New Textualism and the Thirteenth Amendment

Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment. In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed practices resembling slavery to continue, perhaps reflecting the extant stereotypes and racism that formally amending the Constitution cannot root out. Indeed, Goodwin excavates historical materials that suggest the people who drafted and ratified the Amendment understood and expected that it would allow the perpetuation of slavery in another form. As Goodwin explains, most historians have argued that the Thirteenth Amendment’s punishment clause, which allows for involuntary servitude “as punishment for a crime,” “was probably meant to preserve the existing system of prison labor.” But she persuasively demonstrates that these historians “overlook . . . [how] those systems were . . . racialized.” In other words, everyone understands that the Thirteenth Amendment was drafted to allow the continuation of prison labor. But while prison labor could hypothetically—be a racially neutral system of uncompensated or undercompensated labor, contemporaries of the Thirteenth Amendment understood that it was not, in actuality, neutral. And they expected that it would not be neutral, and that undercompensated prison labor would be performed by primarily black and non-white immigrant populations caught in a dragnet web of interlocking state and private discrimination that would push them into the criminal justice system. Goodwin’s narrative about the Thirteenth Amendment is a prime example of what Professor Reva Siegel has called “preservation-through-transformation”—how society and the legal system reject one form of racial discrimination while at the same time legitimating other forms of it