Image credit: Allison C. Bailey / Shutterstock
American political debate is more open today to questions of fundamental constitutional change than at any time since the civil rights era of the 1960s, if not the New Deal era of the 1930s. In response both to the Trump administration’s unprecedented number of appointments of right-wing judges across the federal court system and to the Biden administration’s repeated failure to overcome the Senate filibuster, progressives now emphasize the basic structure of American political institutions as a key obstacle to the realization of their goals. From the Electoral College, to the Supreme Court’s powers of judicial review, to the make-up of the Senate, the fundaments of U.S. governance have come under increasing scrutiny.
This widespread discussion of a radical refashioning of the nation’s fundamental law has many sources. One that has been underappreciated is Ava DuVernay’s widely praised 2016 Netflix documentary The 13th, which helped spark new interest in the details of the Thirteenth Amendment to the U.S. Constitution, which formally abolished slavery after the Civil War—but which, the film argued, had a fatal textual flaw.
DuVernay’s film helped shape an emerging conversation about constitutional desacralization. But it also in many ways simplified the real challenge of refashioning the nation’s fundamental laws, by producing a new, and misleading, conventional wisdom about the roots of this country’s system of mass incarceration.
The Thirteenth Amendment, passed in the aftermath of the Civil War, abolished “slavery and involuntary servitude” for all persons in the United States—“except as a punishment for crime whereof the party shall have been duly convicted.” (Emphasis added.) That exception, the film argues, allowed slavery to persist within the criminal punishment system, enabling everything from convict leasing in the nineteenth century to unpaid and sub-minimum-wage labor by incarcerated people in the present. DuVernay’s compelling film synthesized historical research, activist argument, and the testimony of the incarcerated to present a compelling case for the destructive impact of the amendment’s language on the U.S. carceral landscape.
In many corners of the liberal left, the argument of the Academy Award-nominated film has condensed into a shibboleth: the “loophole” of the Thirteenth Amendment provided the legal basis for the modern problem of mass incarceration. This idea undergirds the so-called Abolition Amendment, a proposal introduced last year by Senator Jeff Merkley (D-OR) and Congresswoman Nikema Williams (D-GA) to strike the clause beginning “except as a punishment for crime” from the language of the Thirteenth Amendment.
This new conventional wisdom—what I call the “loophole narrative”—has had some salutary effects. It pointed out the distance between formal emancipation and genuine freedom. It illuminated a durable pattern of U.S. history, in which white supremacist forces seize upon the legal and political resources available to them to ensure that any progress toward freedom and equality for Black Americans is minimized, rolled back, and obstructed. And, crucially, it called attention to an enormous flaw in the Constitution, which is too often elevated by liberals and conservatives alike to the status of a sacred document and unquestioned source of national identity.
Still, a number of radical and abolitionist scholars who are broadly in sympathy with DuVernay’s project have leveled important critiques of the details and implications of the documentary. The scholar Dan Berger, a historian of Black radicalism and the carceral state, took issue with the film’s suggestion that private prisons play an outsize role in the U.S. carceral system. Others, such as the prison abolitionists Ruth Wilson Gilmore and James Kilgore, have revealed flaws in the film’s implication that private corporations’ exploitation of unpaid labor is a central factor motivating the growth of the U.S. prison system, when in fact less than 3 percent of the nation’s incarcerated population works for a private company.
The loophole story further flattens the history of racist criminalization and the turn to mass incarceration by identifying a single origin point from which later developments inevitably flowed. Instead, as Gilmore and historian Elizabeth Hinton have shown, the turn to mass incarceration was a thoroughly modern phenomenon. While today’s prison system is built on previous regimes of racial control through arrest, imprisonment, and forced labor, its particular forms owe more to the political economy of deindustrialization and the punitive turn in postwar urban policy than to anything that happened in the nineteenth century.
But in some ways, the most troubling aspect of the loophole narrative is the mode of constitutional politics that it promotes. The framing of DuVernay’s film implies that social change can be led by constitutional change: that a simple alteration in the language of the document would have kept millions of Americans out of cages, and could provide meaningful relief to them today. A more promising approach would learn from a different historical moment, when Black workers and civil rights activists understood the meaning of the amendment to be inseparable from social relations at work, on the street, and in the voting booth.
In the immediate aftermath of the Thirteenth Amendment’s passage, African American activists, Reconstruction legislators, and the formerly enslaved initially hoped it would be broadly applied. Their vision involved using the amendment’s language not only to end chattel slavery but to secure a more robust vision of freedom as self-ownership and self-determination, especially in the economic arena. The Supreme Court, in the Slaughter-House Cases of 1873 and again in the Civil Rights Cases of 1883, narrowed the meaning of the amendment, refusing to apply it in instances of labor exploitation, monopoly power, or racial discrimination in public accommodations. To the Court, “slavery by another name,” as Douglas A. Blackmon memorably named the post-Reconstruction order of racial segregation, convict leasing, and debt peonage, did not rate as a constitutional problem.
In the 1930s and 1940s, Black workers and civil rights lawyers mounted a serious challenge to this interpretation. As Risa L. Goluboff documents in her book The Lost Promise of Civil Rights, Black agricultural workers in the South—excluded from the 1935 Wagner Act’s guarantee of collective bargaining rights—sought other avenues to challenge the horrific working conditions and violent coercion they faced. On Florida plantations run by the United States Sugar Corporation, workers were paid less than half what recruiters had promised while being housed in filthy conditions. Incurring debts for transportation, room and board, and their tools, these workers could not earn enough to repay their debts. They were threatened with imprisonment or death if they attempted to escape. Without the protection of a union, these Black workers wrote letters to the NAACP and the newly formed Civil Rights Section (CRS) of the Department of Justice, calling for action against the “virtual slavery” of their camps. Workers themselves understood these conditions as specific violations of their right against “involuntary servitude” and would cite the Reconstruction amendment in their complaints.
Civil rights lawyers and activists followed Black workers’ leads. The Department of Justice began to prosecute employers who engaged in modes of debt peonage, arguing that such arrangements violated both the Thirteenth Amendment and the little-known Peonage Act of 1867. The communist-led International Labor Defense formed an Abolish Peonage Committee in 1941, linking the forms of “involuntary servitude” that persisted in the United States with “Nazi tyranny” and “Hitlerism.” These laborite appeals to a broad reading of the Thirteenth Amendment’s prohibition on “involuntary servitude,” Goluboff argues, were crucial to the developing concept of “civil rights” itself, which held more collectivist and economic associations in this period than the more individualized version that would arise later, especially after Brown v. Board of Education.
The involuntary servitude cases also served as a front in a wider battle over the Constitution in the New Deal era. For decades, the state action requirement of the Civil Rights Cases decision had made it nearly impossible to challenge acts of discrimination by private individuals and corporations under the Fourteenth Amendment. The Thirteenth Amendment, on the other hand, could easily apply to private individuals. It provided a wedge to use against the Jim Crow order in a moment when a frontal legal challenge to Plessy v. Ferguson was unlikely to succeed. And, with the Court’s begrudging acceptance of New Deal legislation signaling the end of the Lochner era, the involuntary servitude cases represented an effort by labor and civil rights organizers to bring constitutional interpretation back into the realm of grassroots politics.
An overriding focus on textual loopholes promotes strictly textual solutions. It countenances steps like the Abolition Amendment proposed by Sen. Merkley and Rep. Williams, which might remedy a problematic document but would do little to provide relief to the millions of people held in prisons and jails across America. By emphasizing that constitutional politics is a matter of textual interpretation and textual remedy, moreover, the loophole narrative only reinforces the overly powerful role played by judges and law professors in our politics.
Instead, progressives should look to the example of the Black workers, civil rights organizers, and lawyers in the 1930s and 1940s for an alternative orientation to America’s troubled founding document. These figures engaged in what Aziz Rana calls a “reorientation around constitutional politics rather than constitutional law.” Instead of fetishizing a particular textual change, they mobilized around a vision of economic justice rooted in antislavery principles, appealing to a bricolage of constitutional interpretation and statutory history to secure material benefits for workers.
The historical conditions that prompted radical civil rights lawyers to use the Thirteenth Amendment’s prohibition on involuntary servitude to win greater labor protections for Black agricultural workers cannot be recreated. This point remains true even as the moment they lived through—defined by racist violence, brutal and coercive labor conditions, and rising fascism at home and abroad—resembles our own.
At the same time, as the U.S. Left orients itself to the project of constitutional change, it can take some inspiration from those who rejected a strictly textual approach and saw the most exploited workers in American society as constitutional actors in their own right.
Sam Klug is a historian and postdoctoral fellow at the Fox Center for Humanistic Inquiry at Emory University.