Posted by Ilya Somin:
Does Mandatory "National Service" Violate the Thirteenth Amendment?
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190681955
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 [1]Thirteenth Amendment. I
think that the answer is pretty clearly "yes," at least if you are a
textualist, as I am. The Constitutional Text.
The relevant 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 defintion of the word. In
the Peonage Cases of 1911-12 (which David Bernstein and I discuss in
[2]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.
I am aware of the Supreme Court's 1918 decision in [3]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. 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. Today's prominent national service proposals all
fall into the latter category.
References
1.
http://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=620781
3. http://supreme.justia.com/us/245/366/case.html
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