Slavery Under the Thirteenth Amendment: Race and the Law of Crime and Punishment in the Post-Civil War South

Author:Peter Wallenstein
Position:Professor of History, Virginia Tech.
Pages:1-20
 
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Slavery Under the Thirteenth Amendment: Race and
the Law of Crime and Punishment in the Post-Civil
War South
Peter Wallenstein
Amendment XIII:
Section 1. 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.
Section 2. Congress shall have power to enforce this article by
appropriate legislation.
TABLE OF CONTENTS
Introduction ...................................................................................... 1
I. Authorizing Slavery Through an Abolition Amendment ................. 2
A. Maryland, 1866 .......................................................................... 2
B. The Thirteenth Amendment and Slavery as Punishment ........... 4
C. “They Can Establish Any System of Crimes and
Punishment They Please” .......................................................... 8
D. An “Honest Construction of the Anti-Slavery Amendment” .. 10
II. Slavery in the Post-Civil War South .............................................. 11
A. John Henry—Prototypical Post-War Slave ............................. 12
B. Chattel Slavery, Convict Lease, Chain Gang........................... 13
C. “One Dies, Get Another” ......................................................... 16
D. Denouement of Slavery Under the Thirteenth Amendment .... 18
Conclusion ...................................................................................... 19
INTRODUCTION
“The crime of color” has held sway in various incarnations since the
colonial era, the period that Paul Finkelman emphasizes in his article of
Copyright 2016, by PETER WALLENSTEIN.
Professor of History, Virginia Tech.
2 LOUISIANA LAW REVIEW [Vol. 77
that title.1 Michelle Alexander characterizes what she calls “mass
incarceration in the age of colorblindness” as “the new Jim Crow.”2 Before
the “new” Jim Crow came the “old” Jim Crow. Exploring the hinge years
between chattel slavery in the South and the “old” Jim Crow of the late
19th and early 20th centuries, this Article focuses on the mid-1860s,
concentrating on the closing part of the Civil War as well as the early post-
war years.
That brief period brought debate over a proposed Thirteenth Amendment,
which embedded in the U.S. Constitution language designed to achieve
universal emancipation. This debate revealed the dominant direction taken in
penal policy i n the South under that amendment. A study of those years
reveals a missing link between the pre-emancipation form of slavery and
the modern carceral state of mass imprisonment, a link that was formed at
the very moment of the declared end to enslavement. Even though the
Amendment prohibited slavery in general, it nonetheless made an
exception for slavery if imposed as punishment for a crime.
This Article takes Paul Finkelman’s focus on the origins and legacy of
black as criminal and combines it—at a later time than under chattel
slavery—with black as a laborer. With an end declared to individual
ownership of enslaved laborers, new questions arose regarding the liberty
and labor of former slaves. A legal, political, and economic struggle
ensued over who would control black southerners’ liberty and labor—that
is, whether it would be black southerners themselves who would hold this
control. Part I recounts how the Thirteenth Amendment expressly
permitted a recurrence of slavery, provided only that such enslavement
constitutes a punishment for violating a criminal statute. Part II explores
the new forms of slavery that spread across the South in ways more or less
consistent with the language of the Thirteenth Amendment.
I. AUTHORIZING SLAVERY THROUGH AN ABOLITION AMENDMENT
A. Maryland, 1866
On December 8, 1866, in Annapolis, Maryland, a crowd gathered at
the county courthouse for an auction.3 A recent advertisement in the
Annapolis Gazette had called the public’s attention to the upcoming event
1. Paul Finkelman, The Crime of Color, 67 TULANE L. REV. 2063 (1993).
2. MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN
THE AGE OF COLORBLINDNESS (2012).
3. DENNIS CHILDS, SLAVES OF THE STATE: BLACK INCARCERATION FROM
THE CHAIN GANG TO THE PENITENTIARY 57 (2015).

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