announcer:
Welcome to Consider the Constitution, the podcast that cuts through the noise and provides insight into constitutional issues that directly affect every American hosted by Dr. Katie Crawford Lackey. In featuring interviews with constitutional scholars, policy and subject matter experts, heritage professionals and legal practitioners, we examine the rights and responsibilities of citizenship. Consider the Constitution is brought to you by the Robert H. Smith Center for the Constitution at James Madison's Montpelier.
Dr. Katie Crawford-Lackey:
Hello and welcome back to Consider the Constitution. I'm your host, Dr. Katie Crawford Lackey, Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier. In today's episode, we're examining the American justice system and the ongoing pursuit of equal treatment under the law. Central to this conversation are the reconstruction amendments, the 13th, 14th, and 15th Amendments ratified in 1865. At the end of the Civil War, the 13th Amendment abolished slavery and the 14th and 15th amendments were passed soon after to address issues of citizenship and voting rights for African-Americans. This transformative period from 1865 to 1877, known as the Reconstruction era, brought hope to millions of formerly enslaved individuals. Yet the reality of racial discrimination persisted. Despite these challenges, black Americans continued to pursue a more equal and fair system of justice and strategically levered the 13th, 14th, and 15th amendments to challenge oppressive laws and practices laying the groundwork for future civil rights movements. Dr. DeAnza Cook, a previous guest on our show is with me in the studio today at Montpelier to offer her insights and expertise. Dr. Cook is an assistant professor of contemporary African-American history and black leadership at the Ohio State University. Her research specializes in race, social reform, and American law enforcement during and after the Civil Rights Movement. Dr. Cook's writing on criminalization and law enforcement in America's Past and Present is featured in the Metropol Black Perspectives and Annual Review of Criminology. Danza, it's wonderful to welcome you back to Consider the Constitution. It's
Dr. DeAnza Cook:
Wonderful to be back. Thanks for having me, Katie.
Dr. Katie Crawford-Lackey:
So I just mentioned the 13th Amendment ended slavery in the United States, but can you tell us what exactly the amendment says?
Dr. DeAnza Cook:
Absolutely. So the text of the 13th Amendment reads neither slavery nor involuntary servitude, except as punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction. So in effect, the passage of the 13th Amendment in 1865 established a federally secured right to be free from enslavement or involuntary servitude. In the us, the 13th Amendment had tremendous effects on slave holders' property rights because it negated or abolished the principle of property rights and human beings. It took over three centuries of chattel slavery existing in territories now known as the us, and more than 600,000 people losing their lives in the slave holders rebellion known as the Civil War. In order to establish this right to be free from slavery in the US Constitution, affirming the right to be free from enslavement and the highest law of the land also had grave implications for state and local laws.
For example, with the passage of the 13th Amendment and subsequent legislation that was passed, it invalidated federal fugitive slave laws as well as state and local slave codes that were explicitly designed and put in place to police and punish enslaved black people. Former slaveholders in US territories could no longer rely on property ownership claims to keep black people in bondage, and they can no longer empower and fund local slave patrol systems, which were highly sophisticated law enforcement forces deeply entrenched and operating throughout slave holding states. They couldn't rely on these police forces to keep black people in servitude. In the decades following the ratification of the 13th Amendment, legislatures and local police departments across the south and former Confederacy had no choice but to abolish their patrols as they had previously existed and revise their state constitutions in order to reinvent police power after the 13th Amendment when slave laws were officially obsolete.
The 13th Amendment also had tremendous implications for people of African descent, 4 million of whom were surviving in the US before the start of the Civil War in 1860. But after 1865 becomes unconstitutional to enslave people of African descent or any other person with one crucial exception, the language of the 13th Amendment left open, one legal loophole, slavery and involuntary servitude as punishment for a crime remained constitutional after the Civil War. Abolitionists who are against slavery had to compromise with slaveholding, conservatives and liberal reformers who still believed that black people in the US were inherently or naturally criminal. So in essence, the amendment permitted what historians refer to as slavery by another name for black Americans who were increasingly victimized by police racism and discrimination within the criminal legal system during and after the reconstruction era, if you were convicted of a crime in accordance with US law, you could be subjected to forced labor and convict leasing and prison camps or on penal farms, or as part of Chang Gangs who worked in cotton fields and railroads and coal mines and related construction and manufacturing industries for no pay. So unfortunately, life for the first generations of newly emancipated black Americans was still precarious, even with the 13th amendment in place because they remained under threat to slavery and forms of involuntary servitude, especially in the south. So during an after reconstruction, black men, black women, and black children were disproportionately arrested and wrongfully imprisoned as a result of this legal loophole.
Dr. Katie Crawford-Lackey:
Clearly, the 13th Amendment has, I mean, tremendous ramifications on what life looks like in the United States, really no matter who you are. And one of the things you just mentioned, it sounds like it really disrupts what law and order looks like, particularly in the South, as you said, enslaved people. They're no longer bound by these fugitive slave act. For example, white slave owners no longer have control, not in the same way that they did, and then also, I mean, there's this promise of freedom that these people are experiencing for the first time. But again, there's this loophole that has this profound effect in curtailing freedom. And I'm wondering if you could say a bit more about what that looks like in terms of the legal system, how enforcing laws and patrolling behavior changes after the passage of the 13th Amendment.
Dr. DeAnza Cook:
Absolutely. So even though the 13th Amendment along with the other reconstruction amendments, which I'm sure we'll talk about in a moment, although they provide the promise of freedom, they do not eliminate the reality of anti-black racism in America. So even for folks who didn't necessarily want to enslave black people, they certainly didn't necessarily agree that black Americans deserved equal rights, equal protection, and full citizenship. And so we see racism against black people continually shaping policing practices and perceptions of black criminality after reconstruction. There's a book that came out recently that talks about policing in Baltimore, Maryland during the age of slavery. And then throughout the period of emancipation, the historian Adam Malka talks about, for example, how vagrancy laws in particular contributed to the mass criminalization of black Americans who were yes, newly freed and emancipated according to the 13th Amendment, but still subject to disproportionate police attention, still subjected to disproportionate police violence and incarceration for frivolous criminal offenses that were tied to their labor.
Vagrancy laws were weaponized as a way to control black labor, even though folks were not no longer formally tied to their jobs as slaves, they were tied to them. They were tied to predatory labor contracts and predatory labor conditions that reinvented slavery in forms of servitude that were constitutional under this criminality loophole provided by the 13th Amendment. We also find that even with the reconstruction amendments on the books, arrest rates and incarceration rates of black Americans are radically increasing during this period. In Baltimore, for example, black Baltimore residents comprised 1% of ancy arrests in 1861, but then made up 26% of arrests for vagrancy in 1870. So we see this proportion of arrests for black people in Baltimore more than quadruple from 8% to 34% overall during this period. And so the promise of freedom is not negating the reality of racism, and it's not changing the reality of how perceptions of black criminality are influencing police practices on the ground and influencing the increasing criminalization of black people and their placement in US jails and prisons during reconstruction.
Dr. Katie Crawford-Lackey:
As you mentioned, this promise of freedom is not a guarantee of rights. And I want to highlight one of the things you just shared. The 13th Amendment ratified 1865 enslaved people are now free. However, they're in this position where they're not citizens necessarily. They are not guaranteed these other rights that citizens are guaranteed. And at least from a historian's perspective, I tend to group all these reconstruction amendments together. But there's this period where folks don't know that the 14th or 15th amendments will be passed. They're not guaranteed. So there's a lot of ambiguity surrounding what it means to be a free person in the United States. Can you share more about what exactly the 14th and 15th Amendments do and why they were so significant, especially coming off of the ratification of the 13th?
Dr. DeAnza Cook:
So the 13th Amendment makes clear that black folks could no longer be regarded as property or subjected to slavery unless they were convicted of a crime. But what the advent of the 14th Amendment does is it further empowers black Americans to fully embrace their birthright freedoms as US citizens. Black folks understood the 14th Amendment as an affirmation of their rights to equal protection and due process of law. And so the presence of the 14th Amendment, along with the 13th Amendment represents a radical shift in the legal status of formerly enslaved people who previously retained no legal rights and very, very limited in the eyes of US lawmakers under slavery. The enactment for the 15th Amendment, of course, afforded black men, not quite black women or any women for that matter until the 19th Amendment the next century, but at least afforded black men the constitutional authority to participate in American democracy through the ballot box, although it did not ensure that that actually happened in reality on the ground. But nonetheless, constitutional recognition of black suffrage was an incredible victory for abolitionists and reformers who saw access to the vote as a foundational ingredient to moving the US away from slaveholding societal traditions with the right to vote, with the birthright citizenship being enumerated in the constitution, black Americans possessed enough courage to get involved in the political process, to cast their ballots for the very first time in local, state and federal elections, despite facing massive resistance and racist violence at the hands of white vigilantes and police officers.
Dr. Katie Crawford-Lackey:
So clearly significant challenges persist even with these three new amendments. How are black Americans at the time utilizing the 13th, 14th, and 15th amendments to challenge racist policing practices and these targeted punishments in this period, the late 18 hundreds and the early 19 hundreds?
Dr. DeAnza Cook:
So after the end of reconstruction in the 1870s and throughout this era of Jim Crow segregation in the first half of the 20th century, black Americans seize their constitutional understandings of the 13th, 14th, and 15th amendments to challenge racist policing and punishment practices through the courts, through civil rights lawsuits and litigation, through protests in the form of mass action and black power demonstrations, and also through self-defense. So starting with that first one through the courts, historians like Risa Gba showcase how civil rights lawyers working in the 1930s and forties prosecuted people for holding people in debt peonage for emulating the conditions of labor control that were present for the black family under slavery in the Jim Crow era through poor working conditions for agricultural workers and domestic laborers who were predominantly African-American at that time, refusing to pay them, refusing to give them the quality of life and freedoms afforded to other workers who were competing for a living wage and being able to provide for their families.
And so they would take their employers to court and they would be able to make use of not just the constitutional rights that were afforded to them, but also the federal legislation that was coming on the books against slave kidnapping, against convict leasing against these forms and legacies of slavery that were persisting in the 20th century. They also resisted in the form of protest. We know that during the civil rights and black power movements, we had freedom fighters and youth activists, a part of the Student Nonviolent Coordinating Committee, for example, who were advocating for strategies like jail, no bail, to bring attention to the disproportionate imprisonment of black Americans for trying to exercise their full citizenship rights. And also to show and demonstrate that black people were not afraid to contend with the legal system in order to actualize freedoms for their communities. And last but not least, when the courts were not available and when protests was not at their disposal, black folks defended themselves.
Like people in North Carolina working with Robert F. Williams in the late 1950s, they founded their own NRA chapter claiming that Second amendment right, and they armed themselves to protect their black community in North Carolina from white vigilantism, from racist violence in lynchings and violence specifically against black girls and women. When they said, if the police won't protect us, if we're not able to seek this redress in courts, then we will arm ourselves and make sure that we are there to protect and serve our own. And so during these social justice movements, black activists are increasingly turning their attention to the problems of police brutality to the problems of prison abuse because they overwhelmingly affect people of color. So one of the biggest challenges that black Americans have been contending with since the 1970s is mass incarceration. Mass incarceration refers to the fact that more than 1.9 million individuals and loved ones are currently confined in US jails, prisons, detention centers, military facilities, or other forms of containment on Native Land America incarcerate more people than any other nation on earth.
And on average, black people are imprisoned at rates six times higher than those of white people. So the human costs and consequences of mass incarceration that began in the late 20th century and extend to the present affect millions and millions of Americans, particularly people who are low income folks with disabilities, people who don't have English as their first language and people of color. So leading up to the 21st century, black activists have continually drawn on this tradition of asserting their rights as full citizens of participating in the political process and of exercising their full rights to defend themselves against criminal injustice, even in the age of mass incarceration today, where we see these ongoing problems stemming from reconstruction reverberating in our present moment.
Dr. Katie Crawford-Lackey:
So Danza, in our conversation leading up to this recording, you introduced me to a term that I was unfamiliar with abolition democracy. What exactly does that term refer to, and does it relate to this conversation we're having in this moment?
Dr. DeAnza Cook:
So abolition democracy is a term used by black scholars, namely WEB Du Bois and Angela Davis, to refer to the lost Promise from the abolition of slavery with the passage of the 13th Amendment. Du Bois argues in 1935 in his book, black Reconstruction, that the abolition of slavery and law was not enough to fully secure the rights and freedoms that were promised to black Americans by the Constitution. He argues that abolition democracy demands the creation of radically new systems of governance rooted in racial justice. He advocated for the introduction and implementation of new ideas, institutions, and practices that would enable black people in the US to thrive as full citizens with the same economic, political and social opportunities as everybody else. And Angela Davis decades later elaborates on Du Bois's notion of abolition democracy by explaining that slavery could not be truly or comprehensively abolished until black folks could exercise their political rights to vote and until they had complete access to education, employment, healthcare, and other basic human services regulated by government.
So abolition democracies, not just about ending the institution of slavery, abolitionists Democrats, as I like to call them, believe in both tearing down harmful traditions and constructing alternative democratic practices, grounded in shared principles of life, liberty, and social justice for all of us, abolition democracy is a hugely important concept for understanding ongoing debates today about police and prisons. And the history of abolitionism, I believe reminds us that abolitionist politics have a longstanding history in our country. These things are not new, nor should we be afraid with reckoning with these principles and ideas, especially in the age of mass incarceration.
Dr. Katie Crawford-Lackey:
That really hearkens back to again, we've been bringing this theme up, the promise of freedom and ending slavery didn't necessarily change people's minds or attitudes or behaviors that existed during the era of slavery. And this conversation we're having really strikes a chord given this rhetoric and discourse around incarceration and the criminal justice system in the modern age. And a key aspect of this issue that all Americans should really be thinking deeply about is the correlation between conviction of a crime if you're found guilty, and what that means for an individual's civil liberties. So what does that mean for our individual rights and freedoms? That's one of the most powerful aspects of being an American, is having those rights. When is it okay for the government to take those rights away? Is it ever okay, if so, under what circumstances and when do we get those rights back? So as we wrap up today, can you touch on what rights are denied to incarcerated people and what happens afterwards and how voting fits into that process?
Dr. DeAnza Cook:
So the rights denied to people convicted of criminal offenses in America would take a whole nother podcast conversation to cover, but I'll focus on one of the problems that is near and dear to my heart. In addition to teaching and researching and writing about policing incarceration in black history, I'm also a board member of a Boston based nonprofit called Healing Our Land, or Holy for Short, as part of Holy and the Democracy Behind Bars Coalition, which is a broader umbrella that we are a part of. Myself and other organizers, many of whom are currently incarcerated leaders or formerly incarcerated activists from the Boston area work together to advance jail based voting and to restore voting rights for folks serving felony convictions. So people who are currently warehoused in jails and prisons for felony offenses are largely prohibited from voting as a result of felony disenfranchisement laws.
Felony disenfranchisement is a term that refers to the fact that folks' voting rights are taken away on the basis of a felony conviction. So in some states, this loss only applies while folks are incarcerated. In other states, felony disenfranchisement can last for a designated period even after a prison sentence is completed. And we know that today in 48 states, people incarcerated for felony offenses are excluded from voting. Now, in addition to the legal or jour disenfranchisement of folks with felonies, defacto disenfranchisement occurs every election season in jails across this country due to the fact that most people behind bars for pretrial detention remain unaware of their voting rights in spite of incarceration. So incarcerated activists who are affiliated with wholly the Democracy behind Bars Coalition, and most notably the African-American Coalition Committee at MCI Norfolk, they're at the forefront of ensuring that defacto disenfranchisement in US jails and deur disenfranchisement in US prisons gains the recognition and attention that it deserves.
Not only disenfranchisement disproportionately affects descendants of enslaved people in the US in jail based disenfranchisement reinforces enduring legacies of slavery in the age of mass incarceration. So if we can understand this history and how it affects the evolution of policing and incarceration since reconstruction, I believe it becomes much more clear that mass incarceration is one of our biggest constitutional challenges that we have to figure out in the 21st century. And to meet this challenge collectively, we have to listen and learn from people who are most directly impacted by incarceration and work with them to pursue a more just and hopefully more inclusive democracy.
Dr. Katie Crawford-Lackey:
This really resonates in this moment today as we think about the importance of participating in democracy. A main theme throughout all the episodes in this podcast series is the need to be informed, to understand your rights and to be participants. And I think this conversation today really underscores how history, how the past continues to impact our ability to participate in democracy today, and why we all need to be more aware and support each other in our ability to participate and be engaged. And so I want to thank you for joining us, DeAnza, for being here and for sharing your knowledge and expertise with us.
Dr. DeAnza Cook:
Thank you so much for having me, Katie. It's been a pleasure.
Dr. Katie Crawford-Lackey:
And thank you to all those listening to the show today. I hope you'll share it with your family and friends, and please join us again in two weeks as we Consider the Constitution.