Emancipated from Freedom: Reconsidering the Thirteenth Amendment

By Emma Van Steertegem '25

Guest Writer, University of Chicago

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How did the Thirteenth Amendment outlaw slavery while guaranteeing that it could continue?

This story begins at the twilight of the Civil War, as a divided political leadership confronted the increasingly critical issue of slavery’s abolition. To the one side, Republican senators and representatives rejected slavery, denouncing it as a threat to national unity, economic innovation, and the competitive position of white settlers on the labor market. (1) To the other, Democratic leaders defended slavery as a cornerstone of agricultural production, social order, and what they interpreted as the spirit of the Constitution. (2)

From this struggle emerged a bridge, an amendment to the Constitution that appealed to both sides. This amendment was prohibitive, unshackling millions of people and renewing the ideal of freedom with which the United States is commonly associated. (3) But it was also permissive, sanctioning the enslavement of criminals and reproducing the system on which the economies of many states relied. (4) This duality is best observed in the following excerpt from Section 1 of the amendment:

“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.” (5)

Thus, the political leadership banned slavery in all cases except one, and in this way confirmed that there would always remain a possibility of slavery in the United States. But how did this amendment guarantee that there would always be a way to realize that possibility? How did it guarantee that slavery could continue?

First of all, the concrete provisions of the amendment are exclusively negative: they remove the chains from those who were enslaved, but they do not provide support to those who were newly freed. Effectively, then, the amendment transformed a population of enslaved people into a population of homeless vagrants and plantation wage-laborers. (6) Most of these laborers worked for paltry wages under the very same person who owned them as a slave, and some of them became even more materially deprived than they had been while enslaved. (7) In line with these facts, imminent starvation and exposure drove many freedmen to steal food and clothing. (8)

Now, recall that this amendment permitted enslavement as a punishment for criminals. Under its rule, not being convicted of crime became necessary for not being enslaved. As a result, freedmen were often unable to survive without breaching the condition on which their freedom from enslavement depended. In this respect, the amendment systematically created not only a population of freedmen who were formerly enslaved, but also a population of enslaved people who were formerly free.

On these grounds, the design of the Thirteenth Amendment is such that freedom from enslavement caused more enslavement. This is because the document provided nothing but freedom to enslaved people, and it also enslaved people for crimes that destitution—having nothing—leads to. The result was that many of those who were freed enjoyed only a brief reprieve from slavery.

Worth noting is that this history could have been otherwise: every single person freed by the amendment could have refused to threaten their freedom, even if that meant dying of poverty. And, in this improbable but possible case, the conclusion would neither explain how the amendment continued slavery nor hold at all. For this reason, the above elaborates only on how the amendment really did continue slavery. It does not answer how the amendment would have continued slavery, no matter what the effect of its emancipatory provisions was. Or, even more strongly, how the amendment guaranteed that slavery could survive.

The amendment’s so-called “exception clause” answers these questions. The clause states that slavery shall not exist “except as a punishment for crime whereof the party shall have been duly convicted.” (9) Putting its point more simply, anyone can become enslaved because they have been convicted of a crime. What makes this proviso so notable is that the criminal system can convict people even when they are not guilty of what is conventionally understood as a crime. Insofar as there are very few restraints on the ability of the criminal system to convict people, the clause therefore assured that there would always be people who could be enslaved.

Concretely speaking, there are two ways that the criminal system can create convictions: the first is falsifying a conviction (10) and the second is amending what a person can be convicted for. (11) Under the exception clause, these methods of creating convicts became methods of creating slavery. By using falsification, the criminal system was now able to issue false premises for arrests, then produce false affidavits and testimonies so that those arrestees appeared to be “duly convicted,” and finally enslave those convicts as a punishment for their made-up crimes. (12) At the same time, by revising the law, the system was enabled to outlaw whatever some people did, then execute juridical processes by which those people could be “duly convicted,” and lastly enslave those convicts as a punishment for breaking the new laws. (13)

Accordingly, the clause made the condition for slavery a thing, convictions, that can be obtained by falsifying what reality is and by revising what reality means. And this had the practical effect of allowing people to be enslaved regardless of what they did and also because of what they did. These considerations together explain how the amendment could have preserved slavery even if it had failed to drive freedmen to crime. And more broadly, they explain how the amendment made it possible to continue slavery no matter what the subjects of law did.

But this is not yet the full extent of how the amendment guaranteed slavery. After all, the amendment conditioned slavery on the convictions made by functionaries of the criminal system, namely, juries and judges. But this group was mostly exclusive of those who actually wrote and ratified the amendment. (14) From these facts alone, it is imaginable that the former group would not have any particular intention to punish anyone with slavery for their crimes. And in this case, it would be false that the amendment outlawed slavery and also guaranteed that it could continue.

This example draws out something so obvious that it could be overlooked: namely, that the amendment is an amendment. What it says is law for the people that only relate to the law as its subjects, and also for the people that relate to the law as its creators, enforcers, and interpreters. (15) For the functionaries of the criminal system, this meant that declining to implement the amendment could destabilize their status in the legal system itself. And for the amendment, it meant that the continued possibility of slavery depended on a thing under its control. Namely, the intention and ability of the criminal system to allow slavery as a punishment for a crime.

Summing up the above discussion, the amendment guaranteed that slavery could continue by virtue of its so-called exception clause. That the clause was so efficacious followed from both the particular content of the exception and from the formal power of amendments to the Constitution. The content stated that people could be enslaved once they were convicted by a properly executed legal procedure. But since these procedures can be improperly executed and since legislators can change what a crime is, this just means that people could be enslaved whenever the criminal system wanted them to be.

The power of the Thirteenth Amendment as an amendment realizes itself in several ways, but the relevant one here is supreme authority over the criminal system. By making enslavement a determination of the criminal system, the amendment therefore ensured that the criminal system could always be made to comply with the exception clause.

And, to join these points into a declarative answer to the original question: the amendment guaranteed that slavery could continue by basing slavery on convictions made by the criminal system. And this was so because the criminal system had a virtually unlimited ability to manufacture convictions, and also because the criminal system is obliged to observe constitutional amendments.

The skeptical reader might nonetheless raise the question that there are cases in which the Thirteenth Amendment could not provide the stated guarantee. These might include the masses overthrowing the criminal system or all of the courts refusing to comply with the power of the Constitution. Although these events are perfectly conceivable, they would not exemplify that the amendment failed to provide a guarantee of slavery.

This is because a guarantee is not a promise that a condition will be satisfied in all possible cases. Instead, it is a promise that a condition will be satisfied in all cases where that promise can possibly be made. And if a case emerged where the promiser ceased to exist or where the promised condition ceased to be possible, then the original promise could no longer be made, and the status of that promise as a promise would be unaffected.

In application, this means that the guarantee of the Thirteenth Amendment relies on the entities that are known as the criminal system, the Constitution, and the subject of law. The survival of these entities relies, moreover, on whether people are subject to the law. In the cases forwarded by the skeptical reader, the people would not be subject to the laws; and the constitution, the criminal system, and the legal subject would lose their respective identities as being so. Without these identities, the guarantee once issued by the Thirteenth Amendment would no longer be a coherent or possible one.

All this to say, the Thirteenth Amendment really did outlaw slavery while guaranteeing it could continue, and this is because the amendment could guarantee the possibility of slavery in all cases where that guarantee could reasonably be proposed. In effect, this meant that the Thirteenth Amendment made slavery possible so long as the fundamental features of the legal system held.

For a final illustration of how the amendment did this, it may be useful to end with a metaphor: imagine a king with squires that can do anything but violate his decrees, and with subjects that can do anything but violate the decrees of the squires. The king decrees that the squires can enslave whoever is, in their judgment, wearing purple. Then the squires decree that, in their judgment, purple is the same as red, blue, and green, and they start enslaving subjects just because they do not like them. Under this king, the subjects are never secure in their freedom, and this is because the squires have received a power to enslave that they can always exercise and that they can never reject.

Endnotes

1. The Election of 1860, CRISIS AT FORT SUMTER (last visited Oct. 20, 2025), https://www2.tulane.edu/~sumter/Background/BackgroundElection.html.

2. Michael Les Benedict, Constitutional Politics, Constitutional Law, and the Thirteenth Amendment, 71 MD. L. REV. 163, 179–180 (2012).

3. Defining Freedom: Securing the Promise of the 13th Amendment, NATIONAL MUSEUM OF AFRICAN AMERICAN HISTORY & CULTURE (last visited Oct. 20, 2025), https://nmaahc.si.edu/explore/exhibitions/reconstruction/defining-freedom.

4. Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 CORNELL L. REV. 899, 908–909 (2019).

5. U.S. Const., amend. XIII, §1.

6. W.E.B. Du Bois, Black Reconstruction: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860-1880 188 (1935).

7. The Varied Experience of Emancipation, AFTER SLAVERY: RACE, LABOR, AND POLITICS IN THE POST-EMANCIPATION CAROLINAS (last visited Oct. 20, 2025), https://ldhi.library.cofc.edu/exhibits/show/after_slavery/introduction--a-critical-perio/varied_experience_of_emancipat#:~:text=But%20in%20many%20places%2C%20freedpeople,die%20in%20hunger%20and%20squalor.

8. Alrutheus Ambush Taylor, The Negro in the Reconstruction of Virginia, 11 J. NEGRO HISTORY 243, 290 (1926).

9. U.S. Const., amend. XIII, §1, supra note 5.

10. Edwin Grimsley, African American Wrongful Convictions Throughout History, INNOCENCE PROJECT (last visited Oct. 22, 2025), https://innocenceproject.org/news/african-american-wrongful-convictions-throughout-history/.

11. Christopher M. Taylor, The Amending Process in the Senate, CONGRESS.GOV (last visited Oct. 22, 2025), https://www.congress.gov/crs-product/98-853.

12. Ion Meyn, White-on-Black Crime: Revisiting the Convict Leasing Narrative, 2024 WIS. L. REV. 533, 543-544 (2024).

13. Madeline Weissman, Analysis: Various Selections of Black Codes in the South, EBSCO (last visited Oct. 22, 2025), https://www.ebsco.com/research-starters/politics-and-government/analysis-various-selections-black-codes-south.

14. A. Christopher Bryant, Stopping Time: The Pro-Slavery and 'Irrevocable' Thirteenth Amendment, UNIVERSITY OF CINCINNATI COLLEGE OF LAW SCHOLARSHIP AND PUBLICATIONS (2003). https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1063&context=fac_pubs.

15. Caleb Nelson & Kermit Roosevelt, The Supremacy Clause, NATIONAL CONSTITUTION CENTER (last visited Oct. 25, 2025), https://constitutioncenter.org/the-constitution/articles/article-vi/clauses/31.