Four states voted Tuesday to strike the language of slavery from their constitution
FILE - In this Tuesday, June 3, 2014 file photo, a duplicate of the 13th Amendment appears on display at the North Carolina Department of Cultural Resources in Raleigh, N.C. (AP Photo/Gerry Broome)

On a visit to India, Secretary of State Anthony Blinken said that all democracies are “works in progress.” That notion was displayed in five states across the country on Tuesday, as they considered whether to strike language that technically still enshrined slavery in their state constitutions.

Alabama, Louisiana, Oregon, Tennessee, and Vermont all considered such measures on election day. Alabama voted to revise the state’s entire constitution under the “Alabama Recompiled Constitution Ratification Question.”

The measures passed in four of the states, with Louisiana voting its question down after one of the sponsors of the amendment encouraged voters to do so over vagueness in the wording. Alabama, Oregon, Tennessee, and Vermont now join Utah, Colorado and Nebraska in the number of states that have fully banned slavery in their constitutions.

This August 2021 photo provided by the Equal Justice Initiative/Human Pictures shows an exhibit about the people killed on the journey from Africa to slave ports in America at the Legacy Museum in Montgomery, Ala. (Equal Justice Initiative/Human Pictures)

But why, 157 years after the ratification of the 13th Amendment to the U.S. Constitution, is slavery on the ballot again?

The original text of that amendment, which legally banned slavery following President Abraham Lincoln’s 1863 Emancipation Proclamation, reads as follows: “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 the ‘except’ clause that is causing such exception around the country.

All of the states that considered anti-slavery amendments to their constitutions on Tuesday shared similar language to that in the 13th amendment. Vermont’s, for example, reads that no person shall serve any other [person] “as a servant, slave or apprentice, after arriving to the age of twenty-one years, unless bound by the person’s own consent, after arriving to such age, or bound by law for the payment of debts, damages, fines, costs or the like.” The new language shall read that no person shall serve any other “therefore, therefore slavery and indentured servitude in any form are prohibited.”

Advocates have long argued that the language in the 13th amendment – and therefore similar state constitutional language – has enabled an effective system of legal slavery and servitude in the United States. KATU, reporting on the passage of the anti-slavery Measure 112 in Oregon, explains this legal dynamic thoroughly. 

“Scrutiny over prison labor has existed for decades, but the 13th Amendment's loophole in particular encouraged former Confederate states after the Civil War to devise new ways to maintain the dynamics of slavery,” writes KATU.

 “They used restrictive measures, known as the ‘Black codes’ because they nearly always targeted Black people, to criminalize benign interactions such as talking too loudly or not yielding on the sidewalk. Those targeted would end up in custody for minor actions, effectively enslaving them again.”

The modern picture is stark. “Fast-forward to today,” KATU continues. “Many incarcerated workers make pennies on the dollar, which isn't expected to change if the proposals succeed. Inmates who refuse to work may be denied phone calls or visits with family, punished with solitary confinement and even be denied parole.”

Ava DuVernay, who came to prominence for directing the Martin Luther King Jr. biopic “Selma,” directed and co-wrote an Emmy-winning documentary for Netflix called "13th," that traces what many of the issues that KATU mentions.

“This is an effort to show, not only the rest of the country, but the world who we are today,” said Democratic Alabama state Rep. Merika Coleman, who helped lead the bipartisan effort in the state legislature to ratify the revised constitution. 

"It's important that we do away with all thoughts of slavery in our constitution," said Republican Tennessee state Rep. Jeremy Faison said in a bipartisan ad on social media, advocating for the passage of the state’s anti-slavery measure.

The issues passed in near-overwhelming numbers in Alabama (76.49%), Tennessee (79.5%), and Vermont (80.1%) along with 55% of voters in Oregon agreeing to Measure 112.

"The removal of the racist language in the Alabama Constitution was long overdue," Alabama state Rep. Philip Ensler said in a statement to The National Desk. "It is important that such vitriol was officially struck from this governing document. But the removal of words is not enough. The State of Alabama and its representatives must work to rid our state of all vestiges of injustice, inequality, and inequities created from such racism and create that Beloved Community that Dr. King envisioned."

Louisiana did not pass its measure. In part because state Rep. Edmond Jordan, the democrat that introduced the amendment as a bill in the state house, asked voters to not vote for this incarnation of the amendment due to wording that could not fix the slavery issue. “The way that the ballot language is stated is confusing. And the way that it was drafted, it could lead to multiple different conclusions or opinions,” Jordan said in a statement to a TV station in the Pelican State. “Because of the ambiguity of how it was drafted, I’m asking that people vote against it, so that we can go and clean it up with the intent of bringing it back next year and making sure that the language is clear and unambiguous.”

The question as it appeared on ballots Tuesday read: “Do you support an amendment to prohibit the use of involuntary servitude except as it applies to the otherwise lawful administration of criminal justice?” The “except” clause here too is the cause for Rep. Jordan to rebuke his own bill.

FILE - In this June 17, 2020, file photo, Rep. Edmond Jordan, D-Baton Rouge, speaks in Baton Rouge, La. (AP Photo/Melinda Deslatte, File)

Members of Congress are trying to push similar legislation to remove the slavery as punishment clause from the 13th amendment. In 2020, Sen. Jeff Merkley (D-Ore.) and Rep. Wm. Lacy Clay (D-Mo.) introduced a joint resolution to the chambers that proposes a new amendment to the constitution to close what they call a loophole in the original amendment. Their proposed amendment would read as “Neither slavery nor involuntary servitude may be imposed as a punishment for a crime.” Sen. Merkley and Rep. Nikema Williams (D-Ga.) introduced similar legislation the day before Juneteenth, 2021.

It has not been taken up for consideration in the House or Senate.

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