All human beings are enslaved, though some are more enslaved than others. Our typical binary distinction between freedom and slavery (I am either free, or I am enslaved; I cannot be enslaved but free, or free but enslaved) is false, for coercive conditions exist on a spectrum. At the extreme end of that spectrum is the typical scenario of slavery, the antebellum South with its whippings and overseers. But a myriad of other conditions bear striking similarities to this kind of slavery, even as they lack what we think of as its central features (auctions, manor houses, white-suited masters with sluggish drawls).
For example, say you were to take Highway 61 out of Baton Rouge, and head north toward the Mississippi border. If, after about 35 miles, you turned off into the country, you would soon find yourself at the Louisiana State Penitentiary, known informally as “Angola.” There, you would notice something striking. You would see open fields, filled with cotton and other crops. And in these fields, you would see row after row of black men, young and old, tilling the fields and picking the cotton. It might seem like a scene from the 1850’s. But then, as you looked closer, you would notice something else, something even more disquieting: these rows of black men were being watched over, overseen, by other men. Men with guns. And it would quickly become clear to you that if the men picking cotton decided they were tired of picking cotton, and began to pack up and wander off, these men with guns would have something quite emphatic to say about it.
The Angola prison facility began as a slave plantation, and little has changed about it since its earliest days. Perhaps the only difference is that it has since installed a gift shop, where tourists can purchase T-shirts and coozies emblazoned with cheery confinement-themed slogans (“Angola: There’s No Escapin’ It” and “Angola: A Gated Community”). In all but the most superficial aspects, the facility is the same: black men in chains, working the fields from dawn to dusk, their every personal liberty surrendered, every wish granted solely at the discretion of the fat old white man who runs the place.
It’s certainly very strange to see slavery so alive and well in a country so convinced it has abolished it. But for a nation of lawyers, Americans are startlingly oblivious to a gaping loophole in their formally codified rights: they’ve never actually prohibited slavery at all. That sounds like somewhat of a conspiratorial exaggeration, but it’s indisputably the case. The 13th Amendment, the one that supposedly abolished slavery, reads as follows:
“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.”
Did you notice the loophole? It’s alright if you didn’t; it seems to have passed the rest of the nation by for 150 years. But there it is: slavery is prohibited, except…
It’s perfectly fine to enslave someone, then. The only condition is that it be punishment for a crime. The 13th Amendment therefore does not prohibit slavery; it doesn’t even pretend to. What it does is offer a procedural guarantee that nobody will be enslaved without first undergoing a legal proceeding to determine whether they deserve it.
In practice, this does very little. After all, nearly anything can be made a crime; by some estimates, the average American commits three felonies per day without knowing it. And the State of Louisiana has taken full advantage of the 13th Amendment’s useful little caveat; it officially sentences people to “years at hard labor” rather than “years in prison,” and it often assigns people to decades of labor for even petty crimes like marijuana possession.
Now, fortunately, for most people, there is little risk of falling in the loophole and ending up enslaved. But this shouldn’t be especially comforting; if we had been told in 1850 not to worry, because most people have no risk of ending up as slaves, this would be irrelevant to the moral horror of the institution.
The fact that for most people the risk of slavery is low, but the law sanctions it for others, turns rights into little more than a myth. The question of whether or not a person becomes enslaved depends on whether they stay on the correct side of the law, a law that is destined to be crafted far more by the powerful than the powerless (that is, after all what power means to begin with).
Indeed, in the years after the Civil War, white Southern elites figured out how to take full advantage of this opportunity. Frustrated by the prohibition on the buying and selling of human beings, they turned to the criminal law to obtain a continuing supply of cost-free black labor. As Douglas Blackmon documents in Slavery By Another Name, a system of “neoslavery” arose, in which being poor effectively became a crime, and since crime could be punished by enslavement, black people could be reenslaved. It was a neat trick, almost effortless. The ease with which the South simply replaced slavery with Jim Crow is a cautionary tale for those who act as if the existence of legal procedural rights is a sufficient guarantor of social equality.
As a word and a concept, slavery is troublesome. It’s etymologically arbitrary, deriving from the word “Slav,” since a number of Slavic people were captured and enslaved during the Middle Ages. Slavery therefore does not have some kind of easy inherent connotation, the way that a word like “prisoner” might (from the Latin prensionem, “a taking,” thus “one who is taken”). Of course, all words are arbitrary at their core, but some have more intelligible conceptual underpinnings than others, and “Slav”-ery doesn’t do much to help us answer the question of what slavery is.
The 1926 International Slavery Convention defined slavery as “the status or condition of a person over whom any or all the powers attaching to the right of ownership are exercised,” and most other definitions are similar; slavery is what happens when person becomes a commodity. But determining whether the “powers of the right of ownership” are being used is less clear than might initially be supposed. In legal theory, property is a kind of “bundle” of rights; the right to use something, the right to alienate (sell) it, the right to proceeds from it, and the right to destroy it. Now, a person can’t sell me or destroy me, so he can’t have the full rights of ownership, but people are given the right to use others all the time. Getting the right to use without the right to sell is called a lease; and people regularly lease land, cars, and people. A labor market is just a market for people-leases.
Focusing on slavery as a set of theoretical property rights constructions is therefore somewhat bizarre. It considers the types of legal rights the owner holds or exercises, rather than the person in question’s actual experiences. Thus the same two experiences could be slavery or not, depending on how they arose. If we see a row of men doing back-breaking work picking cotton, whipped and beaten, working 12 hour days, they might be enslaved. But what if we learn that they’re employees, that they’ve signed up for this since it’s the only job in the area? Well, according to all the theories we’re not dealing with slavery anymore, but it sure looks pretty similar.
That’s one of the reasons the phrase “wage slavery” arose to describe industrial toil. By the people-as-property definition of slavery, it’s an oxymoron; if everybody in the factory is being paid, nobody is being enslaved. But workers’ rights campaigners used the term “wage slavery” to illustrate a crucial point: being given wages so pitiful you couldn’t afford to move elsewhere meant that a wage system and a slave system could end up feeling exactly the same for the worker. Some even argued that wage-systems were worse; a capitalist who rented his labor could brutalize and destroy workers’ bodies and simply replace them one they wore out, while a slaveowner had some incentive to protect his investment. Most people treat rental cars with less care than cars they own, thus leased wage-workers could be even more poorly treated than slaves in many cases. (Rather than justifying slavery, that fact indicts wage work.)
Because the boundaries of slavery are difficult to pinpoint, and people tend to associate it so strongly with the slave regime of the American South and the Transatlantic slave trade (far more than they think of Greek slaves, slaves in the Middle Ages, or, well, Slavs), many situations resembling slavery in “all but name” are ignored or treated as normal.
Yet if we honestly examine what sort of experiences constitute slavery or its equivalent, we find that the experience of brutal and effectively involuntary work, is everywhere. Slavery is invisibly present in the architecture of our lives. In fact, we are surrounded by innumerable symbols of slavery, cunningly-disguised, made anodyne by ubiquity and routine.
The experience of slavery is present in countless products we unthinkingly purchase, consume, and discard every day. These items were created or harvested, in whole or in part, by fellow human beings who have been conveniently hidden from our sight. Such workers are not paid a living wage. Their lives are devoid of the most basic necessities. They live under conditions of abject misery and fear. And so once we get ourselves out of the conceptual muddle, and look below the surface, we are faced with the disquieting reality that we are all actively participating in a slave economy: today, right now, this minute.
It’s a simple enough matter to prove. Take, for example, your morning cup of coffee. If you drink an inexpensive brand like Folgers, your brew is a hodgepodge of beans from all over the world: there’s no way to know exactly where they came from. So there’s a good chance that some of your coffee came from the Ivory Coast, and that those beans were picked by children under the age of 15. These children were trafficked and made to work long hours, as many as eighty a week. They groaned under the weight of loads so heavy that their burdens left them with open sores on their bodies. When their pace slackened, they were beaten with branches or bicycle chains.
If you source your coffee regionally, say from Honduras or Brazil, the story is a bit better, but not much. Many children quit school to work the fields, depressing wages for the entire workforce. If your coffee-picker is an adult, he or she still likely earns next to nothing, was forced to pay inflated prices for goods at the estate shop, and was then bound to the plantation by ever-mounting debts. The coffee industry, overflowing with the milk of human kindness, has performed a Cost-Benefit Analysis, but says that ensuring that child labor and forced labor are absent from their supply chains would be “onerous and especially costly to implement.”
“Alright, so coffee is slavery. I’ll stick to tea.” Ah, don’t be so quick. Workers on tea plantations endeavor to live on about 17 cents a day. Sex trafficking of tea pickers’ children, with or without their parents’ knowledge, is rampant, because parents cannot afford to feed and educate children on the wages they earn. The pattern repeats across products in dozens of industries. There are similar stories behind your sweets, your clothes, your electronics. Nor is this confined to remote corners of the world: right here in the United States, slaves and child laborers are part of the labor force that picks the fruits and vegetables we eat every day.
All of this is the realm of the quasi-known. Everyone knows it, but they don’t really know it, or they pretend not to know it so everyone can get on with life without feeling miserably, uselessly guilty. It is one of those things that seems better not to think too much about. Yet think about it we must, if we are not to be monsters.
Contemporary slavery comes in several varieties. Some occurs on a lucrative black market, while other forms are perfectly legal components of the economy. The old-fashioned kind of slavery, kidnapping people by force or trickery, who are then bonded into performing labor against their will—is common, and becoming more common every day. There are twice as many in this kind of enslavement today as there were during the entire 350 year duration of the transatlantic slave trade.
But there are legal horrors to match the illegal ones. Shockingly enough, for example, your American-grown blueberries may have been picked by an elementary- or middle school-aged child, who then had to go wearily to class and try to learn their multiplication tables. This is because, since 1938, using children for agricultural labor has been permitted by law, and the National Farmworker Ministry estimates that there are 500,000 agricultural workers under the age of 18. In 2014, Human Rights Watch released a report on U.S. child tobacco farm workers, some of whom are as young as 11 and work full 10 or 12 hour days. On the tobacco farms, many of these kids develop nicotine poisoning, experiencing “vomiting, nausea, headache, dizziness, skin rashes and burning eyes.” Yet for migrant families struggling to survive on meager wages, sending a schoolchild to work for a local farmer may be the only way to stay afloat. If you thought child labor had disappeared from the United States, you haven’t seen the agricultural sector.
And then there are countries like Bangladesh, where the main source of employment is the garment manufacturing industry, which pays about 14% of a living wage, and where factory working conditions are infamously unsafe. (Should we be surprised that Bangladeshis comprise a significant percentage of the refugees fleeing to South Asia and Europe, as desperate for escape as if their country were irreparably ravaged by violence and war?)
There’s a tendency to cast Bangladesh’s story as the growing pains of economic development, or cast the U.S. story as a consequence of irregular immigration. Of course, one shouldn’t downplay the complexity of the economic and logistical issues implicated by global trade, or large food systems. There may be some truth in saying that misery is a fact of human life, that we cannot simply will it away by disliking it. But let’s be honest with ourselves: we all instinctively know that to harness the misery of humans in one part of the world to provide comfort and entertainment for humans in another part of the world is a perverse and inexcusable form of evil.
If the choice were available, no person on earth would voluntarily toil away all the years of their life, on starvation wages or worse, with no hope of improving their lot, manufacturing useless luxuries to be fleetingly enjoyed by others upon whom the accident of birth has bestowed greater fortune. That is injustice itself. To respond to exposés of worker exploitation with statements like, “Well, they’d be worse off if they weren’t making our products” is to employ the logic of a slaver. It means shrugging and accepting obvious moral evils simply because they would be difficult to address, because altering the prevailing system will likely have complicated economic and political consequences. This is the kind of thinking that perpetuated the institution of slavery in this country throughout multiple centuries during which many people of both conscience and influence were fully aware that it was wrong. During those intervening years, thousands of human lives were trampled, degraded, mutilated, both spiritually and physically; and the ruination of those lives can never now be repaired. For those who believe that justice is not a mere category defined and circumscribed by our legal system, but is rather a holistic moral worldview that should inform all the decisions of our daily lives, it is impossible to accept a status quo that makes us all into the mirror image of an earlier generation of American elites: “masters who do not know how to free their slaves.”
The prevailing wisdom in some circles is that the bad PR surrounding labor abuses can compel multinationals to voluntarily improve their standards; or that multinationals, which are major regional players in most developing economies, will self-regulate in increasingly a humane direction due to the growing popularity of the “corporate responsibility” ethos. Perhaps that’s true. But this requires us to repose a large amount of trust in the personal goodness (or, at any rate, care for reputation) of company executives; and to trust also that this mindset will be handed down as a sacred charge to each new generation of managers. History should make us skeptical about the resilience of this sort of hereditary ethics. It would be preferable to have a somewhat more solid assurance than mere noblesse oblige.
On an individual level, the “conscientious objection” approach is ethical consumerism: to boycott companies that engage in unfair labor practices (including unpaid or minimally-compensated labor, use of child labor, bans on or retaliation against unionization, inadequate sanitation and safety standards, tolerance of sexual assault and harassment, and environmental destruction) and patronize companies that use good practices. But this is necessarily an approach with severe limitations. For starters, making ethically-informed choices can be extremely difficult due to the differences between the amount of information known by companies and by consumers, and the misleading or unverifiable nature of most “fair trade” labels. (Most companies claim themselves not to know what is happening on the contractor or sub-contractor levels of their supply chains, which may well be true, though it’s hard to believe that they could not possibly bestir themselves to find out if they so chose.)
And while it’s comparatively easy to be an ethical consumer of certain common food products, it’s next to impossible when it comes to necessities such as clothing and (what is now effectively a necessity in modern society) technology. Ethically-produced garments are nearly impossible to find; ethically-produced electronics are entirely impossible. You can buy used items, but that’s as close as you get. The “free market” approach is to buy the products that one wishes to see the market moved towards, but it’s hard to move the market towards a product that doesn’t exist.
Ethical consumerism is also something a middle- or upper-class gambit, because most ethical products are specialty products, difficult for low- and fixed-income people to afford. Companies like Wal-Mart have had great success with the reverse-Robin Hood approach, whereby, in charging rock-bottom prices for cheaply-manufactured goods, they rob the poor to feed the poor. And this is all to say nothing of the economic ravages and immediate hardship to vulnerable workers that would occur if all companies were to suddenly pull their operations wholesale from countries where exploitation is perceived to be “endemic.”
But what of the law? Can it save us? Until very recently, the answer was a resounding no. The law was, as it usually is, a pretty pitiful guarantor of basic human liberties, and slave conditions have persisted for centuries with statutory blessing.
However, a modest new legal tool may now be at our disposal. This February, with very little fanfare, Congress passed, and President Obama signed into law, a bill with the potential to significantly impact the extent to which companies are held accountable for the presence of slave labor in their supply chains. Section 901 of the Trade Facilitation and Trade Enforcement Act, introduced by Republican Congressman Tom Reed and co-sponsored by seven other Republicans, mandates the “elimination of the consumptive demand exception to prohibition on importation of goods made with convict labor, forced labor, or indentured labor.”
The “consumptive demand exception” refers to a provision of the 1930 Tariff Act that forbade the import of “all goods, wares, articles, and merchandise mined, produced or manufactured wholly or in part in any foreign country by convict labor and/or forced labor and/or indentured labor,” except for those items “not mined, produced or manufactured in such quantities in the United States as to meet the consumptive demands of the United States.”
In other words: you couldn’t import slave-made goods into the U.S. unless, you know, people really, really wanted to buy them. The exception rendered the Tariff Act’s prohibition on slave-made goods effectively meaningless. It was an almost sublimely-constructed piece of self-negation: we don’t import slave-made goods from abroad unless we don’t have enough of such goods here; but almost by definition, the goods we import are the goods we don’t already have.
Predictably, the law was rarely invoked. Many goods highly likely to contain slave labor in their supply chains—including coffee from the Ivory Coast, electronics manufactured in Malaysia, and garments woven from Uzbeki cotton—are regularly imported into the U.S. Theoretically, with the passage of the new law, the import of all such goods is completely prohibited. But many questions remain. How far down its supply chain does a company’s obligation extend—all the way to the raw materials stage? What penalties will companies face for attempting to import slave-made goods? How will the enforcement effort be funded? Who will undertake the difficult, research-intensive work of supply chain investigation, which will be necessary to prove specific violations? As is so often the case, without public pressure, the law will likely be a dead letter.
But if people concerned about the eradication of slavery come together to demand an articulate legal framework and substantial funding for enforcement, we may finally see the penalties for slave labor allocated onto the actors who drive the market for prices, the actors who are best equipped to bear economic risk: large multinationals. The closing of the “consumptive demand” loophole, even if well-enforced, will admittedly not directly improve the lots of those workers whose dire situation does not meet the technical definition of “slavery.” But you’ve got to start somewhere, and steady improvements to the laws should never be rejected even as they remain inadequate.
Slavery has actually been in the news quite a bit recently. It’s come up repeatedly in debates over removal of the Confederate flag. At Harvard University, student activists successfully advocated to eliminate the title “house master” from residential dormitories, and to remove a slaveowner’s family crest from the Harvard Law School shield. As national debates examine the role of race in our justice and our correctional systems, in our social structures, in housing and employment and education, the U.S. is confronting the ways that the underlying evil of slavery has metamorphosed and reappeared in many guises throughout the subsequent life of our nation.
But slavery does not just exist as the continuing reverberation of a tragic past, and by focusing on rooting out the symbolic and material consequences of historical slavery, we risk missing something quite important: the world is still full of actual, literal slaves. From the penitentiaries of Louisiana to the garment factories of Bangladesh to the coffee plantations of the Ivory Coast, slavery is ubiquitous but invisible. Faced with this disconcerting fact, each person must decide whether she is comfortable in continuing to passively participate, or whether she will accept the conclusion of our 19th century abolitionist predecessors: that one cannot coexist quietly alongside a slave system, and that it is one’s basic moral duty to find every available means of eliminating slavery from the earth for good.