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Butler v. Perry and the Constitutionality of Forced Labor Under the Thirteenth Amendment:

In my earlier posts discussing the constitutionality of the draft and other forced labor programs under the Thirteenth Amendment, I made a mistake in failing to consider the 1916 case of Butler v. Perry. I thank Georgetown law professor Marty Lederman for drawing my attention to this important and unduly neglected decision.

Butler provided a much stronger defense of a narrow interpretation of the Thirteenth Amendment that would uphold the constitutionality of many forced labor programs than did the more famous case of Arver v. United States, which I criticized here.

The case upheld the constitutionality of a Florida law that required all able-bodied male citizens between the ages of 21 and 45 to either do road repair work for six days each year, provide a substitute, or pay a $3 tax. The option of paying a small tax prevents this program from being a true forced labor provision. According to the CPI inflation calculator, $3 in 1916 is equivalent to $57.69 in 2006 dollars, not exactly a backbreaking imposition. After all, there would have been no Thirteenth Amendment issue had Florida simply required all male citizens to pay an annual $3 tax for road upkeep without giving them the option of performing labor instead. Allowing the men to do labor instead of paying the tax just gave them a chance to pay in kind rather than in cash.

However, Justice McReynolds' opinion for the Court doesn't rest on any such narrow ground. Instead, it strongly suggests that the law would have been constitutional even if the options of paying $3 or hiring a substitute were not available. According to McReynolds, "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 (for details see historian Eric Foner's classic work Free Soil, Free Labor, Free Men). 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' best originalist argument is the evidence he presents showing that, prior to the Civil War, federal territories governed by laws that banned involuntary servitude in terms similar to those of the Thirteenth Amendment still had road labor laws similar to Florida's. Ultimately, my main reply is that such evidence still cannot trump the plain text of the Amendment. When the two conflict, textualism takes precedence over originalism because only the text, not subjective intentions of the framers or ratifiers, is law.

On a less grandiose theoretical plane, 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. On this interpretation, Butler was rightly decided, but wrong to rely on any broad claim that the Thirteenth Amendment permits a wide range of traditional forms of forced labor.

Furthermore, the institution of judicial review was relatively weak in the antebellum era, and state and territorial governments could quite often get away with unconstitutional laws and practices. The fact that a given statute or practice wasn't struck down in the antebellum period is only weak evidence of its constitutonality, and is not enough to outweigh clear constitutional text. As judicial power became more institutionalized in the years after the Civil War, road labor laws started to be challenged in the courts, aprocess culminating in the Butler case itself.

Finally, although it is not directly relevant to the issue I want to address, it is worth pointing out that McReynolds' opinion ignored (probably deliberately) the likely racial context of the Florida law. In 1913 Florida (the year when the law was enacted), it is highly likely that such a statute would be enforced primarily against poor blacks, and might even have been enacted for the specific purpose of conscripting black labor under the guise of a facially neutral law.

Because of its civilian (as opposed to military) context and because of the suspicious racial background to the case, I doubt that the modern Supreme Court would rely on Butler to uphold mandatory national service today; quite possibly, today's Court actually would strike down a modern law similar to that upheld in Butler. For these reasons, the precedent-based argument for a pro-forced labor interpretation of the Thirteenth Amendment probably rests on the Progressive Era Court's much more poorly reasoned 1918 opinion in Arver.

Matt Tievsky (mail):
Commenter Perseus asked an excellent question in the last thread: Does compulsory jury duty violate the 13th Amendment?

A negative answer strongly supports the reasoning of [i]Butler v. Perry[/i], or some variation on it. Perhaps "slavery or involuntary servitude" only refers to forced labor that directly, materially, and personally profits the master (i.e., "compulsory labor akin to African slavery"). That definition arguably wouldn't include "duties which individuals owe* to the state," because it is the public which profits from the performance of such duties.


*I believe Justice McReynolds uses "owe" in a natural law sense; he doesn't mean to say that every law requiring persons to labor for the state is a legitimate one.
9.25.2007 4:36am
肿瘤 (mail):
9.25.2007 4:36am
Ilya Somin:
Commenter Perseus asked an excellent question in the last thread: Does compulsory jury duty violate the 13th Amendment?

A negative answer strongly supports the reasoning of [i]Butler v. Perry[/i], or some variation on it. Perhaps "slavery or involuntary servitude" only refers to forced labor that directly, materially, and personally profits the master (i.e., "compulsory labor akin to African slavery"). That definition arguably wouldn't include "duties which individuals owe* to the state," because it is the public which profits from the performance of such duties.


I'm undecided on the constitutionality of jury duty. But if it is permissible, it's only because it's relatively brief and nononerous enough to not amount to "servitude." It certainly does not follow that forced labor is involuntary servitude only if "personally profits the master." Nothing in the text or history supports such a result, and government-owned slaves would certainly be unconstitutional.
9.25.2007 4:45am
LongSufferingRaidersFan (mail):
But they would definitely have the best early retirement package, Ms. Somin....
9.25.2007 4:58am
George Weiss (mail):
right...i also asked about jury duty in the previous thread...
then i read butler after consulting am jur on 13th amendment...then saw it here......


the internet is so cool
9.25.2007 5:24am
George Weiss (mail):
am jur and the precious thread also pointed to other suspecious things that have been upheld...

school attenence being mandatory to 8th grade...

jail for fathers who refuse to work to pay child support
9.25.2007 5:29am
Ilya Somin:
i>am jur and the precious thread also pointed to other suspecious things that have been upheld...

school attenence being mandatory to 8th grade...

jail for fathers who refuse to work to pay child support

There are obvious differences between adults and children, and also between working to fulfill other legal obligations (which can also be met in ways other than forced labor) and the work itself being a legal obligation (which is forced labor). Similarly, it is not forced labor if the law requires you to repay debts you have freely contracted, even if repayment requires you to earn some money by working.
9.25.2007 5:35am
jim:

I'm undecided on the constitutionality of jury duty. But if it is permissible, it's only because it's relatively brief and nononerous enough to not amount to "servitude."


I would suggest that if you believe the same men who greatly extended the right to a jury trial also made jury service unconstitutional without stopping to mention the problem inherent in this, then it is doubtful you hold those men in as high esteem as do I.

Second, I would contest that serving on a jury is neccessarily a brief or unimposing burden. Getting called into a grand jury and having to drive down to the state capital at regular intervals for a year sucks pretty hard if you don't live in a tiny state. And forget about how disrupting to your life it is to get picked for a trial of the centry type criminal case.

Beyond which, where in the history or text of the amendment would the length/onerousness criteria arise? Could state law empower a private person to enslave twelve blacks as long as such enslavement lasted only as long as the term of a jury and mimiced its duties?
9.25.2007 6:47am
Matty G:
I may be joining this debate late, and I'm certainly joining it as a layman, but how could a national service law be held unconstitutional when statutorily authorized conscription is clearly (I believe) constitutional?
9.25.2007 9:24am
jim:
Matty G: Illya has been arguing that military conscription is unconstitutional. Others are arguing that military conscription has a different constitutional status than would apply to the national service proposals. Presumably some would argue that both are constitutional.
9.25.2007 9:32am
loki13 (mail):
I'm not sure I'm following your arguments Ilya:

1. National service (and the draft) are unconstitutional because of the clear Constitutional text which allows only exceptions for prison.

2. Jury service may be unconstitutional, but since it's not so bad, maybe it isn't (despite the clear constitutional text).

3. Forced school attendance is fine because, well, children are different. Here, we're looking outside the clear constitutional text even though we don't in 1 and 2 (I don't see 'child' in the 13th, but does this mean that we can put children in complete slavery, sell them as chattel etc.?).

4. 'Forced work' for child support is constitutional because it's a legally mandated obligation. So I suppose if the government issued an obligation of a dollar amount for 18-21 year olds that could be discharged through national service or jail, that would be fine?

I'm not saying you're not principled... but it's interesting how you're principles about Constitutional interpretation line up so nicely with your beliefs (no draft, not national service, maybe jury duty, school and support are okay). This despite ample evidence that the 13th was drafted to end slavery, it was not drafted to end the draft. Do you have any case law or historical evidence to support your proposition?
9.25.2007 10:52am
Lior:
I don't think your argument is textual. The main argument of Butler v. Perry (it seems to me) quotes ths 1787 ordinances:


The ordinance of 1787 for the government of the Northwest Territory declares: 'There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes, whereof the party shall have been duly convicted.' In 1792 the territorial legislative body passed an act providing: 'That every male inhabitant of sixteen years of age and upwards on being duly warned to work on the highways by the supervisor in the township to which such inhabitant may belong shall repair to the place and at the time by the said supervisor appointed with such utensils and tools as may be ordered him wherewith he is to labour and there abide and obey the direction of such supervisor during the day in opening and repairing the highway.'

By their several Constitutions the states within the limits of the Northwest Territory prohibited involuntary servitude substantially in the language of the 1787 ordinance, and with the possible exception of Wisconsin, all of them early enacted and long enforced laws requiring labor upon public roads.


In other words, the exact text (including the term "involuntary servitude") was in use to outlaw slavery for a long time before the 13th amendment, without it being used to outlaw forced labour (even without "payment in lieu of labour" clauses). You may have an "originalist" approach saying that between 1787 and 1865, public opinion has changed so that by 1865 the same wording was thought to have a more sweeping effect, but that is a very tenuous position. That the 13th amendment was enacted in response to African slavery seems to me to be a secondary argument, not the main rationale of the decision of the court.

(IANAL)
9.25.2007 11:09am
SailorDave (www):
Isn't "forced work" for child support a punishment for the crime of not paying past child support? I don't see how it's relevant here.

And isn't it clearly constitional to tax 18-21 year olds with a discharge option? Obama has already proposed special tax rates for people over 65, and while I don't think that's fair or rational, I haven't heard anyone argue its unconstitutionality.
9.25.2007 2:33pm
ReaderY:
I suspect that "slavery" only applies to duties that are required of a narrow class of people placing them in a position lower than that of general society, and simply does not apply, at all, to whatever burdens and hardships are shared by all citizens alike.

The Constitution simply does not require libertarianism and in this country people are free to adapt a different philosophy for their government if they choose. Libertarians would be well advised to attempt to devoite their energies to attempting persuade the public of libertarianism's benefits, if they can, rather than attempting to use the courts as a device to force the philosophy on the public unwillingly.
9.25.2007 10:15pm
Rich Rostrom (mail):

using forced labor to punish criminals was a longstanding tradition, and was surely not considered "akin to African slavery."


Wrong, I think. From the 17th century to the 19th century, in British jurisdictions, persons condemned to penal servitude were sometimes bought and sold like slaves. Technically it was the indenture rather than the person that was property, but practically it was the same. Usually this followed transportation to the colonies: to the West Indies in the 1600s, to Australia in the 1800s.

The authors of the 13th Amendment were familiar with this. While I am sure that they did not want to see the revival of this practice in America, they could see that penal servitude was close enough to chattel slavery that it might fall under a blanket ban of the latter.
9.27.2007 2:23am