophole created a seamless history of black slavery from the seventeenth century until today.
When a person of Stevenson’s commitment and stature gives such a dim appraisal of the efficacy of an amendment signed by Abraham Lincoln, attention must be paid. In his crusade to link mass incarceration to the Thirteenth Amendment, he is not alone. A wide array of historians, cultural studies scholars, activists, and artists have endorsed this view in full or in part, including Henry Louis Gates, Jr., Kimberlé Crenshaw, Khalil Muhammad, Alex Lichtenstein, Kanye West, and Ava DuVernay. Whatever chance this interpretation had for burning out on its own disappeared when DuVernay’s documentary 13th took the nation by storm in 2016. It is now taking root in the nation’s schools: after watching DuVernay’s film, my students believed that the convict lease system (about which more below) re-enslaved most blacks. They were shocked to learn that the percentage was much less than one percent.
An idea born in the 1960s has become a popular and pseudo-scholarly belief that many want to use as a basis for making public policy. Not many have gone as far as Kanye West, who— with all the erudition at his disposal — has called for the repeal of the Thirteenth Amendment. Most Thirteenthers aim for an amendment to close the loophole. Their objective is to put an end to mass incarceration, which is a fine objective. But the key to ending it, they suggest, lies in removing its supposed economic justification — black prison slavery.
Thirteentherism is best viewed as another episode in a long tradition of using history as a weapon in a political struggle. At times, the distinction between historical truth and propaganda gets lost. Yet in keeping with our era, bad history and worse social science have replaced truth as the intellectual underpinning for a great deal of thinking about social change. Rather than making the incontrovertible case that mass incarceration is an inherent evil, they seek to hitch their cause to the moral opprobrium that already exists against chattel slavery. They have little use for differences and distinctions, and simply wish to call incarceration slavery. Never mind that Americans of African descent have always held historical truth as sacrosanct, believing that the dispelling of falsehoods is the proper foundation for black people’s progress. Thirteentherism breaks with that black historical tradition of truth telling, hoping to end convict slavery and in the process misrepresenting some of the most momentous changes in American history.
The intellectual origins of Thirteentherism lie in the intellectual ferment of the 1960s. Prisoners commonly described themselves as slaves, whether on the prison plantations in the South or the workshops in other regions, since they all worked for little or nothing. It took an epiphany by Lee Wood, a prisoner in the California system, to link the Thirteenth Amendment to his condition. As part of a radical reading group, Wood read the amendment aloud to his comrades, and the loophole — “except as punishment for crime whereof the party shall have been duly convicted” — suddenly appeared to explain his plight. Few would do more to spread the idea. Once he had served his time, Wood dedicated himself to ending this “slavery,” founding the Coalition Against Prison Slavery (CAPS). He became well known for spreading literature on the role of the Thirteenth Amendment, and with funding from the Quakers he published, along with his wife, a short volume tracing the history of prisoners as slaves.
Wood’s idea of removing the loophole from the Thirteenth Amendment gained some traction in prison activist circles by the mid-1970s. He was not so much interested in ending imprisonment as he was against ending the exploitation of prisoner labor. Not only did CAPS receive funding from the Quakers, he also got the American Friends Service Committee to endorse his idea of removing the exception clause from the Constitution. From CAPS, the idea spread. In 1977, the New Afrikan Prisoners Association in Illinois petitioned the United Nations: “We protest the 13th amendment which legalizes slavery…” In 1980, William Coppola, a prisoner in Texas, cited the amendment as proof that slavery was alive and well in America. According to increasing numbers of prisoners, the Thirteenth Amendment had done them dirt. Not only did it not end slavery, it created more of it.
By the 1990s, the intellectual influence of prisoner advocacy spilled over into academic circles. Before joining the professoriate, Alex Lichtenstein worked on behalf of prisoners, then followed his interest into scholarship. He published a history of convict leasing, called Twice the Work of Free Labor. Notable mostly for its interpretation that the system contributed greatly to the industrialization of the South, the book promoted the Thirteenther view of the amendment to end slavery: “Ironically, this [convict lease] system emerged immediately on the heels of the passage of the Thirteenth Amendment to the Constitution, which intended to abolish bondage but permitted involuntary servitude solely as a punishment for crime.” He named one chapter, “New South Slavery,” and another, “Except as a Punishment for Crime.”
Thirteentherism gained most of its academic visibility and activist credibility through the writing of Angela Davis, who embodies the continuity between the prison activism of the 1960s and the modern prison abolition movement, which seeks to make prisons obsolete here and abroad. Her academic labors made cultural studies a central venue for the study of “the carceral state.” Reminiscent of W. E. B. Du Bois, who laid the seed for whiteness studies with a passing comment about how whites benefited from black oppression, Davis wrote an essay on Fredrick Douglass’ failure to oppose convict leasing and other forms of labor oppression. Of the amendment’s clause, she wrote: “That exception would render penal servitude constitutional — from 1865 to the present day.” As if this would have been impossible without the clause, she went on to say “That black human beings might continue to be enslaved under the auspices of southern systems of justice (and that this might set a precedent for imprisonment outside of the South) seems not to have occurred to Douglass and other abolitionist leaders.” After her essay, the Thirteenth Amendment’s loophole became intellectually important.
Wood, Lichtenstein, and Davis see a constitutional power in the Thirteenth Amendment to establish convict or prisoner slavery, yet they know that the various British colonies and American states had exercised legal authority to create systems of convict slavery. They often carry on as if the amendment was meant for blacks only — the original post-Civil War black code, if you will. But before and after the founding of the United States, convicts had been forced to labor against their will without recompense. During the colonial era, more than 50,000 whites convicts were given the most extreme Hobson’s choice: an indenture (contract) to slave for a term of years in British North America or to be put to death for their crime. They were often sold to work for masters at the auction blocks where Africans were sold, and both types of slaves, convict and chattel, were known to run away together.
The American Revolution ended the importation of white convicts as slave labor, but the new sovereign states all put those deemed criminal, regardless of racial designation, to work without compensation in one form or another. In the new penitentiaries some worked directly under the supervision of the state, others worked at the prisons under the control of leases, and others still off site. By the end of the Civil War, the power of colonies and then states to inflict involuntary servitude or slavery for a term on whites and others as convicts had existed for over two hundred and fifty years — a period longer than the age of chattel slavery. Of those seeing a white conspiracy to re-enslave blacks as convicts, an obvious question needs to be asked: why would Congress need to create a special constitutional amendment for blacks to make convict slaves of them? They had done that very thing to whites for centuries. The exception clause merely recognized the existing police power of the states.
The history of white convict slavery notwithstanding, Thirteenthers often treat the amendment as a federal black code that applied uniquely to the freed people and blacks in general. Among many others, Lichtenstein and Davis suggest as much when they imply that something special could have been done in the language of the amendment to prevent the criminalization and re-enslavement of the freed people. In their account, the language as it stands empowered the Southern planters, and they point to a Southerner or two who read the amendment as a veritable black code for the treatment of freed people. For an alternative that could have made things different, Thirteenthers point to Senator Charles Sumner’s attempt to offer a different version of the amendment that outlawed slavery and made no mention of crime and punishment. Many believe that his amendment without the exception clause would have changed history.
Yet Sumner simply wanted an amendment that clearly embodied the abolitionists’ belief that blacks and whites would be free and equal under the law. Removing the exception clause would have ended chattel slavery, but it would have left convict slavery — for blacks and whites alike — in place. Criminalization and imprisonment go well with Sumner’s desired wording of equality under the law. The difference of racism would have adversely impacted them at the hands of the states as it had plagued antebellum free blacks, North and South. Indeed, something more than an amendment touting equality under the law was needed.
The Republican-dominated Congress was interested in ending chattel slavery, nothing more, nothing less. They decided on the language that had been an effective chattel-slavery killer since 1787. The exception clause had become part of American federal law when Congress passed the Northwest Ordinance in 1787. Congress prohibited chattel slavery in the territories ceded to the federal government — except for those slaves found guilty of crimes, who could be subject to “involuntary servitude or slavery.” Thomas Jefferson, who most likely drafted the provision, wanted to end the expansion of chattel slavery. Congress required the exception clause as part of every constitution submitted by territories to enter the union as a free state. Over time, Jefferson’s proviso, as Sumner called it, ended chattel slavery wherever it was enshrined in a state constitution. It also made clear that Congress was not usurping a new state’s police power to punish criminals in a manner consistent with the original thirteen states — some of which, as colonies, included enslavement.
Apparently few Republicans, including Sumner, understood that the exception clause allowed for a term of slavery for a conviction. The potential difference between Sumner’s equality under the law proposal and the loophole version became clear immediately. In early 1866, the United States Army quashed the enforcement of a black code in Virginia that allowed freed people who did not sign a contract to be sold as a slave for a term. In November 1866, a judge in Anne Arundel County, Maryland, sentenced three black people to be sold for a term of service to local planters. The decision alarmed Sumner and other Republicans. The judge, in effect, was seeking to apply the old free person of color laws. The sentences were never carried out and the judge did not ultimately face prosecution. Yet Maryland was soon forced to remove its discriminatory laws. The loophole for any form of chattel slavery, even for a crime and even for a term, was closed. The Thirteenth Amendment was emphatically not a black code.
Without compromising the principle of equality under the law, the Republican-dominated Congress would have had to pass a version of the Thirteenth Amendment, or an additional one, that explicitly forbade convict slavery, not just chattel slavery. The new fundamental law would have done for whites what Thirteenthers wish it had done for blacks. It would have reduced the states’ police power to decide the appropriate punishment and pushed the costs for prisons entirely on state taxpayers. In her impressive book The Crisis of Imprisonment, Rebecca McLennan laments the failure of the Framers to end prison labor. She points out the ubiquitous tensions within states to, on the one hand, bar unfree, unpaid prisoner labor from competition with free labor, and, on the other, meet the needs of taxpayers to defray the cost of a penal system.
A vote to end convict slavery in the Thirteenth Amendment likely would have divided Congress and ultimately the nation. Northern and borders states would probably have been unanimously opposed to an additional section to the Thirteenth Amendment that usurped state power and left them with an expense. Even the version that retained the state’s power to use prisoners as involuntary or slave labor did not have universal support among Northern and border states; Delaware and Kentucky did not ratify until much later as it was. Texas and Mississippi held out. It was impossible to reach the necessary twenty-seven states to ratify the amendment without two of the rebellious states on board. With greater opposition from Northern and border states, a southern state movement to unite against the Thirteenth Amendment might have succeeded — but it was an unimaginable outcome. The political appetite to end convict labor, however it was defined, did not exist.
For the conspiracy theorists among the Thirteenthers, this insistence upon the limits of the politically possible will simply be received as further proof of an alliance between Northern and Southern whites. In their thinking the loophole is not happenstance, but a plan that allowed whites to catch and re-enslave black people. As early as 1977, the New Afrikan Prisoners Association in Illinois, in a petition to the United Nations against the Thirteenth Amendment. wrote, “It was never the intention of the rulers of the u.s. to ‘abolish’ slavery.”
The other elements of the Thirteenthers’ re-enslavement plot are the black codes and the convict lease system. Most professional historians, including Thirteenthers such as Lichten-stein, know two things about the black codes that the amateurs ignore: first, that the aim of the black codes was to push blacks back onto the plantations, not into jails or prisons; and second, that the black codes lived and died before the rise of convict leasing as a system. The Civil Rights Act of 1866, various court decisions, and the Fourteenth Amendment eliminated them. In most states, the convict lease system started years after the black codes had been outlawed. Just as Southerners did not need a loophole to create the convict lease system, they did not need black codes to discriminate against black people and to convict them of crimes. In the Thirteenthers’ narrative, the exception clause and the black codes are best understood as narrative devices to enhance the effect of their propaganda.
Although historians of convict leasing now argue that it served the industrializing New South, not the cotton, tobacco, or rice planters, Thirteenthers often cannot shake the image of their imaginary black codes being used to send the re-enslaved ex-slaves back to their former masters on the plantation. No less a figure than Henry Louis Gates, Jr. has produced a short video in which he argues that convict leasing and the black codes were part of a “labor system that took shape in the late nineteenth century [and] developed coercive means to ensure that cotton remained king.” The convict lease system is the indispensable element in the Thirteenthers’ narrative, and every effort is made to play up its size, its duration, and its profitability. They use percentages to show that the prison population shifted from white to black in a decade or so after the end of chattel slavery. And they emphasize the growth of the black prison population, how quickly it doubled.
In both cases, no effort is made to explain how a system largely closed to blacks in the antebellum years would show dramatic annual increases without much change in the size of the prison population. And little attention is paid to the size of the system throughout its duration. Instead the impression is given that re-enslavement captured a huge percentage of the black population. I repeat: the historical truth is that it captured less than one percent.
The focus on the late nineteenth century gives a false image of incarceration then and now. In Georgia, where we have the best numbers, about one third of one percent of the black population was imprisoned for most of the convict lease era. In 2017, by contrast, 1.4 percent of the black Georgia population was in state prisons. That is almost five times as many as in the age of mass incarceration. This tracks well with the nation as a whole in the era of mass incarceration, when at its peak, in 2006, 1.5 percent of the black population found itself in the prison system.
The small, brutish system of convict lease proved to be shorter in duration than the Thirteenthers suggest. They point out that Alabama’s system existed until 1928, but rarely, if ever, do they note that it was an outlier. In the 1890s, Virginia, Tennessee, South Carolina, North Carolina, and Mississippi ended theirs. By 1913, only Florida and Alabama were engaged in leasing. DuVernay’s film gives the impression that convict leasing and lynching caused the Great Migration out of the South, making blacks “refugees.” Yet before the start of World War I convict leasing was already a moribund institution, barely a shadow of the monster it had been, and lynchings were in decline. Ironically, the white supremacist governments that brought the nation the illiberal institutions of state-mandated segregation and black disenfranchise-ment ended the system most associated with chattel slavery. Moreover, they put out of business the only profitable penal system in American history.
While trading on images of the Southern prison structure — convict leasing, the chain gangs, the prison plantations — Thirteenthers ignore the form of convict slavery that engulfed most prisoners in America from emancipation forward. In the North and the West, the prisons predominated through most of the nineteenth and twentieth centuries, but in the Thirteenther narratives they simply do not appear, because the amendment is treated as a federal black code, enslaving only blacks, regardless of work life. In non-Southern prisons, leasing out prisons and prisoners stopped in the late nineteenth century, and production under prison control for state use became the system. With northern migration, blacks found their way into them. Undoubtedly, racism resulted in harsher treatment, but it did not Southernize the prison regimes as the Thirteenthers suggest. Convict leasing, road chain gangs , and prison plantations did not appear. Racism abounded, but it was hardly new in the West or the North.
Together the Northern and Western prisons dwarfed the Southern system in size and scale. Before the rise of mass incarceration, roughly a third of all black prisoners were serving time in them. By that time prisons were on the brink of rebellion, but the nature of prison life was different. Despite the inherent repression in all prison life, black convicts in the North and West found time, like their white counterparts, to pursue self-improvement. Malcolm X and many others like him became autodidacts with the assistance of prison libraries. Some received more formal education through vocational programs. If Northern and Western prisons produced white writers, they also produced black ones such as Chester Himes and Eldridge Cleaver. It was in federal prison that Angelo Herndon wrote his autobiography Let Me Live. To maximize the propaganda value of black men in conditions reminiscent of chattel slavery, the Thirteenther narrative ignores the growth of black incarceration outside the South, hinting that Southern ways moved north. Yet the rise of penitentiaries in the South, along with the decline of the road-building chain gangs, suggests that the Southern penal system increasingly became more like the rest of the country.
Having used the black codes and convict leasing to create the impression that Thirteenth Amendment had subjected black people to massive, profitable, and brutal re-enslavement, Thirteenthers continue their discussion into the true age of mass incarceration, from the 1960s forward, as if nothing of substance had changed since 1865. Little thought is given to the inclusion of Hispanic bodies among the slaves, and white prisoners remain merely unfortunate by-products caught in the nets of a system that was designed to enslave blacks. The image presented is that of the state raking in profits from selling black labor to Fortune 500 corporations, consuming the fruits of black labor in prison industries and the various and sundry centuries-old plantations in the South. The truth is that most “convict slaves” are actually idle, and that the state and federal governments make revenues but never profits. All this seems wholly lost in the conversation.
And as serious scholars know, the origins of the expensive and unprofitable system of mass incarceration are to be located in the changes of the 1960s, not 1860s. Thirteenthers have little use for the works of scholars such as James Forman, Jr. and Elizabeth Hinton, who see mass incarceration arising largely from party politics and political choices made by politicians and communities, including African Americans. They do not take seriously scholars such as Ruthie Gilmore, who argues for examining the political economy — not narrow politics or the pursuit of revenue from prison labor — to explain the rise of mass incarceration. These are traditional scholarly debates, and so they lack a grand narrative of slavery or an explosive Jim Crow metaphor. They are not useful for propagandists.
Having penetrated the academy, popular culture, social media, and the classrooms, Thirteentherism has also become a basis for social activism and policymaking. Lee Wood’s old CAPS agenda of ending prison slavery by removing the loophole from all American constitutions has been taken up by many. An increasing number of activists believe that by removing the “profit motive” from mass incarceration, locking up millions of people would lose its rationale.
Nationwide prison strikes have become almost annual occurrences. In 2016, the promotion and release of DuVernay’s film overlapped neatly with a nationwide prison strike to end the abuse of prison labor. Originating in Alabama, the prisoners leading the strike invoked the role of the Thirteenth Amendment in making them slaves and protested against their being forced to work with little or no remuneration. The strike involved more than twenty thousand prisoners in twenty-four prisons. In 2018, coinciding with the fiftieth anniversary of the uprising at Attica, prisoners in seventeen states struck again and made ending prison slavery one of their ten demands. “The Thirteenth Amendment didn’t abolish slavery,” said the strike’s spokeswoman, Amani Sawari. “It wrote slavery into the Constitution. There’s a general knowledge that the Thirteenth Amendment abolished slavery, but if you read it, there’s an exception clause in the abolishing of it. That’s contradictory — that something would be abolished and there would be an exception to that.”
Beyond the prison strikes of recent years, there has been ongoing pressure from activists to sever the purported link between constitutions, state and federal, and the use of convict slavery. Most of the calls from prison activists and reformers are for the country to “amend” the federal Constitution to end all forms of slavery. On August 19, 2017, for instance, the Millions for Prisoners March on Washington, DC proclaimed that “We DEMAND the 13th amendment ENSLAVEMENT CLAUSE of the United States Constitution be amended to abolish LEGALIZED slavery in America.”
The activism on the ground had some impact on presidential politics in the recent election, but not much. Among the major candidates, only Bernie Sanders invoked the amendment. In making a case against the continuation of private prisons, he argued falsely and inexplicably that they had their origins in “chattel slavery.” After the Civil War, he held, “prison privatization expanded rapidly when the 13th Amendment, which outlawed slavery but continued to permit unpaid penal labor, was ratified… Due to an extreme shortage of labor caused by the emancipation of slaves, former Confederate states exploited the legalization of penal labor by incarcerating newly freed black people.” To his credit, Joe Biden, despite an unfavorable record on stoking the growth of mass incarceration while in Congress, did not pander or traffic in this nonsense. As he sought to reverse his record and come out for the reduction of incarceration rates, he did not invoke the Thirteenth Amendment in his policy statements.
At the state level, however, the situation has been different, and in the long run might bear fruit nationally. Given how deeply rooted the link between the Thirteenth Amendment and convict slavery has become in African American social thought, state-level politicians are responding to activists’ calls to end the loophole. In various states, efforts are being made to remove the language. In Colorado, activists laboring under that assumption pressed for constitutional change and achieved the removal of the exception clause. In 2016, they succeeded in placing on the ballot “Amendment T,” which, they believed, would have prohibited the state from using prisoners as labors without their consent. Despite a lack of opposition, the amendment failed by two percentage points because of its confusing language. Two years later a similar amendment passed, but a strange thing happened along the way — no one, not even its advocates, believed that the new amendment, despite its removal of the exception clause, would prohibit prisoners from being forced to work. By the time the bill was put before the people of Colorado, it became clear, as Vox reported, that the removal of the clause would not end virtually uncompensated labor. This was not a reform, it was a gesture; and too often reformist energy is squandered on gestural politics.
Even in the wake of Colorado’s cosmetic change to its social contract, the movement to purify all state constitutions has not declined but rather increased. Policymakers and activists from a number of states (Utah, Colorado, Nebraska, South Carolina, New Jersey) have banned together recently to form “a national coalition fighting to abolish constitutional slavery and involuntary servitude in all forms.” During the 2020 election, the red states of Utah and Nebraska revised their constitutions to eliminate the exception clauses with complete bipartisan support. These victories are largely symbolic because they seemed to interpret slavery as chattel slavery or as involuntary labor performed for private enterprises, not the state. Utah’s Department of Correction will continue to require prisoners to perform work within the prison and to volunteer for other prison-labor opportunities, including with private industries. In Nebraska, State Senator Justin Wayne introduced a constitutional amendment to remove the exception clause in the state constitution. He assured voters that prisoners were paid a nominal amount for their labor. For many prison reform advocates, that nominal amount represented nothing less than convict slavery.
The only state initiative thus far that has had the potential to end convict slavery or any form of involuntary servitude is the one recommended by policymakers in New Jersey. (This initiative did not get on the ballot in the last election.) As one of the original thirteen colonies, the state’s constitution never carried Jefferson’s proviso that was imposed on territories brought into the union as anti-chattel slavery states. With convict slavery stretching back to its early colonial history, New Jersey would be breaking not with the Thirteenth Amendment but with its most deeply ingrained tradition.
Tying the abolition of convict slavery to the Thirteenth Amendment implies that the institution has shallow roots. Moved by the myth of Thirteenthism, however, lawmakers are adding rather than subtracting language to the constitution to uproot an ancient practice: “No person shall be held in slavery or involuntary servitude in this State, including as a penalty or a punishment for a crime.” As the language on the ballot that will be presented to the voters of New Jersey explains, “This amendment would prohibit forcing an inmate to work as a penalty for a crime, even if they are paid. This amendment would not prohibit inmates from working voluntarily.” And as Democrat Ronald Rice, one of the amendment’s sponsors, put it, “We must set right the treatment of prisoners in our prison system and guarantee that no one is unwillingly forced to perform work, whether they are being compensated two dollars or not. Our justice system continues to tarnish our nations [sic] principles but this amendment would set New Jersey on the right path to finally ending indentured servitude in our state once and for all.”
Only a new amendment to the Constitution of the United States could end convict slavery everywhere, and now, thanks to the bad history of the Thirteenther movement, such a legislative effort exists. With the support of the Congressional Black Caucus, the constitutional amendment introduced by then-Representative Cedrick Richmond (who now works in the Biden White House) reads: “Neither slavery nor involuntary servitude may be imposed as a punishment for a crime.” Here is the language that has been calling out to those opposed to convict slavery from the time of Jefferson’s proviso. If it makes it out of the House, it will certainly die in the Republican Senate, though Senator Jeff Merkley of Oregon has expressed agreement with the Thirteenther argument. More than likely, the Thirteentherist amendment will become a perennial legislative offering, like the late Congressman John Conyers’ reparations bill.
Born of the use of the Thirteenth as propaganda, the proposed Twenty-Eighth Amendment will ultimately rise or fall on its proponents’ ability to win on the merits. Rather than trying to persuade Americans that mass incarceration is an inherent and expensive evil, which is an indisputable proposition, Thirteenthers have sought to trade on America’s moral distaste for chattel slavery, pretending that convict slavery was its offspring. When the false association is stripped away, the proposed amendment will call for Congress and then three-fourths of the states to vote for millions of prisoners to shift from being mostly to completely idle with taxpayers footing the cost. It would not have won in 1865 and it is unlikely to do so now.
And there is a larger issue, a different integrity, at stake here. The Thirteenther use of history as propaganda to achieve a political end marks a break with the tradition of black history. From the antebellum period forward, black historians, professional and amateur, have believed that historical falsehoods justified black oppression and that the truth would therefore be an ally in the movement for racial justice and equality. By distorting the history of the Thirteenth Amendment and by denying one of black people’s greatest triumphs in American history — the destruction of chattel slavery — this generation has sought to emancipate itself by diminishing its ancestors’ prized accomplishment. It has also sought to free itself from culpability for a system that all Americans, including blacks, had a part in making. The legion of black intellectuals who have conflated convict labor and chattel slavery have reached the limits of false persuasion. History as propaganda works better to rationalize the status quo than to usher in change. Rejecting the historical meaning of the Thirteenth Amendment is not an avenue to progress.