Critics of my argument that the Thirteenth Amendment is a comprehensive ban on forced labor can legitimately ask about the implications of my ideas for mandatory jury service. After all, mandatory jury service is pretty obviously a form of forced labor, yet almost everyone seems to believe that it doesn't violate the Thirteenth Amendment's ban on "involuntary servitude."

I am tempted to say that mandatory jury service is in fact banned by the Thirteenth Amendment, regardless of longstanding tradition. Forcing people to work for the government for weeks or months at a time is clearly "involuntary servitude" and nothing in the text of the Thirteenth Amendment exempts this form of forced labor from invalidation as unconstitutional (in the way that there is an explicit exemption for the use of forced labor as punishment for crimes). Longstanding tradition and judicial precedent is not dispositive here, anymore than was the longstanding tradition and precedent that anti-blasphemy laws were permissible despite the plain text of the First Amendment.

However, there is an important difference between mandatory jury service and all other types of forced labor. Mandatory jury service is necessary to secure another individual right guaranteed by the Constitution: criminal and civil defendant's rights to a trial by jury under the Sixth and Seventh Amendments. One could argue that the right of trial by jury does not necessarily require trial by a jury of forcibly conscripted citizens. In theory, the jury could be comprised of volunteers or paid professionals. However, as far as I can tell (and I welcome correction from those more knowledgeable about this issue) in 18th and 19th century usage and even today, the word "jury" was and is generally understood to mean a group of forcibly conscripted citizens. Coercion was and is (wrongly, in my view) believed to be necessary to ensure that the jury would be a representative sample of the citizenry. Thus, unlike other forms of forced labor, mandatory jury service is necessary to secure a constitutional right.

As a general matter, constitutional amendments should not interpreted to obliterate preexisting constitutional rights unless the intent to do so is specifically stated in the text. For example, under the Sixteenth Amendment Congress was given an unlimited power to "lay and collect taxes on incomes." That does not mean, however, that Congress has the power to impose discriminatory taxes that violate the preexisting First Amendment by targeting people who engage in speech critical of the government. For the same reason, the Thirteenth Amendment cannot be interpreted in a way that negates the preexisting constitutional right to trial by jury under the Sixth and Seventh Amendments. Not unless the text (or at the very least the intent of the Framers and ratifiers) clearly indicates such negation.

I'm not at all happy about this conclusion. As a matter of policy, I doubt that trial by jury is superior to bench trials, especially in cases with complex evidence that many jurors lack the competence to assess. Even if trial by jury is desirable, volunteer juries are probably just as good as ones manned by forced laborers. As a matter of morality, I believe that this form of forced labor is no less despicable than other types of mandatory "public service."

Nonetheless, as a legal matter, this is one of those painful instances where the Constitution not only permits what I believe to be a deeply unjust policy but actually requires it.