But where did this loophole originate? It started with a much older law, one that shaped a more complex legacy of human bondage.
The 13th Amendment’s language was based on Article Six of the 1787 Northwest Ordinance almost verbatim. In July 1787, while some lawmakers in Philadelphia were drafting the Constitution, others met in New York to haggle over the territory beyond the 13 colonies, the region north of the Ohio River and east of the Mississippi.
They wrote and passed the Ordinance so that inhabitants of this vast territory — a mix of French, British, American and Indigenous populations with different sympathies — would be incentivized to form states in the new nation. There were three Northwest Ordinances (1784, 1785, 1787), and while provisions against slavery were introduced into all three, language was passed unanimously only in the final one.
Article Six reads: “There shall be neither slavery nor involuntary servitude in the said territory otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.”
This language meant states forming out of the Northwest Territory were free states, but enslavers could reclaim formerly enslaved people who had escaped into the Northwest Territory or any states formed out of the region. The language allowed for loopholes.
The states of Ohio (1803), Indiana (1816), Illinois (1818), Michigan (1837), Wisconsin (1848) and portions of present-day Minnesota (1858) sought to uphold this law in adopting their constitutions. But the loopholes for criminal punishment and fugitive slaves led to different interpretations by states, as proslavery sympathizers lived in northern border regions between slave and free states.
Indiana, Wisconsin and Minnesota used the exact phrase from the Ordinance outlawing slavery in their state constitutions. Ohio and Michigan writers modified their language to read, “Unless for the punishment of crime.” In 1846, Iowa did the same.
This move reflected how state constitution writers frequently copied one another’s texts. The states that formed out of the Northwest Territory became models for other states incorporated throughout the 19th century. A 2019 report noted 12 state constitutions that include variations of the Northwest Ordinance language with the criminal punishment exception; nine permit involuntary servitude as punishment, and one, Vermont, permits involuntary servitude “for the payment of debts, damages, fines, costs, or the like.” (Some states voted out their language in 2020.)
The 1818 Illinois Constitution gave rise to circumventions. Slavery had been practiced in pre-statehood Illinois since 1719 under French rule. The writers of the Illinois Constitution apparently considered this preexisting slavery to be exempt from the Northwest Ordinance language. Accordingly, the language read: “Neither slavery nor involuntary servitude shall hereafter be introduced into this State,” followed by the exceptions for criminal punishment and fugitive slaves.
This state constitution outlined that existing indentured servants would remain in their contracts, and children born to them would be freed only at certain ages — women at 18, men at 21. It also included provisions for Kentucky farmers traveling into the region-turned-state with enslaved people for grueling work in the profitable saltworks at Shawneetown, Ill. Circumscribed to this locale, this practice was to sunset in 1825.
Under French rule in Illinois, the Code Noir regulated free Black and enslaved people’s activity, with penalties for violations. This practice continued through the Illinois Black Codes that imposed gathering limits on free Black people and registration requirements, and levied heavy fines on runaways. In operation from 1819 until 1870, the Codes were protected by the criminal punishment and fugitive exceptions in the Illinois Constitution.
Effectively, creative writing and interpretation kept a great deal of slavery intact in early Illinois. There was a strong legalization push. In February 1823, two-thirds of the state’s House of Representatives — the required quorum — passed a resolution calling for a convention to change the Illinois Constitution to legalize slavery.
Following the resolution, proslavery Illinois legislators marched in the streets of the early capital of Vandalia, Ill., with torches and a crowd of supporters, shouting, “Slavery or death!” For 18 months, proslavery and antislavery factions rallied for their sides, until Illinois voters rejected the proposed convention by a narrow margin in August 1824.
Despite these loopholes and their impact, when U.S. lawmakers set out to abolish slavery in 1865, they turned to the Northwest Ordinance language. This language was familiar, it ensured widespread agreement and there was a “need to settle quickly on basic language to get the job done,” lest momentum toward abolition unravel.
Immediately following the addition of the 13th Amendment, Southern states reacted to their suddenly free Black populations and an upended system of labor. Mississippi was the first to create Black Codes regulating behavior in public places, interactions with White people and a vagrancy law requiring free Black people to carry proof of employment or risk being re-enslaved. At least six Southern states modeled their Black Codes after Mississippi, sometimes verbatim.
The 13th Amendment’s criminal-exception loophole created conditions for preserving the economic benefits and social order embedded in the system of slavery. Proslavery lawmakers created laws that, if violated, were covered by the exception, just as Illinois had done with its Black Codes.
Post-Civil War Black Codes resulted in virtual re-enslavement of the free Black population. The Black Codes were mostly repealed by 1868 but laid the foundation for the Jim Crow laws of the late 19th to the mid-20th centuries.
This trajectory of the Northwest Ordinance, state constitutions, the federal amendment and overall loophole maneuvering support the assertion of Bryan Stevenson, founder of the Equal Justice Initiative, that “slavery did not end in 1865, it just evolved.”
Since the 1970s, increased criminal penalties due to the war on drugs have fueled mass incarceration, and the incarcerated form a hidden workforce in the prison industrial complex that persists today. The words in our Constitution — “except as a punishment for a crime” — have legally given rise to this evolution.
It has only been amid the push for criminal justice reform that states began reexamining this language drawn from the Northwest Ordinance. In 2018, Colorado was hailed as “progressive” and “leading the way” when voters removed the state’s constitutional slavery language. In the November elections, Utah and Nebraska voters followed suit.
The Ohio, Wisconsin, Minnesota and New Jersey legislatures are still wrestling with the issue. Mississippi only just ratified the 13th Amendment in its 2013 constitution, apparently due to a filing error. More than 20 state constitutions still include language that addresses slavery with this loophole.
Passing the Abolition Amendment is one part of abolishing slavery for good. Legal scholars in 2020 wrote that state constitutions can potentially “provide a stronger foundation for protecting democracy than their federal counterpart.” Individual states must continue reckoning with outdated constitutional language that has provided cover for our legacy of bondage for far too long.