The Word “Slavery” is in Shackles

A few days ago Vice President Joe Biden addressed a rally in Danville, Virginia. At one point, Biden criticized Mitt Romney’s plan to deregulate corporations, stating that “He [Romney] said in the first 100 days he’s going to let the big banks write their own rules, unchain Wall Street. They’re going to put y’all back in chains.” He has caught a lot of flak for using the “chains” metaphor, appended with a “y’all” in a former Confederate state, and it may have been in poor taste. Apparently the Right only thinks its okay to accuse the federal government of slavery and not private corporations or individuals.

The metaphor of slavery has persisted, and use of it is almost always vilified. But there are times when slavery rears its ugly head, and those are the times to use words like “chains.” While it may have needed a better context, Biden’s use of the metaphor seems pretty apt, because letting corporations run rampant will beat the middle and lower class down. It will condemn us to living and working without the power to have a say in our lives. And isn’t that a form of slavery?

I say this because Biden’s comments and the ensuing brouhaha about only talking about slavery when you’re talking about real slavery occurred while I was in the middle of reading “The Dangerous Thirteenth Amendment,” an article soon-to-be in the Columbia Law Review. In the article the authors, Jack Balkin and Sanford Levinson, from Yale and the University of Texas, respectively, argue that the Thirteenth Amendment’s definition of slavery is too narrow.

If you haven’t memorized your amendments, the Thirteenth is the first of the Reconstruction Amendments and it outlawed slavery. Specifically, it states that “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.”  As mentioned in the article, the other Reconstruction Amendments are interpreted rather broadly in the legal arena, especially when compared to the Thirteenth. Other amendments, like the Fourteenth or most of those in the Bill of Rights, have been interpreted broadly in a contemporary sense, leading to myriad changes in society from civil rights to the expansion of free expression. The Thirteenth, not so much.

History textbooks tell us that slavery was ended after the Civil War, but history tells us that things like slavery never totally go away. They’re always there, lurking under the surface. That’s how Balkin and Levinson looked at the Thirteenth Amendment. The language of the amendment mirrors that of the Northwest Ordinance of 1787, and so they look at the 18th Century context rather than the post-Civil War context. And in the times of Jefferson, slavery meant a lot of things. The authors point out that revolutionaries frequently argued that American colonists were slaves of Britain since the British monarchs had absolute power:

The colonial vision that opposed slavery to republican liberty held that slavery meant more than simply being free from compulsion to labor by threats or physical coercion. Rather, the true marker of slavery was that slaves were always potentially subject to domination and to the arbitrary will of another person.

The authors also find evidence that in the 19th Century some argued that limits on suffrage were a form of slavery, many contemporary feminists saw marriage as slavery, and some  workers saw wage labor as slavery. In the campaign for abolition of chattel slavery – what we today see as “real” slavery – abolitionists had to distance these other forms of slavery from their cause. And so the definition of slavery became narrowed so much so that activists for other causes were stripped of the word. The authors are onto something, though, when they say that slavery and its ties to republicanism have not gone away, and that the Thirteenth Amendment could stand to be expanded.

But we need more than just expanding the interpretation of the text. We need to change the text. The Thirteenth Amendment allows for slavery in America, and that’s not hyperbole. Slavery is illegal except if you’ve been found guilty of a crime, then by all means enslave away! Prison labor is a growing problem as prisoners are paid less than minimum wage to make license plates and flags and for-profit prisons are pushing for legislation that leads to more and more arrests. As long as prisons are allowed to enslave their prisoners, the Thirteenth Amendment isn’t good enough. It needs to be expanded, and then it needs to be expanded some more, and some more.