The Volokh Conspiracy

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.

So explains my Independence Institute colleague Rob Natelson, on his Our American Constitution blog. Forty-eight of the 55 delegates had instructions which allowed them to go beyond amending the Articles of Confederation.

Rob’s research into early American history has found that constitutional conventions (for a new constitution, or to amending an existing document) had well-established procedures by the time of the Framing. Click here for post that will provide a summary, and to lead to Rob’s extensive analysis of original sources. As Rob explains, constitutional conventions for a balanced budget, or other salutary (in my view) purposes have been blocked in part by fears raised by the John Birch Society that a new convention would run away like the Philadelphia Convention did, or that the procedures of a new convention are completely unclear. To the contrary, the procedures are clear, and neither the Philadelphia Convention nor its early American analogues exceeded their mandate.

Co-blogger Randy Barnett’s proposed Repeal Amendment has generated a great deal of controversy. The amendment would give a two thirds majority of the states the power to repeal any federal law or regulation. The idea has now been endorsed by a number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor.

Randy argues that the amendment could play a significant role in “deterring even further expansions of federal power.” Critics such as Washington Post columnist Dana Milbank claim that it would seriously undermine the Constitution or even “destroy” it .

I think that both sides’ claims are overstated. If enacted, the Repeal Amendment would have only minor effects because mobilizing 34 states (the number needed for a two-thirds majority) to oppose any congressional enactment is extremely difficult. Proponents of repeal would have to win not just 34 votes, but 67 or 68, since every state but Nebraska has a bicameral legislature. In some cases, the party that controls the state senate is not the same as the one that controls the lower house, which makes it difficult to get both to vote for the same repeal proposal.

As Randy himself points out, “[g]etting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.” If it were that unpopular, it seems unlikely that the law would be enacted by both houses of Congress and the president in the first place. In practice, therefore, the Amendment’s effects would largely be limited to repealing a few old laws that no longer have significant political support. And even in those cases, assembling the required two-thirds majority will be difficult.

Moreover, as I noted in a 2009 post on one of Randy’s earlier amendment proposals, state governments have only very limited interest in combating expansions of federal power and often actually benefit from it. This makes it even more difficult to mobilize 34 states to repeal any federal law that has any real significance. It also dampens hopes that the Amendment would result in vigorous state resistance to future expansions of federal power.

These very same points also undercut opponents’ claims that the Amendment would severely undermine the Constitution or somehow give states the power to “nullify” federal laws at will. In reality, they would only be able to reverse laws that were highly unpopular and have little political support. Milbank and others are also off-base in suggesting that the Amendment somehow disrespects the Founding Fathers or upsets their design. The Amendment is in fact an extremely modest response to the extent to which federal power has grown far beyond the bounds envisioned by the Founders and outlined in the constitutional text. And, as Damon Root points out, the Founders were the ones who included an amendment provision in the Constitution in the first place, in part because they recognized that their work would need to be improved over time. Milbank also errs in assuming that the necessary number of states is 33 (which is actually just under two thirds) rather than 34.

On balance, I think that the Repeal Amendment would be a small but genuine improvement over the status quo. Given my view that the present size of the federal government is far too large, I welcome efforts to cut it back. A very modest step in the right direction is still worth taking. If the Repeal Amendment could be enacted with little or no effort, I’m all for it. At the same time, I think supporters of limits on federal power should carefully consider whether this Amendment is the best possible investment of our limited political capital. Given the extreme difficulty of enacting any constitutional amendment and the relatively modest payoff to be expected from this one, it’s possible that our resources might be better invested elsewhere. I’m not certain that’s true. But the relevant opportunity costs need to be carefully weighed in advance.

In this post commenting on the revelation that former Republican National Committee chairman Ken Mehlman is gay, Yale lawprof Jack Balkin argues that the recent spate of state anti-gay marriage constitutional amendments may significantly retard progress towards gay equality:

[Ken] Mehlman was the chair of the Bush 2004 presidential campaign, which deliberately used opposition to same-sex marriage–and indeed, moral opposition to homosexuality–as a way of increasing turnout among members of the Republican base. One way of doing this was to work with anti-SSM groups to schedule votes on state constitutional amendments that would prohibit the recognition of same sex marriage. As a result of this strategy, thirteen states passed such amendments during the 2004 election cycle, followed by a dozen or so more in the next four years.

These amendments matter because they complicate the most obvious path toward marriage equality: proceed state by state and get a majority (or more) of states to recognize same-sex marriage. After that occurs, it is much easier for the federal courts and the Supreme Court to consider a challenge to laws banning same sex marriage.

A few states with such constitutional amendments would not be a very serious obstacle......

The problem is that as a result of the 2004 Bush campaign, a much greater number of states have constitutional amendments that block both ordinary legislation and judicial interpretation of state constitutions. At last count, 29 states had constitutional bans on same sex marriage.

I criticized arguments similar to Balkin’s here, here, and here. To briefly summarize my main points, I doubt that these amendments will have more than a minor effect for two reasons. First, most of them are in states that are unlikely to enact gay marriage anytime soon. Even more importantly, most are in states with easy to amend constitutions. The vast majority of the amendments in question were enacted by a majority vote referendum, similar to that which led to the passage of California’s Proposition 8. When and if public opinion in those states shifts decisively in favor of gay marriage, advocates can easily reverse those amendments by sponsoring a referendum initiative of their own. To be sure, such an effort requires funding and organization. But gay marriage advocates are reasonably strong in both areas. For these reasons, the anti-gay marriage amendments will ultimately cause no more than brief delays in the enactment of gay marriage once majority opinion comes to support it.

On a less important note, I think Balkin also overstates the importance of Mehlman’s and Bush’s role in the passage of these amendments. Given the massive outcry that the Massachusetts Supreme Judicial Court’s 2003 pro-gay marriage decision caused among social conservatives, it is likely that conservative groups would have tried to put as many amendments on state ballots as they could, even absent Mehlman’s efforts.

Balkin also criticizes Mehlman for “us[ing] moral opposition to homosexuality as a lever to get out the vote” in 2004, despite the fact that he was a supporter of gay marriage himself. Although one can theoretically be opposed to gay marriage without also opposing homosexuality as such, it is very likely true that most of those who oppose the former do so in large part because of their opposition to the latter. That said, I’m not sure that Mehlman is as blameworthy as Balkin suggests. In politics, it is not unusual to support one candidate over another despite the fact that the preferred candidate has objectionable views on some issues. Perhaps Mehlman believed that Bush’s superiority over John Kerry on other issues was great enough to justify doing all he could to elect the former despite the likely negative impact on gay marriage. Maybe he also believed (as I do) that these amendments would not have much longterm effect. Like most political operatives, Mehlman is no saint. But he may not be as big a sinner as Balkin suggests.