Has Slavery Really Been Legal in Oregon Up Till Now?

You don’t have to be Rudy Giuliani to see the opportunity for morally bankrupt opportunism presented by a caveat in the 13th Amendment.

My Voters’ Pamphlet says Measure 112 “removes language allowing slavery and involuntary servitude as punishment for crime” from the Oregon Constitution. Are they telling me that slavery has been legal in Oregon up till now? —Brylee C.

Tolerance and equity have been central to Oregon’s identity throughout our 175-year history (except maybe for one brief 150-year period right at the beginning), so it’s surprising we’d scrambling to ban something that the nation as a whole abolished all the way back in 1865 with the passage of the 13th Amendment.

And, in fact, we’re not. I’m all for Measure 112, but making the story about Oregon buries the lede, which is that the aforementioned 13th Amendment did not actually abolish slavery. I don’t mean that in the sense that working at Amazon or suffering COVID lockdowns or having Mom take away your phone is tantamount to slavery, either; I mean in the sense that, under the right conditions, slavery qua slavery is A-OK with the U.S. Constitution.*

How? The 13th Amendment says, “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.” The language in our state constitution (and many other state constitutions) is similar. You don’t have to be Rudy Giuliani to see the opportunity for morally bankrupt opportunism presented by this caveat. As soon as Reconstruction ended (around 1877), the Southern white power structure set about passing laws designed to get as many Black men as possible “duly convicted.” No job? Vagrancy. Quit your job? Breach of contract. Walking along train tracks? Trespassing.

Once victims were pronounced guilty (sometimes the judge wouldn’t even bother to specify any particular crime), they could be rented out as “convict labor” to local farms and businesses. By some estimates, fully 20% of freed slaves endured this fate. This went on, in one form or another, until World War II.

I don’t think anyone is suggesting that convict leasing is about to stage a major comeback in the Beaver State, but you can understand why some find its implied presence in the state constitution increasingly unacceptable.

And the movement is growing: Alabama, Louisiana, Tennessee and Vermont will also vote on removing similar language from their constitutions this fall. Counting Oregon, that’s, like, two wins already. The sky’s the limit!

*Though not, to be clear, with current federal law.

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