At the always fascinating Becker-Posner Blog, Richard Posner and Gary Becker each have excellent posts critiquing proposals for mandatory "national service." As Posner points out:

There are perennial calls for drafting all 18 year olds to serve in either the military or some civilian alternative. Congressman Charles Rangel has repeatedly introduced bills in Congress (the "Universal National Service Act") that would do this. The bills have never come close to passage, and are unlikely to in the future even with Democratic control of both houses of Congress. But universal national service is one of those seductive ideas that refuse to die completely.

Rep. Rangel is not the only supporter mandatory national service. Other advocates include prominent Democratic Congressman Rahm Emanuel, the center-left Democratic Leadership Council, Republican presidential candidate Senator John McCain, and conservative icon Bill Buckley.

Becker and Posner do an excellent job of marshaling the consequentialist economic arguments against mandatory "national service." I would only add that advocates of this policy implicitly assume that whatever jobs the governments assigns to program participants actually will benefit the nation as a whole. That assumption is unlikely to be true, given what we know about the power of narrow interest groups to divert government resources for their own benefit.

Be that as it may, there is a deeper moral issue here: mandatory national service is not just an inefficient policy proposal, it is forced labor. And forced labor on a massive scale. Most proposals would require millions of young people to do compelled work at the behest of the government for one to two years each. Even in the unlikely event that mandatory national service could be shown to provide benefits that outweigh its costs, it would still be morally repulsive. It would still strike at the heart of the liberal idea that each person owns his or her own body, and cannot justly be compelled to work for others merely because it might be convenient to do so. Short of outright slavery or the murder of innocent people, it is hard to think of anything that violates individual liberty more clearly than forced labor.

The rhetoric of "national service" obscures the true nature of the idea, perhaps intentionally. It suggests that forced labor at the orders of the government ("national service") is somehow morally different from forced labor at the behest of other private individuals. But there is no intrinsic moral difference between the two. Yes, forced labor for the government might benefit the nation (though that result is by no means guaranteed). But so could forced labor for a private enterprise. Indeed, even outright slavery was regularly defended on the grounds that the labor of slaves produced valuable benefits to society as a whole.

As Posner points out, there is little chance that Congress will enact a forced labor program in the near future. In the long-term, however, I fear that constant advocacy of the idea will erode our moral resistance to it, and that some crisis may occur that will enable the proposal to go through. The fact that it continues to attract the support of savvy politicians like Emanuel, Rangel, and McCain, suggests that it has some legs. And once enacted, a forced labor program may be very difficult to repeal. Both government and (possibly) private enterprises will become dependent on these "low cost" (from their perspective) workers, and will lobby hard to avoid having to give them up. Moreover, government forced labor programs tend to target the young (usually 18-21 year olds), a group with very little political power; this factor also makes them difficult to abolish. For these reasons, among others, mandatory "national service" remains in force in France and Germany, despite the disappearance of the security threat from the Soviet Union that originally justified it.

We may not be able to completely eliminate the danger of forced labor. But we should at least recognize that forced labor is not only inefficient, but a great moral evil.

One of the most interesting (and in my view sinister) aspects of proposals for mandatory "national service" is that they virtually always target only the young, usually 18-21 year olds. This might be understandable if the proposals were limited to military service. But most current proposals (including those by Charles Rangel, John McCain, Bill Buckley, DLC President Bruce Reed [not clear if the organization as a whole endorses his plan] and Rahm Emmanuel noted in my last post), incorporate civilian service as well. When it comes to office work and light menial labor, there are many elderly and middle-aged people who can do the job just as well as 18-21 year olds can, if not better.

Indeed, the moral case for conscripting the elderly for civilian service is arguably stronger than that for drafting the young. Many elderly people are healthy enough to perform nonstrenuous forms of "national service." Unlike the young, the elderly usually won't have to postpone careers, marriage, and educational opportunities to fulfill their forced labor obligations. Moreover, the elderly, to a far greater extent than the young, are beneficiaries of massive government redistributive programs, such as Social Security and Medicare - programs that transfer enormous amounts of wealth from other age groups to themselves. Nonelderly poor people who receive welfare benefits are required to work (or at least be looking for work) under the 1996 welfare reform law; it stands to reason that the elderly (most of whom are far from poor) can be required to work for the vastly larger government benefits that they receive. Middle-aged people are also not obviously inferior candidates for civilian "national service" than the young. I know I could do most kinds of service better today than when I was 18. To be clear, I am not arguing for imposing forced labor on the elderly or the middle-aged; but I do believe that doing so would be no worse than imposing that burden on the young.

Why then the focus on the young? I suspect it is because they are politically weak. Research shows that 18-21 year olds are less likely to vote, less likely to engage in political activism, and have lower political knowledge levels than any other age group (see e.g. - this book). Obviously, they also have less money, make fewer campaign contributions, and are least likely to actually hold positions of power in government. The AARP would crucify any politician who had the temerity to suggest that the elderly be required to do forced labor. Unfortunately, the young lack that kind of power.

At this point, I know some moralists will claim that the young "deserve" any political setbacks they suffer because they don't participate in politics enough. Such arguments overlook the obvious fact that many of the political disadvantages of the poor (e.g. - lack of money, lack of access to political office, lack of experience) are ones that they can't easily offset. And whatever the validity of the general view that the young should spend more time on political activity, I hope we can agree that forced labor is not a proper punishment for spending too little time on politics.

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.

It is sometimes argued that the Thirteenth Amendment couldn't possibly have banned mandatory national service because the Union had had a draft during the Civil War (which ended a few months before the Amendment was enacted).

There are four problems with this common argument:

First, it is the text of the Constitution which is the law, not the subjective intentions of the drafters. In my view, evidence of original intent or original meaning is relevant only in cases where the text is unclear or where the words used had different standard definitions at the time than they do today. For reasons I explained in my previous post, the Thirteenth Amendment is in fact very clear. And the term "involuntary servitude" did not have a significantly different meaning in 19th century usage than today.

Second, even from an originalist (as opposed to textualist) standpoint, the existence of the draft in the period right before the Amendment was enacted actually strengthens the case for assuming that it wasn't excluded from the ban on involuntary servitude. After all, the framers of the amendment were sufficiently aware of the breadth of the Amendment's language to provide a specific exception for involuntary servitude imposed "as a punishment for crime." The use of forced labor as punishment for a crime was far more common in American history than its use in the draft (which had never been done prior to the Civil War). If even this deeply rooted practice required a specific exemption to prevent it from being banned by the Amendment, the same applies to the draft. The drafters and ratifiers of the Amendment were well aware of the draft, because it had been a highly controversial political issue just a few months earlier. In addition, they were surely aware that the constitutionality of the draft was hotly contested even under the pre-Civil War Constitution, with many northern Democrats claiming that it exceeded Congress' enumerated powers. Given this background, if the framers genuinely sought to protect the constitutionality of the draft, they would probably have created a specific exemption for it similar to the exemption for the use of forced labor as criminal punishment. Yet they clearly did not do so.

Third, the Civil War draft was very different from its modern successors. It was created as a temporary emergency measure to meet an unprecedented military crisis, not a permanent institution. That crisis was brought on by slavery - the very practice that the Thirteenth Amendment abolished (along with "involuntary servitude"). It would not be unreasonable for the framers to assume that, with the abolition of slavery, the nation would no longer need a draft to mantain its security (just as it did not need one to deal with the many wars we fought prior to the Civil War). Moreover, the Civil War draft was far less coercive than modern national service proposals. Draftees could get out of their obligations by providing a substitute recruit or by paying a $300 fee (many northern communities, including New York City, used public funds to pay the commutation fees of draftees who did not wish to serve, but were too poor to come up with the $300 themselves). Thus, even if a Civil War-style draft is permissible under the Thirteenth Amendment, it does not follow that a truly mandatory draft or national service program would be.

Finally, even if the Civil War precedent proves that a military draft is constitutional, it does not follow that mandatory civilian national service would be. Most modern national service proposals include both civilian and military options, and their political viability might be greatly diminished if civilian service were excluded.

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.

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.

At least for now, this will be my last post on forced labor. I think I have said all I reasonably can say about my arguments on this subject in the blog post format. However, I do want to address one more counterargument: the claim that my position that forced labor is unconstitutional might lead to the destruction of all our rights. For example, it is theoretically possible that, absent a draft, we might be conquered by an evil totalitarian enemy who will proceed to abolish the Constitution, violate all our rights, and so on. Even if this is impossible under current conditions, it was a more serious risk in the past (e.g. - during World War II), and may again be in the future. Thus, the critic will conclude, the government must have the power to impose a draft. Otherwise, there is at least some danger that the Constitution will be overthrown by our enemies and all our rights (including the Thirteenth Amendment itself) lost.

It is important to recognize that this type of "the Constitution is not a suicide pact" argument is hardly unique to the Thirteenth Amendment/forced labor context. It can be deployed against virtually any constitutional right. Thus, it is possible that a situation will arise where, unless the government is able to suppress Communist speech, the Communists (or some other totalitarian group) will win power in an election and then establish a totalitarian state that - you guessed it - will abolish the Constitution and take away all our rights. Sure it's unlikely today, but it was a more serious threat in the past (say, in the 1930s, when various extremist groups enjoyed considerable popularity because of the Great Depression), and the danger might again increase in the future. Indeed, the "suicide pact" formulation was originally deployed in a First Amendment case, Terminiello v. Chicago. Justice Jackson, the inventor of the phrase, was specifically concerned that "Invocation of constitutional liberties" under the First Amendment might be used by Nazis or Communists as "part of the strategy for overthrowing them."

A few years later, Jackson and other justices used similar reasoning to uphold the prosecution of Communist Party members in Dennis v. United States.

If we take the "suicide pact" argument to its logical conclusion, we will have to destroy all our constitutional rights in order to save them. Government would have to have the discretion to violate those rights at any time it sees fit, because otherwise there is always at least a small chance that the right in question would lead to national suicide.

I'm going to assume that this conclusion is unacceptable. But I also agree that it is unacceptable to conclude that a constitutional right can never be violated even if keeping it in place would lead to certain totalitarianism.

Therefore, we need to adopt one of two possible compromise options. The first is to admit that there are extreme situations where unconstitutional action is morally defensible even if still illegal. Adherence to the Constitution is an important value, but it is not the only value and it does not always trump all other considerations. However, we don't want to make it easy for government officials to violate constitutional rights. Thus, officials who take such actions should be forced to run the risk of being impeached or prosecuted for them. If they truly believe that the nation will fall to totalitarianism should they fail to act, they should be willing to risk those consequences (if only because prosecution in a liberal democratic state is a much less unpleasant fate than what will probably happen to those same officials should the totalitarians prevail).

The other alternative is to explicitly incorporate the "suicide pact" argument into our theory of constitutional interpretation. Maybe there is an "antisuicide" exception implicit in every constitutional right. If violating a constitutional right really is necessary for national survival, the government should have to make that case in court and meet a fairly high burden of proof in doing so. Mere assertion of the existence of a risk is not enough (otherwise constitutional rights would quickly be obliterated, since the state would make the assertion anytime officials find it convenient).

I'm not sure which of these two strategies is preferable. There is a substantial and in my view inconclusive academic literature on the subject. But whichever way we go, we should remember that the risk of totalitarian horror is not just on one side of the ledger. Just as protecting constitutional rights might create a risk of national sucide, so to might violating them. If, for example, we let the government impose forced labor, even in limited circumstances, there is a chance (perhaps initially quite small) that the forced labor program will be expanded into a totalitarian state. Ditto for violations of free speech and other rights. The Constitution may not be a suicide pact. But fear of suicide shouldn't blind us to the possibility that the same government that protects us from suicide might itself murder us.

The Wall Street Journal online has chosen to reprint my blog post on the reasons my mandatory "national service" proposals tend to target the young, despite the fact that there are at least equally good reasons for focusing on the elderly or the middle-aged instead. See here.

Unfortunately, the WSJ accidentally introduced a minor error that I would like to correct: The "Democratic Leadership Conference" is in fact the "Democratic Leadership Council" (I just had "DLC" in the original post, which may have led to the mistake when the WSJ staff spelled out the abbreviation).