Emancipation, Incarceration, and the Boundaries of Coercion

The galleries of the house of representatives were filled and the spectators aching with anticipation. It was the late afternoon of January 31, 1865, and when all discussion "ceased," the Speaker broke the "profound silence" and declared that a vote "would be taken directly upon the pending proposition." That proposition was the Thirteenth Amendment to the United States Constitution. Only months before, the amendment had been rejected by this very body, but now, after the elections of 1864 had strengthened the hands of Republicans, the outcome would be different. Needing two-thirds of those present, "the resolution was agreed to by yeas 119, nays 56," just more than enough, and when the "presiding officer" announced the results, "the enthusiasm of all present … knew no bounds." "[F]or several moments," according to a correspondent from the New York Times, "the scene was grand and impressive beyond description…. every one feeling that the occasion justified the fullest expression of approbation and joy." Before the year was out, the Thirteenth Amendment was ratified by the requisite number of states and inscribed into the republic's founding document.¹

The Thirteenth Amendment's language was spare and concise, a departure from the various statutes and proclamations marking the emancipation process that had unfolded during a war still to be won. Although alternatives had been proposed, including one that harked back to the French Revolution of the 1790s and linked emancipation with citizenship for the enslaved, the members of the Senate Judiciary Committee, where the amendment was crafted, chose to employ the words of Article VI of the Northwest Ordinance of 1787. So, too, had a number of the states carved from the Northwest Territory that outlawed slavery within their boundaries from the outset, as had David Wilmot in his famed proviso of 1846. "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," read the final wording. An enabling clause then gave Congress the power to "enforce" the amendment by "appropriate legislation."²

It was, in many ways, the great liberal hour. Slavery was abolished, in one fell swoop in the thirteen states where it remained legal, unencumbered by compensation for the enslavers and the threat of colonization or a protracted emancipation—as had been true in the states of the Northeast and Middle Atlantic and floated not long before by President Abraham Lincoln—for the enslaved. Congress followed, over the next two years, by establishing birthright citizenship and prohibiting debt peonage in the United States. A new nation-state was being constructed on the liberal foundations of self-ownership, free labor, legal equality, and civil belonging not apparently compromised by race or ethnicity.

Yet the Thirteenth Amendment's inclusion of "involuntary servitude" as well as the exception clause, long overlooked by scholars and political interpreters though now being revisited owing to debates and protests around mass incarceration, raises serious questions about the coercive relations and practices that could and could not remain in place. Thomas Jefferson, interested as he already was in penal reform, had included the words involuntary servitude and an exception clause in the Ordinance of 1784 that he drafted for the organization of the Northwest Territory (the Confederation Congress removed both from the final version). Nathan Dane of Massachusetts added them to what became the Northwest Ordinance's Article VI, though it is not entirely clear why he did. Perhaps it was his familiarity with the judicial language of the Quok Walker case (1781–1783), which put enslavement on the road to abolition in his state. Some scholars argue that the exception clause was effectively "boilerplate." Others suggest that the influx of British indentured servants who had been convicted felons and suffered transportation to the colonies as punishment for their offenses made the exception clause necessary to the functioning of the labor system and the migration of settlers to the Northwest Territory. As for the Thirteenth Amendment, although Charles Sumner later regretted allowing the exception clause to be included, there was...