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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:
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.
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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