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Does Mandatory "National Service" Violate the Thirteenth Amendment?

Many commenters on my earlier posts about forced labor programs have expressed interest in the question of whether or not mandatory "national service" programs violate the Thirteenth Amendment. I think that the answer is pretty clearly "yes," at least if you take the text of the Constitution seriously.

I. The Constitutional Text.

The text of Section 1 of the Amendment is as follows:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Note that the Amendment forbids not only "slavery" but also "involuntary servitude," a provision deliberately inserted to prevent state governments from, in effect, reenslaving blacks by imposing "temporary" forced labor systems. Mandatory national service, which would require young people to do government-mandated work for a period of 1-2 years (depending on the proposal in question) is pretty clearly involuntary servitude under any reasonable definition of the word. In the Peonage Cases (which David Bernstein and I discuss in this article), the Supreme Court used the ban on involuntary servitude to strike down forced labor laws that were significantly less restrictive than most mandatory national service proposals would be (peonage laws applied for shorter periods of time, and only to workers who had previously signed a voluntary labor contract with their employers).

Note also that there is only one exception to the ban on involuntary servitude: "punishment for crime whereof the party shall have been duly convicted." That strongly suggests that there aren't any other, unlisted exceptions. The presence of the word "except" at the start of the sentence exempting criminal punishment strongly suggests that this exemption is supposed to be exclusive, not just an illustration of other types of forced labor that are also permitted.

Some argue that the scope of the Amendment was intended to exclude traditional forms of forced labor that serve the public interest, or forced labor imposed by the state rather than by private individuals. The presence of the exception for criminal punishment undermines any such claims. If the term "involuntary servitude" excludes forced labor imposed by the state, the exception for criminal punishments would be superfluous. Ditto if it understood to exclude traditional forms of forced labor other than slavery (since forced labor as a punishment for criminals clearly falls into that category).

II. The Pathetic "Reasoning" of Arver v. United States.

The main judicial precedent going against my view is the Supreme Court's 1918 decision in Arver v. United States, which upheld the constitutionality of the military draft. In my view, however, the plain text of the Constitution trumps any judicial decision, even though lower courts have little choice but to obey flawed Supreme Court precedents. Moreover, Arver's analysis of the Thirteenth Amendment issue is extraordinarily weak. Here's all the Court had to say on the subject:

Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.

There is no real argument here, just a bald, unsupported assumption that the Court's view is obviously right. In my view, it is the claim that forced labor is not "involuntary servitude" merely because it serves a "supreme and noble duty" that is "refuted by its mere statement." The fact that forced labor may help achieve important objectives does not make it any less involuntary. And the Thirteenth Amendment includes no exception permitting involuntary servitude so long as, in the opinion of the Court, it discharges a "supreme and noble duty." Arver's non-analysis of the Thirteenth Amendment is an embarrassment to legal reasoning and should be overruled as soon as the issue arises again. Since we don't currently have a draft or a mandatory national service program, and have not for almost 35 years, there is no serious argument for retaining this flawed precedent because of longstanding reliance interests or for the sake of "stability." In any event, I'm not sure even a very great reliance interest should be enough to set aside so vital an individual right as freedom from forced labor.

Even if Arver must for some reason be retained, it only justifies a wartime military draft imposed to ensure "the performance of [citizens'] supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people" [emphasis added]. It does not apply to either a peacetime military draft or to civilian forced labor of any kind. As I explained in my previous two posts, today's prominent national service proposals all fall into the latter category.

RobertT1 (mail):
Would national service as a prerequisite for other things violate the 13th as well? Say for example, if immigrants were offered citizenship based on successful completion of 6 years national service ( or 4 years in the military or "hazardous duty" service such as fighting forest fires. )
9.24.2007 10:12pm
Waldensian (mail):

In my view, however, the plain text of the Constitution trumps any judicial decision.

I'm not sure what "trumps" means here. Do you mean that Arver isn't actually the law? Or do you mean that it ought to be overruled because it wrongly interprets the Constitution?

I ask because the former strikes me as a fairly radical view, while the latter strikes me as a much more typical criticism of a Supreme Court decision.
9.24.2007 10:21pm
AF:
Mandatory national service, which would require young people to do government-mandated work for a period of 1-2 years (depending on the proposal in question) is pretty clearly involuntary servitude under any reasonable defintion of the word.

And lying under oath is literally "speech," but that doesn't make perjury laws unconstitutional.
9.24.2007 10:22pm
Ilya Somin:
I'm not sure what "trumps" means here. Do you mean that Arver isn't actually the law? Or do you mean that it ought to be overruled because it wrongly interprets the Constitution?

Primarily the latter. However, other branches of government remain free to disagree with the Court and apply a broader conception of individual constitutional rights in restraining their actions.
9.24.2007 10:31pm
Ilya Somin:
Would national service as a prerequisite for other things violate the 13th as well? Say for example, if immigrants were offered citizenship based on successful completion of 6 years national service ( or 4 years in the military or "hazardous duty" service such as fighting forest fires. )

Voluntary service in exchange for government-issued benefits would not be "involuntary servitude" - just as serving the government in exchange for pay wouldn't be. The only obvious exception might be a case where the service obligation was imposed as a condition for granting other constitutional rights.
9.24.2007 10:34pm
Bored Lawyer:
The U.S. had a draft during the Civil War. It seems absurd that the contemporaneously passed 13th Amendment would extend to a wartime draft. Whatever textual argument you want to make -- perhaps serving in the armed forces is not "Servitude" (although it surely is involuntary when there is a draft) -- a construction which flies in the face of historical practice beginning from the very adoption of the Constitutional provision at issue to the present must be incorrect.
9.24.2007 10:36pm
Ilya Somin:
And lying under oath is literally "speech," but that doesn't make perjury laws unconstitutional.

The First Amendment protects "the freedom of speech," not all conceivable speech acts of whatever kind.

By contrast, the Thirteenth Amendment bans all involuntary servitude, with the sole exception of that imposed as punishment for a crime.
9.24.2007 10:36pm
PersonFromPorlock:
If it is in violation of the Thirteenth Amendment, wouldn't any group trying to get "national service" enacted be in violation of 18 USC 241, "Conspiracy Against Rights?" As the law is written, an actual injury isn't needed, the attempt itself is enough. Granted, congressmen in Congress are immunized but the action can hardly all take place inside the Capitol.
9.24.2007 10:41pm
Ilya Somin:
The U.S. had a draft during the Civil War. It seems absurd that the contemporaneously passed 13th Amendment would extend to a wartime draft. Whatever textual argument you want to make -- perhaps serving in the armed forces is not "Servitude" (although it surely is involuntary when there is a draft) -- a construction which flies in the face of historical practice beginning from the very adoption of the Constitutional provision at issue to the present must be incorrect.

That draft existed before the enactment of the Thirteenth Amendment. Moreover, its constitutionality was hotly contested at the time, even under the original Constitution.To the extent that the draft was viewed as a one-time emergency measure needed to meet an unprecedented crisis rather than a permanent institution, there was no contradiction between using it in the Civil War, yet banning it for the future. This is especially true given that the Civil War era draft was only considered necessary because of a crisis brought on by slavery - an institution that the Thirteenth Amendment itself eliminated.
9.24.2007 10:42pm
marksleen (mail):
Not sure about the history of the draft pre-thirteenth amendment, but might the following Constitutional provisions justify the draft:

"To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

. . .

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress"

If the draft was justified by these provisions, it is unlikely the Thirteenth Amendment was meant to affect the draft power.

Also, a national service draft could be tied to a variety of government spending programs to "induce" service. The government already induces registration in the selective service this way by tying financial aid eligibility to registration.
9.24.2007 10:43pm
Mack (mail):
Sorry for what I think will be to you guys a very basic question, but I was just involved in a classroom debate where the following came up and I thought you guys could give me the Libertarian view:

Can the government legally pass an amendment that overturns a portion of the Bill of Rights?

I held that due to the fact these derived from natural rights and predated government that any law reversing them was automatically null and illegitimate.

Is that correct?
9.24.2007 10:46pm
jim:
The "plain meaning" of the text seems fairly close to being the context-less meaning of the text. Clearly the nature of the rule effected by the amendment must on some rational level comport with the effect its framers thought it would have. AFAIK the framers of the 13th amendment did not intend to make either the draft or compulsory jury duty unconstitutional.

If one wishes to argue that despite their intent not to do this, the amendment's framers indeed did make the draft and/or jury duty unconstitutional, one needs to show why it is more plausible that the framers misinterpreted the results of their own rule than that you are merely misidentifying their rule.

The more plausible theory is that the thirteenth amendment left intact the idea that the People were the same as the Militia, and that society retained the right to call up a portion of the People/Militia for certain types of service. Such an ability would have been seen as part of republicanism, whereas slavery was seen as anathema to republicanism.

Now, one can certainly argue that certain forms of national service being proposed are specifically unconstitutional, either because they have to lengthy history in Anglo-American law, or because they fail some criteria that animates both jury and militia service. That criteria might, for instance, be that both the People as juries and the People as Militia embody a founding era populism that retains some powers of governance to the People, whereas making young kids do government labor does not.
9.24.2007 10:46pm
Caliban Darklock (www):
If I were a lawyer (which I'm not), and I wanted to assault this idea (which I don't), I would do so by concentrating my efforts not on what constitutes "involuntary" but on what constitutes "servitude".

I don't believe in applies to professional services for which one is fairly compensated, which is what national service would involve.
9.24.2007 10:58pm
jim:

The First Amendment protects "the freedom of speech," not all conceivable speech acts of whatever kind.


The limits on the first amendment's freedom of speech can primarily be viewed as undisparaged rights retained by persons or the People - prior unenumerated natural rights trumping enumerated natural rights. I suggest the same phenomenon is at work in the 13th amendment, with the traditionally understood moorings of established government trumping those things which are established by the government.
9.24.2007 11:01pm
Waldo (mail):
I would agree with jim and marksleen in part.

The Thirteenth Amendment prohibition of involuntary servitude does seem to prohibit national service. However, as other posts have noted, mostly in Second Amendment arguments, all able-bodied citizens are considered to be part of the Unorganized Militia.

Since Article One, Section Eight provides for "calling forth" the Militia, the same Second Amendment right that guarantees the right to bear arms implicitly permits a draft. But any such draft can only be used "to execute the Laws of the Union, suppress Insurrection, and repel Invasions."
9.24.2007 11:05pm
Steve2:
Not quite, Marksleen. The Selective Service System's website flat-out says, "A man who fails to register may, if prosecuted and convicted, face a fine of up to $250,000 and/or a prison term of up to five years." Now, I don't know how many prosecutions there actually are for that, but making failure to register a felony is hardly a "financial inducement".
9.24.2007 11:08pm
jim:

I held that due to the fact these derived from natural rights and predated government that any law reversing them was automatically null and illegitimate.


That view is consistent with the intellectual tradition from which the 14th amendment emerged. A nontrivial number of libertarians hold this position.

Critics of Barron v. Baltimore were the most prominent to hold the view that the bill of rights simply declared rights that applied against any legitimate government, even against a state that had not explicitly included such protections. It is an open question whether this was incorrect, correct but not enforcable by the federal judiciary, or the case was wrongly decided. It is also an open question to what degree the 14th amendment is an irreversable constitutionalization of the contrarians' principle.
9.24.2007 11:15pm
dc user (mail):
Sorry, Ilya, but your response to Bored Lawyer is way too glib.

1) The 13th Amendment was passed in Congress in January 1865. The Civil War wasn't over until General Lee surrendured in April 1865. So the emergency necessitating the draft had not passed by the time the Amendment was written and passed. (Indeed, the Amendment was successfully ratified by sufficient states by the end of 1865, so the War was by no means a hoary old memory.) [Interesting question: When was the Civil War draft act repealed or made inactive? I don't happen to know.] Strike 1.

2) Frequently, in order for an amendment to outlaw a wide-spread and notorious prior practice we require some explicit sign that the Amenment was either enacted in direct response to that practice, or was drafted with it in mind. Does either apply here? We all know that the 13th Amendment was directed at slavery. And I gather from your silence on the legislative history that you don't have any evidence of any awareness or expectation that this would stop a draft. Strike 2.

3) Finally, what on earth do you mean by saying that the end of the Civil War would have eliminated everyone's expectation that the need for a draft could arise again. The Civil War ended with the South under extended military occupation. In any case, the normal reaction once the temporary exigency passed would be to repeal the draft law -- not to categorically forbid the draft in all future contingencies on the mere hope that future contingencies would not arise. Strike 3.
9.24.2007 11:16pm
aces:
IIRC, the last prosecution for non-registration was circa 1986--right about the time that Congress required registration for financial aid. Apparently the government decided that (1) prosecuting would-be draft resisters simply gave them a platform and (2) replacing sticks with carrots would be more effective.
9.24.2007 11:17pm
AF:
The First Amendment protects "the freedom of speech," not all conceivable speech acts of whatever kind.

I don't see where that gets you. Any time the government passes a law prohibiting a speech act, it literally "abridg[es] the freedom" to perform that speech act.

As for whether the First Amendment protects all "conceivable speech acts of any kind," that is my point: literally it does, but the better (in fact, the only reasonable) view is that it contains implied limitations based on structure, history, and precedent. The same is true of the Thirteenth Amendment.
9.24.2007 11:20pm
Anonymous Lunatic:
The best argument I can make for the draft is to argue that the calling out the militia does not constitute the imposition of "involuntary servitude" on members of the militia, within the intended meaning of the Thirteenth Amendment. It's thin, but the argument is that a limitation on the ability to call out the militia should and would have been made explicit, not left implicit.

Caliban Darklock, the Thirteenth Amendment has been held to prohibit orders of specific performance as a remedy for violations of contracts for personal services. If "involuntary servitude" includes ordering a person to personally provide professional services for money in cases where they have signed a contract agreeing to do so, then it clearly includes ordering a person to personally provide professional services for money when they have not agreed to do so.
9.24.2007 11:24pm
ReaderY:
Herndon v. Chapel Hill-Carborro Board of Education (4th Cir. 1996) addressed the question of whether a mandatory public service requirement violates the 13th Amendment and held that it does not. Perhaps you might want to address the reasoning it gave.
9.24.2007 11:25pm
Michael Poole:
Waldo- I don't see any textual implication that "calling forth" permits a draft rather than a volunteer army. Is there some historical context that would indicate the intended meaning included compulsory enlistment?
9.24.2007 11:28pm
George Weiss (mail):
PersonFromPorlock:

please tlle me your joking...arnt we a little trigger happy here?

there are a few things id like to see the fbi investigating first...
9.24.2007 11:29pm
jim:
AF, if I read Illya's post correctly he seems to be saying that the freedom of speech does not literally protect all conveivable speech acts; the 13th amendment does literally bar all compelled labor; and it is the literal meaning we should use for both.

1) I think you are right that literally it does.

2) The case for viewing most constitutional phrases as terms of art seems to go against Illya's point that what the 13th amendment "literally" says is what it does. Involuntary Servitude could easily be a term of art meaning "anything that technically isn't the peculiar institution, but in effect still is."
9.24.2007 11:30pm
ReaderY:
The Herndon court cited Butler's holding that the scope of the term "involuntary servitude" is limited to "those forms
of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results, 240 U.S. at 332, and concluded that a 50-hour public requirement as a condition for graduating from High School was not so akin to African slavery as to come within the prohibition's scope. It also held that even if it did, withholding of a diploma does not constitute compulsion in the sense meant by slavery since conditioning granting a diploma on meeting requirements is a voluntary exchange. (Note that students are legally required to attend schools, but graduation is voluntary. The law only requires that the horse be brought to water...)
9.24.2007 11:35pm
George Weiss (mail):
illya

sombody mentioned compusotory jury duty:

maybe next time somebody gets called for jury duty...you could try to take the issue to a federal court for an injution citing the 13th amendment....

it actually seems to me jury duty is also unconstitutional.
9.24.2007 11:36pm
George Weiss (mail):
mack:

i think a more logical view of the bill of rights is that they are...though only binding on the federal governemnt unless extended through the 14th...simply part of the consitituion like any other and..to be amended..must be amendedn the same way any other consitional provision could be amended (as specified in the consition's procedure for amendment)

i dont think it matters whats 'natural' or not natural
9.24.2007 11:39pm
NYU 3L:
George Weiss -

I think he was just asking an academic question, rather than seriously calling for the prosecution of politicians supporting mandatory national service.

On the academic question, the text of 18 U.S.C. 241 is, "If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same..."

Political advocacy presumably can't be covered as a matter of First Amendment law. It wouldn't make sense in the context of political advocacy either (if the politicians won and the law stuck, it wouldn't be a right secured to them by the Constitution). It also isn't a conspiracy to injure, oppress, threaten, or intimidate anyone. At most, it's a conspiracy to persuade the government to pass a law.
9.24.2007 11:39pm
George Weiss (mail):
ReaderY:

intersting..i thouhgh mostly school was required only until 8th grade usually

which brings up another point..isnt elementary school basically involantary servatude.

what about state..who have laws explicitly states fathers who fial to pay child support can be jailed if they are refusing to work in order to make those payments...
9.24.2007 11:44pm
George Weiss (mail):
nyu

oh right...i knew that
9.24.2007 11:48pm
Ilya Somin:
I would do so by concentrating my efforts not on what constitutes "involuntary" but on what constitutes "servitude".

I don't believe in applies to professional services for which one is fairly compensated, which is what national service would involve
.

Why not? Why is "professional" service somehow different from the "unprofessional" kind? As for the fairness of the compensation, the whole point of banning involutary servitude is to leave it up to the worker himself to determine what level of compensation is "fair" enough for him to agree to accept it.
9.24.2007 11:52pm
Michael Poole:
ReaderY- The court in Herndon makes a critical but unsubstantiated jump in whether students' rights are fundamental:

Except when the parents' interest includes a religious element, however, the Court has declared with equal consistency that reasonable regulation by the state is permissible even if it conflicts with that interest.

The holding cites a number of cases addressing parental rights to direct schooling as support for the above. There are at least two problems with applying those precedents to this case. First, universal off-hours unpaid labor is not an aspect of traditional schooling. More significantly, freedom from involuntary servitude is specifically mentioned in the Constitution, and treating it with rational-basis review needs a rather more direct and on-point treatment than this appeals court provides. (The trial court may have provided a more detailed treatment on this point; if so, a reference to its decision would be welcome.)
9.24.2007 11:53pm
Ilya Somin:
The "plain meaning" of the text seems fairly close to being the context-less meaning of the text. Clearly the nature of the rule effected by the amendment must on some rational level comport with the effect its framers thought it would have. AFAIK the framers of the 13th amendment did not intend to make either the draft or compulsory jury duty unconstitutional.

If one wishes to argue that despite their intent not to do this, the amendment's framers indeed did make the draft and/or jury duty unconstitutional, one needs to show why it is more plausible that the framers misinterpreted the results of their own rule than that you are merely misidentifying their rule.


This assumes that it is the Framers' subjective intentions that should govern, and not the text of the law.
9.24.2007 11:54pm
Ilya Somin:
1) The 13th Amendment was passed in Congress in January 1865. The Civil War wasn't over until General Lee surrendured in April 1865. So the emergency necessitating the draft had not passed by the time the Amendment was written and passed. (Indeed, the Amendment was successfully ratified by sufficient states by the end of 1865, so the War was by no means a hoary old memory.) [Interesting question: When was the Civil War draft act repealed or made inactive? I don't happen to know.] Strike 1.

As I explain in my followup post, this point actually supports my contention rather than weakens it.
9.24.2007 11:56pm
jim:

i dont think it matters whats 'natural' or not natural


That would be the positive law view. As a practical matter arguments about natural vs. positive law are arguments about what makes the constitution law, not what the constitutional says once everyone agrees that it is law - they are more normative than interpretatiive - so they don't tend to get very far. About the only option for natural law types is to argue that certain natural law ideas held by amendments' framers where implicitly added to the positive law.

The idea that the bill of rights cannot be removed through article five is probably one of the better places to argue that natural law has been instituted as positive law.
9.24.2007 11:56pm
Ilya Somin:
Frequently, in order for an amendment to outlaw a wide-spread and notorious prior practice we require some explicit sign that the Amenment was either enacted in direct response to that practice, or was drafted with it in mind. Does either apply here? We all know that the 13th Amendment was directed at slavery. And I gather from your silence on the legislative history that you don't have any evidence of any awareness or expectation that this would stop a draft. Strike 2.

I would argue the opposite. If the framers of an Amendment inteded to exclude a "widespread and notorious practice" from broad language that seems to ban it, they would likely have created a specific exemption for it (as they did in the case of the use of forced labor to punish criminals). The creation of that exemption shows that the language of the Amendment was NOT understood to apply narrowly to black slavery (else the criminal punishment exemption would not have been necessary).
9.24.2007 11:58pm
Mark Field (mail):

Interesting question: When was the Civil War draft act repealed or made inactive? I don't happen to know.


The last draft call by the North was in December 1864, just a month before Congress passed the 13th A. I'm not sure when the Northern draft law expired or was repealed, nor when the last Southern draft call took place.

I think it important to recall the Southern draft in evaluating Democratic Party arguments against the constitutionality of the Northern draft. Whatever a minority view is worth when it comes to construing the Constitution, the minority in that case was even smaller than usual.
9.24.2007 11:59pm
Mark Field (mail):

If the framers of an Amendment inteded to exclude a "widespread and notorious practice" from broad language that seems to ban it


The other interpretation is simpler: that they didn't understand the language as banning the draft, so saw no need to include an exception.

I think you're on firmer ground when you just deny originalism altogether. You can make an argument that we should interpret the 13th A according to what it means to us. We then get to decide that for ourselves and don't need to worry about the historical reference. I think the history weakens your argument considerably.
9.25.2007 12:05am
jim:

This assumes that it is the Framers' subjective intentions that should govern, and not the text of the law.


I disagree. Letting the Framers' subjective intentions govern is certainly an easier solution for judges, and it is what many judicial conservatives argue for, but it is not what I am arguing for.

When I mention "the framers misinterpret[ing] the results of their own rule" I am not trying to make a rhetorical point arguing that the framers never did misinterpret their own rules. I believe there are instances where they did, and in those instances I believe it is the rule that dominates not the flawed application of the rule by the framers.

What I am arguing is a matter of interpretation. I do not believe that words and language have a single objective meaning. The plain words of an amendment therefore do not have an objective meaning independant of the conceptions of meaning held by the men who wrote and ratified it. The words are clearly signifiers and the signified object is the conception of a legal mechanism reasonably shared by the people agreeing to be bound by that legal mechanism.

In ascertaining what a cryptic phrase means, the actions of the people who agreed to that phrase are clearly relevant data points. Sure, they are not 100% accurate data points, but they are certainly not easily dismissed.
9.25.2007 12:09am
Elliot Reed:
I think Caliban is actually on the right track here. The argument would be that compulsory military service isn't "servitude", hence not involuntary servitude, because service to one's country in war is a noble and uplifting enterprise that doesn't merit the negative connotations of "servitude".
9.25.2007 12:15am
Michael Poole:
It seems like an intentional misreading of Butler v. Perry to say that it addresses only systems like slavery. Rather, the Court enumerated and addressed "services always treated as exceptional", identifying road-building as a particular instance.

That kind of service differs substantially from the proposed national service: for example, the quite limited duration and the statutory option to pay a duty in place of service. The exceptional services also differ from school systems' community service requirements. The traditional service levies applied to property owners or free citizens; students do not have the freedoms of adults (such as voting and moving) and do not have the chance to pay a duty rather than serve with labor.

Interestingly, out of the services mentioned by the Court in that case, only jury duty survives today as a civic requirement. Military service, road construction, and the like are performed by voluntary contract financed by general government revenues. It does not seem hard to read the Fourteenth Amendment to allow compulsory jury duty while forbidding the draft and other forms of service, but that seems like a discussion for another thread. The general trend in providing community services has been to move away from direct service and move towards tax-funded contract. National service and community service requirements try to turn back that clock for some very questionable reasons.
9.25.2007 12:35am
Ilya Somin:
I think Caliban is actually on the right track here. The argument would be that compulsory military service isn't "servitude", hence not involuntary servitude, because service to one's country in war is a noble and uplifting enterprise that doesn't merit the negative connotations of "servitude".

The fact that a particular form of forced labor serves a "noble" purpose in the opinion of the Court doesn't mean that it isn't servitude. If having a noble or uplifiting purpose were sufficient, than slavery and peonage laws would still be constititutional because their advocates believed that they served the noble and uplifiting purposes of maintaining the US economy and protecting the Southern "way of life."
9.25.2007 1:38am
Caliban Darklock (www):
@ Anonymous Lunatic:
> the Thirteenth Amendment has been held to prohibit
> orders of specific performance as a remedy for
> violations of contracts for personal services.

I think part of the deciding factor there is that while the original contract is paid, the performance as remedy is not. I could be wrong. Citation?

> The fact that a particular form of forced labor serves
> a "noble" purpose in the opinion of the Court doesn't
> mean that it isn't servitude.

The first-blush argument I'd make would be that it isn't servitude because you're being paid. Noble purposes don't really enter into it.
9.25.2007 1:53am
Caliban Darklock (www):
Sorry... forgot to attribute the second quote above to Ilya Somin. Appy polly loggies.
9.25.2007 1:54am
jim:

The first-blush argument I'd make would be that it isn't servitude because you're being paid. Noble purposes don't really enter into it.


That doesn't really hold up, though. Paid servitude isn't a contradiction in terms. And payment doesn't change whether something is voluntary.

Since the fourteenth amendment hadn't yet guarenteed that the Feds could legislate against race discrimination, for the involuntary servitude clause to mean anything, it needs to prevent a Southern state from paying some small fee to every dark-skinned resident in exchange for a new legally imposed servitude.
9.25.2007 2:27am
David M. Nieporent (www):
I don't see where that gets you. Any time the government passes a law prohibiting a speech act, it literally "abridg[es] the freedom" to perform that speech act.
The constitution doesn't say that congress can't abridge the freedom to perform speech acts. (Ugh.) It says it can't pass laws which abridge the "freedom of speech." Since perjury is not part of "the freedom of speech," passing laws against it doesn't abridge freedom of speech.

Unlike the thirteenth amendment, the first amendment doesn't create a right; it recognizes that there's a pre-existing right, and says that Congress can't abridge that right. Since there was never a right to commit perjury, passing a law against it abridges no right.

An analogous situation would be if the thirteenth amendment said, "Congress shall not pass laws which abridge rights of personal liberty." (Or conversely, if the first amendment said, "Congress shall pass no law restricting speech.") Then we could discuss whether there was ever a right not to be conscripted. But the thirteenth amendment simply says that involuntary servitude is illegal.


The first-blush argument I'd make would be that it isn't servitude because you're being paid. Noble purposes don't really enter into it.
All slaves were -- and are -- paid. In kind, if not cash. But obviously whether something is slavery can't turn on whether you give the slave food or whether you give him money to buy food. It's the involuntariness of employment, not the form of payment, that makes it slavery. Else barter would be slavery.
9.25.2007 7:14am
PersonFromPorlock:
George Weiss:

PersonFromPorlock: please tlle me your joking...arnt we a little trigger happy here?

Well, I'm not too serious; but it's always interesting to see how legal positivists subvert their own doctrine with 'a wink and a nudge' to keep the literal laws from bringing everything to a grinding halt.
9.25.2007 8:33am
Mack (mail):
Thanks Jim and George for your responses, much to chew on.
9.25.2007 10:11am
markm (mail):
might the following Constitutional provisions justify the draft:

"To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;


Not this part, because you don't have to draft soldiers and sailors to have an army and navy. In England and the colonies, regular army service was traditionally voluntary. The English navy sometimes drafted sailors, but the US never did (except maybe for WWII)

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

Maybe. I don't know if militia service was ever officially compulsory, but if you lived on the frontier, were clearly capable of serving, and didn't turn out for militia practice with your neighbors, they might not come and save you when the Indians attacked. Not to mention that being called a coward was a big deal in those days (to the extent that I have the impression militia captains had trouble with excluding those who wanted to prove their courage although manifestly unfit to serve), and that everyone trying to live a more or less civilized life in rural America in the 18th or 19th centuries depended on good relations with the community. There were other mutual obligations that might as well have been compulsory although certainly not legally mandated - you went to barnraisings and worked to put up your neighbor's building, because someday you'd need one erected, and even if you were rolling in cash there weren't enough men for hire for a short-time job in a remote location.
9.25.2007 4:19pm
Lugo:
The English navy sometimes drafted sailors,

In time of war, the Royal Navy always had a "draft" - the press gang and the quota system.
9.26.2007 10:17am