Needless to say, the context was confusing.
“This represents good and America becoming whole again,” he wrote. “We will no longer outsource to other countries. We will provide jobs for all who are free from prisons as we abolish the 13th amendment. Message sent with love.”
Outrage ensued. Abolish the abolition of slavery? Huh?
West clarified: He just meant we should amend the amendment, not abolish it. “The 13th Amendment is slavery in disguise . . . meaning it never ended . . . We are the solution that heals.”
So let us ask this possibly dicey question: What, exactly, was Kanye trying to say?
There is a fair chance he was referring to what’s called the 13th Amendment’s “exception clause,” as many speculated on Twitter. It’s the part of the amendment that literally allowed slavery and involuntary servitude to continue across the country, on plantations and within the barbed-wire fences of prisons. Scholars and prisoners’ advocates argue that its impact is still felt today through prison labor.
Here’s the full wording of the amendment:
“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” (emphasis ours).
The amendment was the first of the three Reconstruction Amendments passed in the aftermath of the Civil War, designed to extend constitutional rights to African Americans and former slaves, including citizenship and equal protection under the law in the 14th and voting rights in the 15th. (The 14th Amendment recently celebrated its 150th anniversary, but it was muted, in part because it took more than a century of oppression of blacks before it had any serious impact, scholars say.)
The 13th Amendment was proposed in part because of well-founded fears that the Supreme Court might nullify Abraham Lincoln’s Emancipation Proclamation.
But the exception clause of the 13th Amendment was a “convenient sleight of hand,” said Dennis R. Childs, an associate professor at the University of California at San Diego and author of “Slaves of the State: Black Incarceration From the Chain Gang to the Penitentiary.”
Prisoners have been protesting this clause for decades. In August, prisoners in 17 states launched a three-week strike to protest being forced to work for meager wages in contemptible conditions — all of which they traced to the 13th Amendment’s exception clause. Last year, advocates for prisoners launched a march on Washington in which they called for the “end to prison slavery.”
And perhaps most popularly, in 2016, the acclaimed Oscar-nominated documentary “13th,” directed by Ava DuVernay, traced the exception clause from the era of convict leasing after the Civil War — when prisoners were forced to work for private plantation owners — to today’s system of mass incarceration and prison labor.
“There’s a reason why this was written into law,” Childs said. “They needed to have a legal cover for [re-enslavement], and the best way to do that was to use [African Americans’] poverty, landlessness, joblessness — their collective dispossession — and the Jim Crow legal system as an excuse to re-enslave that population.”
At the time Congress debated the amendment, Sen. Charles Sumner of Massachusetts, the anti-slavery Republican, spoke out forcefully against allowing slavery to continue through the penal system, urging that the Senate Judiciary Committee revise the language to remove that part. But nobody seemed to hear him out.
As Sumner noted during floor debates in 1864, the exact language of the 13th Amendment can be traced to the Northwest Ordinance of 1787, which outlawed slavery in the Northwest Territory — except as a punishment for a crime, back when there were no prisons. But why abide by last century’s code of human indecency, Sumner wondered.
“Now, unless I err, there is an implication from those words that men may be enslaved as a punishment of crimes whereof they shall have been duly convicted,” he said. “There was a reason, I have said, for that at the time (1787), for I understand that it was the habit in certain parts of the country to convict persons or to doom them as slaves for life as a punishment for crime, and it was not proposed to prohibit this habit. But slavery in our day is something distinct, perfectly well known, requiring no words of distinction outside itself.”
“To my mind [the words in the exception clause] are entirely surplusage,” he said. “They do no good there, but they absolutely introduce a doubt.”
He proposed new language, but the Senate Judiciary Committee didn’t want it. Here’s Sumner’s proposed 13th Amendment that never was:
“All persons are equal before the law, so that no person can hold another as a slave: and the Congress shall have the power to make all laws necessary and proper to carry this declaration into effect everywhere within the United States and the jurisdiction thereof.”
Sumner got his told-you-so moment in the years after the amendment’s passage, Childs said, when states started using the 13th Amendment to re-enslave people convicted of crimes for a term of years, selling them at auction to the highest bidder. Most notoriously, in the Southern states, tens of thousands of people, overwhelmingly black, were leased by the state to plantation owners, privately owned railroad yards, coal mines and road-building chain gangs and made to work under the whip from dusk till dawn — often as punishment for petty crimes such as vagrancy or theft.
“The 13th Amendment’s exception clause allowed the convict-leasing system to flourish and grow, and it became the dominant form of imprisonment throughout the south,” said Robert Perkinson, who teaches at the University of Hawaii and who has studied the convict-leasing system extensively. “Thousands lost their lives in the process, and it was hugely profitable for state governments. It was an important part of the establishment of the Jim Crow segregationist system. And it served as a blueprint for the harsh, retributionist imprisonment that became, tragically, the dominant form of American incarceration all the way into the 21st century.”
As the “13th” documentary explores, many scholars, Perkinson included, have pointed to this convict-leasing system as the birth of mass incarceration and the “prison industrial complex.” It refers to the belief that private prison companies’ bottom line and prisoners’ production of goods for private businesses, such as furniture or license plates, is a main driver of mass incarceration.
West himself railed against it in “New Slaves,” on his 2013 “Yeezus” album: “Meanwhile the DEA/teamed up with the CCA” — a private prison corporation — “They tryna lock n—-s up/They tryna make new slaves/See that’s that privately owned prisons/Get your piece today.”
But as for his latest cryptic Twitter outburst on the subject?
DuVernay, for one, said on Twitter that she would bite her tongue.
“I’m consciously choosing to tweet about plant-based burgers and not current statements about the 13th Amendment from a certain MAGA follower,” she said. “Respectfully, please don’t @ me. I can’t do nothing for him.”