Slavery is still constitutionally legal in the United States. It was mostly abolished after the 13th Amendment was ratified following the Civil War in 1865, but not completely. Lawmakers at the time left a certain population unprotected from the brutal, inhumane practice — those who commit crimes.
Included in the 13th Amendment was this stipulation: “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.” In essence, one simple clause created a new form of slavery that led to a mass incarceration epidemic that denied African Americans basic human rights, with ramifications that still exist today.
States, mostly in the South, created “black codes” that left African Americans with few rights. When those were outlawed, Jim Crows laws followed. Infractions meant harsh punishment for African Americans, who were sent to prisons on old plantations and forced into free labor (allowed by the Constitution), managed by guards — reminiscent of overseers. Some jurisdictions contracted out prisoners to plantations or used “chain gangs” to build state highways. In 1871, the Virginia Supreme Court even issued a ruling in Ruffin v. Commonwealth that declared an inmate “a slave of the state.” Filmmaker Ava Duvernay shined light on the issue with her 2016 documentary “13th,” as did Michelle Alexander in her book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” among countless other activists and historians.
Now, Maryland Democratic Sen. Chris Van Hollen wants to do his part and have the language that allows such servitude removed from the Constitution. He, along with Sen. Jeff Merkley of Oregon and Rep. William Lacy Clay of Missouri, recently introduced the Abolition Amendment, which would strike the so-called “Punishment Clause” of the 13th Amendment and finally, truly abolish slavery in the U.S.
The measure is the right thing to do to acknowledge and atone for one of the atrocities committed against African Americans under the rule of law. Keeping it intact shouldn’t be an option, and lawmakers ought to want to participate in the passing of such historic legislation. But we know passage likely won’t be simple for this heavily divided and polarized Congress already locked in gridlock on many key issues.
And, if the past is any indication, righting racial wrongs is not a priority for many members of Congress intent on leaving such things in the past. It took 120 years to get legislation passed in both chambers that would deem anti-lynching a federal hate crime, only to have it sidelined by a naysayer senator: Sen. Rand Paul, a Kentucky Republican, has prevented the bills from being reconciled because, in his opinion, the language that defines a lynching is overly broad.
Another challenge is to Senator Van Hollen’s proposal is the process for changing the Constitution is more arduous than passing legislation; that’s among the reasons amendments are so rare. It requires approval by two-thirds of the House and Senate and ratification by three-quarters of state legislatures or conventions.
Despite the challenges, we think it is worth the effort. More than a dozen human rights and social justice organizations — including The Sentencing Project, the Abolish Slavery National Network, the Constitutional Accountability Center, Amnesty International, Human Rights Watch, Democracy For America and the Alliance of Families for Justice — believe so as well and have endorsed the legislation.
Mr. Van Hollen and the other lawmakers pointed out in a news release announcing the bills that the amendment has led to policies that “have driven an $80 billion detention industry and a rate of American incarceration that is nothing short of a crisis, with 2.3 million prisoners — 20% of the world’s incarcerated population — residing in the United States.” These are sobering statistics, and the country owes it to African Americans to do something to begin repairing the situation. Addressing an archaic and racist constitutional amendment is a good start.
Of course, there is much more to be done beyond that. Substantive institutional change is needed to undo centuries of wrongdoing. Several high profile killings this summer of African Americans, including George Floyd in Minneapolis and Ahmaud Arbery in Georgia, and the massive protests that followed, underscored the need for police reform. Sadly, that is another effort stuck in congressional gridlock, but one lawmakers must continue pushing forward.
The Baltimore Sun editorial board — made up of Opinion Editor Tricia Bishop, Deputy Editor Andrea K. McDaniels and writer Peter Jensen — offers opinions and analysis on news and issues relevant to readers. It is separate from the newsroom.