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51 Ariz. L. Rev. 983 (2009)
Slavery as Punishment: Original Public Meaning, Cruel and Unusual Punishment, and the Neglected Clause in the Thirteenth Amendment

handle is hein.journals/arz51 and id is 1001 raw text is: SLAVERY As PUNISHMENT: ORIGINAL PUBLIC MEANING, CRUEL AND UNUSUAL PUNISHMENT, AND THE NEGLECTED CLAUSE IN THE THIRTEENTH AMENDMENT Scott W. Howe* In relatively specific constitutional language that courts and scholars have long neglected, the Thirteenth Amendment authorizes slavery as a punishment for crime. This Article shows that the original public meaning of the slavery-as- punishment clause leads to abhorrent outcomes, including the emasculation of many modern protections grounded on the Eighth Amendment. This conclusion challenges those who assert that steadfast originalism will not produce grossly objectionable results. It also challenges the view that steadfast originalism finds justification as an effort to preserve a core of legitimacy-enhancingfeatures in the Constitution. The Article thus reminds us why the original meaning, even when clear, is not conclusive in constructing the modern meaning of the Constitution. INTRODUCTION The Eighth Amendment (1791): Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The Thirteenth Amendment (1865): Section 1. 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. * Frank L. Williams Professor of Criminal Law, Chapman University School of Law. Special thanks to Lawrence Rosenthal and Celestine Richards McConville for searching and constructive critiques of several early drafts. Thanks also to my colleagues on the Chapman Law Faculty, particularly Katherine Darmer and Ronald Rotunda, who participated in a faculty workshop and provided valuable insights and advice. Most importantly, thanks to Jetty Maria Howe for assistance at all stages of the project.

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