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.