OPINION: It's time to strip 'Black Codes' from the U.S. Constitution
America was founded on beautiful principles of equality and justice. And our nation was also founded on horrific realities of slavery and white supremacy. If we are ever going to fully deliver on our founding principles, we have to directly confront those gruesome realities.
One deeply disturbing reality is that when our nation ratified the 13th Amendment to abolish slavery, it included an exception. In the second clause, often referred to as the "Punishment Clause," are the words that allowed thousands of Black Americans to be re-enslaved during and after reconstruction, and set off a chain reaction that has destroyed the lives of generations of Black Americans: "except as a punishment for crime …"
Within weeks of the ratification of the 13th Amendment in 1865, Southern jurisdictions used the Punishment Clause to arrest Black Americans based on phony crimes, codified in so-called "Black Codes." The Black Codes — only applied to Black Americans — made it illegal for farmworkers to walk beside railroads; to speak loudly in the company of white women; to sell products from their farms after dark; and so many more absurd rules. Once people were arrested, the Punishment Clause was used by sheriffs to lease out imprisoned individuals to work landowners' fields, which in some cases included the very same plantations where they had been enslaved. The practice grew in prevalence and scope to the point that, by 1898, 73 percent of Alabama's state revenue came from renting out the forced labor of Black Americans.
This was no accident. John T. Morgan, a former Confederate General, spelled it out when he said in 1866, "[A]s the Constitution of the United States [gives] the power to inflict involuntary servitude as a punishment for crime, suitable law should be framed by the state jurists [to] enable them to sell into bondage once more those Negroes found guilty of certain crimes."
Re-enslavement through the Black Codes had the same elements that made slavery so evil: it tore parents away from their children; it destroyed the economic power of Black Americans; it dehumanized people, adding to the prejudiced myth that Black Americans were second-class citizens. And, imprisoned workers were treated just as cruelly as they were during slavery.
This is not a history lesson; we are still living with that legacy today. The Punishment Clause has facilitated and incentivized convictions for minor crimes, driving the mass incarceration of Black Americans for the last century and a half.
The Black Codes over time morphed into contemporary policies — the War on Drugs, "three strikes" laws, harsh mandatory minimum policies — that drove mass incarceration in America for generations, with a disproportionate impact on people of color. Now, the rate of American incarceration is nothing short of a crisis, with 2.3 million prisoners — 20 percent of the world's incarcerated population — residing in the United States.
In short: As intended, the exception to the 13th Amendment's ban on slavery corrupted criminal justice into a tool of racist control of Black Americans and other people of color. Since Confederate General John T. Morgan's time, we've seen that legacy in police encounters courtrooms, and prisons throughout our country.
Permitting slavery or involuntary servitude "as a punishment for crime" is not compatible with justice, especially given our nation's history and the origins of the Punishment Clause. At the end of 2020 I introduced, with U.S. Representative William Lacy Clay (D-MO-1), the Abolition Amendment, which would finish the job started by the Civil War, the Emancipation Proclamation and the 13th Amendment, and finally end the stain of slavery within our Constitution. I'll be introducing it again in the new 117th Congress. It would send a clear message: in this country, no person will be stripped of their basic humanity and forced to toil for someone else's profit.
Last year saw a reckoning across America about systemic racism, especially in our criminal justice system. It's past time that we as a nation take action to make the beautiful principles on which we were founded — equality and justice — our reality. Slavery is incompatible with justice. No slavery, no exceptions. Let's pass the Abolition Amendment.
Jeff Merkley, a Portland Democrat, is Oregon's junior U.S. senator. He can be reached via his website at merkley.senate.gov/contact.
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