Butler v. Perry and the Constitutionality of Forced Labor Under the Thirteenth Amendment:

In my earlier posts discussing the constitutionality of the draft and other forced labor programs under the Thirteenth Amendment, I made a mistake in failing to consider the 1916 case of Butler v. Perry. I thank Georgetown law professor Marty Lederman for drawing my attention to this important and unduly neglected decision.

Butler provided a much stronger defense of a narrow interpretation of the Thirteenth Amendment that would uphold the constitutionality of many forced labor programs than did the more famous case of Arver v. United States, which I criticized here.

The case upheld the constitutionality of a Florida law that required all able-bodied male citizens between the ages of 21 and 45 to either do road repair work for six days each year, provide a substitute, or pay a $3 tax. The option of paying a small tax prevents this program from being a true forced labor provision. According to the CPI inflation calculator, $3 in 1916 is equivalent to $57.69 in 2006 dollars, not exactly a backbreaking imposition. After all, there would have been no Thirteenth Amendment issue had Florida simply required all male citizens to pay an annual $3 tax for road upkeep without giving them the option of performing labor instead. Allowing the men to do labor instead of paying the tax just gave them a chance to pay in kind rather than in cash.

However, Justice McReynolds' opinion for the Court doesn't rest on any such narrow ground. Instead, it strongly suggests that the law would have been constitutional even if the options of paying $3 or hiring a substitute were not available. According to McReynolds, "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."

There are several problems with this formulation. First and most important, 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. As I explained more fully in this post, using forced labor to punish criminals was a longstanding tradition, and was surely not considered "akin to African slavery." Second, McReynolds' argument elides the hard question of determining what evils really were "akin to African slavery" and likely to "produce like undesirable results." The "free labor" ideology underpinning the Thirteenth Amendment was based on a broad opposition to all forms of forced labor as inimical to a free society, not merely those based on racial categories or those that involved lifelong slavery (for details see historian Eric Foner's classic work Free Soil, Free Labor, Free Men). Finally, McReynolds' argument seems to elevate the supposed subjective intentions of the framers over the plain text of the Amendment, which is clearly not limited merely to those forms of "involuntary servitude" that are "akin to African slavery" but instead bans all such servitude with the sole exception of forced labor used to punish convicted criminals.

McReynolds' best originalist argument is the evidence he presents showing that, prior to the Civil War, federal territories governed by laws that banned involuntary servitude in terms similar to those of the Thirteenth Amendment still had road labor laws similar to Florida's. Ultimately, my main reply is that such evidence still cannot trump the plain text of the Amendment. When the two conflict, textualism takes precedence over originalism because only the text, not subjective intentions of the framers or ratifiers, is law.

On a less grandiose theoretical plane, McReynolds' historical argument ignores the possibility that antebellum road service laws were enacted at a time before the rise of the antislavery "free labor" ideology that underpinned the Thirteenth Amendment. The latter involved a much broader opposition to forced labor than the relatively narrow opposition to slavery that probably underpinned the antislavery provisions in the 1787 Northwest Ordinance and other much earlier laws that McReynolds cited. If so, the original intent behind the 1865 Thirteenth Amendment may have been broader than that underpinning earlier laws using similar language. Moreover, if the antebellum road work laws had allowed citizens to pay a small tax in lieu of working (as the Florida law did), they may not have been viewed as true forced labor measures and thus were considered to be "involuntary servitude" for that reason. On this interpretation, Butler was rightly decided, but wrong to rely on any broad claim that the Thirteenth Amendment permits a wide range of traditional forms of forced labor.

Furthermore, the institution of judicial review was relatively weak in the antebellum era, and state and territorial governments could quite often get away with unconstitutional laws and practices. The fact that a given statute or practice wasn't struck down in the antebellum period is only weak evidence of its constitutonality, and is not enough to outweigh clear constitutional text. As judicial power became more institutionalized in the years after the Civil War, road labor laws started to be challenged in the courts, aprocess culminating in the Butler case itself.

Finally, although it is not directly relevant to the issue I want to address, it is worth pointing out that McReynolds' opinion ignored (probably deliberately) the likely racial context of the Florida law. In 1913 Florida (the year when the law was enacted), it is highly likely that such a statute would be enforced primarily against poor blacks, and might even have been enacted for the specific purpose of conscripting black labor under the guise of a facially neutral law.

Because of its civilian (as opposed to military) context and because of the suspicious racial background to the case, I doubt that the modern Supreme Court would rely on Butler to uphold mandatory national service today; quite possibly, today's Court actually would strike down a modern law similar to that upheld in Butler. For these reasons, the precedent-based argument for a pro-forced labor interpretation of the Thirteenth Amendment probably rests on the Progressive Era Court's much more poorly reasoned 1918 opinion in Arver.