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How the Amendment to End Slavery Was Damaged by Racism

Wednesday, 02 May 2012 00:00 By Gary Freeman, Truthout | Op-Ed

A Note From the Writer

It seems my destiny has placed me here to make my stand for human rights.

On March 7 of 1969 in Chicago, I was stopped by a police officer. At that time, it was more important than ever to know your rights because it was open season on young black males in that city. When I told him he had to have probable cause for a legal stop and frisk, he apparently didn't like what he heard. As I turned to walk away from his car, as I had a legal right to do, he jumped out of his car, hit me in the back of my head, threw me over the trunk of his car, pointed a snub-nosed revolver at my head and screamed he was going to blow my head off, "NIGGER!" I could taste on my tongue the acridness of my own death.

I was lucky because the opportunity for me to defend myself arose and I took it. I was able to disarm that officer and his gun arm was wounded. I was apprehended and, for defending myself, I was charged with attempted murder and aggravated assault. I was all of 19 years of age.

That officer never placed me under arrest and never frisked me. I was a young black male wearing combat boots and a black leather jacket.

If you were lucky enough to survive such an encounter in Chicago - and 11 other young African Americans were not that year - you could pretty much rest assured that you would be railroaded in court. So, when the opportunity presented itself, I fled to Canada.

I was arrested in 2004 in Canada on a new warrant. Both the US and Canadian governments knew the officer was a member of Chicago's fascist Red Squad and that a woman who involved herself with me was his informant. Neither thought it prudent to pursue what I promised would be a political trial and not a typical criminal proceeding. It was 1974, during the aftermath of Watergate and the Church Committee.

I was offered a plea bargain, and in 2008, my case was resolved in Chicago. But Canada's current, Tea Party-esque government cares nothing about the sanctity of the family or human rights. I lived as a model resident, homeowner, worker, union member and taxpayer for 30 years in Canada, where I helped raise my four Canadian-born children (who have grown up to be college-educated professionals). But the Canadian government will not let me go back to my family there.

That is my story, one that compelled me to write another story: the history of one of the anchors of official racism in the United States.

How the Amendment to End Slavery Was Damaged by Racism

The Constitution of the United States of America was created to enable the founding ideals and principles of the Declaration of Independence. Yet something went terribly wrong. It failed to recognize, defend and enable those ideals.

The tragedy of such a gargantuan failure is still with us today in the form of institutionalized and systemic racism and a deeply embedded exploitation of labor. Both are still given constitutional sanction. Such sanction resides in the very constitutional amendment that was supposed to free the slaves and end the exploitation of labor in America forever: the 13th Amendment.

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.

[E]xcept as a punishment for crime whereof the party shall have been duly convicted." The reality of emancipation and racial equality cannot be fulfilled until the collective mindset of the nation is firmly turned away from the idea that slavery or involuntary servitude has any place within the constitutional fabric of the United States. Until the notion is gotten rid of that a person who is convicted of a crime is something less than other citizens, or is something less than human, there cannot be the necessary transformation of the American law enforcement and judicial system from one that is based upon vengeance and negative punishment to one that is focused on 21st-century restorative justice.

So, why does the Constitution of the United States of America still allow for the existence of servitude in America that can be triggered as a punishment for crime?

What America got in the 13th Amendment was a mindset reflected in legislation, law and customary practice best described in 1845 by Frederick Douglass in his "Narrative of the Life of a Frederick Douglass, an American Slave, Written by Himself": "To be accused was to be convicted, and to be convicted was to be punished; the one always following the other with immutable certainty. To escape punishment was to escape accusation ... " Think, please, of a young, black boy - Trayvon Martin - wearing a hoodie, who only wanted some Skittles and iced tea when he was shot to death on February 26, 2012, by a neighborhood vigilante because he looked "suspicious."

As Douglas A. Blackmon has pointed out in his Pulitzer Prize-winning book, "Slavery By Another Name," those so-called crimes have run the gamut from the actually nonexistent or fictional to relatively minor offenses that would have been handled with non-penal consequences had the offender not been black, but the objective was to procure cheap, nearly free black labor for white farms, other businesses, state and local governments and large American corporations. And the 13th Amendment facilitated this via its language, which empowered law enforcement and the courts to traffic in African Americans for the purpose of rendering them into a post-Emancipation iteration of slavery and involuntary servitude.

It is therefore no accident that there exists a great disparity in the way the American criminal justice system deals with African Americans versus whites. Until the connection between the criminal justice system and slavery and involuntary servitude is condemned and forever severed, America will remain a nation plagued by a criminal justice system, the essence of which is racial inequality.

According to The Congressional Globe, Massachusetts Sen. Charles Sumner rose on April 8, 1864, during the debate on the 13th Amendment to speak to the inappropriateness of adapting the wording of the Jeffersonian Northwest Ordinance of 1787 to an amendment purporting to grant emancipation to the slaves: "There are words here, I have said, which are entirely inapplicable to our time. They are the limitation, 'otherwise than in the punishment of crimes whereof the party shall have been duly convicted.' Now, unless I err, there is an implication from those words that men may be enslaved as a punishment of crimes whereof they shall have been duly convicted." Sumner said the words, "do no good there, but they absolutely introduce a doubt."

In 2009, Scott W. Howe wrote in the Arizona Law Review: "Post- [13th] amendment history confirms an original public meaning for the slavery-as-punishment clause that gave states a broad immunity against claims under the main prohibition in the Thirteenth Amendment of improper treatment of prisoners." ("Original public meaning" refers to the method of constitutional interpretation which asks how an ordinary or reasonable person would have interpreted the text of the Constitution at the time it was ratified.)

"Many of the outcomes allowed by an original-public-meaning approach to the Thirteenth Amendment are abhorrent," wrote Howe.

There is a causal and interdependent relationship between the privatization of prisons, "convict labor," attacks on voting rights and attacks on affirmative action. These are all part of a vast and intricate web of undemocratic control established to maintain white elite privilege and power over African Americans and the rest of the 99 percent.

Indeed, racial inequality in America's justice system was admitted by the Supreme Court in McCleskey v. Kemp. The Court essentially said that given the inherent racism in American society it is "inevitable" that America's justice system would treat African Americans worse than whites. Yet, the Court ruled that only "individuals" - not the system - could be held accountable.

A recent North Carolina court case hailed as a landmark ruling moves away from that view. On April 20, 2012, Superior Court Judge Gregory A. Weeks of Cumberland County, citing North Carolina's 2009 Racial Justice Act, struck down the capital punishment sentence imposed on Marcus Robinson. Weeks ruled that systemic anti-black racial bias was indeed a factor in Robinson's and other capital cases involving black defendants in North Carolina.

The 1 percent needs to keep African Americans from realizing self-determination and to have a permanent American underclass in order to control the exploitation of labor and continue ramping up the wealth-to-poverty ratio; after all, American slavery and involuntary servitude were modes of labor exploitation which existed in the realm of supposed "free market" private entrepreneurship.

There's something stinking in America. It's that elephant in the living room smoking stogies rolled with thousand dollar bills earned not by him, but by the exploitation of other people's labor.

The immorality of such exploitation and the evil behavior required to maintain it led to the creation of constitutional and institutionalized racism from which flowed rigid systems of control (slave codes, "Black Codes", anti-miscegenation laws prohibiting interracial marriage and relationships, Jim Crow, fugitive slave laws, "one-drop rules" that assigned minority status to mixed-race people), perverse referencing tags used to define those exploited as less than human and to promote a mass psychology of anti-black racism.

The United States of America was founded upon the success of the Philadelphia Convention of 1787. Delegates from the states sent by their constituents to participate in the debates assembled there and ultimately cast a vote towards ratifying the US Constitution. Why is this so important with respect to slave emancipation? Because a concrete legal definition of freedom - and, therefore, what it meant to be emancipated - as well as the practical application of that definition, were rendered. In other words, we have clear precedents which flow directly from the Declaration of Independence: the right to take part in a consent-giving procedure, the right to voting representation in Congress and the great principle that government is only just when it has the consent of the governed. Whatever constraints or limitations are imposed upon that consent still require democratic consultation. Anything other than that amounts to tyranny.

But when the object is to control a people and not to free them, then the reasoning behind the wording of the 13th Amendment becomes clear. It allowed for the government to exercise power over a people which had not been given the opportunity to plebiscite and to render consent; and it underpinned body of law that rests soundly upon a legal fiction and a flowing web of rhetorical political hyperbole that amounts to hypocrisy and demagoguery. That well-known legal fiction was that blacks were not the equal of whites and were not intellectually, emotionally or morally capable of being full participants in a working democracy. What should have been so easy - the unconditional abolition of slavery and involuntary servitude as well as the recognition of the rights and the granting of the privileges of freedom - was burdened, bludgeoned and crippled by racism.

A reading of some of the Congressional debates and bills passed during the 38th Congress (March 4, 1863 to March 4, 1865) is instructive. Congress wrestled with the question of where to build a new penitentiary in the Washington DC area. Ideas were put forward about how best to use prison labor in the service of keeping the government from falling into debt because of the costs involved in incarcerating people. The question of absolute equality between men and women was scoffed at. And there continued unabated the relentless pursuit of further embedding white privilege into the constitutional and institutional fabric of the nation by denying that people of African descent could even remotely be considered equal with whites.

So, it is not surprising that, in spite of the vigorous arguments put forward by the likes of Senator Sumner - who cited the human rights principles of The Enlightenment, some pertinent language from the French Constitution and, of course, our own Declaration of Independence - the language in an initially proposed emancipation amendment recognizing the "absolute equality" of blacks and whites before the law was soundly rejected.

If the opposite of slavery is freedom, and if freedom in America is predicated upon the consent of the governed, the absolute equality of all before the law and the right of every citizen to have voting representation in Congress, then an authentic emancipation amendment should have included those elements.

To declare in subsequent amendments that everyone born in the United States is a US citizen and that all citizens have the right to vote is patently different from declaring that those who were once held in bondage and persecuted because of their "race" must be afforded some sort of plebiscite, guaranteed equality before the law and voting representation in Congress - and that Congress must be the enforcer.

The treatment of slaves had to do with control and the maintenance of the slavery system. This mindset spilled over into post-bellum America and was responsible for the slavery and involuntary servitude clause in the 13th Amendment. This mindset is manifest in a presumption of inequality, inferiority and guilt which extends its reach into present-day society at large; it is a mindset which does not recognize the sanctity of the individual and which reared its ugly head in the recent federal appeals court decision of a California case (Haskell, et al vs Harris, et al; No. 1015152 D.C. No. 3:09-cv-04779-CRB; February 23, 2012) which tested the so-called "test-on arrest" policy. The split-court ruling said that building a DNA database of anyone arrested is acceptable. This should be of particular concern to those who believe it is their American right to protest and who not only risk arrest when they do so, but risk getting their mouth swabbed and their DNA stored against their will.

Thurgood Marshall said, "The framers possessed no monopoly on the ability to trade moral principles for self-interest" when it came to the fate of African Americans. He believed the Constitution to be a living document, something that could be refreshed and renewed in the spirit of the ideal and principles of the Declaration of Independence. That is America's true bottom line.

Having an African American president does not mean America is post-racial. It doesn't mean that the debate on race is moot. As we have seen over the past four years, racism and the exploitation of labor are alive and well in America. President Obama and his family's residence in the White House is an expression of hope that we can courageously and progressively engage this debate and enact the appropriate constitutional and institutional reforms.

American freedom is a living, breathing, complicated thing. Individuals' racism, undemocratic beliefs and behavior will not be rectified by amending the 13th Amendment, but certainly, opening the dialogue and pushing for our Constitution to unconditionally recognize the abolition of slavery and involuntary servitude would be a mighty shove to the door.

This must be America's springtime. There is no greater time than now to open the most compelling dialogue on race in the history of our nation.

This article may not be republished without permission from Truthout.

Gary Freeman

Gary Freeman is a human rights activist.


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How the Amendment to End Slavery Was Damaged by Racism

Wednesday, 02 May 2012 00:00 By Gary Freeman, Truthout | Op-Ed

A Note From the Writer

It seems my destiny has placed me here to make my stand for human rights.

On March 7 of 1969 in Chicago, I was stopped by a police officer. At that time, it was more important than ever to know your rights because it was open season on young black males in that city. When I told him he had to have probable cause for a legal stop and frisk, he apparently didn't like what he heard. As I turned to walk away from his car, as I had a legal right to do, he jumped out of his car, hit me in the back of my head, threw me over the trunk of his car, pointed a snub-nosed revolver at my head and screamed he was going to blow my head off, "NIGGER!" I could taste on my tongue the acridness of my own death.

I was lucky because the opportunity for me to defend myself arose and I took it. I was able to disarm that officer and his gun arm was wounded. I was apprehended and, for defending myself, I was charged with attempted murder and aggravated assault. I was all of 19 years of age.

That officer never placed me under arrest and never frisked me. I was a young black male wearing combat boots and a black leather jacket.

If you were lucky enough to survive such an encounter in Chicago - and 11 other young African Americans were not that year - you could pretty much rest assured that you would be railroaded in court. So, when the opportunity presented itself, I fled to Canada.

I was arrested in 2004 in Canada on a new warrant. Both the US and Canadian governments knew the officer was a member of Chicago's fascist Red Squad and that a woman who involved herself with me was his informant. Neither thought it prudent to pursue what I promised would be a political trial and not a typical criminal proceeding. It was 1974, during the aftermath of Watergate and the Church Committee.

I was offered a plea bargain, and in 2008, my case was resolved in Chicago. But Canada's current, Tea Party-esque government cares nothing about the sanctity of the family or human rights. I lived as a model resident, homeowner, worker, union member and taxpayer for 30 years in Canada, where I helped raise my four Canadian-born children (who have grown up to be college-educated professionals). But the Canadian government will not let me go back to my family there.

That is my story, one that compelled me to write another story: the history of one of the anchors of official racism in the United States.

How the Amendment to End Slavery Was Damaged by Racism

The Constitution of the United States of America was created to enable the founding ideals and principles of the Declaration of Independence. Yet something went terribly wrong. It failed to recognize, defend and enable those ideals.

The tragedy of such a gargantuan failure is still with us today in the form of institutionalized and systemic racism and a deeply embedded exploitation of labor. Both are still given constitutional sanction. Such sanction resides in the very constitutional amendment that was supposed to free the slaves and end the exploitation of labor in America forever: the 13th Amendment.

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.

[E]xcept as a punishment for crime whereof the party shall have been duly convicted." The reality of emancipation and racial equality cannot be fulfilled until the collective mindset of the nation is firmly turned away from the idea that slavery or involuntary servitude has any place within the constitutional fabric of the United States. Until the notion is gotten rid of that a person who is convicted of a crime is something less than other citizens, or is something less than human, there cannot be the necessary transformation of the American law enforcement and judicial system from one that is based upon vengeance and negative punishment to one that is focused on 21st-century restorative justice.

So, why does the Constitution of the United States of America still allow for the existence of servitude in America that can be triggered as a punishment for crime?

What America got in the 13th Amendment was a mindset reflected in legislation, law and customary practice best described in 1845 by Frederick Douglass in his "Narrative of the Life of a Frederick Douglass, an American Slave, Written by Himself": "To be accused was to be convicted, and to be convicted was to be punished; the one always following the other with immutable certainty. To escape punishment was to escape accusation ... " Think, please, of a young, black boy - Trayvon Martin - wearing a hoodie, who only wanted some Skittles and iced tea when he was shot to death on February 26, 2012, by a neighborhood vigilante because he looked "suspicious."

As Douglas A. Blackmon has pointed out in his Pulitzer Prize-winning book, "Slavery By Another Name," those so-called crimes have run the gamut from the actually nonexistent or fictional to relatively minor offenses that would have been handled with non-penal consequences had the offender not been black, but the objective was to procure cheap, nearly free black labor for white farms, other businesses, state and local governments and large American corporations. And the 13th Amendment facilitated this via its language, which empowered law enforcement and the courts to traffic in African Americans for the purpose of rendering them into a post-Emancipation iteration of slavery and involuntary servitude.

It is therefore no accident that there exists a great disparity in the way the American criminal justice system deals with African Americans versus whites. Until the connection between the criminal justice system and slavery and involuntary servitude is condemned and forever severed, America will remain a nation plagued by a criminal justice system, the essence of which is racial inequality.

According to The Congressional Globe, Massachusetts Sen. Charles Sumner rose on April 8, 1864, during the debate on the 13th Amendment to speak to the inappropriateness of adapting the wording of the Jeffersonian Northwest Ordinance of 1787 to an amendment purporting to grant emancipation to the slaves: "There are words here, I have said, which are entirely inapplicable to our time. They are the limitation, 'otherwise than in the punishment of crimes whereof the party shall have been duly convicted.' Now, unless I err, there is an implication from those words that men may be enslaved as a punishment of crimes whereof they shall have been duly convicted." Sumner said the words, "do no good there, but they absolutely introduce a doubt."

In 2009, Scott W. Howe wrote in the Arizona Law Review: "Post- [13th] amendment history confirms an original public meaning for the slavery-as-punishment clause that gave states a broad immunity against claims under the main prohibition in the Thirteenth Amendment of improper treatment of prisoners." ("Original public meaning" refers to the method of constitutional interpretation which asks how an ordinary or reasonable person would have interpreted the text of the Constitution at the time it was ratified.)

"Many of the outcomes allowed by an original-public-meaning approach to the Thirteenth Amendment are abhorrent," wrote Howe.

There is a causal and interdependent relationship between the privatization of prisons, "convict labor," attacks on voting rights and attacks on affirmative action. These are all part of a vast and intricate web of undemocratic control established to maintain white elite privilege and power over African Americans and the rest of the 99 percent.

Indeed, racial inequality in America's justice system was admitted by the Supreme Court in McCleskey v. Kemp. The Court essentially said that given the inherent racism in American society it is "inevitable" that America's justice system would treat African Americans worse than whites. Yet, the Court ruled that only "individuals" - not the system - could be held accountable.

A recent North Carolina court case hailed as a landmark ruling moves away from that view. On April 20, 2012, Superior Court Judge Gregory A. Weeks of Cumberland County, citing North Carolina's 2009 Racial Justice Act, struck down the capital punishment sentence imposed on Marcus Robinson. Weeks ruled that systemic anti-black racial bias was indeed a factor in Robinson's and other capital cases involving black defendants in North Carolina.

The 1 percent needs to keep African Americans from realizing self-determination and to have a permanent American underclass in order to control the exploitation of labor and continue ramping up the wealth-to-poverty ratio; after all, American slavery and involuntary servitude were modes of labor exploitation which existed in the realm of supposed "free market" private entrepreneurship.

There's something stinking in America. It's that elephant in the living room smoking stogies rolled with thousand dollar bills earned not by him, but by the exploitation of other people's labor.

The immorality of such exploitation and the evil behavior required to maintain it led to the creation of constitutional and institutionalized racism from which flowed rigid systems of control (slave codes, "Black Codes", anti-miscegenation laws prohibiting interracial marriage and relationships, Jim Crow, fugitive slave laws, "one-drop rules" that assigned minority status to mixed-race people), perverse referencing tags used to define those exploited as less than human and to promote a mass psychology of anti-black racism.

The United States of America was founded upon the success of the Philadelphia Convention of 1787. Delegates from the states sent by their constituents to participate in the debates assembled there and ultimately cast a vote towards ratifying the US Constitution. Why is this so important with respect to slave emancipation? Because a concrete legal definition of freedom - and, therefore, what it meant to be emancipated - as well as the practical application of that definition, were rendered. In other words, we have clear precedents which flow directly from the Declaration of Independence: the right to take part in a consent-giving procedure, the right to voting representation in Congress and the great principle that government is only just when it has the consent of the governed. Whatever constraints or limitations are imposed upon that consent still require democratic consultation. Anything other than that amounts to tyranny.

But when the object is to control a people and not to free them, then the reasoning behind the wording of the 13th Amendment becomes clear. It allowed for the government to exercise power over a people which had not been given the opportunity to plebiscite and to render consent; and it underpinned body of law that rests soundly upon a legal fiction and a flowing web of rhetorical political hyperbole that amounts to hypocrisy and demagoguery. That well-known legal fiction was that blacks were not the equal of whites and were not intellectually, emotionally or morally capable of being full participants in a working democracy. What should have been so easy - the unconditional abolition of slavery and involuntary servitude as well as the recognition of the rights and the granting of the privileges of freedom - was burdened, bludgeoned and crippled by racism.

A reading of some of the Congressional debates and bills passed during the 38th Congress (March 4, 1863 to March 4, 1865) is instructive. Congress wrestled with the question of where to build a new penitentiary in the Washington DC area. Ideas were put forward about how best to use prison labor in the service of keeping the government from falling into debt because of the costs involved in incarcerating people. The question of absolute equality between men and women was scoffed at. And there continued unabated the relentless pursuit of further embedding white privilege into the constitutional and institutional fabric of the nation by denying that people of African descent could even remotely be considered equal with whites.

So, it is not surprising that, in spite of the vigorous arguments put forward by the likes of Senator Sumner - who cited the human rights principles of The Enlightenment, some pertinent language from the French Constitution and, of course, our own Declaration of Independence - the language in an initially proposed emancipation amendment recognizing the "absolute equality" of blacks and whites before the law was soundly rejected.

If the opposite of slavery is freedom, and if freedom in America is predicated upon the consent of the governed, the absolute equality of all before the law and the right of every citizen to have voting representation in Congress, then an authentic emancipation amendment should have included those elements.

To declare in subsequent amendments that everyone born in the United States is a US citizen and that all citizens have the right to vote is patently different from declaring that those who were once held in bondage and persecuted because of their "race" must be afforded some sort of plebiscite, guaranteed equality before the law and voting representation in Congress - and that Congress must be the enforcer.

The treatment of slaves had to do with control and the maintenance of the slavery system. This mindset spilled over into post-bellum America and was responsible for the slavery and involuntary servitude clause in the 13th Amendment. This mindset is manifest in a presumption of inequality, inferiority and guilt which extends its reach into present-day society at large; it is a mindset which does not recognize the sanctity of the individual and which reared its ugly head in the recent federal appeals court decision of a California case (Haskell, et al vs Harris, et al; No. 1015152 D.C. No. 3:09-cv-04779-CRB; February 23, 2012) which tested the so-called "test-on arrest" policy. The split-court ruling said that building a DNA database of anyone arrested is acceptable. This should be of particular concern to those who believe it is their American right to protest and who not only risk arrest when they do so, but risk getting their mouth swabbed and their DNA stored against their will.

Thurgood Marshall said, "The framers possessed no monopoly on the ability to trade moral principles for self-interest" when it came to the fate of African Americans. He believed the Constitution to be a living document, something that could be refreshed and renewed in the spirit of the ideal and principles of the Declaration of Independence. That is America's true bottom line.

Having an African American president does not mean America is post-racial. It doesn't mean that the debate on race is moot. As we have seen over the past four years, racism and the exploitation of labor are alive and well in America. President Obama and his family's residence in the White House is an expression of hope that we can courageously and progressively engage this debate and enact the appropriate constitutional and institutional reforms.

American freedom is a living, breathing, complicated thing. Individuals' racism, undemocratic beliefs and behavior will not be rectified by amending the 13th Amendment, but certainly, opening the dialogue and pushing for our Constitution to unconditionally recognize the abolition of slavery and involuntary servitude would be a mighty shove to the door.

This must be America's springtime. There is no greater time than now to open the most compelling dialogue on race in the history of our nation.

This article may not be republished without permission from Truthout.

Gary Freeman

Gary Freeman is a human rights activist.


Hide Comments

blog comments powered by Disqus