A while back, the ACLU of Michigan joined with other organizations and law firms to challenge the constitutionality of the discredited emergency manager law. The emergency manager law, also known as Public Act 436, is at the root of the poisoning of Flint’s water supply as well as a variety of other evils across the state. The ACLU of Michigan’s participation in this case is only natural given its commitment to the eradication of all forms of discrimination and the political disenfranchisement of communities. The case is now pending before the Sixth Circuit Court of Appeals because the trial court dismissed all but one of the claims raised in the lawsuit.
One of the dismissed claims asserts that the emergency manager law violates the 13th Amendment, the constitutional provision that prohibits slavery. In dismissing the claim, the judge, in effect, implied the 13th Amendment is all but obsolete because chattel slavery was abolished long ago and racial discrimination is prohibited by the 14th Amendment. This might be true if the only residual effect of slavery were racial discrimination. But the emergency manager law is more than simple racial discrimination. It is old-fashioned slavery that the 13th Amendment was specifically designed to abolish.
Slavery by definition is “the state of a person who is a chattel of another.” When an individual is the property of another, he or she is subject to the whims and needs of the owner and can be manipulated or exploited in ways that are in the interests of the owner. As the Constitution was being framed, slave owners exploited their chattel to gain political advantage. Specifically, they enhanced their power and influence by negotiating the “Three-Fifths Compromise.”
The Three-Fifths Compromise refers to language in Article I, Section 2 of the Constitution. It provides that Congressional representation and taxation were to be determined by adding to the number of free persons in a state three-fifths of each enslaved person in that state. It creates the fiction of a larger voting population.
In explaining how slave states would use their enslaved “property” to get extra Congressional representation, Dr. Paul Finkelman noted: “…this was a provision that was not directly about race but about status and the allocation of political power.” He further observed: “…the clause provided a mathematical formula that allowed for the allocation of representatives in Congress that factored in the slave population. No slaves could vote in the country (although free blacks could vote in a number of states), and the clause did not provide a voice for slaves. This was about the distribution of political power among the states.”
The 13th Amendment is generally regarded as the provision that abolished, among other things, this practice of exploiting enslaved human beings for political advantage. But the spirit of the Three-Fifths Compromise lives in Michigan. In much the same way as enslaved Africans were essentially powerless political placeholders for purposes of the Three-Fifths Compromise, residents of certain predominantly black cities were reduced by the Michigan emergency manager law to powerless political placeholders for those who maintained for their own benefit the fiction of local democracy in places where emergency managers are in charge.
The governor’s appointment of an emergency manager provides the means for imposing on a city or school district an agenda that does not reflect the will of democratically elected officials or the voters they represent. In the same way that slave owners used the enslaved to enhance their political influence, the governor is able to use those subject to emergency management to enhance his own political influence, if not political dominance, at the local level.
Like the three-fifths of a person slaves, the contemporary residents of emergency manager cities must stand mute as an appointed, unelected individual speaks, acts and governs in their name – without their consent, and almost as though he owns them. It is this political use and exploitation of human beings that distinguishes emergency management from the category of simple racial discrimination. In many respects the emergency manager is, like the Three-Fifths Clause itself, “not directly about race but about status and the allocation of political power.”
This blog is adapted from a written argument presented by Mark Fancher, staff attorney for the ACLU of Michigan Racial Justice Project, to the Sixth Circuit Court of Appeals.