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Libertarians Should Celebrate Emancipation as Much as They Do the End of Prohibition

Jonathan Blanks

Every year on December 5, many libertarians and libertarian organizations
hold events celebrating the anniversaryof
Prohibition’s repeal by the Twenty-First Amendment. This
observance serves as an opportunity to socialize over a few drinks,
but also to remember that there was a time in our nation’s
history when we could collectively realize we’ve made a
massive policy mistake by banning a popular intoxicant and, in our
present day, reminding us that we should likewise end the Drug War.
Repeal Day is, in short, a celebration of personal freedom and a
call for more of it.

Yet libertarians seem less eager to celebrate December 6, the
anniversary of the Thirteenth Amendment’s ratification, which
legally banned chattel slavery in the United States. Emancipation
was the greatest single advancement of liberty in American history
and yet the people whose political identity evokes liberation
rarely celebrate the Thirteenth’s anniversary.

Emancipation provides an opportunity to contemplate the legal
and social subversion of human freedom. And just as the lessons
from Prohibition apply to our Drug War, our national tolerance for
the caging of so many of our fellow citizens—a
disproportionate number of whom descend directly from slaves freed
over 150 years ago—should give self-proclaimed proponents of
human liberty great pause.

The Thirteenth Amendment reads:

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.

It is ironic that the most liberating constitutional amendment
provides an exception that helped lead to mass incarceration. Most
other nations on the planet have found ways to punish and
rehabilitate criminal offenders without caging them for decades on
end and exposing them to mental and physical horrors as a matter of
course.

Many American jails and prisons are overcrowded and fail to
provide adequate mental and physical health care for inmates. Among
the incarcerated, the rates of infectious diseases—such as tuberculosis, hepatitis, and
HIV/AIDS
—are far higher than the general public, and
prison conditions often exacerbate and spread those illnesses. In
particular, prison rape that can spread these infections and
inflict horrific psychological damage is so common it is a
well-worn trope in American culture, to our great shame.

Americans like to think of our country as enlightened and
intolerant of the barbarity of slavery, despite housing more than
two million people in these dangerous cages. We abhor racism as an
abstract concept, but far too few are troubled with the endless
lines of black boys and young black men in orange jumpsuits and
shackles in courthouses throughout the nation. We pay for these
atrocities under the guises of law, order, and safety. We excuse
the damage the government inflicts with “do the crime, do the
time” canards, over-punishing acts that may or may not
warrant sanction at all, with callous disregard for the personal
costs to the offenders, their families, or their (often
impoverished, racially segregated) communities.
“Accountability” and the “Rule of Law” have
become rubber stamps for whatever sentence the prosecutors feel
appropriate to offer in the plea agreement. Without irony, we call
these carceral mechanisms our “justice” system.

Such cruelty in the name of higher virtue and civil order is not
new.

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.

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.

Jonathan
Blanks
is a Research Associate in Cato’s Project on Criminal
Justice and a Writer in Residence at Harvard University’s Fair
Punishment Project.