The debate over the Service Nation proposals for mandatory national service raises the issue of whether such an imposition is constitutional under the Thirteenth Amendment. In a series of posts last year, I explained in detail why I believe that mandatory national service violates the Thirteenth Amendment's prohibition on "involuntary servitude." To briefly summarize my argument, the key point is that the text of the Amendment forbids all "involuntary servitude," with the sole exception of forced labor imposed as punishment for a crime. For reasons explained in this post, the explicit inclusion of this exception strongly suggests that no other exceptions are permitted, including for government-imposed "service" obligations.
In this post, I discussed and criticized the Supreme Court's 1916 decision in Butler v. Perry, the case (noted in Jim's most recent post) that comes closest to holding that mandatory civilian service is constitutionally permissible. Butler upheld a Florida law that required all adult males to either pay a small tax for the upkeep of roads or report for mandatory road repair work six days per year. The option of paying a tax potentially could have been grounds for upholding the law on the basis that a law that simply required all citizens to pay a small road tax would surely have been constitutionally permissible, and adding a labor option doesn't make the law more coercive than it was before. Unfortunately, the Court upheld the law on broader grounds that might also apply to mandatory national service. This aspect of Butler's reasoning is, I think, severely flawed, for reasons that I explained in the linked post.
I am far from certain that today's Court would endorse Butler's reasoning. But even if it did, that might not be enough to uphold a mandatory national service program that imposed a lengthy forced labor obligation on all young people. Justice McReynolds' opinion for the Court claimed that the Thirteenth Amendment's ban on "involuntary servitude" does not extend to "services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state." This suggests that only longstanding traditional service obligations and "duties . . . owe[d] to the state" are exempt from the Amendment's otherwise categorical ban. Obviously, there is no longstanding tradition (or any tradition) of civilian mandatory national service imposed for a lengthy period of time. Therefore, a modern court could strike down mandatory national service without overruling Butler or even cutting back on its more expansive reasoning.
Other precedents cut against the constitutionality of mandatory national service. For example, as I noted here, in the Peonage Cases of the early 1900s, the Court used the involuntary servitude ban to strike down laws that imposed significantly less coercive labor obligations than those that would be required under mandatory national service.
In future posts, if time permits, I intend to consider the legal and policy issues raised by the Service Nation proposal in more detail.
UPDATE: The law upheld in Butler was a Florida law, not an Alabama law as I initially stated. I have corrected the mistake in the main body of the post.
Related Posts (on one page):
- Service Nation States that It Does Not Support Mandatory National Service:
- McCain's Time Magazine Essay on Patriotism Touches on Service.--
- McCain Campaign “studying options for national service.”--
- Why Mandatory National Service is Unconstitutional under the Thirteenth Amendment:
- The Mainstreaming of Forced Labor:
- Service Nation, Part III: Mandatory Community Service is a Basic Assault on Anglo-American Liberty.--
- Service Nation, Part II: The Goals of Its Leader.--
- Service Nation, Part I: Time Magazine Announces Public Service Campaign.—
In short, not much.
(I do wonder about the economic effects of this. It will remove a huge number of young people from the workforce and require a huge increase in taxation to pay for it all. I also wonder what the government will do with people who refuse to be enslaved - prison? fines? is throwing young people in prison really a good political move?)
Why is a military draft any different?
If there is a large influx of younger voters in the upcoming election I suspect the idea of press-ganging the young will become much less popular.
Prisons avoid that focus on youth. They take in people of any age, work them 'til there's nothing left and then toss them out to the street on "compassionate release". We are rapidly recreating slavery in this country.
Incidentally, I fancy that any national service program would not be strictly compulsory, but would instead be made a condition of various federal benefits, starting with student loans and perhaps working up to admission to practice law in federal court or obtaining a mortgage from a federally-insured or regulated lender. I expect that the federal courts would uphold a program of that nature, and that, indeed, a small proportion of the young people at the very bottom of the socio-economic ladder would not participate in the program.
I will suggest, though, that the use of 'implied consent' laws at the state level over the last forty or so years, and their validation by various courts, makes it at least theoretically possible for Congress to sidestep the Thirteenth Amendment by stipulating that young people who don't give up their citizenship are giving their 'implied consent' to being conscripted for national service. The parallel with breathalyser tests and the Fourth Amendment is pretty close.
Libs like Hillary, Obama and Rangel still crave bringing back the draft, though. They absolutely drool at the thought of conscripting millions of young American servants for their big government and wag-the-dog schemes. Heck, Rangel runs the bring-back-the-draft idea up the flagpole about every year -- and now odumbo flatly states that he intends to fund a national "force" costing as much as the military is funded.
Libs. They're all about forcible conscription and big, big government. But I'm sure their indentured servitude would be racially balanced, and affirmatively activated.
Only if mandatory community service interferes with your day job as a gigolo, surrogate mother, or abortionist.
I think the One World Discount Center is having a sale on Aluminum Foil Hats this week.
As I stated in the comments to last years' posts, I think your reading, while possible under a strictly textualist interpretation, runs counter to the Original Public Meaning of the words of the 13th amendment.
The men who read and ratified the 13th amendment would have been familiar with the key phrase of the amendment from the Northwest Ordinance, which contained the provision:
Those men would also have been familiar with the practices that occurred under the restrictions of that language, which included mandated service in the militia and in juries, and poll taxes extracted in small amounts of labor, like those upheld in Butler.
Absent some compelling historical evidence indicating a shift in the meaning of the words employed by the amendment, I think the best interpretation of its words is a meaning that is consistent with the existence of jury service and the draft.
That is not to say that I think a Compulsory Federal Service program is likely to be, or possibly can be, constitutional, for reasons I state in my reply to Jim Lindgen's post. But I think it worth noting that one can have a principled reading of the thirteenth amendment that is broader than the one you state, but which still does not condone conscription for civilian purposes.
I wouldn't expect the courts to intervene, but I suspect a law conscripting everyone into the army and having some of them doing civilian work would be much less politically feasible than a law that conscripted you, but gave you the outright choice to go into either the civilian or military corps.
People are going to be much more willing to let their kids do community service for a year than they are to let their kids go into the military not knowing if they will have to enter into danger.
Congress could also condition just about every tax deduction in the tax code on having done some form of public service.
There are plenty of good policy reasons to oppose national service, but if Congress does it right, they could probably avoid unconstitutionality.
I don't believe the Supreme Court would consider public service voluntary when the alternative is denial or loss of a public benefit. Otherwise, any government could blackmail any person into doing anything.
I honestly do not know the answer to this question. Can someone please address it?
"Constitutional" meaning "theoretical," or "as relates to the founding document of the United States"?
The Constitution has the following statements about armies &militias:
(Art. I Sec. 8)
Art. 2 Sec. 2
The Founders had a strong distrust of standing armies and did their best to fashion a system which would not allow for them. Clearly, a system which conscripts every young person of a certain age, for a set period of years, in peace and in war, would be a "standing army." Congress is only permitted to fund these things for two years at a time, and the system would require, under its scheme, to be continually funded.
More than that, there is a fundamental difference between what you do in peace time and what you do in war. You can suspend habeas in war time, for example, but not in times of peace. Defence of the country is a necessity - if we don't do it, there may no longer be an America to conscript you - which would seem to indicate that you can't merely draft people into civilian activity when the country is not under attack. Painting an inner-city ballpark is in no way related to ensuring that the country is not invaded.
From here, I think it's pertinent to bring up the Due Process Clause. No loss of life, liberty, or property without due process of law - remember that one? Presumably, in the 18th century, conscription was either thought to not be a violation of liberty (because of the manifest necessity of war) or a violation of due process (for the same reason).
Random question: can you draft people in times of peace?
Also I could see a court holding that "fighting" in a battle is not "labor" per the definition of servitude. Nobody would say involuntary quarantine due to the threat of communicable disease is labor thus a violation of the 13th Amendment. While fighting would typically require one to expend more energy than laying on a bed in a quarantined room, in today's computerized warfare it could be no more than pushing a button. Or being used as a human shield ("Operation Human Shield" from the South Park Movie - but that also has an issue of race/equal protection).
Part of the answer to this question, I presume, lies in what is a "fair wage" (you point this out later in your contribution to the thread). Slaves in the antebellum era were, in a sense, "paid" with some food and shelter, although whether such payment was "fair" or even adequate to meet daily survival needs, is another question. Still, wouldn't slavery be just as objectionable if "just compensation" (however that is determined) were assured to the slaves?
I realize this is just a passing comment, but habeas can only be suspended in cases of invasion or rebellion, when the public safety may require it. There's no exception for wartime per se.
Exactly my question. Though I think that would no longer be slavery — paying a slave a fair wage is a contradiction in terms. But it might still be "involuntary servitude." Suppose the government decided there were not enough lawyers around to represent big corporations, so it required that I work at a big New York law firm for a year. I would be forced to work over 2000 hours, but would also be "forced" to make $160,000 (or whatever they make nowadays). I would not like not having the choice, but is this within the original public understanding of "involuntary servitude?" And, if not, should we resort to a "living constitutionalism" brand of constitutional analysis?
They might, but I would doubt it. Heller came out the way it did because conservatives support gun rights along with libertarians. But pure libertarian claims, like Reich and Kelo, lose, because there isn't a majority of 5 pure libertarians on the Court.
I can see CJ Clinton upholding national service on this alone citing to Clayton Cramer's scholarship.
A Constitution is a Legal Document that makes or forms an entity, in this case, the U.S.A. - how many people can change what they are made up from? The Constitution provides a way for it to be amended. By definition, "to add, clarity". Nothing here grants the power to change any existing Principle, doing so would require Conventions of the several states to be ratified.
If you read Article V, Congress, upon receiving 2/3's approval, shall call a convention. They are obligated to. (Federalist 85, Paragraph 11 I believe)
But the purpose for amending was to ensure the other states could hear both sides, and then determine if they approved the amendment. But it was only meant to add.
This is also apparent in many of the Notes by Madison and others. Why argue against "not restraining when a future need may arise" vs specified limitation.
Can the 17th Amendment be a "Revenue Producing Bill" since it relates to increasing the federal treasury by taxation? If so, why was it a Senate Originating such bill.
Any powers not granted are reserved to the states or the People.
There is a lot nore going on than people are ready to admit
Each clause was carefully calculated.to prevent powers from forming a Tyranny. There's so much more.
The Constitution grants the government the ability to draft people for the purposes of national defense- not building roads.
Sure we could make a bunch of mental gymnastics and thereby argue that drafting people to build highways is aiding to national defense (Yes, I know the history of our highway systems), but can anyone really, plausibly insist that the founders (or the framers of the 13th) didn't have in their minds a distinction between drafting someone to go fight a war and drafting someone to go build dams?
What part of the Constitution are you looking at? The only part that arguably supports your assertion is art. I, sec. 8, cl. 12, which empowers Congress "[t]o raise and support armies." Is it your contention that the power to "raise" armies includes the power to conscript? If so, what is your support for such an unnatural reading of "raise?"
The more natural reading is that the Congress was being empowered to create a volunteer Army, in contradistinction to the "militia," which were state entities consisting of conscripted citizen-soldiers. That is why the (volunteer) Army could be funded only in two-year increments: a standing army of professional, volunteer soldiers controlled by the central government was a frightening prospect.