13 Thamendmentaspunishment
13 Thamendmentaspunishment
Scott W. Howe∗
In relatively specific constitutional language that courts and scholars have long
neglected, the Thirteenth Amendment authorizes slavery as a punishment for
crime. This Article shows that the original public meaning of the slavery-as-
punishment clause leads to abhorrent outcomes, including the emasculation of
many modern protections grounded on the Eighth Amendment. This conclusion
challenges those who assert that steadfast originalism will not produce grossly
objectionable results. It also challenges the view that steadfast originalism finds
justification as an effort to preserve a core of legitimacy-enhancing features in the
Constitution. The Article thus reminds us why the original meaning, even when
clear, is not conclusive in constructing the modern meaning of the Constitution.
INTRODUCTION
The Eighth Amendment (1791):
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
The Thirteenth Amendment (1865):
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.
1. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849,
861 (1989).
2. See id.
3. Id.
4. See id. at 862.
5. See id. at 861.
6. Id.
7. James E. Fleming, Fidelity to Our Imperfect Constitution, 65 FORDHAM L.
REV. 1335, 1347 (1997).
8. Id.
9. See Terrance Sandalow, Constitutional Interpretation, 79 MICH. L. REV.
1033, 1033–34 (1981).
2009] SLAVERY AS PUNISHMENT 985
a conclusion that the Constitution allows whipping and branding or any other
similarly horrible outcome.
Since the originalism movement began to take serious hold among
conservative constitutional scholars in the 1980s, many progressive and libertarian
scholars have joined in.10 This influx of non-conservatives has continued as Justice
Scalia has moved conservative originalists away from a problematic focus on the
drafters’ original intentions to a focus on original public meaning.11 (A movement
that recently culminated outside of the academy when the Supreme Court endorsed
original-public-meaning originalism in District of Columbia v. Heller.12) As a
result, significant disagreement exists among self-professed originalists over how
to identify original public meaning, particularly for the more abstract clauses.
Conservatives like Justice Scalia tend more than liberals and libertarians to be
“narrow originalists.”13 These “narrow originalists” tend to argue that, even for an
abstract provision like the cruel and unusual punishments clause, we should aim to
“go back in a time machine and ask . . . very specific questions about how we
ought to resolve very particular problems.”14 They tend to “view original expected
applications as very strong evidence of original meaning.”15 In contrast, liberals
and libertarians who see themselves as originalists are usually “broad
originalists,”16 for whom it also “matters very much what history shows,” but who
will find the original meaning of abstract clauses at a higher level of generality.17
Broad originalists apply those more general principles in ways that the current
generation would implement them, although the Framers clearly would have
implemented them differently. Some broad originalists also acknowledge that
certain vague clauses require a fair amount of construction, rather than
interpretation alone.18 Consequently, while narrow originalists might fear that
Justice Scalia’s call for pragmatic exceptions hints that constitutional fidelity
allows more than the implementation of original meaning, broad originalists can
easily dismiss that point. They may believe that their approach “does not lead to
the types of grossly objectionable results that leads Justice Scalia to be faint of
heart.”19 On this view, they can easily conclude that adherence to the original
meaning is normatively justified.
When it comes to the Eighth Amendment, broad originalists surely do
have grounds to reject Justice Scalia’s view of its original meaning. The clause on
punishments is vague and its historical meaning obscure.20 Moreover, modern
Supreme Court doctrine under the Eighth Amendment clause comprises two major
areas, and the doctrine in both areas coincides with notions of evolving decency.21
One area concerns the sentences handed down by courts and includes particularly
robust protections against the use of the death penalty.22 The other concerns the
regulation of prison conditions and the treatment of prisoners.23 In this second
area, the modern Court has provided significant protections for inmates against
harsh prison conditions24 and excessive force by prison guards.25 Although none of
these particular safeguards existed for convicts in 1791, the Court has explained
that we assess what is cruel and unusual punishment differently today than did
those in the Framers’ era. As Justice Kennedy has asserted, “The standard itself
remains the same, but its applicability must change as the basic mores of society
change.”26 Based on this view (and the assumption that the Eighth Amendment
clause is the only one in the Constitution that governs punishments), broad
originalists can reject any notion that the original meaning of the Constitution
would authorize whipping and branding today.27 They might also feel reassured to
ignore the implications of Justice Scalia’s Taft lecture and to urge steadfast
originalism.28
This Article aims, however, to challenge whether a commitment to
the original meaning of constitutional text—even understood as broad
originalism—will avoid abhorrent outcomes. The Article focuses on a central
battlefield over originalism—the constitutional limits on punishment for crime.
However, the Article points to relatively specific constitutional language that
courts and scholars have generally neglected.29
In resolving the constitutional limits on punishment, originalists have
failed to take adequate account of the Thirteenth Amendment. Abraham Lincoln
called the Thirteenth Amendment “a King’s cure for all the evils” caused by
slavery.30 He did not mention that the amendment authorized as a punishment for
crime the very horror that it otherwise prohibited. Courts and scholars have only
rarely discussed the slavery-as-punishment clause as it relates to the prohibition on
cruel and unusual punishments in the Eighth Amendment.31 As a matter of
25. Regarding claims of excessive force by prison guards, the Court has
concluded that, while force may be used in “a good faith effort to maintain or restore
discipline,” Hudson v. McMillian, 503 U.S. 1, 6 (1992), it becomes cruel and unusual
punishment if used “maliciously and sadistically to cause harm.” Id. at 7. The Court has
concluded that an act of force may sometimes meet this latter standard even if the inmate
does not suffer serious injury. See id. at 9.
26. Kennedy v. Louisiana, 128 S. Ct. 2641, 2649 (2008) (quoting Furman v.
Georgia, 408 U.S. 238, 382 (1972) (Burger, C.J., dissenting)).
27. For a professedly non-originalist but, nonetheless, “historicist” account of the
doctrine, see William C. Heffernan, Constitutional Historicism: An Examination of the
Eighth Amendment Evolving Standards of Decency Test, 54 AM. U. L. REV. 1355 (2005).
28. The clearest articulation of this perspective came in the 2006 Taft Lecture
delivered by Professor Randy Barnett, a libertarian and self-identified originalist. Barnett,
supra note 19, at 22–23. Cf. Jack Balkin, Abortion and Original Meaning, 24 CONST.
COMMENT. 291, 297 (2007) (“Scalia’s originalism must be ‘faint-hearted’ precisely because
he has chosen a[n] unrealistic and impractical principle of interpretation . . . .”). For another
example of a broad originalist view of the Eighth Amendment that implicitly rejects Justice
Scalia’s view, see Scott W. Howe, Furman’s Mythical Mandate, 40 U. MICH. J.L. REFORM
435 (2007).
29. For an article that focuses in part on discerning the original understanding of
the punishment clause by federal legislators who “drafted and passed the [Thirteenth]
[A]mendment,” see Kamal Ghali, No Slavery Except as a Punishment for Crime: The
Punishment Clause and Sexual Slavery, 55 UCLA L. REV. 607, 629 (2008).
30. WILLIAM CHARLES HARRIS, LINCOLN’S LAST MONTHS 133 (2004).
31. See Ghali, supra note 29, at 638–42 (discussing the meaning of the term
“punishment” in the two clauses). For a judicial opinion that at least acknowledges that the
988 ARIZONA LAW REVIEW [VOL. 51:983
purports to allow both, however, and there were no voices in Congress that
proclaimed for it during the promulgation period any other meaning. According to
District of Columbia v. Heller, the provision must be understood as carrying its
“normal and ordinary” meaning to “ordinary citizens” at the time.40 On that view,
the clause permitted slavery.
slavery in their new state constitutions.66 He soon demanded that they likewise
ratify the federal amendment, although he also tried to cajole their approval with
assurances of the amendment’s restrictive scope in assuring civil rights.67 Some
of the southern states—including South Carolina, Florida, Alabama, and
Louisiana—ratified the federal amendment only on the written condition that the
federal Congress could not use the second section to legislate on freed persons’
civil liberties.68 In any event, eight of the eleven ex-Confederate states approved
the amendment, at least conditionally, when Georgia on December 6, 1865,
became the twenty-seventh state to ratify it.69 Secretary of State William Seward
declared the amendment adopted on December 18, 1865.70
66. Id.
67. See id.
68. See TSESIS, supra note 41, at 48.
69. See VORENBERG, supra note 43, at 233.
70. See id.
71. TenBroek, supra note 47, at 172. See also 3 RONALD D. ROTUNDA & JOHN E.
NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE 437 (4th ed.
2008) (noting that “the framers were not at all clear about the extent to which the
amendment would prohibit legal discriminations that were the result of the slavery
experience”).
72. Regarding the main prohibition, the question is whether incidents of slavery,
such as racial discrimination, can violate the amendment when the defendant has not
significantly restrained the alleged victim’s physical freedom.
2009] SLAVERY AS PUNISHMENT 993
otherwise than in the punishment of crimes whereof the party shall have been duly
convicted to have been personally guilty.”73
With the punishment clause, Jefferson built on an idea of Cesare
Beccarria, the famous Italian criminologist. Beccarria’s short volume, On Crimes
and Punishments, appeared in 1764, and Jefferson was an early admirer, copying
twenty-six extracts from the work in his Commonplace Book74 around 1775.75
While Beccarria generally receives credit for having exercised through this work
great influence “in the long campaign against barbarism in criminal law and
procedure,”76 one of his proposals contemplated brutality. He advocated perpetual
slavery as an alternative to the death penalty.77 Beccarria conceded that making the
offender a perpetual “beast of burden”78 might well be “more cruel” than death,79
and he also acknowledged the historic “use of torture” against slaves—because
they were seen as property and not persons—even in societies that otherwise
prohibited torture.80 His primary argument was not about decency, however, but
about deterrence. He contended that slavery would produce greater “terror in the
spectator”81 and, thus, would have a greater effect on other potential criminals. He
contended that while “[m]any men are able to look calmly . . . upon death,” they
would not resist fear over the example of one forced to “subsist among fetters or
chains, under the rod, under the yoke, in a cage of iron, where the desperate wretch
does not end his woes but merely begins them.”82 Unlike Beccaria, Jefferson did
not advocate the abolition of the death penalty altogether.83 However, when he
proposed language for the Northwest Ordinance generally prohibiting slavery and
indentured servitude but allowing them as punishment for crime, he apparently
accepted Beccaria’s argument for slavery as an effective deterrent.
The history surrounding the adoption of Jefferson’s language by the
Confederation Congress when it produced the Northwest Ordinance of 1787
suggests that the clause was not misunderstood. Jefferson had proposed the
language for the earlier Northwest Ordinance of 1784, which Congress had
adopted but never implemented, and the drafters had rejected his anti-slavery
73. WAGER SWAYNE, THE ORDINANCE OF 1787 AND THE WAR OF 1861, at 31, 32
& n.* (1892) (emphasis added).
74. See THE COMMONPLACE BOOK OF THOMAS JEFFERSON 298–316 (Gilbert
Chinard ed., 1926).
75. See Marcello Maestro, A Pioneer for the Abolition of Capital Punishment:
Cesare Beccaria, 34 J. HIST. IDEAS 463, 467 (1973).
76. HOWARD BECKER & HARRY ELMER BARNES, 2 SOCIAL THOUGHT FROM LORE
TO SCIENCE 551–52 (Dover Publ’ns, Inc., 3d ed. 1961) (1938).
77. See CESARE BECCARIA, ON CRIMES AND PUNISHMENTS 45–52 (Henry
Paolucci trans., Prentice Hall 1963) (1764).
78. Id. at 47.
79. Id. at 48.
80. Id. at 36.
81. Id. at 48.
82. Id.
83. 1 HENRY S. RANDALL, THE LIFE OF THOMAS JEFFERSON 227–28 (New York,
Derby & Jackson 1853) (noting that he had advocated changes in Virginia to permit capital
punishment only for murder and treason).
994 ARIZONA LAW REVIEW [VOL. 51:983
clause at that time.84 The anti-slavery language in the 1787 Ordinance incorporated
Jefferson’s proposal in slightly different terms, which suggests that the unknown
drafter carefully considered the language.85 The absence of discussion in
Congress86 also implied that the proposal was not thought unduly vague.87 People
knew that the clause allowed slavery as a criminal sanction and knew what slavery
entailed.88
Recorded debate over the punishment clause when the House of
Representatives promulgated the Thirteenth Amendment was also minimal,
although the legislative history clarifies that the clause clearly contemplated
slavery. Representative Ashley’s original proposal in December, 1863, stated:
“Slavery, being incompatible with a free Government, is forever prohibited in the
United States; and involuntary servitude shall be permitted only as a punishment
for crime.”89 This proposal implied that there was a difference between slavery and
involuntary servitude and that only the latter would be allowed as a punishment.
Iowa and Kansas had included similar provisions in amendments to their
constitutions in 1857 and 1859 respectively.90 The change by those states may only
have been an effort to disguise the practice of convict slavery.91 Still, the use of
this language in the Thirteenth Amendment would have provided a textual basis to
conclude that prisoners, even when sentenced to hard labor, were protected in
84. William G. Merkel, Jefferson’s Failed Anti-Slavery Proviso of 1784 and the
Nascence of Free Soil Constitutionalism, 38 SETON HALL L. REV. 555, 581–82 (2008).
85. The final language stated: “There shall be neither Slavery nor involuntary
Servitude in the said territory otherwise than in the punishment of crimes, whereof the Party
shall have been duly convicted.” Northwest Ordinance of 1787, 1 Stat. 50, 51 n.(a), art. VI,
53 (1789), reprinted in 32 JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at 334,
343 (Roscoe R. Hill ed., 1936).
86. PAUL FINKELMAN, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE
AGE OF JEFFERSON 39–40 (2001).
87. Slavery, without conviction for crime, already existed in the territory,
particularly in the areas that would become Indiana and Illinois. See id. at 46–48. However,
the document did not contain an enforcement clause, and slaves in the territory could not
enforce their rights. Id. at 44. Slavery, without conviction, continued in the territory until
1848, when Illinois adopted its second constitution. Id. at 55.
88. Congress used variations on the punishment language from the 1787
Ordinance in subsequent legislation, but these actions also provide little illumination on the
contours of the clause. Similar language appeared, for example, in the Missouri
Compromise, banning slavery in the upper regions of the Louisiana Purchase. Act of Mar.
6, 1820, ch. 22, § 8, 3 Stat. 545, 548. Such language also appeared in legislation in 1862
prohibiting slavery in the nation’s capital, Act of Apr. 16, 1862, ch. 54, § 1, 12 Stat. 376,
and in U.S. territories, Act of June 19, 1862, ch. 111, 12 Stat. 432.
89. SWAYNE, supra note 73, at 71.
90. BARBARA ESPOSITO & LEE WOOD, PRISON SLAVERY 212 (Kathryn Bardsley
ed., 1982) (quoting IOWA CONST. art. 1, § 23 (1857) (“There shall be no slavery in this state;
nor shall there be involuntary servitude, unless for the punishment of crime.”) and KAN.
CONST. bill of rights, § 6 (1859) (“There shall be no slavery in this State; and no involuntary
servitude, except for the punishment of crime, whereof the party shall have been duly
convicted.”)).
91. Id. at 96.
2009] SLAVERY AS PUNISHMENT 995
ambiguous, so much so that a wife might claim to be equal to her husband.99 After
these distractions, the discussion did not return to the punishment clause.
Apparently, there was clarity that it allowed slavery and a common knowledge,
derived from an awareness of conditions in the South, of what slavery entailed. At
least, no one claimed to the contrary.
In the end, the history of the passage of the Thirteenth Amendment does
not indicate that the legislators proclaimed for the punishment provision some
unusual meaning. The clause on its face meant that the federal government and
state governments could force duly convicted criminals to live the life of a slave.
Little debate arose about what it meant to be a slave. However, the public meaning
of the term “slavery” for the ordinary citizen of the time was informed by
commonly recognized conditions of slavery in the antebellum period. Therefore,
the Article now turns to that history.
II. LEGAL LIMITS ON ABUSE BY SLAVE OWNERS IN
ANTEBELLUM AMERICA
In the South, in the decades leading up to the Civil War, the authority of a
slaveholder or his agents or family members to decide how to treat his slave was in
theory regulated modestly by law, but in practice was almost without legal limits.
The slave had a dual character, which caused tension in how the law viewed the
master–slave relationship.100 On the one hand, the slave was property and subject
to the owner’s discretion about how to use him and even abuse him.101 On the
other hand, the slave was also a person, and that meant that his owner carried not
only rights but also some obligations, at least in theory, to act humanely.102 The
way that the law accommodated these seemingly conflicting conceptions of slave
identity was by setting limits, generally vague, on harsh treatment, sanctioned
usually by only small fines, and then rarely acknowledging violations. This history
reveals an original public meaning for the slavery-as-punishment clause that
allowed for extremely onerous living and working conditions, including a
requirement of hard labor enforced by severe and intentionally inflicted corporal
pain.
99. Id.
100. KENNETH M. STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN THE ANTE-
BELLUM SOUTH 192 (1956).
101. See William W. Fisher III, Ideology and Imagery in the Law of Slavery, in
SLAVERY & THE LAW 43, 44–45 (Paul Finkelman ed., 1997).
102. See PETER KOLCHIN, AMERICAN SLAVERY 1619–1877, at 112 (rev. 10th
anniversary ed. 2003).
2009] SLAVERY AS PUNISHMENT 997
weighed against extreme cruelty.103 However, the life of a slave virtually always
involved degradation and a denial of basic freedoms and submission and
subservience, if not severe physical punishment or deprivation. Slaveholders also
were not required to pass a test of intelligence, sanity, temperament, temperance,
or maturity, and neither were their agents or family members. As a result, even by
the denigrating standards of slavery in the mid-1800s, a significant number of
slaves faced a life of special horror. This Section highlights four kinds of slave
abuse that the law in slave states clearly permitted.
103. See id. at 73–74; Robert William Fogel & Stanley L. Engerman, Punishment
and Rewards, in AMERICAN NEGRO SLAVERY: A MODERN READER 76, 77 (Allen Weinstein
et al. eds., 3d ed. 1979).
104. See Jacob Manson, Narrative, in BULLWHIP DAYS: THE SLAVES REMEMBER
219 (James Mellon ed., 1988).
105. See STAMPP, supra note 100, at 185–86; Fogel & Engerman, supra note 103,
at 76.
106. See Fogel & Engerman, supra note 103, at 77.
107. See STAMPP, supra note 100, at 186.
108. See Fogel & Engerman, supra note 103, at 78.
109. STAMPP, supra note 100, at 175–76.
110. Id. at 176.
111. See EUGENE D. GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE SLAVES
MADE 65 (1974).
112. See Fogel & Engerman, supra note 103, at 76.
998 ARIZONA LAW REVIEW [VOL. 51:983
back.”113 Drivers chosen from among the slaves were often obligated to discipline
the other slaves. Plantation owners often restricted the number of lashes that
drivers and white overseers could inflict, but the numbers were hardly low. For
example, “[o]n Pierce Butler’s Georgia plantation each driver could administer
twelve lashes, the head driver thirty-six, and the overseer fifty.”114
The frequency with which a slave was whipped depended not only on the
slave’s attitude but also on the temperament and views of the master and overseer.
On some plantations, whipping occurred only sporadically, while on others its use
was constant.115 “Some overseers, upon assuming control, thought it wise to whip
every slave on the plantation to let them know who was in command.”116 Some
flogged the last slave who got in line for work every morning.117 The failure to
work vigorously and effectively in the eyes of the overseer was also grounds for a
whipping.118 A majority of slaveholders preferred to keep a check on their use of
brutality.119 However, “the prevalence of whipping was such a stark reminder of
slave dependence that to the [slaves] (and abolitionists) the lash came to symbolize
the essence of slavery.”120
Slaveholders also commonly inflicted physical pain through other means,
some less extreme than whipping but some even more barbaric. These included the
deprivation of food, chained restraint, the iron collar, the stocks and small hot
boxes.121 Although less routine, particularly by the middle of the nineteenth
century, mutilation, by branding or other means, also had not disappeared. For
example, a North Carolina slaveholder recorded in 1838 that his slave, Betty, was
‘‘burnt . . . with a hot iron on the left side of her face; I tried to make the letter
M.”122 Likewise, a Kentucky slaveholder in 1848 noted that his slave Jane had “a
brand mark on the breast something like L blotched.”123
Evidence of corporal abuse of slaves commonly made it into southern
newspapers. “If it was cruel to flog slaves so frequently and severely that their
backs were permanently scarred, southern newspapers provided evidence of an
abundance of this variety of inhumanity.”124 The reports appeared not out of
concern for the cruelty but because the nature and location of scars from whipping
or branding were helpful in describing fugitive slaves whose capture and return
2. Sexual Abuse
Some female slaves were regularly subject to another form of abuse.127
They were forced to have sexual intercourse with the owner or his overseers or
family members.128 “Sex between white men and black women was a routine
feature of life on many, perhaps most, slaveholdings, as masters, their teenage
sons, and on large holdings their overseers took advantage of the situation to
engage in the kind of casual, emotionless sex on demand unavailable from white
women.”129 One former slave woman reported in her autobiographical novel: “I
cannot tell how much I suffered in the presence of these wrongs, nor how I am still
pained by the retrospect.”130
from their owners, sometimes from other states.137 Likewise, sugar growers
commonly rented slaves to help with the arduous tasks of grinding.138 Even some
small farmers who could not afford to keep slaves permanently sometimes rented
them during years of need.139 Significant increases in lease prices in the 1850s
revealed a surging demand for rented slaves in the years leading up to the Civil
War.140
Slaveholders also commonly sold one or more of their slaves.141
Professional slave traders bought and sold slaves throughout the South. Regular
auctions also existed to facilitate these transactions, some private and some
conducted by courts.142 One historian has estimated that, in the Upper South, slave
sales disrupted about one in three first marriages among slaves and that about half
of all slave children experienced separation by sale from at least one of their
parents.143 Often these transactions meant a lifetime absence of further contact
between the family members.144
These practices not only caused painful separations but also fed into the
system of corporal abuse. Lessees typically had less incentive than slaveholders to
take good care of slaves, and they were more likely to subject slaves to corporal
punishments and dangerous or onerous work.145 The lessee’s interest was in
extracting as much labor from the slave during the lease term as possible without
causing problems with the primary slaveholder. Also, slave leases and sales
sometimes occurred because a slaveholder encountered a problem slave and
wished to rid himself of the difficulty.146 Some slaveholders did not relish the idea
of regularly inflicting severe corporal pain. In these cases, lessees and buyers who
took on the slave were usually prepared to try to induce subservience through
physical force.147
them with adequate food, shelter, and clothing and did not dangerously overwork
them.148 However, a significant number of slaves were less fortunate. “On
countless farms and plantations,” slaves received an inadequate diet of mostly corn
with some salted pork; they “never tasted fresh meat, milk, eggs or fruits, and
rarely tasted vegetables.”149 Slave cabins were typically “cramped, crudely built,
scantily furnished, unpainted, and dirty,” with open floors and unlined walls.150
“[L]eaky in wet weather, drafty in cold,” they “usually did not much exceed the
minimum requirements for survival” and were a serious source of disease.151
Slaves also typically had insufficient clothing that turned to “tatters before the next
allotment was distributed.”152 The clothing did not keep them warm when the
temperature dropped below freezing,153 and many slaves had no shoes at all or
wore them out too soon, forcing them to “limp[] about” during cold months “on
frostbitten feet.”154 About 75% of the adult slaves labored in agriculture as field
hands,155 and the convention was that they should work vigorously from “day
clean” to “first dark.”156 Particularly on the larger plantations, overseers often
drove slaves even harder, causing them to “suffer[] physical breakdowns and early
deaths because of overwork.”157
a. Fatal Abuse
By the mid-1800s, the view was widespread, even in the South, that a
slaveholder committed common-law criminal homicide if he intentionally, rather
than accidentally, killed a slave who had not resisted his authority. Two relatively
well-known cases exemplify this principle. In State v. Hoover,163 the North
Carolina Supreme Court upheld a murder conviction and death sentence imposed
on a slaveholder, John Hoover, for intentionally killing by torturous punishment
his female slave, named Mira, when she was in the late stages of pregnancy.
According to the court:
He beat her with clubs, iron chains, and other deadly weapons, time
after time; burnt her; inflicted stripes over and often, with scourges,
which literally excoriated her whole body; forced her out to work in
inclement seasons, without being duly clad; provided for her
insufficient food; exacted labour beyond her strength, and wantonly
beat her because she could not comply with his requisitions.164
The final beating that caused her death included a fatal blow to the head. Likewise,
in Souther v. Commonwealth,165 the Virginia Supreme Court upheld a
manslaughter conviction on a slaveholder, Simeon Souther, for the killing of his
male slave, Sam. The opinion reveals that Souther, along with the help of two
other slaves who he enlisted, continuously beat, whipped, burned, kicked, stomped
and strangled Sam for hours until they finally killed him. In both Hoover and
Souther, the slaveholder intentionally killed a slave who had done nothing to
challenge or resist his lawful authority, and that was criminal homicide.166
The rule was also clear, however, that a master was free to inflict corporal
pain on his slave through the commonly used methods employed against slaves
and that an accidental killing that resulted from such an episode was not criminal
homicide. In Hoover, for example, the court took pains to clarify that a “master
may lawfully punish his slave; and the degree must, in general, be left to his own
judgment and humanity, and cannot be judicially questioned.”167 If Hoover’s
beating had not been so extended and extreme, he would not have been guilty of
criminal homicide even if Mira had died, as long as a court could say that the death
was accidental rather than intentional.
A slaveholder could also kill a slave who resisted his lawful authority,
which was another broad ground of exoneration.168 At least one southern court
defined the triggering conduct as any act by the slave that demonstrated “a hostile
attitude” toward the master or otherwise reflected a “resist[ance toward] his
dominion and control.”169 Under this view, if a slave tried to resist corporal
chastisement, the slave owner could kill him, and the act was not deemed criminal
homicide.
These rules reveal that slave law would only rarely render the slaveholder
guilty of criminal homicide for killing one of his slaves. Hoover and Souther
presented extraordinary scenarios. In both cases, the torture continued for such a
long period and was so violent that the intention to kill was clear. At the same
time, the slave did not resist the violence. In most such killings, the slaveholder
could successfully claim that the death was accidental or that the slave had
resisted.
b. Non-Fatal Abuse
The one situation in which slave states, at least in theory, applied
common-law criminal liability to non-fatal action by the master was for mayhem.
This crime applied to dismemberment and maiming. In Worley v. State, the
Tennessee Supreme Court upheld a conviction and two-year prison sentence for
mayhem imposed on a slaveholder, Gabriel Worley, for castrating his twenty-one-
year-old slave Josiah.170 Josiah reportedly was unruly and troublesome, and
Worley had tied him down and castrated him to help effect his “moral reform.”171
The court was careful to note the absence of “present and immediate provocation”
that would purportedly have eliminated a basis for finding “malice.” The
implication was that, even in Tennessee, mayhem would not apply if the master
castrated the slave in immediate response to some resistance or insurrection.172
Likewise, according to one legal historian, Worley is the only reported case in
consent of the owner was at most a trespass and was not even a trespass if the
owner was the abuser.181
While common-law criminal liability provided almost no protection for
the slave against the master, all southern states, except Virginia and North
Carolina, passed statutes that purported to provide some minimal protections
against corporal abuse.182 These measures provided for only modest fines and, by
legitimizing certain forms of brutality, hid behind the law’s façade of purported
interest in humane treatment.183 In 1740, South Carolina passed the first such
statute, which imposed a fine “[i]n case any person shall willfully cut out the
tongue, put out the eye, castrate, or cruelly scald, burn, or deprive any slave of any
limb or member.”184 The statute also prohibited “any other cruel punishment, other
than whipping, or beating with a horsewhip, cowskin, switch, or small stick, or by
putting irons on, or confining or imprisoning.”185 Georgia later passed a similar
statute.186
Some of the slave states had statutes that did not specify the prohibited or
permitted punishments of slaves by their masters except in vague terms. For
example, Alabama’s statute stated that “no cruel or unusual punishment shall be
inflicted on any slave,” and provided for a fine for any violation of from $50 to
$1000, depending on the severity of the punishment.187 Mississippi had the same
statute except that it provided for a fine not to exceed $500.188 Louisiana passed a
statute, enforced by a fine, providing that: “The slave is entirely subject to the will
of his master, who may correct and chastise him, though not with unusual rigour,
nor so as to maim or mutilate him, or to expose him to the danger of loss of life, or
to cause his death.”189 A Texas statute, enforced by a fine, stated that the master
had authority “to inflict any punishment upon the slave, not affecting life or limb,
and not coming within the definition of cruel treatment, or unreasonable abuse,
which he may consider necessary for the purpose of keeping him in . . . submission
and enforcing such submission to his commands.”190 These statutes seemed
designed to legitimize the use of commonly accepted, though brutal, methods of
slave chastisement—such as whipping—as much as to prohibit more barbaric and
unusual methods.191
Slave law also required the master to provide minimal food, shelter, and
clothing for slaves and often limited the master’s authority to abandon them
181. JOHN HOPE FRANKLIN & ALFRED A. MOSS, JR., FROM SLAVERY TO FREEDOM:
A HISTORY OF AFRICAN AMERICANS 140–41 (8th ed. 2000).
182. See FEDE, supra note 166, at 111.
183. COLIN DAYAN, THE STORY OF CRUEL AND UNUSUAL 13 (2007).
184. STROUD, supra note 162, at 25 (quoting statute).
185. Id. at 25–26 (quoting statute).
186. See LUCIAN LAMAR KNIGHT, A STANDARD HISTORY OF GEORGIA AND
GEORGIANS 225–26 (1917) (quoting statute).
187. Turnipseed v. State, 6 Ala. 664, 665 (1844) (quoting statute).
188. See STROUD, supra note 162, at 26–27.
189. LA. CIV. CODE art. 173, quoted in STROUD, supra note 162, at 26.
190. Callihan’s Ex’r v. Johnson, 22 Tex. 596, 603 (1858) (quoting statute).
191. See DAYAN, supra note 183, at 12.
1006 ARIZONA LAW REVIEW [VOL. 51:983
2. Pervasive Non-Enforcement
The legal duty of care owed by slaveholders to their slaves was not only
narrow but also weakly enforced.198 The legal systems in the slave states only
rarely secured a criminal conviction against a slave owner for violating the
minimal obligations that they purported to impose.199 The situation was different
regarding harm to a slave by a stranger or a lessee. In those cases, the systems
more often imposed civil and criminal liability, because slave law sought to protect
the principal owner’s property interest in the slave.200 Likewise, when a slave
owner so completely abandoned the care of his slaves that they became a public
nuisance, the law would step in to recover the cost of care from the owner.201
Otherwise, the legal systems of the slave states almost never imposed liability on
slave owners for abuse.
The enforcement problems stemmed from both procedural rules and
social biases favoring slaveholders. First, legal systems in slave states held that
slaves could not be parties to a suit against their owners202 and also could not
testify against them.203 Slaves were allowed to testify in some contexts, such as in
certain criminal prosecutions of another slave.204 However, they could not testify
against a white person. Because slaves were often the crucial witnesses to illegal
abuse of a slave by the owner, prosecutors could not go forward.205 Second, non-
slave witnesses typically refused to cooperate in such prosecutions, either because
they were accomplices or were otherwise biased for the slaveholder.206 A code of
silence usually prevailed. Third, law-enforcement officials in slave states generally
lacked interest in pursuing claims of slave abuse against slave owners. While
southern white elites frequently extolled the slaveholder’s duty to care for his
slaves, little support existed in the white community for slaves in abuse cases,
except in highly extraordinary circumstances.207 Finally, only white males could
serve as jurors,208 and in cases in which a prosecutor went forward on seemingly
overwhelming evidence, juries often still acquitted the slaveholder.209 As a result,
the laws limiting slave abuse by owners—although they represented very minimal
demands—usually went unenforced.210
In the years leading up to the Civil War, it was widely known throughout
the country that the law essentially left unregulated slaveholders’ treatment of their
slaves. Harriet Beecher Stowe had aroused abolitionist sentiment in the North and
the ire of the South with her phenomenally successful 1852 novel, Uncle Tom’s
Cabin. The book depicted many of the common abuses, concluding with the
dramatic fatal whipping of Tom, by Quimbo and Sambo, at the behest of their
sadistic owner, Simon Legree, who was never prosecuted for criminal homicide or
otherwise held liable.211 In a country of only twenty-four million people, the book
sold 300,000 copies in its first year, was the first novel in America to sell one
million copies, and was estimated during that decade to have been read by ten
persons for every copy sold.212 Stowe followed the novel with a non-fiction book
(also a best-seller) that discussed the reality of slave abuse and the ineffectiveness
of southern laws purporting to limit it.213 Abraham Lincoln was rumored to have
said, only partly in jest, that Stowe was “the little woman who made the great
war.”214 Whatever the truth of that rumor or of Lincoln’s purported statement,
partly because of Stowe’s work, the abuses of slavery were well-known to the
public at the time of the passage of the Thirteenth Amendment.
This history of the legal boundaries on owners’ treatment of slaves in the
Antebellum Era illuminates the original public meaning of the slavery-as-
punishment clause in the Thirteenth Amendment. The antebellum evidence
supports an original meaning that allowed for extremely harsh treatment of
prisoners, including intentionally inflicted corporal pain, such as whipping on the
bare skin, leasing to private parties, forced labor in dangerous environments, and
225. See, e.g., MATTHEW J. MANCINI, ONE DIES, GET ANOTHER: CONVICT LEASING
IN THE AMERICAN SOUTH, 1866–1928, at 36–38 (1996); McKelvey, supra note 220, at 171,
179.
226. See AYERS, supra note 198, at 66–69.
227. See MANCINI, supra note 225, at 5.
228. See generally McKelvey, supra note 220, at 165–72 (discussing conditions
in prisons and lease camps during Reconstruction).
229. See, e.g., BLACKMON, supra note 222, at 20.
230. McKelvey, supra note 220, at 175.
231. See, e.g., FRIEDMAN, supra note 113, at 95.
232. See MANCINI, supra note 225, at 5–9.
233. AYERS, supra note 198, at 186–87.
234. KENNETH M. STAMPP, THE ERA OF RECONSTRUCTION, 1865–1877, at 79–81
(1972).
235. McKelvey, supra note 220, at 178.
236. BLACKMON, supra note 222, at 54.
1010 ARIZONA LAW REVIEW [VOL. 51:983
Baton Rouge, Grosse Tete and Opelousas Railroad.237 Later in 1866, Texas leased
250 prisoners to local railroad concerns.238 Arkansas began leasing its prisoners in
1867 to a firm know as Hodges, Peay, and Ayliff, which set them to work on a
plantation.239 In early 1868, Georgia leased 100 prisoners to one local railroad
company and soon sent additional groups of 139 and 109 prisoners to two other
rail lines.240 Mississippi rented 241 prisoners in 1868 to the state’s largest cotton
planter.241 In 1869, Florida leased half of its prisoners, and Florida convicts soon
found themselves working in railroad construction and in swampy turpentine
forests infested with alligators and serpents.242 In 1871, Tennessee leased its nearly
800 state prisoners to a founding partner in the Tennessee Coal, Iron & Railroad
Company.243 North Carolina began leasing its prisoners in 1872 and South
Carolina in 1877. By 1880, every former Confederate state except Virginia was
renting a large proportion of its state prisoners to lessees interested in exploiting
their labor for private gain.244
Usually the lessee assumed complete custody and control of the prisoners.
The lessee agreed to provide the prisoners with food, shelter, and clothing and to
ensure that they did not escape.245 In return, the lessee could exploit their labor and
use force as necessary to make them work.246 Although the agreements
contemplated that the lessee assumed both rights and obligations, the state
generally “paid no attention to the prisoners whatever” after the transfer of
custody, thus undermining the lessee’s sense of obligation.247
The results were “closer to the experience of the concentration camps
than [to] slavery.”248 “The lessees . . . worked black bodies as hard as they
could.”249 “Using shackles, dogs, whips, and guns, they created a living hell for the
prisoners.”250 Punishment was usually with the whip. Lessees, however, also came
up with more insidious methods. For example, one form of “torture,” known as
251. McKelvey, supra note 220, at 175 & n.57; MARY ELLEN CURTIN, BLACK
PRISONERS AND THE THEIR WORLD, ALABAMA, 1865–1900, at 69 (2000) (discussing use of
this “torture” on Alabama lease convicts).
252. This technique, known as “waterboarding” in the modern era, was revived by
United States government officials after the bombing of the World Trade Center to coerce
certain terrorist suspects during interrogations. See Scott Shane, An Elusive Starting Point
on Harsh Interrogations, N.Y. TIMES, June 11, 2008, at 16.
253. POWELL, supra note 242, at 15.
254. GEORGE W. CABLE, THE SILENT SOUTH 160 (1907).
255. MANCINI, supra note 225, at 75.
256. See McKelvey, supra note 220, at 171.
257. BLACKMON, supra note 222, at 56.
258. AYERS, supra note 198, at 193.
259. See MANCINI, supra note 225, at 37.
260. See OSHINSKY, supra note 216, at 44–45.
261. AYERS, supra note 198, at 193.
262. See OSHINSKY, supra note 216, at 45.
263. Id. (quoting Report of the House Investigating Committee, MISS. HOUSE J.
app. at 3–4 (1888)).
1012 ARIZONA LAW REVIEW [VOL. 51:983
leasing program, but during the biennium 1884–1885, when she had an average of
600 prisoners, there were 163 deaths.”278 In Louisiana, in 1881, the death rate was
14%, and, in Mississippi, in 1887, it was 11%.279 In Virginia, among a group of
260 inmates leased to a railroad in 1881, the death rate was also 11%.280 In
Mississippi, “[n]ot a single leased convict ever lived long enough to serve a
sentence of ten years or more.”281 In contrast, annual death rates among prisoners
in New Hampshire, Ohio, Iowa, and Illinois from 1881 through 1885 were just
over 1%.282
Public opposition to the convict-lease systems arose almost from the
start,283 but criticism was insufficient to bring about their end for many years.
Members of the 39th Congress attempted to pass a resolution in 1867 articulating a
limited purpose for the slavery-as-punishment clause that disallowed convict
leasing. Although their efforts ultimately failed, the resolution certainly
underscored the fact that many legislators regretted the language of the Thirteenth
Amendment, which they wished said something other than what it actually said.284
In subsequent years, northern newspapers, including the New York Times, often
278. Id.
279. See MANCINI, supra note 225, at 67.
280. CABLE, supra note 254, at 170.
281. OSHINSKY, supra note 216, at 46.
282. Cohen, supra note 244, at 56.
283. See MANCINI, supra note 225, at 219.
284. Representative John Kasson, of Iowa, proposed the resolution after noting
that some states were taking advantage of the clause to reinstitute slavery on those
convicted of crime, particularly blacks, by auctioning them as slaves to the highest bidder.
CONG. GLOBE, 39th Cong., 2d Sess. 324 (1867). He urged passage of a resolution stating
that the purpose of the amendment was to:
[P]rohibit slavery or involuntary servitude forever in all forms, except in
direct execution of a sentence imposing a definite penalty according to
law, which penalty cannot, without violation of the Constitution, impose
any other servitude than that of imprisonment or other restraint of
freedom under the immediate control of officers of the law and
according to the usual course thereof, to the exclusion of all unofficial
control of the person so held in servitude . . . .
Id. In the 39th Congress, the seats of the former Confederate states in both the House and
the Senate remained vacant, thus, reducing the number of voices in opposition. As a result,
the resolution passed easily in the House of Representatives, with 121 in favor, 25 against
and 45 not voting. Id. at 348. However, the resolution was postponed “indefinitely” in the
Senate. Id. at 1600.
Although the original public meaning of the punishment clause, not the intent of the
federal legislative proponents, should be the important measure for originalists, see infra
text at notes 347–48, abandonment of the resolution in the Senate raises doubt that the
actual authors of the Thirteenth Amendment agreed with the resolution. The discussion and
vote in the House may provide evidence that many House members had not thought very
carefully about the effects of the language of the amendment. However, even that
conclusion would have little, if any, bearing on the original public meaning. See District of
Columbia v. Heller, 128 S. Ct. 2783, 2805 (2008) (noting the relative unimportance of post-
enactment statements of legislators regarding their purposes in determining the public
understanding of the constitutional text).
1014 ARIZONA LAW REVIEW [VOL. 51:983
wrote of the horrors facing southern prisoners.285 Southern black newspapers also
frequently decried the systems.286 From time to time, a particularly outrageous
series of abuses would also arouse enough concern to spur a state legislative
hearing or a grand jury investigation.287 Even some southern white newspapers
sometimes called for the end of leasing, and they did so with increasing frequency
over time.288 Despite the criticisms, however, there were also over-abundant efforts
through much of the late 1800s in state government reports and in the southern
press to whitewash the picture of prisoner conditions and extol the public revenue
benefits of leasing.289 States gained too much financially from the systems to
abandon them easily.
Eventually, objections to convict leasing forced its demise. South
Carolina became the first state to abolish the practice in 1885,290 and other states
began abandoning their systems in the 1890s,291 although the last state, Alabama,
did not end its program until 1928.292 The opposition was not based entirely, or
even principally, on humanitarian concerns.293 Free labor groups launched some of
the most influential opposition.294 A desire by elected officials in some states to
neuter the opposing political power of the wealthy lessees was a primary cause.295
Concern over the large number of convict escapes also provoked a stir.296 The
declining costs of free but essentially indentured black laborers also contributed.297
In some cases, the desire to avoid northern criticisms may also have played a
part.298 The proof that the explanation for abolition was not entirely or even mostly
humanitarian finds support in the practices that replaced leasing, which were
“essentially a reallocation of forced labor from the private to the public sector,”
and which were only modestly less cruel to prisoners.299
plantations the core of their systems.300 States in the upper South—West Virginia,
Kentucky, and Tennessee, along with Virginia, which had largely avoided convict
leasing—focused heavily on industrial prisons operating on contract
arrangements.301 States in the Southeast—Georgia, North Carolina, South
Carolina, Florida, and Alabama—spurred by a good-roads movement, focused on
chained road gangs.302 The requirement that able prisoners stay busy at productive
labor was not the evil of these systems. The “enforced idleness” of convicts in
northern prisons was hardly better in its influence on character.303 Instead, it was
the “fearful brutalities” that typically infected these systems that cast a pall over
their existence.304
Mississippi offered the penal plantation system that other plantation states
modeled, and prisoners there were typically abused as badly as antebellum field
slaves. Just after the turn of the century, the Mississippi legislature purchased
20,000 acres of swamp land for penal plantations, with the biggest tract—known
as the Parchman place—covering forty-six square miles in the Yazoo-Mississippi
delta.305 The state cleared and drained the area, and then divided it into fifteen field
camps, each with a long wooden “cage” where prisoners ate and slept. The camps
were separated by race and sex, but rape of both female and male convicts was
common.306 First offenders mixed with the worst recidivists and boys—some as
young as twelve and thirteen—mixed with adults. By the early 1900s, the state
began sending most of its felony convicts, about 90% of whom were black, to
Parchman.307 The goal was to produce as much cotton as possible.
The organizational approach built on the antebellum slave system. Each
camp had a white sergeant who lived on the grounds. The pay was very poor, but
extra benefits accrued from the sergeants’ personal use of convict servants, and
many sergeants occupied the job for life. The camps were largely isolated, and the
sergeants were almost entirely unsupervised. “Some of them were alcoholics; a
few were sadists.”308 Just as in the slavery era, these sergeants selected “drivers”
from among the convicts and organized work groups in gangs. The sergeant also
chose trustees from among the prisoners, based on both their reliability and their
willingness to intimidate and brutalize other inmates. During the field work,
trustees stood guard, with guns, and would shoot any inmates who tried to escape.
The drivers and trustees lived separately from the regular convicts, and their
survival depended on their continuing ability to please the white sergeant, because
the regular convicts hated them.309
The life of the regular convict depended on the particular sergeant under
whom he served, but often was a dangerous struggle to survive.310 The work
quotas were high, and the heat was often extreme, without escape from the sun.
Convicts “routinely collapsed from sunstroke and overwork,” and some died.311
Nonetheless, the goal of the plantation was cotton production above all else, and
the sergeants tended to push the prisoners to exhaustion despite the dangers to their
health. Prisoners generally worked from dawn until sundown with a thirty-minute
lunch break in the field. According to one inmate, the food “was full of bugs and
worms.”312 The drivers also carried whips and used them on lagging inmates. The
failure to meet quota, along with other common offenses, such as showing
disrespect, was grounds for a whipping of up to fifteen lashes. Escape attempts
typically resulted in death by shooting, with the trustee shooter quickly pardoned.
Other escape attempts carried the “unspeakable penalty” of a whipping without
limits.313 At Parchman, the favored instrument was a leather strap, about three feet
long. The inmate was stripped and held on the ground. Typically the sergeant
carried out the torture.314
The industrial penitentiaries that took hold in the Upper South after the
turn of the century were typically no less brutal than the prison plantations.
Tennessee, for example, established a prison for coal mining at Brushy Mountain.
Prisoners were forced through the threat and infliction of the lash to work in a
dangerous and “unsanitary fire trap.”315 Soon, Tennessee also sent prisoners to its
“seriously overcrowded” industrial prison near Nashville. The prisoners were
contracted out to work at various tasks and were pushed relentlessly. In 1911, the
governor, Malcolm Patterson, admitted that the prisons were “inhuman,
unchristianlike, and not becoming to a great State and progressive people.”316
While Virginia provided more progressive and thoughtful institutions, West
Virginia and Kentucky had industrial prison systems that were as degrading and
brutal as those in Tennessee.317
Chain gangs in the southeast may have been the most brutal form of
convict exploitation that followed the lease systems. North Carolina counties
began using them shortly after the Civil War to exploit the labor of prisoners
convicted of less serious crimes to build and maintain county roads.318 After the
demise of convict leasing of state prisoners, southeastern states also began sending
their state prisoners to chain gangs as part of statewide efforts to improve roads.319
The convicts typically lived in rolling cages that resembled those used for
animals in a circus, except that convicts were crowded into them in much greater
numbers.320 Often a wheeled cage that was only nine feet wide by twenty feet long
contained eighteen bunks with thin, dirt-encrusted mattresses.321 “These . . . cages,
constructed with two layers of bunks so that it was impossible to stand erect in
them, . . . were filthy enough for sleeping purposes, but as living quarters from
Saturday noon until Monday morning they were unspeakably vile.”322
Reports from the 1920s through the 1940s revealed that convicts on chain
gangs also confronted many other cruelties. They faced hard and continuous labor
from dawn until dusk.323 The food was often meager, not to mention rotten and
bug-ridden. Bathing facilities were typically no more than a bucket of water.
Medical treatment was often unavailable.
And above all, corporal punishment and outright torture—casual
blows from rifle butts or clubs, whipping with a leather strap,
confinement in a sweatbox under the southern sun, and hanging
from stocks or bars—was meted out for the most insignificant
transgressions, particularly to African Americans who were the
majority of chain-gang prisoners.324
Better treatment could hardly have been expected from the unsupervised guards,
who were typically uneducated white men from the rural South, with racist
attitudes and often of doubtful character.325
For many years after the abandonment of the lease system, investigators
complained that the chain gangs were no more humanitarian than the lease
systems.326 The focus under both systems on the financial benefits of exploiting
forced labor tended to make them similar regarding the treatment of convicts.327
The financial benefits also helped explain why the abuses continued for many
decades.
The brutalities of southern penal exploitation did not significantly
diminish until the second half of the twentieth century. The chain gangs did not
disappear until the 1950s. Whipping and other torturous punishments in the less
publicly conspicuous settings of the penal plantations and prisons did not
disappear in all states until even later. For example, in 1966, a state investigation
of the Tucker penal plantation in Arkansas revealed brutal conditions and practices
that smacked of antebellum slavery, except that the prisoners at Tucker were
white.328 Arkansas was the last state to allow the use of whips in its prisons, and
convicts at Tucker were still constantly whipped with a leather strap.329 Many were
tortured, “wire pliers being used to pinch fingers, toes, noses, ears, or genitals, and
needles inserted under the fingernails.”330 The worst torture was an electricity-
generating device hooked up to the inmate’s big toe and penis to deliver shocks
that would make the prisoner all but pass out.331 The plantation administrators
apparently concluded that using these corporal punishments was essential to force
convicts to engage in hard labor. Moreover, the focus at Tucker, as throughout
most of the South after the Civil War, was labor exploitation and retribution.
“Systems which looked upon the convict as a slave did not offer much room for
programs of rehabilitation.”332
This history of the treatment of southern prisoners in the century after
1865 supports the conclusion that the original public meaning for the Thirteenth
Amendment was to permit slavery as a punishment for crime despite the main
prohibition on slavery. The long and continuous history of brutalities against
prisoners across most of the South went unchallenged in the courts under the main
prohibition in the amendment, although the Civil Rights Act of 1871333 enabled
federal courts to hear claims for money damages or equitable relief for a violation
committed by persons acting under color of state authority.334 Likewise, the
brutalities went unrestricted by specific federal legislation, despite the
authorization under section two for Congress to enforce the amendment with
legislation. This history supports an original public meaning for the slavery-as-
punishment clause that shielded states and their agents from claims that abusive or
dangerous treatment of prisoners violated the main prohibition in the
amendment.335
From an originalist perspective, how does this original meaning of the
Thirteenth Amendment bear on the modern limits on criminal punishment? Part IV
330. Id.
331. See id.
332. Id. at 176.
333. Civil Rights Act of 1871, 17 Stat. 13, § 1 (1871) (codified at 42 U.S.C.
§ 1983).
334. Although the 1871 Act was designed primarily to enforce the Fourteenth
Amendment, and the Supreme Court, in the Slaughter-House Cases, 83 U.S. 36 (1873),
interpreted the rights protected by the Fourteenth Amendment narrowly, the Court also
made clear that “the rights secured by the thirteenth . . . amendment” were part of the
privileges and immunities “of a citizen of the United States” protected by the Fourteenth
Amendment. See id. at 80.
335. Some voices at times contended that the main prohibition against slavery in
the amendment should impose restrictions on the abuse of convicts. See, e.g., supra note
285; infra note 366. However, in the face of the extreme cruelties that went virtually
unchallenged for decades under the amendment, these voices reflected only noteworthy
dissent rather than the consensus about the meaning of the measure as it related to the
treatment of convicts. Courts have almost never viewed the Thirteenth Amendment as
protective of the convicted prisoner. See Robbins, supra note 293, at 606–07. An exception
concerns the invalidation of criminal laws directed at the failure to pay a debt or to perform
a contract for labor. See, e.g., Bailey v. Alabama, 219 U.S. 219 (1911). The “peonage” cases
hold that the person who merely breaches a duty of this sort is not appropriately convicted
of a crime and, thus, is not within the punishment exception. See id. at 243–44. See
generally 2 WESTEL WOODBURY WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE UNITED
STATES 1214–16 (2d ed. 1929).
2009] SLAVERY AS PUNISHMENT 1019
turns to this question and shows that the Thirteenth Amendment undermines both
the prevailing view championed by broad originalists and the competing view of
leading narrow originalists about the protections afforded convicts under the
Eighth Amendment.
IV. THE THIRTEENTH AMENDMENT AND ORIGINALIST ACCOUNTS
OF THE CONSTITUTIONAL LIMITS ON PUNISHMENT
The slavery-as-punishment clause leads to unpleasant outcomes for
originalists attempting to define the constitutional limits on the punishment of
criminals. From an originalist perspective, the Thirteenth Amendment means that
there are only minor constitutional restrictions on the treatment of convicted
prisoners. This view obviously frustrates the story of broad originalists that the
Eighth Amendment provides a robust protection for those convicted of crime.
However, this view would even undermine protections proposed by leading
narrow originalists, who have also neglected the Thirteenth Amendment. From an
originalist perspective, the slavery-as-punishment clause allows torture and prison
conditions that modern courts have found uncivilized under the Eighth
Amendment.
effective in 1868, incorporated the Eighth Amendment against the states.339 Yet, if
incorporation of the Eighth Amendment clause lacks a grounding in originalism,
the broad originalist cannot avoid the Thirteenth Amendment in describing the
constitutional limits on punishment. In that scenario, the Thirteenth Amendment is
the principal statement about the constitutional limits on punishment for the vast
majority of persons convicted of crime.
The broad originalist account does not overcome this obstacle. Due
process incorporation of the Eighth Amendment, like due process incorporation of
many other provisions in the Bill of Rights, lacks a solid foundation in original
public meaning. The explanation for due process incorporation is essentially non-
originalist—that the due process clause had no original public meaning and is best
viewed as a “delegation[] of authority to the courts to create a common law of due
process.”340 Yet, even under this view, incorporation of the Eighth Amendment
would seem to violate the minimal parameters of an originalist approach to this
common-law-like enterprise. First, the appearance of the term “due process” not
only in the Fourteenth Amendment but in the Fifth Amendment suggests that the
term connoted something separate from the other protections listed in the Bill of
Rights and was also not thought to embody all of them.341 Second, “due process”
on its face limits the law-making authority to matters of “process” and should not
include a substantive provision, like the prohibition on cruel and unusual
punishments, because there is no strong historical basis for this broader view.342
Thus, due process incorporation of the Eighth Amendment clause fails as
originalism, whether narrow or broad.
Broad originalists also cannot solve the incorporation problem by turning
to the privileges and immunities clause in the Fourteenth Amendment. Some of the
principal proponents of the Fourteenth Amendment in Congress, particularly
Senator Jacob Howard and Representative John Bingham, who wrote section one,
stated that the privileges and immunities clause would make the Bill of Rights
applicable against the states.343 Bingham stated specifically that the proposed
amendment would forbid cruel and unusual punishments, which he argued had
continued in the South after the war.344 For this reason, some scholars have
contended that the privileges and immunities clause provides a better foundation
than the due process clause for an originalist account of Bill of Rights
incorporation.345 Indeed, if the central question for the originalist concerned the
intent of the principal congressional drafters, some of the statements by Howard
and Bingham would provide strong evidence for incorporation of the Eighth
Amendment clause. However, leading originalists now generally agree that the
proper focus of originalist inquiry is ultimately not on the intent or purpose of the
congressional drafters but on the original public meaning of the constitutional
provision.346 A focus on the original intentions of the drafters confronts compelling
objections that such evidence does not translate into a collective intention, which
either may not exist or may elude identification. Further, the eighteenth- and
nineteenth-century Framers themselves construed legal texts “according to the
ordinarily understood meaning of their terms without regard to the subjective
intentions of the drafters.”347 The Supreme Court itself recently endorsed a focus
on original public meaning.348 Moreover, when the inquiry turns to the original
public meaning of the privileges and immunities clause, the originalist argument
for incorporation loses steam. Professor Lawrence Rosenthal has demonstrated that
the historical evidence, including the statements of other legislators and nineteenth
century treatise writers, along with the post-amendment decisions of the Supreme
Court, are “conflicting, if not tilted against incorporation.”349 Recent scholarship
by Professor George Thomas, focusing on newspaper articles discussing the
Fourteenth Amendment in the late 1860s, further undermines the incorporation
claim.350
remember that part of the debates focused on the expected immediate impact of the
Amendment rather than the principles which were to govern future generations.”).
345. See Lawrence Rosenthal, Second Amendment Plumbing After Heller: Of
Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs,
41 URB. LAW. 1, 48 & n.247 (2009) (discussing the relevant scholarship of Akhil Amar,
Michael Kent Curtis, and William Winslow Crosskey).
346. Id. at 53 & n.264.
347. Id. at 52.
348. See District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008).
349. Rosenthal, supra note 345, at 69. See also Lawrence Rosenthal, The New
Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem
of Incorporation, 18 J. CONTEMP. LEGAL ISSUES (forthcoming 2009) (“The evidence of
public meaning that emerges from the framing era, in short, is deeply mixed.”).
350. See generally George C. Thomas III, Newspapers and the Fourteenth
Amendment: What Did the American Public Know About Section 1, 18 J. CONTEMP. LEGAL
ISSUES (forthcoming 2009).
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351. See, e.g., Mitchell v. Armitage, 10 Mart. (o.s.) 38, 46 (La. 1821) (upholding
right of master to whip apprentice twenty to thirty times with a cow-skin, but noting that
undue cruelty would warrant rescission of the indenture).
352. See supra note 90 and accompanying text.
353. See supra text at note 89.
354. Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871).
2009] SLAVERY AS PUNISHMENT 1023
have proceeded against the state jailer, if on no other grounds, by attachment for
contempt.362 The dearth of such claims from these prisoners cannot find
explanation in the inapplicability of the Eighth Amendment.
The showing in Part III also undermines the view that a prohibition on
“cruel and unusual punishment” limited the authorization to impose slavery. Part
III revealed that, after 1865, neither state prisoners through lawsuits nor the federal
Congress through legislation acted on the idea that the imposition of harsh,
slavery-like conditions violated the main prohibition in the Thirteenth
Amendment. To the extent that the slavery-as-punishment clause authorized only
limited forms of harsh treatment, the clause would provide only a partial shield for
states against claims of unconstitutional slavery brought under the main
prohibition in the Thirteenth Amendment. For this reason, even in the absence of
incorporation of the Eighth Amendment clause, lawyers could easily have claimed
that the concept of cruel and unusual punishment (although not the Eighth
Amendment itself) limited what was permissible under the slavery-as-punishment
clause and, thus, helped define what was impermissible under the main prohibition
in the Thirteenth Amendment. Perhaps prisoners could not have recast every claim
of cruel and unusual punishment as a claim of slavery, but the torturous conditions
imposed on prisoners in the southern states in the decades after the Civil War
were, if understood as cruel and unusual punishment, also understood as slavery
recreated. The federal Congress also could have passed federal legislation under
section two of the Thirteenth Amendment to protect state prisoners. The absence
of such suits or federal legislation, contending that those conditions violated the
main clause in the Thirteenth Amendment, casts doubt on the existence of a
prevalent view that the notion of cruel and unusual punishments limited the
authority in the Thirteenth Amendment to impose the conditions of antebellum
slavery as punishment.363
c. The Notion of Slavery for Purposes of the Punishment Clause Did Not
Have an Original Meaning that Would Contract To Accommodate an
Expanding Application of the Eighth Amendment.
The broad originalist might still contend that the slavery-as-punishment
clause subserved the prohibition on cruel and unusual punishment even if the idea
of cruel and unusual punishment did not restrict the slavery-as-punishment clause
in 1865. Under this view, although conditions akin to antebellum slavery were not
thought cruel and unusual in the 1860s, some aspects of those conditions could still
be viewed as cruel and unusual a century later. As the meaning of the Eighth
362. For an exceptional ruling that demonstrates the latter point, see Birdsong, 39
F. at 603.
363. One of the great legal thinkers of the late nineteenth century, Thomas
Cooley, suggested that the slavery-as-punishment clause should only provide a partial shield
against claims that punishments constituted improper slavery. THOMAS M. COOLEY, A
TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE
POWER OF THE STATES 364–65 (Boston, Little, Brown, & Co., 5th ed. 1883). Cooley
suggested that the clause should not even permit a state to auction a convict to work as a
slave to the highest bidder. Id. While many might have preferred this nontextual view even
in Cooley’s era, there is little evidence that it represents the original public meaning.
2009] SLAVERY AS PUNISHMENT 1025
cannot explain why the slavery-as-punishment clause did not confine that
expansion.367
In the final analysis, the slavery-as-punishment clause confounds the
efforts of the broad originalist to justify the protections afforded convicts under the
Eighth Amendment today. If slavery, as it existed before 1863, is permitted as
punishment for crime, prisoners have few constitutional grounds to complain about
their difficult or unhealthy prison conditions or about their harsh treatment at the
hands of guards.368 Likewise, Eighth Amendment restrictions on the death penalty
or on the severity of non-capital sentences should disappear to the extent that they
rest on principles that would nullify an originalist view of the slavery-as-
punishment clause. On this view, much of modern doctrine under the cruel and
unusual punishment clause collapses.
367. This conclusion is even more compelling than the originalist argument that
constitutional language outside of the Eighth Amendment limits expansion in the
application of the Eighth Amendment clause to proscribe the death penalty altogether. The
slavery-as-punishment clause does not merely contemplate the possibility of slavery as
punishment but expressly authorizes it.
368. For a non-originalist argument, however, that a historical connection
between a particular punishment practice and slavery actually should weigh in favor of
finding the practice to violate the Eighth Amendment, see Tessa M. Gorman, Comment,
Back on the Chain Gang: Why the Eighth Amendment and the History of Slavery Proscribe
the Resurgence of Chain Gangs, 85 CAL . L. REV. 441, 477 (1997).
369. An originalist justice on the Supreme Court perhaps can be forgiven for
failing to continue to contest Eighth Amendment incorporation at this point. See ANTONIN
SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 138–39 (1997).
However, the problem of when non-originalist precedent should be followed vexes
originalists. See Kurt T. Lash, Originalism, Popular Sovereignty, and Reverse Stare Decisis,
93 VA. L. REV. 1437 (2007). In any event, the Court has not previously addressed the role of
the Thirteenth Amendment in limiting the application of the Eighth Amendment.
2009] SLAVERY AS PUNISHMENT 1027
1. Troubling Outcomes
The original public meaning of the slavery-as-punishment clause
demands conclusions that Justice Scalia has taken steps to avoid when applying the
Eighth Amendment. For example, he has not objected to most of the expansion in
the application of the Eighth Amendment to protect prisoners from harsh prison
conditions. In Wilson v. Seiler,370 he even authored a majority opinion reversing a
summary judgment for prison officials on a conditions claim brought under the
Eighth Amendment.371 Only two years later, however, he joined a dissenting
opinion authored by Justice Thomas, in Helling v. McKinney,372 asserting that the
history of the Eighth Amendment suggests that the word “punishment” does not
“proscribe a prison deprivation that is not inflicted as part of a sentence.”373 On
this ground, they rejected McKinney’s claim that the Eighth Amendment could
protect him from future harm resulting from exposure in prison to secondhand
cigarette smoke. At the same time, they refrained from arguing for the wholesale
abandonment of the Court’s prison-conditions doctrine, relying on stare decisis to
conclude that the Court should “draw the line at actual, serious injuries.”374 The
McKinney dissent thus demonstrates that reliance on stare decisis can help the
narrow originalist avoid outcomes under the Eighth Amendment that are “too
bitter.”
From an originalist standpoint, however, the McKinney dissent rested on
the wrong rationale. The historical evidence that the term “punishment” in the
Eighth Amendment was inapplicable to jail or prison conditions was
unconvincing. Indeed, the evidence as to how that term was understood when used
in the slavery-as-punishment clause in the Thirteenth Amendment conflicts with
the conclusion that it covers only the sentence imposed in court. After passage of
the Thirteenth Amendment, states could force convicts to work or to lease them to
work even though a court had not ordered labor as part of their sentences.375 Hard
labor, even when not ordered by a court, was apparently still viewed as part of the
“punishment” permitted.376 Nonetheless, an original-public-meaning account of the
Thirteenth Amendment supports the conclusion that the Eighth Amendment would
not protect inmates from secondhand cigarette smoke. The explanation is in the
original public meaning of “slavery,” which contemplated exposure to numerous
dangers to life and health, including many that were more serious than exposure to
secondhand cigarette smoke. From an originalist perspective, this account
grounded on the Thirteenth Amendment resolves the issue in McKinney much
more convincingly than an account based on the purportedly narrow meaning of
“punishment” in the Eighth Amendment.
2. Abhorrent Outcomes
An original-public-meaning interpretation of the Thirteenth Amendment
would even allow for outcomes that qualify as repulsive, and this remains true for
many conservative, narrow originalists. A truly originalist view of the Constitution
would permit gross neglect for the physical and mental health of prisoners. It
would also allow for malicious and sadistic brutality against them. Moreover, in
light of past history and more modern events, there is no persuasive reason to
doubt that, absent federal constitutional proscription, these abuses would have
proliferated.
The major prison-reform cases of the modern era reveal some of the
degradation that would have gone on. One among many examples is Ruiz v.
Estelle,384 in which a federal judge declared prison conditions in Texas in the early
1980s to violate the Eighth Amendment.385 Texas prison officials had imposed
great suffering on inmates through overcrowding, inadequate facilities, inadequate
medical care, and a building tender system reminiscent of slavery that allowed the
most aggressive and sadistic inmates largely to control the other prisoners.386
Forcible rape was common.387 Beatings or similar brutalities occurred almost
daily. One former Texas inmate who became suicidal in the face of the degradation
described the experience as being “trapped in one of the world’s dark corners.”388
While such suffering might make us blanch, it is not worse than the agony endured
by thousands of slaves in the Antebellum Era or by thousands of prisoners swept
into the convict-lease systems after 1865.
consented, originalists commonly assert that the document also binds later
generations because we have also agreed in some sense to be bound.395 Perhaps the
second most popular rationale is that originalism provides a means of ensuring
judicial restraint.396 On this view, originalism derives from the role of courts as
interpreters of the law, so that the Constitution must be understood as a document
for interpretation rather than a starting point for judicial construction.397 But,
libertarian and liberal originalists have effectively challenged these
rationalizations. In particular, Professor Randy Barnett, a libertarian originalist,
has skillfully skewered both ideas. He has forcefully asserted that “consent morally
binds only those who themselves actually consent” and notes that “those alive
today . . . have not consented.”398 As for the rationale of judicial restraint, he has
shown that it begs the question of the proper role of the courts. Moreover, it would
“justify judicial enforcement of only those passages of the Constitution that are
sufficiently rule-like to constitute a determinate command that a judge can simply
follow,” although many parts of the Constitution are so obviously abstract that
they require judicial choice.399 Originalists have not effectively answered these
rebuttals.
The libertarian and liberal originalists, however, have offered a new kind
of justification for originalism. They assert, essentially, that a core of original
meanings in the Constitution created a system of government that is legitimate, in
that it adequately protects our rights, and that adherence to original meaning
throughout the document will ensure respect for those core provisions.400 The core
provisions are not ranked in importance; nor are the most crucial ones specified.
The idea, however, is that:
[A] system that combines elements of federalism, separation of
powers, a bifurcated legislature, a presidential veto power subject to
a supermajoritarian override, judicial review, enumerated and
limited powers, and an explicit but limited bill of rights provides
confidence that lawful commands emerging from such a system are
so likely to respect rights that they merit the benefit of the doubt.401
Not all parts of the Constitution serve this “legitimacy-enhancing” function.
Nothing crucial rides, for example, on the language that the president be a “natural
born Citizen”402 or that federal judges serve “during good Behaviour”403 rather
395. Barnett, supra note 19, at 11 (discussing and rejecting these theories).
396. See, e.g., Edwin Meese III, Toward a Jurisprudence of Original Intent, 11
HARV. J.L. & PUB. POL’Y 5, 10–11 (1988).
397. See Scalia, supra note 1, at 854.
398. Barnett, supra note 19, at 10. See also Balkin, supra note 11, at 531–32
(“Later generations do not consent . . . .”).
399. Barnett, supra note 19, at 11.
400. See supra note 37 and accompanying text.
401. Barnett, supra note 19, at 17; cf. Charles R. Kesler, Thinking About
Originalism, 31 HARV. J.L. & PUB. POL’Y 1121, 1128 (2008) (“To defend originalism in the
political arena, and to secure the appointment and confirmation of properly originalist
judges, will take presidents, legislators, and, yes, even judges, who can explain the goodness
of the U.S. Constitution.”).
402. U. S. CONST. art II, § 1, cl. 4.
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than for a fixed term of years. Nonetheless, the rationale for originalism that these
theorists offer is that following the original meaning throughout the document will
ensure that we follow the original meaning for the legitimacy-enhancing
provisions.404
How does this consequentialist rationale hold up when confronted with
the original public meaning of the slavery-as-punishment clause? It collapses.
Libertarian and liberal originalists assume that, by employing a broad originalism,
all of the prose in our Constitution will carry original meanings that will produce at
worst some modestly “[un]happy endings,”405 but none in which the costs will
greatly exceed the benefits.406 They certainly assume that our Constitution does not
contain provisions with an original public meaning that will produce “grossly
objectionable results.”407 Otherwise, they could not plausibly contend that we need
not evaluate each clause separately to determine whether to follow the original
meaning. Yet, the original public meaning of the slavery-as-punishment clause
undermines their assumption. The clause has nothing to do now with the
legitimacy enhancement of our government, and its original meaning would
produce outcomes that would “shock the conscience of people today.”408 The
legitimacy-enhancing justification, thus, does not clarify why we should honor that
original meaning.
CONCLUSION
The slavery-as-punishment clause in the Thirteenth Amendment ranks
among the most neglected provisions in the constitution. Before the 1960s, little
need arose for courts or commentators to assess the meaning of the clause or its
relation to the prohibition on cruel and unusual punishments in the Eighth
Amendment. The view from the late 1800s that prisoners were “slave[s] of the
state”409 with minimal rights developed into a “hands off” 410 approach by courts to
the regulation of prisons.411 After the Supreme Court incorporated the Eighth
Amendment proscription against the states,412 judicial application of the Eighth
Amendment burgeoned, and it continues to expand today.413 However, courts and
commentators have rarely acknowledged the relevance of the slavery-as-
punishment clause to these expanded constructions of the Eighth Amendment.
When they have even noted that two punishment clauses exist in the amendments
to the constitution, they have assumed that the Thirteenth Amendment yields to the
Eighth Amendment.414 The slavery-as-punishment clause serves only the
occasional task of barring an inmate claim that prison regulations concerning
work, such as low pay or enforcement penalties, violate the main prohibition on
slavery in the Thirteenth Amendment.415
The view that the slavery-as-punishment clause subserves the prohibition
on cruel and unusual punishments does not comport with original-public-meaning
originalism. The Thirteenth Amendment expressly authorizes slavery as
punishment for crime. The history of its promulgation between 1863 and 1865
reveals that Congress did not proclaim for it some special meaning.416 Thus, the
endorsement of “slavery” conveyed its ordinary meaning to the citizens at the time
about the permissible treatment of convicts. The history of antebellum slavery
informs that meaning, and the treatment of convicts in the years after 1865
confirms it.417 The clause gave states a broad swath of immunity from convict
claims under federal law, even in the face of severe abuse and recklessness.
From an originalist perspective, the public meaning of the slavery-as-
punishment clause should have blocked much of the expansion in the application
of the Eighth Amendment clause. This conclusion holds true whether one endorses
a narrow or broad approach to originalism. Broad originalists have contended that
originalism allows an expanding application of the Eighth Amendment clause,
while leading narrow originalists have argued for a more restricted, but,
nonetheless, somewhat expanded construction. However, broad originalists have
ignored the Thirteenth Amendment, and they cannot explain why the Thirteenth
Amendment should wither in importance while the Eighth Amendment grows. At
the same time, leading narrow originalists cannot explain, consistent with a
steadfast originalism, their willingness to accommodate even a somewhat
expanded application of the Eighth Amendment. An original-public-meaning
411. See, e.g., Banning v. Looney, 213 F.2d 771, 771 (10th Cir. 1954); Stroud v.
Swope, 187 F.2d 850, 851–52 (9th Cir.), cert. denied, 342 U.S. 829 (1951); Sarshik v.
Sanford, 142 F.2d 676, 676 (5th Cir. 1944); Kelly v. Dowd, 140 F.2d 81, 82 (7th Cir. 1944).
412. See Robinson v. California, 370 U.S. 660, 666 (1962).
413. Litigation challenging prison conditions and prisoner treatment also grew in
part based on Supreme Court decisions endorsing the availability of 42 U.S.C. § 1983, a
provision first enacted in almost identical form as part of the Civil Rights Act of 1871, 17
Stat. 13 § 1 (1871), as a means for enforcing prisoners’ constitutional rights. See, e.g.,
Cooper v. Pate, 378 U.S. 546 (1964).
414. See, e.g., Morales v. Schmidt, 489 F.2d 1335, 1338 (7th Cir. 1973).
415. See, e.g., Mikesea v. Collins, 900 F.2d 833 (5th Cir. 1990); Omasta v.
Wainwright, 696 F.2d 1304 (11th Cir. 1983).
416. See supra Part I.
417. See supra Parts II and III.
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account of the Thirteenth Amendment reveals that it was not understood to shrink
in meaning to give way to a growing construction of the prohibition on cruel and
unusual punishments.418
In the end, the Thirteenth Amendment challenges all who profess to
believe in originalism as a coherent general theory of constitutional interpretation.
We can avoid the test by pretending that the slavery-as-punishment clause is
irrelevant when we ascribe meaning to the Eighth Amendment. However, we
should not “shrink[] in practice from the implications of a theory”419 that we
defend. For those who would claim to find an originalist way around the
Thirteenth Amendment, the challenge is to persuade that the approach serves
rather than subverts the original public meaning. For those, like Justice Scalia, who
would favor an exception to the use of originalism in applying the slavery-as-
punishment clause to avoid outcomes that are “too bitter,” the challenge is to
explain why there is not room also to avoid outcomes that would only moderately
violate the judge’s moral or political sensibilities. For those who would favor
enforcing the original public meaning, the challenge is to explain why we should
venerate old language that explicitly enshrines slavery into the document. None of
these challenges can be convincingly overcome. Thus, the slavery-as-punishment
clause should remind all of us why original public meaning, even when clear, does
not resolve the modern meaning of the constitution.