Constitutions are, to me, the most sacred of all legal documents. I could argue that they rank only below the Bible in their importance to civil society. Therefore, even as we are warned not to add to what the Bible says and claims for itself, we should approach amendments to constitutions very carefully.
Proposed Amendment 3 must be read in the context of what it replaces, because that is how the Tennessee Supreme Court will interpret it. Watch what happens when you understand the context.
The Language Already in Tennessee’s Constitution
This is the language presently in our state’s constitution: “Section 33. That slavery and involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, are forever prohibited in this state.”
There is no question that slavery, whether denominated as such or by its meaning as “involuntary servitude,” is prohibited. Clarity as to its meaning is not lacking.
Moreover, this provision was adopted as a condition of Tennessee being re-admitted to the union following the Civil War. No proponent of the new amendment has suggested that absent its adoption we could return to “slavery and involuntary servitude.”
The only exception is in connection with “punishment for a crime,” which I will come back to.
The New Proposed Language—Removing a ‘Badge’ of Slave-holding History?
This is the language of the proposed Amendment that would replace the current language: “Section 33. Slavery and involuntary servitude are forever prohibited. Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”
Some who support this new language have indicated that they want to abolish any badge of slavery from our constitution. Of course, this doesn’t change history, only what we are willing to recognize as part of that history and where we think that history should be acknowledged.
I will grant that reasonable minds could differ on where that history is best remembered, but the history is still there in the new proposed amendment—that there must have been a time when state law allowed “slavery and involuntary servitude.” So, if removing a “badge of slavery” from the constitution is the goal, then the amendment fails miserably.
The only difference between the present language in the Tennessee Constitution and the proposed language has to do with those who have been convicted of a crime.
What ‘Liberty” Does a Criminal Have?
That idea that the language about convicted criminals implies something about slavery in our nation's past is spurious. Unlike slaves, those convicted of a crime have had their “liberty” removed “by due process of law.”
The criminal’s lack of liberty is specifically contemplated by the Fourteenth Amendment’s Due Process Clause applicable to the states. While we want to affirm the form of common law liberty I previously identified, there is nothing wrong with also affirming that liberty is forfeited when one is lawfully convicted of a crime.
So, what does the proposed amendment do? Let me explain by means of a hypothetical.
The Hypothetical That Exposes the Problem
Assume the Department of Corrections believes that working affirms the dignity of human beings and sitting around doing nothing is actually harmful to a person's soul and psyche. Christians would say, “Amen,” because God created and then commissioned us to work, following God’s pattern of work.
So, the Department says that every inmate must do some job at the prison for one hour a day. Work in the kitchen, clean, do laundry, or the like. The rest of the day the inmate can read magazines, watch television, play cards, and work on his or her next habeas corpus petition.
The inmate sues the state for a violation of his rights—this is involuntary servitude!
How Will the New Language Be Interpreted?
A state judge tasked with interpreting the new language could easily conclude that any kind of work requirement is prohibited unless the inmate is given something of value in exchange, and the inmate agrees that what is given is of equal value to his or her work.
But what if the inmate disagrees on the value given? Is being forced to work for less than market value involuntary servitude? I don’t know, but that’s not even the key. Just being required to work is the problem.
The new language says an inmate cannot be prohibited from working. That is a far different thing from being required to work as part of one’s punishment or even rehabilitation.
In other words, the inmate makes this argument to the judge:
Your honor, the change in the constitution is clear. If I want to work in the kitchen or work in the laundry area, the state cannot prohibit me from doing so. That is what the language saying nothing can “prohibit an inmate from working” must mean.
But that language cannot mean I can be required to work. In fact, the idea I could be required to work was removed from the Constitution by this new language.
This new language protects me from having to work if I don’t want to. My rights have been violated.
Now, your Honor, can I return to watching “Law & Order: SVU” and playing cards.
I might be wrong. Maybe a judge would finagle a way to interpret the law contrary to its plain language and in the context in which it was adopted.
But I’m not trusting a document as sacred as my state Constitution to whether a judge can find a reason for not following the language of the amendment and its context so the Department of Correction can authorize “work details” in prisons.
And I sure don’t want the warped principles of interpretation used to justify work details to come back to bite me in a different case interpreting a different provision of the constitution.
After all, that’s exactly how the warped interpretation of the 14th Amendment in Roe v. Wade eventually led to same-sex “marriage” in Obergefell v. Hodges A wrong interpretation in one case can be a precedent for a wrong interpretation in a later, different case.
Be careful. As for me, I’d rather leave the constitution alone.