Involuntary Servitude and the Constitution

Photo of a woman behind a wire fence

Some Forms of Involuntary Servitude Are Legal

Slavery is a part of American history that is often analyzed to learn what made the relations between different races so different more than 150 years ago. We rightfully treat it as something archaic and with no place in modern life. But, there is a difference between slavery and involuntary servitude.

Photo of a woman behind a wire fence

While slavery, as we know it from before emancipation, is long gone, modern forms still exist. Meanwhile, loopholes in the 13th Amendment mean that some forms of involuntary servitude are perfectly legal.

So, what is involuntary servitude, what does the 13th Amendment say, and how does this all relate to modern experiences?

What Is the Definition of Involuntary Servitude?

The definition of Involuntary Servitude is any form of work where the subject feels compelled to carry out the task against their will. They may end up working for some form of payment, such as money, food, or a place to stay. But, they are not there voluntarily. This could be a situation where abusive influential figures physically keep people in work against their will or use some form of blackmail or psychological torture to make them stay.

Involuntary servitude is not the same as slavery, which is why there is a clear distinction in the Thirteenth Amendment and related laws. Slavery tends to relate more to those treated as property and legally owned. Those in servitude are indebted in some way, but not property. The practice was abolished entirely as those that were owned became free. Although, some fell from slavery into involuntary servitude.

The examples above are where acts of involuntary servitude are illegal. But, there are cases where involuntary servitude is legal because of the wording and exemptions in the 13th Amendment. This loophole is a problem for legislators as campaigners call for better protection against involuntary servitude in the United States. 

What Is the 13th Amendment?

There are two critical sections to the 13th Amendment. The first is the declaration of the new law where “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, or any place subject to their jurisdiction.” An important detail here was that rather than directing the law purely at governments and state officials, it related to the rights of the people and the slaveowners. There was also a crucial distinction between slavery and involuntary servitude. Slavery was abolished outright, and involuntary servitude was not. 

The second part of the Thirteenth Amendment is the section that details how Congress has the power to enforce this new law. What is essential to the amendment’s success here is the idea that they can pass any appropriate legislation that relates to acts that may violate the amendment. This is an excellent example of the elasticity of this living document where it can evolve with the needs of the people. It covers eventualities where new forms of slavery or new issues with involuntary servitude arise – problems that couldn’t be foreseen in 1865. 

The Emancipation Proclamation, 13th Amendment, and End of Slavery in the United States

To understand the need for the 13th Amendment, we have to go back to 1776. At this point, it was legal for landowners to keep other humans as property. These slaves, almost all African American, made up one-eighth of the nation’s total population by 1860. President Abraham Lincoln wanted to abolish slavery and created the Emancipation Proclamation. But, this was just the beginning. For a start, it only related to states that had seceded to the Union, not the nation as a whole. So, an amendment to the constitution was necessary to create a full federal law.

Photo of person in chains
The Emancipation Proclamation sought to end slavery in the United States.

As with so many amendments and bills in the United States, it took a while to get from the Emancipation Proclamation to the ratified 13th Amendment. At the time, there was only a need for 27 states to ratify the document to get the three-fourths majority approval. This happened on December 6th, 1865, when Georgia signed. The Secretary of State made things official on December 18th. The remaining nine states could then either refuse or sign in their own time. An interesting fact here is that Mississippi didn’t sign until March 16th, 1995. This didn’t matter concerning the legitimacy of the law, but it is still questionable why it took so long. 

The End of Peonage in the United States

Another detail in the 13th Amendment is that it also bans the act of peonage. This is a system where a subject is forced to carry out work in order to pay off a debt. This is seen as a form of slavery akin to those African American slaves that ended up working for their former employers to clear previous debts.

Coins spelling out debt
The 13th Amendment also ended peonage.

Today, you may see examples where employers refuse to release someone from a contract if they feel they are owed hours or work. Or if someone feels threatened to carry out a task for a neighbor because they owe them a favor. After the Civil War, the practice was common in the Southern states but was outlawed by this amendment. As for former slaves working for ex-owners without pay, that was deemed unconstitutional by the Supreme Court in the case of Bailey v. Alabama (1911).

A Loophole in the 13th Amendment Allows For Some Forms of Involuntary Servitude

It is important to note that the 13th Amendment doesn’t cover every kind of involuntary servitude. There are exceptions to the rule, such as work carried out by those owing a debt to society or those carrying out compulsory military service. This means that the armed forces can instruct those that enlist to do a certain task and allow for compulsory national service. The compulsory nature of jury duty could also be classed as involuntary servitude and therefore needed to be an additional exception. 

More than 150 years on from the ratification of the 13th Amendment, there are still questions asked over the impact of these exemptions law. The deliberate loophole for prisons and the penal system opens doors for mistreatment. 

What Does This Mean For Prisoners and Workers Today?

One current issue with involuntary servitude and the treatment of prisoners is their pay and future opportunities when serving their country. There will always be a debate on this issue. Some believe that prisoners working jobs while serving time in prison shouldn’t earn anything, and it should be a form of community service. Others want to see them fairly paid to help with their rehabilitation and future prospects. At the moment, the state can withhold as much as 80% of a paycheck when that could have been saved for a fresh start on release. Recently, Californian prisoners trained to fight wildfires were refused the same right as civilians for future employment.

Photo of prison cells
Pay for prison labor is a contentious issue in the modern day United States.

Closing the Loophole in the 13th Amendment

There are calls to adapt the 13th Amendment to remove the exception for prison labor and make things fairer. Democratic representatives introduced measures on the subject in 2020, and it was also part of Kanye West’s campaign. There is the risk that those serving time or undergoing community service for more minor offenses will struggle to improve their chance and may be mistreated under the current law. 

This threat becomes more serious when we look at the treatment of black prisoners by white prison wardens and related civil rights issues. Furthermore, it is arguable that little has changed in the last 100 years. Now, the treatment of prisoners and laborers may not be as harsh as it was during the days of building the railroads and prisoner-run plantations at the turn of the century. But, we don’t always know what goes on behind closed doors in some industries.

With that in mind, another factor that is a major issue today is that of modern slavery and the trafficking of victims into and across the United States. Ongoing changes to the 13th Amendment via new legislation can allow for tighter laws and the promise that all employees, sex workers, migrant laborers, and more will be safe. Congress has agreed that the Trafficking Victims Protection Act is related to the 13th Amendment, but the Supreme Court is yet to evaluate that. 

Will the 13th Amendment Change? 

The debate over the need for these exemptions in the 13th Amendment is sure to rage on for a long time to come. Removing all exemptions could lead to issues with jury duty, military service, and the enforcement of community service as part of a criminal sentence. Removing none allows for more of the same issues with the treatment of prisoners and unfair compensation for their service.

The bottom line here is that while slavery is completely illegal – even with current issues of human trafficking – involuntary servitude is not. It is perfectly legal for the state to make you do things against your will in some conditions. Whether the acts are deserved, or fair is a different matter. 

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