Cornell Law Review Online Vol. 104

The Thirteenth Amendment: An Epilogue on the Questions of Reach, Freedom, and Equality

Michele Goodwin

28 Sep 2019

The Banality of Slavery

The Thirteenth Amendment served as a corrective to a vile, but strangely normalized, practice—human slavery. An institutionalized practice so common that at one point 40% of New York’s inhabitants were slaves.1Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Modern Incarceration, 104 CORNELL L. REV. 899, 1021(2019). Thus, on one hand, slavery’s reach can be marked by chilling statistics that speak to its scope and scale even in the North, East, and West.

Slavery’s statistical past resists the white-washing of history. By the commencement of the Civil War “the South was producing 75 percent of the world’s cotton and creating more millionaires per capita in the Mississippi River valley than anywhere” else in the United States.2Greg Timmons, How Slavery Became the Economic Engine of the South, HISTORY (Mar. 6, 2018), https://www.history.com/news/slavery-profitable- southern-economy [https://perma.cc/5DZY-8MLR]. As Beckert and Rockman explain, “slave-grown cotton was the most valuable export made in America.”3SVEN BECKERT AND SETH ROCKMAN, SLAVERY’S CAPITALISM: A NEW HISTORY OF AMERICAN ECONOMIC DEVELOPMENT 1 (2016).

The dramatic breadth of human slavery in the United States evidences the broad economic and social reach of the enterprise far beyond the confederacy—in essence, unabashed northern reliance, profit, and complicity. In fact, “[t]he slave economy of the southern states had ripple effects throughout the entire U.S. economy, with plenty of merchants in New York City, Boston, and elsewhere helping to organize the trade of slave-grown agricultural commoditiesand enjoying plenty of riches as a result.”4Dina Gerdeman, The Clear Connection Between Slavery and American Capitalism, FORBES (May 3, 2017), https://www.forbes.com/sites/hbsworkingknowledge/2017/05/03/the-clear-connection-between-slavery-and-american-capitalism/#254449f7bd3b [https://perma.cc/K6EF-4KYX].

On the other hand, we might think about slavery beyond its capitalist reach to study its banality. In this, perhaps, is slavery’s most vile legacy. That which still haunts and festers. That is, the common, everyday type of practice of purchasing babies, children, women, and men, locking them in cages, securing iron rings around their necks, brutalizing them in the fields, and creating means to denigrate them physically and torment them psychologically—all of which were part of the social practice of Antebellum slavery, protected by American laws, legislatures, and courts. And perhaps in this, the odiousness of the institution becomes better realized and its stench and stain better studied and understood.

It is this normalcy, this new nation becoming immune to shackled children who are bid upon not simply for a day and not simply for one terrifying week. Rather, a day and week that flow into one month of bargaining for the renting, leasing, and purchasing of human flesh for the promise of its lasting, uncompensated servitude. And, one month of such a nightmarish enterprise: leveraging currency against men, women, and children would certainly corrupt the psyche of both the subject of the sale (rendered an object) and the bidder, broker, and ultimate purchaser or consumer of human flesh.

One month of this state of capturing, shackling, selling, haggling, bidding, renting, and selling inscribes an indelible mark—not only on the sold, the seller, and the purchaser, but also on the voyeurs. And what of the voyeurs? The bystanders of the trade: the calligraphers who beautifully pen the advertisements; the newspapers that print the advertisements; the builders of the platforms on which the terrified—often naked bodies stand for sale—otherwise known as the “auction block”; and others. Modern ignorance reduces the lexicon of slavery to slaves and owners, but in reality liens, lots, escrow, grading, consignee, consignor, caller, and commission contextualize and color the practice.

The reach of slavery must be interrogated beyond the typical statistical queries related to “how many?” or where (i.e., slavery was practiced East, North, West, and South)—even though that data matters and confirms that it did occur here. Such queries and answers reflect the pain and humiliation of slavery; the justifiable and understandable need for acknowledgment of a terrible wrong. An intellectual reckoning and political accountability not yet fully cultivated nor availed.

Southern states fought to maintain the chokehold on enslaved Africans, and northern states, and the federal government, cultivated a cruel complicity in the enterprise, most readily identified the congressional enactment of the Fugitive Slave Act on September 8, 1850. No exceptions existed for children or women. Instead, antebellum slavery in the United States was a finely-honed enterprise that legally equated children, women, and men with the chattel of the fields.

The Fugitive Slave Act reified this notion of the human savage, destined for labor in the fieldsjust as mules, oxen, cows, and other cattle. At a time of heightened enlightenment and abolitionist activism, members of Congress forged a compromise with the South that denied any Blacks alleged to be slaves the right to even testify on their own behalf. The law maintained that all escaped, formerly enslaved persons in so- called “free” states were, under penalty of law, to be returned to their owners. 5Fugitive Slave Act, 9 Stat. 462, 462 (1850) (repealed 1864). Section 6 of the law captures its indifference to oppression, inequalities, privacy, and cruel and unusual punishment.

And be it further enacted, That when a person held to service or labor in any State or Territory of the United States, has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such labor or service may be due . . . may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the courts, judges, or commissioners aforesaid, . . . or by seizing and arresting such fugitive, where the same can be done without process, and by taking, or causing such person to be taken, forthwith before such court, judge, or commissioner . . . ; and upon satisfactory proof being made, . . . to use such reasonable force and restraint as may be necessary, under the circumstances of the case, to take and remove such fugitive person back to the State or Territory whence he or she may have escaped as aforesaid. In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence . . . .6Id. at 463.

In reality, the Fugitive Slave Act rendered vulnerable all Blacks living in the United States. Without the ability to defend their freedom by providing evidence of it in a court, the status of free Blacks was in a sense determined by bounty hunters or captors: individuals paid to not only recover slaves, but also find new ones.7See generally CAROL WILSON, FREEDOM AT RISK: THE KIDNAPPING OF FREE BLACKS IN AMERICA, 1780–1865, at 6 (1994) (focusing “on the efforts to force into slavery black people who were legally free”); MILT DIGGINS, STEALING FREEDOM ALONG THE MASON-DIXON LINE 1 (2016) (discussing the acts of prominent Maryland “slave catcher” Thomas McCreary)

The federal government’s complicity is what can appropriately be described as the fallibility of government. After all, Section 7 of the Fugitive Slave Act8Fugitive Slave Act, 9 Stat. 462, 464 (1850) (repealed 1864). imposed criminal penalties in the forms of fines and incarceration: up to $1,000 and six months imprisonment—roughly the equivalent of almost $33,000, in contemporary terms—for those who violated the law by harboring or protecting people claimed to be slaves.9An analysis of the value of $1,000 in 1850 was conducted on July 14, 2019, using a common conversion tool: the CPI Inflation Calculator. CPI INFLATION CALCULATOR, https://www.officialdata.org/us/inflation/1850?amount=1000 [https://perma.cc/B3YG-SDJE]. As such, it potentially punished even those attempting to help free Black persons remain free in the so- called “free” states. In a deeply perverse sense, the Fugitive Slave Act spread the enterprise of slavery to every county and city and the United States. As no Black was safe from capture under the Fugitive Slave Act, so too was no state truly free of slavery’s reach.

Slavery’s colossal stain has much to do with the banality of enterprise—its lingering—which simply became ordinary and day-to-day. This makes victims of us all. The day-to-day of debating whether to place a child for sale; what price must or might she fetch; the transport and fees associated with the sale—or the barters—how many goats, cows, and pigs for a child? That this could last a month among peoples who fought desperately for freedom themselves could be startling. Yet months expanded, reaching into years, which flowed into decades: barter, bid, rent, lease, sell, invest, haggle, negotiate, and renegotiate. And these profound practices, rendered mundane and ordinary, lasted into centuries.

The horror is not simply in the cowardly lies that exalted the righteousness of slavery, of which Noel Rae reminds us.10See NOEL RAY, THE GREAT STAIN: WITNESSING AMERICAN SLAVERY 1 (2018). Rather, it is when the justifications were no longer necessary to relieve doubt of the wrongfulness involuntary human slavery. The ultimate horror of slavery, which the Thirteenth Amendment sought to relieve, was the banality of Americans believing that there was nothing wrong with it.

To read more, click here: The Thirteenth Amendment: An Epilogue on the Questions of Reach, Freedom, and Equality.

References   [ + ]

1. Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Modern Incarceration, 104 CORNELL L. REV. 899, 1021(2019).
2. Greg Timmons, How Slavery Became the Economic Engine of the South, HISTORY (Mar. 6, 2018), https://www.history.com/news/slavery-profitable- southern-economy [https://perma.cc/5DZY-8MLR].
3. SVEN BECKERT AND SETH ROCKMAN, SLAVERY’S CAPITALISM: A NEW HISTORY OF AMERICAN ECONOMIC DEVELOPMENT 1 (2016).
4. Dina Gerdeman, The Clear Connection Between Slavery and American Capitalism, FORBES (May 3, 2017), https://www.forbes.com/sites/hbsworkingknowledge/2017/05/03/the-clear-connection-between-slavery-and-american-capitalism/#254449f7bd3b [https://perma.cc/K6EF-4KYX].
5. Fugitive Slave Act, 9 Stat. 462, 462 (1850) (repealed 1864).
6. Id. at 463.
7. See generally CAROL WILSON, FREEDOM AT RISK: THE KIDNAPPING OF FREE BLACKS IN AMERICA, 1780–1865, at 6 (1994) (focusing “on the efforts to force into slavery black people who were legally free”); MILT DIGGINS, STEALING FREEDOM ALONG THE MASON-DIXON LINE 1 (2016) (discussing the acts of prominent Maryland “slave catcher” Thomas McCreary)
8. Fugitive Slave Act, 9 Stat. 462, 464 (1850) (repealed 1864).
9. An analysis of the value of $1,000 in 1850 was conducted on July 14, 2019, using a common conversion tool: the CPI Inflation Calculator. CPI INFLATION CALCULATOR, https://www.officialdata.org/us/inflation/1850?amount=1000 [https://perma.cc/B3YG-SDJE].
10. See NOEL RAY, THE GREAT STAIN: WITNESSING AMERICAN SLAVERY 1 (2018).

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