“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” — Oliver Wendell Holmes
Many commenters on the Thirteenth Amendment, the draft, jury service, and compulsory road work post argued that the plain language of the Thirteenth Amendment makes the draft unconstitutional. (I think my coblogger Ilya argued something similar in a series of posts in 2007.) I think this question helps illustrate an important difference between two approaches to ambiguous text: an approach that tries to limit its focus to the text itself, and an approach that looks at the text as it was originally understood (which I will label “originalism” for purposes of this post). As between the two, I think originalism is generally preferable, whether or not one thinks that either should also be supplemented by other approaches, such as a focus on precedent. Let me briefly explain why.
1. Let’s begin with the Seventh Amendment, my favorite illustration of this question. The Seventh Amendment says that “In suits at common law ... the right of trial by jury shall be preserved.” Now “common law” can mean several things. It can mean judge-made law (or, if you prefer, judge-found law, though that’s a legal fiction) as opposed to statutes. It can mean a particular body of law that was once made by judges, even if now it is codified in statute, as opposed to law that was originally created by a legislature. It can mean Anglo-American law as opposed to European civil law, which is derived from Roman law. Or it can mean law that is sufficiently linked to the sort of law historically enforced in common-law courts as opposed to the sort of law historically enforced in so-called courts of equity.
Today, in my experience, “common law” tends to bear the first meaning (judge-made law). That’s how I’ve seen it most often used. But it’s clear that at the time of the Framing the phrase “Suits at common law” referred to the last meaning, which is to say law historically enforced in common-law courts (which usually called for payment of damages) as opposed to the now largely long-defunct separate courts of equity (which is where injunctions and similar remedies came from). So which meaning should we use?
Here’s my thinking: If we’re appealing to the text of the Seventh Amendment, it must be because we think the enactment of that text should have legal significance. We’re not just appealing to abstract principles of right and wrong, or to the broad structure of the Constitution. (Rightly or wrongly, much of the discussion of the freedom of speech, equal protection, and the like does make such appeals; but I assume here that we’re confronting an argument based on the constitutional text, not on general constitutional theory.) Rather, we think the Seventh Amendment should be followed because it’s law.
Why is it law? Because it was enacted through the proper legal channels by people who had the legal authority to enact it, and because we choose to continue to accept those people’s actions as authoritative. (Again, we could dismiss those actions as no longer binding on us; but if we’re arguing about the text as it was adopted, as opposed to constitutional or moral theory more broadly, we must think the actions of the adopters were indeed in some measure important to us.)
And if we’re going to apply the Seventh Amendment because in 1791 enough states ratified it to make it part of the Constitution, it makes no sense to apply it in a way that’s completely different than how it was understood at the time — for instance, by applying it only to judge-made tort doctrines and not statutory ones — simply because this definition has become more common since 1791, and because the original definition is largely unknown to all but lawyers. That would be more a constitutional pun, I think, than a sensible form of constitutional interpretation.
I should acknowledge that there is a significant alternative to an originalist view of the text, and it is a view that focuses on the text as understood in light of the actual practices of the legal system today. The theory here is that the Constitution derives its force from the continuing consent of the governed, and that if our legal system — crafted as it is by elected officials and those appointed by elected officials — over time accepts some new meaning of a term, then that meaning becomes part of the constitutional framework.
But whether that might be true for some provisions, it isn’t true for the Seventh Amendment. The legal system continues to treat “Suits at common law” as referring to suits of the sort that would have been brought in common-law courts during the Framing era, largely because of the influence of originalism on the courts that have interpreted this particular provision. And certainly there’s no broad public understanding to the contrary.
2. I’d say the same about the Thirteenth Amendment. Bans on slavery and “involuntary servitude” existed in America from 1787 on, beginning with the Northwest Ordinance and then getting enacted in various state constitutions. As best I can tell, those bans were never generally understood as casting constitutional doubt on mandatory military service — which was the norm even in peacetime, in service in the state militia — or on jury duty. By the time the Thirteenth Amendment was enacted, “involuntary servitude” had an established legal meaning, and that was a meaning limited to conditions that were more akin to traditional slavery and less to the duties of citizenship such as military service or jury service. Maybe this approach was morally unsound, or even illogical, as some have argued. But when the ban on involuntary servitude was made part of the Constitution, it was not understood as being a ban on all involuntary work.
Indeed, even today the language is ambiguous. Not all service is servitude; not all involuntary service needs to be involuntary servitude. Does the Thirteenth Amendment ban all involuntary work, or only involuntary work that is understood as akin enough to slavery (perhaps in part because of the sense of social degradation that it is seen as involving), especially in light of what has been traditionally allowed in free states?
When we resolve this ambiguity, I don’t think we can just declare that “involuntary servitude” must mean all involuntary work. To be sure, that definition would have the advantage of simplicity, and it would be the more libertarian definition. But that doesn’t make it the more authoritative understanding of the constitutional text. Given this ambiguity, then it seems to me that arguments based on the text (as opposed to arguments based on general libertarian theory) need to be attentive to how the text was understood by those whose enactment of the text gave the text legal significance. If you can show that “involuntary servitude” did indeed include the draft (and perhaps even jury service) as of 1865, that would be a persuasive argument; but simply relying on the assumption that all involuntary labor is involuntary servitude does not, I think, work.
Nor can we just say that the drafters of the Thirteenth Amendment included only one exception to the ban on slavery and involuntary servitude — the exception for criminal punishment — and therefore all other involuntary servitude is banned. The question is what people of the era understood by “involuntary servitude” in the first place. And given that “involuntary servitude” was a familiar phrase at the time, it seems likely that they understood involuntary servitude as referring to a particular subset of involuntary service, a subset that by definition excluded the traditionally accepted duties of a citizen, including military service and jury service.
Of course, as I suggested in my discussion of the Seventh Amendment, one could look to other sources besides the text, such as precedent. Or one could look to the developing meaning of the provision within our legal system. But both of those sources point towards the constitutionality of the draft: Both the Supreme Court’s precedent and the actual practices of elected officials of both parties since 1865 point towards a view that the draft does not constitute “involuntary servitude.”
Naturally, that still leaves moral arguments, or constitutional theory arguments about what the Constitution ought to be quite apart from the Thirteenth Amendment, or perhaps arguments based on other textual provisions. I leave it to others to discuss those. But it seems to me that if one is making an argument based on the text of the Thirteenth Amendment, it’s hard to read that text as divorced from the understanding of “involuntary servitude” accepted by the legal system both before 1865 and after.