Abolition Constitutionalism?: The 13th Amendment and Radical Uses of Law

• In Event: Reimagining Abolitionist Democracies

Abstract

This paper argues that contemporary prison abolitionists might use constitutional law to advance their radical democratic project. While Angela Davis models contemporary prison abolitionism on the “abolition democracy” briefly and imperfectly realized after the Civil War, she is also a leading critic of the 13th Amendment (1865). In her interpretation, taken up and widely disseminated by Michelle Alexander and Ava DuVernay, the amendment, which abolishes slavery and involuntary servitude “except as punishment for a crime,” reinscribes slavery into the law and authorizes the criminalization of Blackness. From this perspective, the constitutional changes of Radical Reconstruction were reformist rather than abolitionist, which gives little hope for abolition constitutionalism. Legal scholar Dorothy Roberts, however, challenges Davis’ reading of the 13th Amendment, which she argues was understood at the time to authorize the specific punishment of hard labor, not reestablish slavery in prison. Prison abolitionists, Roberts argues, should see “the abolitionist history of the Reconstruction Amendments as a usable past to help move toward a radical future.” Building on Roberts’ theorization of “abolition constitutionalism,” I argue that emerging rights claims, the practice of claiming rights that are not yet recognized as legitimate to expand democratic freedoms, could advance abolition. Specifically, I turn to ongoing contestation around prison conditions to suggest that prisoners’ “right to comfort” could advance prison abolition and help open up more democratic futures.

Author

• Anna M. Terwiel, Trinity College