Slavery as Punishment: Original Public Meaning, Cruel and Unusual Punishment, and the Neglected Clause in the Thirteenth Amendment

This Article shows that the original public meaning of the slavery-as-punishment clause in the Thirteenth Amendment leads to abhorrent outcomes, including the emasculation of many modern protections grounded on the Eighth Amendment. This conclusion challenges those who assert that steadfast originalism will not produce grossly objectionable results. It also challenges the view that steadfast originalism finds justification as an effort to preserve a core of legitimacy-enhancing features in the Constitution. The Article thus reminds us why the original meaning, even when clear, is not conclusive in constructing the modern meaning of the Constitution.