The Thirteenth Amendment, the Draft, Jury Service, and (Perhaps Surprisingly) Compulsory Road Work

Occasionally some people ask why the draft hasn’t been found to violate the Thirteenth Amendment, which provides that “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.” (I saw this question asked a few weeks ago by a professor on a discussion list that I’m on, which is why I’m posting this now.) Why isn’t involuntary military service “involuntary servitude”? One could ask the same about involuntary jury service, or involuntary service as a witness.

I don’t want to debate here the moral, practical, or political theory questions related to the draft, or the question of how such constitutional provisions should be interpreted. But I did think it might be helpful to give the answer that the Supreme Court likely had in mind when it rejected the Thirteenth Amendment argument against the draft in The Selective Draft Law Cases (1918).

I say “likely” because the Court in those cases rejected the Thirteenth Amendment claim out of hand, without giving this argument. But two years before, the Court held in Butler v. Perry (1916) that the Thirteenth Amendment didn’t prohibit mandatory service on constructing roads, which likely seems to most of us now to be a much more unusual form of involuntary service. And the rationale, I think, would apply equally to the draft:

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.” (Sec. 5, Chapter IV, Laws passed from July to December, 1792, Laws of the Territory Northwest of the Ohio, 1788-1798.) An act of the General Assembly of the Territory passed in 1799, declared: “That all male persons of the age of twenty-one years, and not exceeding fifty, who have resided thirty days in any township of any county within this territory, who are not a township charge, shall over and above the rate of assessment hereinafter mentioned, be liable, yearly and every year, to do and perform two days work on the public roads, under the direction of the supervisor within whose limits they shall be respectively residents.” (Sec. 10, Chapter 28 of Northwest Territory Acts, 1799.)

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.

Utilizing the language of the Ordinance of 1787, the Thirteenth Amendment declares that neither slavery nor involuntary servitude shall exist. This amendment was adopted with reference to conditions existing since the foundation of our Government, and 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, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers. Slaughter House Cases, 16 Wall. 36, 69, 71, 72; Plessy v. Ferguson, 163 U.S. 537, 542; Robertson v. Baldwin, 165 U.S. 275, 282; Clyatt v. United States, 197 U.S. 207; Bailey v. Alabama, 219 U.S. 219.

And the duty to work on building the roads, the Court held, was indeed a “service[ that was] always treated as exceptional”:

In view of ancient usage and the unanimity of judicial opinion, it must be taken as settled that, unless restrained by some constitutional limitation, a State has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near his residence without direct compensation. This is a part of the duty which he owes to the public. The law of England is thus declared in Blackstone’s Commentaries, Book 1, page 357:

`Every parish is bound of common right to keep the highroads that go through it in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. From this burthen no man was exempt by our ancient laws, whatever other immunities he might enjoy: this being part of the trinoda necessitas, to which every man’s estate was subject; viz., expeditio contra hostem, arcium constructio, et pontium reparatio. For, though the reparation of bridges only is expressed, yet that of roads also must be understood; as in the Roman law, With respect to the construction and repairing of ways and bridges no class of men of whatever rank or dignity should be exempted.’

The trinoda necessitas was an obligation falling on all freemen or at least on all free householders. Vinogradoff, English Society in the Eleventh Century, p. 82.

From Colonial days to the present time conscripted labor has been much relied on for the construction and maintenance of roads. The system was introduced from England, and, while it has produced no Appian Way, appropriateness to the circumstances existing in rural communities gave it general favor. Elliott on Roads and Streets, §§ 479, 480; Dillon on Municipal Corporations, 5th Edition, § 1407, p. 2459, note; Cooley, Constitutional Limitations, 7th Edition, p. 736; In re Dassler, 35 Kansas, 678; State v. Wheeler, 141 N. Car. 773, S. Car., 5 L.R.A. (N.S.) 1139, note; Dennis v. Simon, 51 Ohio St. 233; State v. Rayburn, 2 Okla. Cr. Rep. 413; Sawyer v. Alton, 4 Illinois, 127; State v. Commissioners of Halifax, 15 No. Car. 345. In 1889 the statutes of twenty-seven States provided for such labor on public roads. Young’s Recent Road Legislation.

Right or wrong, that’s the way the Court has interpreted the Thirteenth Amendment, based on the Court’s inferences about the historical meaning of the phrase “slavery [or] involuntary servitude.” The history was unknown to my correspondent on the discussion list, and to me until I ran across it some years ago, so I thought I’d pass it along to those who likewise hadn’t known it.