In a recent post, co-blogger Eugene Volokh reasserts the view that the text of the of the Thirteenth Amendment’s ban on “involuntary servitude” does not cover traditional state-imposed “duties of citizenship” such as mandatory military service and possibly even mandatory road work.
I think matters are not so simple as that. Eugene’s argument and others like it run into two problems. First, as I pointed out here and here, the Amendment contains an exemption for forced labor imposed as punishment for a crime. 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. Using forced labor to punish criminals was a longstanding tradition, an obligation imposed by the state, and was surely not considered “akin to traditional slavery,” as Eugene puts it in his description of the scope of the involuntary servitude ban. The fact that the framers of the amendment believed that this exemption was necessary is a strong indication that the ban on involuntary servitude is not limited to conditions “akin to traditional slavery,” but was in fact intended to cover forced labor more generally. Otherwise, the exemption for servitude imposed as punishment for a crime would have been superfluous.
Second, as I explained more fully in this post, the “free labor” ideology underpinning the Amendment went beyond previous understandings in condemning forced labor generally, as opposed to merely slavery narrowly defined. Thus, it is wrong to assume that the framers and ratifiers of the amendment were necessarily guided by the relatively narrow definition of “involuntary servitude” embodied in laws that were drafted decades earlier. As the Supreme Court majority explained in the Slaughterhouse Cases, just a few years after the Amendment was enacted:
[The Thirteenth Amendment is a] grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government….
The exception of servitude as a punishment for crime gives an idea of the class of servitude that is meant.The word servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that, in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded if only the word slavery had been used. [emphasis added]
The then-recent Civil War-era draft is not a good counterexample, for reasons I discussed here.
Note that majority seems to interpret the amendment to cover all “shades and conditions” of forced labor, including those imposed by the government (as were some of the practices it describes in the West Indies). It also emphasizes the importance of the exemption for servitude imposed as punishment for a crime in defining the scope of the Amendment.
Justice Stephen Field’s dissent, often praised by modern originalists, defines the term even more broadly:
The words “involuntary servitude”… include something more than slavery in the strict sense of the term; they include also serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the terms. The abolition of slavery and involuntary servitude was intended to make everyone born in this country a freeman, and, as such, to give to him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor…. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably none would deny that he would be in a condition of servitude. He certainly would not possess the liberties nor enjoy the privileges of a freeman. The compulsion which would force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another, and would equally constitute an element of servitude.
Field’s analysis seems to cover every situation where a person is “allowed to pursue only one trade or calling, and only in one locality of the country.” Obviously, that is precisely what happens when an individual is subject to mandatory military service or any other form of forced labor imposed by the state. For as long as the obligation lasts, he can “pursue only one trade or calling” and only where the government directs him to do so. The fact that the obligation is temporary rather than permanent does not exempt it from the coverage of the Amendment. Otherwise, the mandatory “apprenticeship for long terms” referred to by the majority would be permissible. And, as Field mentions, it does not matter whether the service is imposed solely for the benefit of others (as in the case of traditional slavery) or also for the victim’s “own benefit” (as the government usually claims is true in the case of mandatory civilian or military service).
This is not to suggest that everyone in the late 19th century interpreted the Amendment as broadly as the Slaughterhouse justices did or that there was anything close to universal agreement on the subject. There clearly was not. For example, southern state governments and some northerners argued that the Amendment did not even ban peonage laws. I merely wish to suggest that there was no clear consensus going the other way that should trump the natural meaning of the words, or that should lead modern jurists to feel bound to uphold government-imposed forced labor, whether it is seen as implementing a “duty of citizenship” or not.