How Is Slavery Still Legal?

It is disturbing that there is even any debate about this. But even some Democrats have supported keeping forced labor legal.

By Nathan J. Robinson, Current Affairs

This week I had the rather strange experience of voting to make slavery illegal. Louisiana’s proposed Amendment 7 would “remove involuntary servitude as punishment for a crime.” In fact, five states have “slavery on the ballot” this year, and are considering altering their state constitutions to prohibit the government from extracting forced labor from those convicted of crimes.

The problem is that the United States Constitution does not actually prohibit slavery outright. The 13th Amendment has what we might call a “loophole you could drive a truck through.” While often erroneously called “the amendment that abolished slavery in the United States,” the Amendment actually only abolished private slavery. Its text reads, “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.” That’s a pretty giant “except” because it means the government can enslave someone for committing a crime.¹ And since governments are the entities that decide which behaviors constitute crimes in the first place, it’s pretty easy to imagine a scenario consistent with the text of the Amendment in which slavery is still widespread. What the Amendment really provides for, when combined with other constitutional provisions, is due process before enslavement, meaning that the government has to go through a certain formal procedure before enslaving a person, by showing that person has violated a law and giving them a chance to defend themselves, etc.

In fact, we don’t need to imagine such a scenario, because as David Oshinsky chronicles in “Worse Than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice, after emancipation, once Southern states had successfully rolled back Reconstruction, they established brutal convict labor systems. “Emancipation … will require a system of prisons,” Oshinsky quotes a Mississippi state official as saying. Convicts were leased to private corporations seeking cheap labor. The Library of Congress describes the hideous system: