Penal Slavery
Thinking some today about the origins of the Thirteenth Amendment “prisoner-labor” exception, which some have seen as licensing penal slavery.
Two initial thoughts off the top of my head:
- I know the language came from the Northwest Ordinance text, but wonder where else it was used and how it was adapted for the constitutional amendment.
- The question of whether slavery was justified as a punishment may have older roots in arguments against the slave trade which argued that the African trade was illegal or immoral because enslavement could not be traced to a criminal act.
From a quick Google scholar search, there seems to be a fairly sizable law-review literature about this clause, including this one by Andrea Armstrong arguing that the exception clause was not as broad as some have thought. She points to one telling formulation by an 1863 Republican who “proposed that the Thirteenth Amendment should read: ‘Slavery being incompatible with a free government is forever prohibited in the United States, and involuntary servitude shall be permitted only as a punishment for a crime’” (875). For Armstrong, the exception in the Thirteenth Amendment only modified “involuntary servitude” and was not meant to license slavery in punishment of crime. Postwar Freedmen’s Bureau instructions like these in Texas also seemed to distinguish between the “compulsory unpaid labor” allowed as punishment for crime and other kinds of “subtitute for slavery” that would not be tolerated.
Need to revisit historiography to see if there’s more on the history of the “exception” clause and how it was interpreted during and immediately after the war. Possibly in …
- Vorenberg, Final Freedom
- Steinfeld, Invention of Free Labor
- Stanley, From Bondage to Contract
- oakes2013
- mancini1996
- Rebecca McLennan, The Crisis of Imprisonment
Some links about the Imperial Prison Farm in Sugarland:
