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 Thirteenth Amendment. I think that the answer is pretty clearly "yes," at least if you take the text of the Constitution seriously.

I. The Constitutional Text.

The 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 definition of the word. In the Peonage Cases (which David Bernstein and I discuss in 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.

The main judicial precedent going against my view is the Supreme Court's 1918 decision in 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, even though lower courts have little choice but to obey flawed Supreme Court precedents. 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. As I explained in my previous two posts, today's prominent national service proposals all fall into the latter category.