Ava DuVernay’s recent Netflix documentary, 13th, raises an updated version of a question posed by Frederick Douglass in 1852. Douglass had asked a mostly white audience “What, to the American slave, is your Fourth of July?” DuVernay’s film pointedly asks us “What, to the freed slaves and their descendants, is the Thirteenth Amendment?” In both cases, the promise of freedom and equality is clearly stated: “all men are created equal, and are endowed by their Creator with certain inalienable rights” and “neither slavery nor involuntary servitude . . . shall exist.”
The first promise, though—the “all men are created equal” of the Declaration of Independence, adopted by the Continental Congress on July 4, 1776—coexisted with the widespread practice of race-based slavery for nearly a century. And the second promise—that held out by the Thirteenth Amendment—coexisted with Jim Crow regimes in the states for a century more. Both cases should lead us to think seriously about another question posed by a younger Frederick Douglass in 1847: “What country have I?” Should the United States be identified more with—to quote W.E.B. DuBois—its “sounding pretensions” or its “pitiful accomplishment?”
13th does a remarkable job of clearly tracing and vividly dramatizing the “pitiful accomplishment” part of the American story. Many Americans have been afflicted by the congenital disability Douglass terms “moral blindness.” This moral blindness admits of degrees and can consist either in willful blindness to one’s own immoral behavior or in ignorance or indifference to the immoral behavior of others. By uncovering the immoral and unjust behavior toward African Americans that has pervaded all levels of American society since the passage of the Thirteenth Amendment, 13th has the potential to help awaken our consciences and restore our moral sight as a society.
13th argues persuasively that influential politicians and officials in the criminal justice system moved to institute an alternative to legalized slavery immediately after the end of the Civil War and passage of the Thirteenth Amendment. This alternative, prefigured by the clause allowing the exception of “punishment for crime whereof the party shall have been duly convicted,” consisted in the imprisonment of disproportionate numbers of African Americans and former slaves. The trend of disproportionate imprisonment began immediately following the end of slavery and has continued to the present time, with some notable reinvigoration following the Civil Rights Movement. The movement to convict and imprison African Americans was, moreover—as 13th correctly argues and persuasively shows—at least partly the result of a conscious effort to remove African Americans from American society.
This is not to imply that all African Americans who have been convicted of crimes since the passage of the Thirteenth Amendment were innocent or have been wrongfully imprisoned. There is, though, far more to this story than mere conspiracy theory. For one thing, something like this effort was predicted by Alexis de Tocqueville in the 1830s. According to Tocqueville, racism would get worse rather than better with the end of slavery, because white Americans would feel the need to informally reinstitute the racial barrier previously provided by legal slavery. Without legal slavery to ensure and validate their superiority, whites would feel threatened by African Americans and find it difficult, perhaps impossible, to deal with the former slaves on a footing of equality.
There is also, moreover, the long history of the American Colonization Society, which sought to couple the gradual end of slavery with the assisted emigration of free African Americans to Africa. This was conceived as a way of avoiding the inevitability of racial tension and conflict following emancipation. According to James Madison, Thomas Jefferson, and many others, racial prejudice would be impossible to overcome following the end of slavery, and it would be impossible to construct a stable society composed of former white masters and former black slaves. This idea was later adopted by the Jamaican thinker and entrepreneur Marcus Garvey, who founded a shipping and passenger line for the very purpose of enabling people of African ancestry to leave the countries to which their ancestors had been cruelly brought centuries before.
In light of these considerations, imprisonment for crimes was an ingenious—if abominably immoral and unjust—way for influential white Americans who were either affected by racial prejudice themselves or concerned about the prospects for an interracial society to carry out Garvey’s and the American Colonization Society’s task of separating the two races. Add to this the rise of the private prison industry and the huge corporate economic interest that became wedded to the increase of prison populations in the US, and you have an enormous amount of momentum behind the movement to imprison African Americans.
Even legitimate imprisonment for serious crimes actually committed by African Americans could have been included in the broader story 13th attempts to tell. Most of the freed slaves were never given the opportunity to sink or swim in an economy open to their success and advancement. Educational and economic opportunities were closed to them right from the start. Even in Northern, racially “progressive” states, highly educated and trained African Americans—like W.E.B. DuBois—could find it almost impossible to get a decent job due to pervasive racial prejudice.
One crucial consequence of this was the continuing struggle of the African American family to recover from the violence done by generations of slavery. It is difficult for a man to provide financial support for his children when job opportunities are categorically closed to him. And it is difficult for a boy who grows up without a father and without the hope of ever getting a good job or education to stay out of trouble. The groundwork for the poverty and violence of the inner cities we see today was, in this way, laid firmly by legal slavery and the effects of heightened racial prejudice following emancipation.
The Promise of America’s “Saving Principles”
This is the practical side of the American story, the side characterized by “pitiful accomplishment” when it comes to the treatment of African Americans. 13th does an excellent job of telling this side of the story. The American story, though, is both practice and promise. “Pitiful accomplishment” has doubtless abounded, but so too have “sounding pretensions.” And at least when it comes to nations, it is vastly better to be hypocritical than unabashedly immoral. The former possess a foundation for improvement in a way the latter do not, and this has been clearly evidenced in the real progress that has been made toward racial equality in the US.
It is unfortunate that 13th completely fails to relate this side of the American story, instead implying that the exception in the Thirteenth Amendment for criminals was put there by its congressional authors as a kind of “loophole.” One article aptly subtitles the documentary “How Slavery Was Never Abolished & Simply Evolved into the Prison System.” While it is true that the wording of the amendment ultimately adopted was weaker than that of previous proposals, which aimed at greater expressions of political and social equality for the freed slaves, the wording of the imprisonment exception was taken directly from the Northwest Ordinance of 1787—generally recognized as a venerable anti-slavery document. The Fourteenth and Fifteenth Amendments, moreover, did aim to accomplish these broader goals of political and social equality. It is highly misleading, therefore, to imply that the Thirteenth Amendment contains anything in the way of a loophole for reintroducing slavery.
We shouldn’t blame the Thirteenth Amendment for persistent racial injustice, just as we shouldn’t blame the Constitution for slavery. Both documents are blameless; it is the people who interpret and apply them for their own immoral ends who are blameworthy. Opponents of ongoing racial injustices should build on the solid foundation provided by the Declaration of Independence, the Constitution, and the Civil War amendments rather than dismissing these documents and their authors as hypocrites. These documents contain what Douglass called “saving principles”: the rational ground and rhetorical springboard for equal rights.
Without the ideas and arguments embodied in these American documents, proponents of racial equality don’t have an intellectual leg to stand on. This is one of the tragic failures of Barack Obama. As he makes clear in The Audacity of Hope, our first African American president couldn’t bring himself to embrace the political philosophy of the Declaration of Independence or to admit that this political philosophy underlay the Constitution, because doing so would amount to an absolutism on par with religious oppression. “All men are created equal” isn’t safe for the values-based relativism Obama has always embraced. Because of his miseducation in a faddish relativism, our first African American president fell far short of the great tradition of African American political thinkers before him.
13th only tells part of the story, and it provides little in the way of guidance, inspiration or hope for the future. It does, though, serve as a wake-up call to conservatives who feel threatened by apparently unpatriotic protests or demands for justice on the part of African Americans. Protesting American practice does not necessarily denigrate American promise. And the proper response to imperfect practice does not lie in the naïve indignation one hears so often on talk radio and other conservative media outlets, but in renewed attention to progressing ever more closely toward the American promise outlined in our founding (and re-founding) documents.
Adam Seagrave is a political scientist and the author of The Foundations of Natural Morality: On the Compatibility of Natural Rights and the Natural Law and editor of Liberty and Equality: The American Conversation.