Some recent revisions of American history, however, have raised doubts about how spectacular that revolution truly was, to the point of questioning whether it even occurred. The most prominent of these interpretations, intially advanced by 1960s prison abolitionists and a few academics but now ubiquitous, has focused on the Thirteenth Amendment, the constitutional capstone to slavery’s abolition. Pointing to a clause prohibiting slavery and involuntary servitude “except as a punishment for crime,” this argument, known to its critics as Thirteentherism, calls the amendment a fraud, a supposed blow for freedom that actually enshrined black enslavement in national law. While it appeared to abolish slavery, the Thirteenthers assert, the amendment established constitutional protection for a convict leasing system that was tantamount to slavery and that in time became systemic mass incarceration. Slavery never really died, nor was it intended to die; it simply evolved and was sustained, not despite the Thirteenth Amendment but because of it.
Whatever its noble intentions in combating contemporary racial injustices, the entire premise of this interpretation is skewed. The notion of the Thirteenth Amendment as deceptively proslavery glosses the historical background—above all, that convict labor dated back well into the colonial era, in all regions, for whites and blacks—as well as the history of the amendment’s framing and ratification, during which racist and in some cases proslavery congressional Democrats nearly killed it. There is no evidence that the amendment’s framers and supporters aimed to subvert its stated abolitionist purpose. The prisoner exemption clause—inherited from earlier national ordinances and state constitutions outlawing slavery—simply recognized state police powers that already existed. White southerners did not need the clause to establish their notoriously racist and brutal convict leasing systems in the 1870s, which indeed included characteristics of slavery. To achieve the equality under the law that Thirteenther critics now claim the amendment repudiated would have required a constitutional abolition of convict labor as well as chattel slavery—a measure that, if proposed, would almost certainly have doomed the abolition amendment among northerners for reasons having nothing to do with slavery.
Though historically dubious, Thirteentherism is rhetorically useful in mobilizing moral repugnance at chattel slavery to protest present-day prison conditions, as if current abuses aren’t sufficient cause for indignation. More important, it suffuses righteous protest with the core racialist view of American liberal politics as, the anti-Thirteenther historian Daryl Michael Scott observes, “itself…a species of white supremacy, national in operation and scope.”