The Constitution’s Article I, Section 2.(3) in relevant part to this article states that Congressional representatives, “shall be apportioned among their several States... according to their respective Numbers, which shall be determined by adding the whole number of free Persons, including those bound to Service for a Term of Years and excluding Indians not taxed, three fifths of all other persons.” Notice that while not explicitly authorizing the enslavement of human beings, a distinction is made between “free Persons” and “all other persons,” or slaves, three-fifths of each are counted to determine the number of Representatives in the Lower House, thus implicitly recognizing slavery.
After the 13th Amendment’s prohibition of chattel slavery in 1865, Section 2 of the 1868’s 14th Amendment changed the wording of the above Article to, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” There is no longer a distinction between “free Persons” and “all other persons,” or slaves, amounting to acceptance of a chattel slave-free nation while not explicitly barring or condemning plain slavery because of an exception to its prohibition in the 13th Amendment’s seeming abolition of slavery.
It is the language in Section 1 of the 13th Amendment that has plagued the new wave slaves in the U.S. since 1865. “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.” This exception led many of the former rebel states to enact laws, primarily and specifically targeting citizens of color and designed to easily convict them of various crimes.
Once duly convicted of a crime, these newly enfranchised citizens became rent-a-cons, performing the same type of labor for their former oppressors, who in turn pay the prison or state for the prisoners’ labor. It was reported that by 1898, a whopping 78% of Alabama’s total income was derived from rent-a-cons.
This type of slave labor is enshrined in many state prison systems. For example, the Texas Department of Criminal Justice (TDCJ) still has a prison in Rosharon named the W.F. Ramsey Unit. Ramsey is the name of the owner of the plantation where that prison is located. (See pg 38 of this issue.)
Ramsey hosts a large furniture factory and hundreds of acres of arable, cropland. TDCJ is one of five prison systems in the U.S. that pay its prisoners nothing for the work Texas law requires its prisoners to perform. However, a statute in the Texas Government Code has for decades granted TDCJ’s director the discretion to pay wages to the prison system’s prisoners.
Free labor in these five state prison systems, coupled with meager wages of pennies per hour in those systems that do pay prisoners to work, are credited with being a primary driver of mass incarceration. The prison-industrial-complex, exemplified by the Texas Correctional Industries, costs taxpayers around $80 billion annually. The United States currently incarcerates over 2 million of its citizens. This amounts to an astounding 25 percent of all imprisoned people in the world, a world of 7 billion people, of which the U.S. is home to only 331 million of them. Disproportionate representation in those numbers is a perfect example of understatement.
On Wednesday, December 2, 2020, resolutions for a Constitutional Amendment to abolish the “Punishment Clause” from the 13th Amendment were filed in the U.S. Congress and Senate. Representative William Lacy Clay said the filing’s purpose is “to finish the job that President (Abraham) Lincoln started.” Five senators supported the Upper House version with 14 Congress members supporting the Lower House version. All are Democrats. They have promised to try again in the 2021 session.
The “Abolition Amendment” enjoys avid support from Abolish Slavery National Network, Alliance of Families for Justice, Amnesty International, Anti-Recidivism Coalition, Color of Change, Constitutional Accountability Center, Democracy for America, Dream Corps, Human Rights Watch, Indivisible, Polaris, the Sentencing Project and of course the Human Rights Defense Center.
Since at least the late 1960s there have been various efforts to repeal the 13th amendment’s slavery clause. Perhaps this time it will be successful.
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