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Culture War Roundup for the week of December 18, 2023

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There are Federal crimes related to slavery though: 18 U.S. Code § 1583 - Enticement into slavery. This is more than just a gotcha; we're talking about punishments here, and I don't really see how the 13th amendment can be self-executing with regard to charging, trying, and punishing an individual for holding someone else in involuntary servitude. So if we imagine a case where a slave sued his enslaver who held him in bondage after 1865, sure, the court would rule that the slave could no longer be held, but without further legislation, they couldn't really specify a punishment for the slave holder. Presumably the slaveholder could then be sued in civil court for damages by his slave. I think in that case the 13th amendment would prevent the slaveholder from using "this man is my slave" as a defense.

Getting kind of far afield here, but the overall point is that the difference between sword and shield actually is important; if the Constitution establishes a specific punishment, then it makes sense to believe that it is up to Congress to establish a procedure for determining to whom that punishment should be applied.

On the other hand, I don't have much to say in response to your point about Jefferson Davis. It's a good point.

This argument only makes sense if you consider disqualification from public office a punishment. But if it is, it's a punishment that is arbitrarily applied to every naturalized citizen, with no recourse or due process. Elon Musk can never be President because he was born in South Africa, and therefore his loyalty cannot be trusted. Doesn't matter if his record is spotless, doesn't matter if he has had no jury trial, doesn't matter if the American voters trust him, he cannot be President. An irreversible and unappealable "punishment" for the crime being born in the wrong place.

Rather I think it makes sense to say that punishment for slavery or insurrection would need to be legislated and to be subject to a criminal trial before a term of imprisonment can be applied. But disqualification is not a punishment - it's simply a judgement about who can be trusted to hold public office. Those who are too young an inexperienced, those who may hold split national loyalties, and those who have shown themselves to be oath-breakers are judged to be unacceptable risks by the constitution. It's got nothing to do with "fair", and there is no right to hold public office.