Not quite 160 years ago, Vice President of the Confederacy Alexander Stephens said the institution of racial slavery was based on a “moral truth” and that the South would reap “a full recognition of this principle throughout the civilized and enlightened world.” The Confederacy, after all, claimed it was fighting for its “freedom” to enslave others—many of whom were the progeny of slavers’ rapes themselves—and that the Republican platform to halt the expansion of slavery into new American territories was, in fact, tyranny.
After Reconstruction, the South seized upon the “except as a punishment for crime” language of the Thirteenth Amendment. As Douglas A. Blackmon laid bare in his book, Slavery by Another Name, authorities throughout the former Confederacy criminalized all sorts of minor transgressions and behaviors to put African Americans in cages and then impress them into service through the convict‐lease system. Although these laws were not explicitly racist—no mention of race typically appeared in their texts—they were primarily used against freedmen and their descendants, rather than impoverished whites guilty of the same alleged ‘crimes.’
This system was added on top of the already exploitative sharecropping that tied many ex‐slaves to the lands and former slavers without much realistic hope for prosperity or economic freedom. If a sharecropper quit and had trouble finding work on another farm or in another job, he could be jailed for loitering or vagrancy and leased out to a company by the local sheriff when he couldn’t make bail. The South effectively criminalized being poor and black.
The more things changed, the more they stayed the same.
Although today’s inmates still labor without livable wages for private companies, the convict‐lease system has ended. And while many activists attack the private prison industry, most jails and prisons are run by county or state governments, and duly elected public prosecutors are responsible for filling them up. Removing the profit motive from the carceral state makes the system only marginally more just, while its effects on black communities particularly are sometimes hard to distinguish from the racist policies of a century ago.
The United States has greatly expanded its promises of freedom to millions of people in ways the Founders never intended. But it still is not as free as it could or should be. The Twenty‐First and Thirteenth Amendments should be celebrated as great victories for freedom, but they also serve as stark reminders of the many ways the United States fails to live up to its founding ideals.
Too many people remain in chains.