Why activists are important for constitutional change
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American political debate is more open today to questions of fundamental constitutional change than at any time since the civil rights era of the 1960s, if not the New Deal era of the 1930s. In response to both the number unprecedented wave of right-wing judicial appointments by the Trump administration across the federal court system and the Biden administration’s repeated failure to overcome Senate filibuster, progressives now point to the basic structure of institutions American policies as a major obstacle to achieving their goals. From the Electoral College to the judicial review powers of the Supreme Court, to the composition of the Senate, the foundations of American governance are under increasing scrutiny.
This widespread discussion of a radical overhaul of the nation’s basic law has many sources. The One That Was Underrated Is Ava DuVernay’s Widely Praised 2016 Netflix Documentary On the 13th, which helped spark new interest in the details of the Thirteenth Amendment to the U.S. Constitution, which formally abolished slavery after the Civil War, but which the film claims had a fatal textual flaw.
DuVernay’s film helped shape an emerging conversation about constitutional desacralization. But it also in many ways simplified the real challenge of remaking the nation’s basic laws, producing new and misleading conventional wisdom about the roots of this country’s mass incarceration system.
The Thirteenth Amendment, passed in the aftermath of the Civil War, abolished “slavery and involuntary servitude” for all persons in the United States -“except as punishment for a crime for which the party has been duly convicted. (Emphasis ours.) This exception, according to the film, allowed slavery to persist in the penal system, allowing everything from 19th century convict hire to unpaid labor and lower pay. at the minimum wage of incarcerated people in the present. DuVernay’s compelling film synthesized historical research, militant argument, and incarcerated testimony to present a compelling case for the destructive impact of amendment language on America’s prison landscape.
In many corners of the liberal left, the Oscar-nominated film’s argument has boiled down to a shibboleth: the Thirteenth Amendment “loophole” provided the legal basis for the modern problem of mass incarceration. This idea underlies the so-called Abolition Amendment, a proposal put forward last year by Sen. Jeff Merkley (D-OR) and Congresswoman Nikema Williams (D-GA) to remove the clause beginning with “except as punishment for a crime” from the language of the Thirteenth Amendment.
This new conventional wisdom – what I call the “loophole narrative” – has had salutary effects. He underlined the distance between formal emancipation and authentic freedom. It has illuminated an enduring pattern in United States history, in which white supremacist forces seize the legal and political resources at their disposal to ensure that any progress toward black freedom and equality Americans is minimized, nullified and hindered. And, above all, he drew attention to a huge flaw in the Constitution, which is too often elevated by liberals and conservatives to the status of a sacred document and the undisputed source of national identity.
Still, a number of radical and abolitionist scholars who are broadly supportive of DuVernay’s project have offered significant criticism of the details and implications of the documentary. Researcher Dan Berger, a historian of black radicalism and the prison state, disputed the film’s suggestion that private prisons play an outsized role in the American prison system. Others, like prison abolitionists Ruth Wilson Gilmore and James Kilgore, have exposed flaws in the film’s implication that corporate exploitation of unpaid labor is a central factor motivating the growth of America’s prison system. , when in fact less than 3% of the country’s prison population works for a private company.
The story of the loophole further flattens the story of racist criminalization and the turn to mass incarceration by identifying a single point of origin from which subsequent developments have inevitably flowed. Instead, as Gilmore and historian Elizabeth Hinton have shown, the turn to mass incarceration was a thoroughly modern phenomenon. While today’s prison system is built on previous regimes of racial control through arrest, imprisonment, and forced labor, its particular forms owe more to the political economy of deindustrialization and the punitive turn of post-war urban policy than anything that happened in the 19th century.
But in some ways, the most troubling aspect of the escape story is the mode of constitutional politics it promotes. The framing of DuVernay’s film implies that social change can be led by constitutional change: that a simple change in the language of the document would have kept millions of Americans out of the cages and could bring them significant relief today. A more promising approach would draw lessons from a different historical moment, when black workers and civil rights activists understood that the meaning of the amendment was inseparable from social relations at work, on the streets and in the voting booth.
Immediately after the Thirteenth Amendment was passed, African-American activists, Reconstruction lawmakers, and former slaves initially hoped it would be widely implemented. Their vision involved using the language of the amendment not just to end property slavery, but to secure a stronger view of freedom as self-ownership and self-determination, especially in the economic realm. The Supreme Court, in the Slaughterhouse Case from 1873 and again in the Civil rights cases of 1883, restricted the meaning of the amendment, refusing to apply it in cases of labor exploitation, monopoly power, or racial discrimination in public places. For the Court, “slavery by any other name,” as Douglas A. Blackmon memorably named the post-Reconstruction order of racial segregation, convict hire, and debt bondage, did not not considered a constitutional problem.
In the 1930s and 1940s, black workers and civil rights advocates seriously challenged this interpretation. As Risa L. Goluboff documents in her book The Lost Promise of Civil Rights, Black farm workers in the South – excluded from the collective bargaining rights guarantee of the Wagner Act of 1935 – sought other ways to challenge the horrific working conditions and violent coercion they faced. On Florida plantations run by the United States Sugar Corporation, workers were paid less than half of what recruiters promised while being housed in unsanitary conditions. Going into debt for transportation, room and board, and their tools, these workers could not earn enough to pay off their debts. They were threatened with imprisonment or death if they tried to escape. Without the protection of a union, these black workers wrote letters to the NAACP and the new Civil Rights Section (CRS) of the Justice Department, calling for action against the “virtual slavery” of their camps. The workers themselves understood these conditions as specific violations of their right to “involuntary servitude” and cite the Reconstruction Amendment in their complaints.
Lawyers and civil rights activists followed the leads of black workers. The Justice Department began prosecuting employers who engaged in debt peonage schemes, arguing that such arrangements violated both the Thirteenth Amendment and the little-known Peonage Act of 1867. International Labor Defense , led by the Communists, formed an Abolish Peonage Committee in 1941, linking the forms of “involuntary servitude” that persisted in the United States with “Nazi tyranny” and “Hitlerism”. According to Goluboff, these painstaking calls for a broad interpretation of the Thirteenth Amendment’s prohibition of “involuntary servitude” were crucial to the developing concept of “civil rights” itself, which contained more collectivist and economic associations to that time than the more individualized version that would come later, especially after Brown v. Board of Education.
Cases of involuntary servitude also served as a front in a larger battle over the Constitution in the New Deal era. For decades, the requirement for state action Civil rights cases ruling had made it nearly impossible to challenge acts of discrimination committed by individuals and businesses under the Fourteenth Amendment. The Thirteenth Amendment, on the other hand, could easily apply to individuals. He provided a wedge to use against the Jim Crow ordinance at a time when a frontal legal challenge to Plessy v. Ferguson had little chance of succeeding. And, with the Court’s reluctant acceptance of New Deal legislation signaling the end of the Lochner At that time, the cases of involuntary servitude represented an effort by labor and civil rights organizers to bring constitutional interpretation back into the realm of grassroots politics.
A predominant focus on textual gaps favors strictly textual solutions. He approves of measures like the Abolition Amendment proposed by Senator Merkley and Representative Williams, which might fix a problematic document but would do little to relieve the millions of people held in prisons and prisons in across America. Moreover, by emphasizing that constitutional politics is a matter of textual interpretation and textual remedy, the loophole narrative only reinforces the overly powerful role played by judges and law professors in our politics.
Instead, progressives should look to the example of black workers, civil rights organizers and lawyers in the 1930s and 1940s for an alternative direction to America’s troubled founding document. These figures have engaged in what Aziz Rana calls a “reorientation around constitutional politics rather than constitutional law”. Instead of fetishizing a particular textual change, they mobilized around a vision of economic justice rooted in anti-slavery principles, using a tinkering of constitutional interpretation and statutory history to secure material benefits for workers.
The historic conditions that prompted radical civil rights advocates to use the Thirteenth Amendment’s ban on involuntary servitude to gain greater labor protections for black farmworkers cannot be recreated. This point remains true even if the moment they lived through – defined by racist violence, brutal and coercive working conditions and the rise of fascism at home and abroad – resembles our own.
At the same time, as the American left moves toward the project of constitutional change, it can draw inspiration from those who have rejected a strictly textual approach and have seen the most exploited workers in American society as constitutional actors at full share.
Sam Klug is a historian and postdoctoral fellow at Emory University’s Fox Center for Humanistic Inquiry..