Mandatory Road Repair Work and the Thirteenth Amendment Ban on Involuntary Servitude

Co-blogger Eugene Volokh recently cited the 1916 case of Butler v. Perry as an example of the reasoning that allows the Supreme Court to hold that some forms of forced labor do not violate the Thirteenth Amendment’s ban on involuntary servitude. Butler upheld a Florida law that required all adult males between the ages of 21 and 45 to pay a small fine or work on road repair for six days per year.

It so happens that, in 2007, I wrote a detailed critique of Butler as part of a series of posts explaining why mandatory national service would violate the Thirteenth Amendment. Here is an excerpt:

Justice McReynolds’ opinion for the Court… [argues that] “the term ‘involuntary servitude’ was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state.”

There are several problems with this formulation. First and most important, if the term “involuntary servitude” really does not apply to traditional “duties” to the state, there would have been no need for the Amendment’s exception for the use of forced labor as punishment for a crime. As I explained more fully in this post, using forced labor to punish criminals was a longstanding tradition, and was surely not considered “akin to African slavery.” Second, McReynolds’ argument elides the hard question of determining what evils really were “akin to African slavery” and likely to “produce like undesirable results.” The “free labor” ideology underpinning the Thirteenth Amendment was based on a broad opposition to all forms of forced labor as inimical to a free society, not merely those based on racial categories or those that involved lifelong slavery…. Finally, McReynolds’ argument seems to elevate the supposed subjective intentions of the framers over the plain text of the Amendment, which is clearly not limited merely to those forms of “involuntary servitude” that are “akin to African slavery” but instead bans all such servitude with the sole exception of forced labor used to punish convicted criminals…..

McReynolds’ historical argument ignores the possibility that antebellum road service laws were enacted at a time before the rise of the antislavery “free labor” ideology that underpinned the Thirteenth Amendment. The latter involved a much broader opposition to forced labor than the relatively narrow opposition to slavery that probably underpinned the antislavery provisions in the 1787 Northwest Ordinance and other much earlier laws that McReynolds cited. If so, the original intent behind the 1865 Thirteenth Amendment may have been broader than that underpinning earlier laws using similar language. Moreover, if the antebellum road work laws had allowed citizens to pay a small tax in lieu of working (as the Florida law did), they may not have been viewed as true forced labor measures and thus were considered to be “involuntary servitude” for that reason…..

In this post in the same series, I explained why mandatory jury service (which I am no fan of) is still constitutionally permissible and indeed possibly constitutionally required.