Is National Service Slavery?

Timothy Sandefur argues that President Obama’s plan to expand Americorps into a “a workable, fair, and reasonable mandatory service requirement for all able young people” is “an abrogation of the 13th Amendment” and its prohibition against “involuntary servitude.”

The good news, as an update the Examiner editorial linked above notes, is that the offending language was yesterday stripped from the bill and we’re not likely to pass any such thing.  The bill that passed the Senate yesterday is quite expensive but does not appear to contain any mandatory provisions at all.

Beyond that, however, while I oppose mandatory national service plans — not only for libertarian reasons but because the idea of mandatory voluntarism is as creepy is it is oxymoronic — the case history makes it clear that the Supreme Court has never considered such things to be in violation of the Constitution. A good summary:

The Thirteenth Amendment, unlike most provisions in the Constitution, is self-executing, in that it directly reaches-even without action by Congress- conduct by private individuals (slave holders). Because of this fact, Congress’s power under the Thirteenth Amendment allows it to punish forms of private conduct when it might not be able to do so under an amendment such as the Fourteenth, which restricts the conduct of states (prohibiting states from denying equal protection of the laws or due process).

The Thirteenth Amendment has not produced nearly the volume of Supreme Court decisions as has the Fourteenth Amendment, or even the Fifteenth Amendment (guaranteeing the vote to black citizens). In 1916, in Butler v Perry, the Court rejected a challenge brought by a Florida man to a state law that required all able-bodied men between 21 and 45, when called to do so, to work for up to 60 hours on maintaining public roads. The plaintiff, convicted of failing to put in his time on the roads and sentenced to jail, argued that the law mandated “involuntary servitude” in violation of the Thirteenth Amendment. Justice McReynolds, writing for the Court, concluded “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.”

Jones vs Alfred H. Mayer Co. (1968) arose when the developer of a surburban St. Louis subdivision refused to sell Joseph Jones a home because he was black. Jones sued the developer, alleging a violation of the 1866 Civil Rights Act (42 U.S.C. 1982) which granted “all citizens of the United States…the same right as is enjoyed by white citizens…to purchase…real property.” The Court rejected the developer’s argument that Congress lacked the power under Section 2 of the 13th Amendment to ban private discrimination in housing. According to the Court in Jones, so long as Congress could rationally conclude that private discrimination in the housing market was “a badge of slavery,” the statute should be upheld.

Finally, in Memphis v Greene (1981) the Court reversed a 6th Circuit ruling that the closing of a road separating an all-white neighborhood from a predominately black neighborhood constituted a violation of the Thirteenth Amendment. The Court found that the modest inconvenience and speculative loss of property value to black residents was insufficient either to be considered “a badge of slavery” protected against by the Thirteenth Amendment, or a violation of the 1866 Civil Rights Act enacted under the power granted to Congress by Section 2 of the amendment. Four dissenting justices would have found the closing to violate the 1866 Act.

That’s only three cases but it gives us a ruling from three eras, including one at the height of the Warren Court and one well after the Civil Rights movement’s heyday. The bottom line is that the Supreme Court has never been sympathetic to the argument that mandatory but temporary obligations to the state is   tantamount to slavery.

FILED UNDER: Supreme Court, Uncategorized, US Constitution, , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. odograph says:

    My feeling is that our life expectancy is getting so darn long, that a couple years national service is no big deal.

    We could think of it as part of the “surplus” that the last century of progress have provided.

    (Maybe this means national service could come from health 70-somethings though.)

  2. James Joyner says:

    I think service should be encouraged but, aside from extreme emergency, not mandated. I agree, though, that retirees are excellent candidates. They’re typically set financially, have a lot to offer, and need activity. Sending idiot teenagers from Brooklyn off to Nigeria to teach the locals how to farm, by contrast, has always struck me as a poor use of resources.

  3. odograph says:

    In my youth we had a draft. I always expected I would face it, as I watched Vietnam news each day after school. In then end I missed the war by 6 months.

    I suppose I have a totally different perspective than anyone younger, who never saw mandated service as part of the US package. (We register still, but actual use of a draft seems so far off the table to be in the abstract.)

    To me a draft-style thing would be OK, if the options for the type of service were broad enough. That’s where I’d put the choice.

    … but of course I only say that because I’m used to the idea.

  4. The inspiration for this is, I think, the concept of the draft. If we can require young people to serve in defense of their country, then why not ask them to serve in support of their country as well?

    I agree, it is a creepy concept and I do not support making it mandatory. But there is a productive discussion to have about how this proposal interacts with ones views of a peacetime draft for the military (which, oddly enough, I do support).

  5. To me a draft-style thing would be OK, if the options for the type of service were broad enough. That’s where I’d put the choice.

    What right does the government have to force me to “serve” them ?

    1
  6. sam says:

    Doug asks, “What right does the government have to force me to “serve” them ?”

    As far as the armed forces go:

    Congress shall have the power to…raise and support armies…[Article 1 Section 8 Clause 12]

    The constitution gives the government the right (= the power). No court has ever ruled, to my knowledge, that the draft is unconstitutional.

  7. DL says:

    National Service for young children wasn’t considered slavery in pre-war Germany either.

    One has to make the obvious connection here that these people that are rushing to put uniforms and train our youth are the same people that have long professed the Boy Scouts of America to be an abhoration. Gee – I wonder why, I wonder what, I wonder when, we will find out?

    Like the people on the Titanic who were laughing and putting the iceberg’s broken shards of ice in their drinks – we hardly realize that the evidence is all around us -we’re going under.

  8. Bithead says:

    Someone will gleefully correct me if I err, I’m quite sure, but it seems to me that the national service is slavery’ argument came forward at the peak of the Vietnam war, didn’t it? If the argument was valid then, why are these same folks not objecting to this proposal, now?

    Look, let’s face it; in the end this will simply place more people on the government dime, and ensure that kids get used to the idea of serving the government interest at an earlier age, under the grandiose title of ‘service’.

  9. Dave Schuler says:

    I have no objection whatever to voluntary service programs like the Peace Corps or its domestic equivalents. I have no objection to short mandatory stints by high school students in what might otherwise be voluntary service activities to expose them to conditions that may be different from what they’re accustomed to or acquaint them with what these activities are like.

    However, if the intent of compulsory service is to inculcate civic virtue, I doubt that it can be done in this way.

  10. sam,

    Two points.

    Your argument is nonsense. The fact that the Constitution gives Congress the power to raise armed forces does not equate to the power to force people to serve. When the Constitution was written, forced conscription was unknown and certainly wasn’t the manner in which the Continental Army was staffed. In fact, conscription didn’t come into existence until Lincoln did it during the Civil War.

    Second, the fact that something is authorized by the Constitution does not make it right. Up until the 13th Amendment, human chattel slavery was authorized by the Constitution. Did that mean it was right ? Obviously not.

    Incidentally, I tend to agree with James that the argument that mandatory national service violates the 13th Amendment doesn’t hold water. Keep in mind that when the Amendment was first submitted to the states, there was a draft in effect. I doubt that the Radical Republicans in Congress intended to include that in their plans.

  11. sam says:

    Like the people on the Titanic who were laughing and putting the iceberg’s broken shards of ice in their drinks – we hardly realize that the evidence is all around us -we’re going under.

    Jesus. During the years when the draft was in place, millions of young men were drafted. Many, many of them during the years from the end of the Korean war to the beginning of Vietnam — the so-called peace-time draft. We didn’t become a fascist country then (and contrary to the overblown rhetoric of the left during Vietnam, we weren’t a fascist country then, either).

    I find myself sometimes wishing the draft as the real thing were still in place (with no deferments). I met people from all over this country when I was in (I enlisted), people I would never have met from places I would never visit. It was an education in America. It was an education in all the different ways there are to be an American (and in all the same ways there are to be an American).

  12. sam says:

    @Doug

    Your argument is nonsense. The fact that the Constitution gives Congress the power to raise armed forces does not equate to the power to force people to serve.

    Sorry, Doug, as a matter of law, you’re wrong. And you’ll need a stronger argument than, just because it’s in the constitution, doesn’t make it right, etc. Why, in fine, is it wrong for the government to mandate my service in the armed forces of the country?

  13. PD Shaw says:

    The Constitution recognizes the lawfulness of the militia in a number of places, including the Second Amendment. The militia ain’t what it once was, but it has always been an involuntary service for military training and occasional taking of arms in defense of country. It was never a road gang.

  14. Sam,

    I will concede that you are likely correct that the Supreme Court would probably agree with you rather than me regarding the Constitutionality of the draft.

    Of course, this is the same institution that also decided that slavery was acceptable, that “separate but equal” was acceptable, and that the state had the right to imprison people based solely upon their nationality.

    So, you know, what SCOTUS says doesn’t always hold alot of moral authority for me.

    As for why the draft is wrong, I couldn’t put it any better than this:

    Of all the statist violations of individual rights in a mixed economy, the military draft is the worst. It is an abrogation of rights. It negates man’s fundamental right—the right to life—and establishes the fundamental principle of statism: that a man’s life belongs to the state, and the state may claim it by compelling him to sacrifice it in battle. Once that principle is accepted, the rest is only a matter of time.

    Now, you tell me, under what theory of morality is it acceptable for the state to force me to “serve” it ?

  15. odograph says:

    How many countries have universal military service now? With options for alternative service?

    I thought it was a few, though maybe those that see themselves as on the battle line (S. Korea, Israel). People I know who have been through those have viewed those as a positive experience.

    … though I know at least one guy staying out of S. Korea so he doesn’t have to catch up on his service.

    (As an aside, I see this as ancient, as old as mankind. Every tribe had group projects, and hours were committed long before tax dollars ever were. If anything, time equals money, and it is a similar chain going way back.)

  16. odograph says:

    (James, you get some really weird sidebar ads sometimes.)

  17. odograph says:

    BTW, to all those responding to the “slavery” angle, I think it is all about time frame, and rights within that time frame. 2 years, with CCC style rules, would not exactly be like being sent to gladiator school.

  18. PD Shaw says:

    What I always find entertaining about these discussions is the assumption that national service would be for the young.

    The military draft is geared towards young men because the primary needs are the ability to engage in the physical demands of violence.

    Once we begin talking generally about serving the country according to our gifts and forging bonds of community, the rationale changes. And after all, wouldn’t it make more sense to draft a man after ten years of medical practice than when he was younger and unskilled?

  19. PD,

    Good point.

    In fact, I remember writing a paper about this very issue when I was in law school, applied to the question of whether the government should require mandatory pro bono publico services by attorneys.

    Perhaps I should dig around the old hard-drive to see if I still have it.

  20. PD Shaw says:

    When the Constitution was written, forced conscription was unknown and certainly wasn’t the manner in which the Continental Army was staffed.

    Nope. All of the colonies, except perhaps one’s with significant Quaker presence, recognized an involuntary obligation to serve in the militia, i.e. conscription. The Constitution gave the federal government broad power over the militia, including the ability to call “forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The Militia Act of 1792 clarified the federal government’s authority to call out all able bodied men between 18 and 45 in defense of the country. During the War of 1812, the government considered using this provision, but the war ended before reaching that point. The provision was used by Lincoln during the Civil War.

  21. Wayne says:

    In time of war, sometime special consideration and task must be taken such as the draft. To do it outside of war is wrong. There shouldn’t be a draft or mandatory service of any kind outside of war. It is wrong and against the founding principles of this country. The “but it is for the good of the Nation (State)” is a communist ideology and has no place in our “Free society”. End of story.

  22. Bithead says:

    Jesus. During the years when the draft was in place, millions of young men were drafted. Many, many of them during the years from the end of the Korean war to the beginning of Vietnam — the so-called peace-time draft. We didn’t become a fascist country then (and contrary to the overblown rhetoric of the left during Vietnam, we weren’t a fascist country then, either).

    You’re going to have to do a better job if you’re going to try to sell this as a valid comparison. Leaving aside the moral issues for the moment, let’s look at just the legal;

    Military service at least has the advanatge of being a constitutionally stipulated power and function of government. On that basis I’d argue that conscription outside the realm of the military would need a constitutional amendment to be equally constitutional as military conscription.

  23. I’m quite sure, but it seems to me that the national service is slavery’ argument came forward at the peak of the Vietnam war, didn’t it? If the argument was valid then, why are these same folks not objecting to this proposal, now?

    Bit? What same folks? I mean, the “peak of the Vietnam war” was 41 years ago. And while I agree that a certain intellectual consistency is a desirable quality, do you really mean to suggest that any opinion held 4 decades ago must be applied rigorously to even only partially-analogous situations today?

  24. JKB says:

    I don’t think trying to link the mandatory “volunteer” service to the draft will work. Even outside the Constitution, there is the common law precept of posse comitatus, which requires every able citizen to answer the call of the sheriff in retaining order in the community. Very similar to a common defense. In addition, although drafted, the draftees were paid for their service. Many at a greater rate than the could have achieved at the time of their service.

    The mandatory “volunteer” service could be viewed more as a tax, paid in labor rather than cash. Such service requires the “volunteer” to donate a portion of his time and labor to the state directly or via state sanctioned privately run programs. Such time and labor has a value that varies according to the person’s abilities and opportunities. By mandating the use of such time, the state is either depriving the individual of the economic gain they could achieve had they used the their time and labor in the own choosing or of the leisure time they valued more than the economic gain the time and labor could have brought them.

    As some have stated, why not force retirees in to mandatory “volunteer” service since they have time and skills that the state can conscript. Or kids, whose economic value is considered less although, how do you reconcile the 18-yr old from a poor family whose job provides significantly to the family finances even as they try to go to school for their betterment.

    This tax is more burdensome on poor and working individuals who exchange time and labor for money in the workplace while being less burdensome or non-burdening on those who depend more on investment or ownership for income. A line-worker or Doctor will see a greater impact on their finances by this tax from lost hours than a Wall Street financier or other who can operated remotely or frontload their economic returns.

  25. Floyd says:

    Hippies demanding public service….What irony!

  26. odograph says:

    Are those opposing thinking of in terms of rights and ethics, or in terms of the experience?

    My basic thinking is that with a life expectancy pushing 80 years, and maybe 90 if our current medical research pans out, the next generation will feel it was a good 2 years. One more interesting thing to do, and people to hang with, in that near-century.

    Remember, 18-22 year olds doing national service will basically be extending “dorm life” for a few. AFAIK they won’t be asked to hand-dig another Panama Canal.

  27. PD,

    I was speaking specifically of conscription by the Federal Government.

    It’s also worth noting that the mandatory nature of milita service in the Revolutionary War was somewhat fleeting. On more than one occasion, Gen. Washington was faced with the problem of Colonial troops walking away from the front lines when their year of committment had expired.

  28. Bithead says:

    Bit? What same folks? I mean, the “peak of the Vietnam war” was 41 years ago.

    Yep. And those same teenagers arguing against the draft at the time of it’s demise, are now 50+ years old, and are both voters, and running the Democrat party.

    And while I agree that a certain intellectual consistency is a desirable quality, do you really mean to suggest that any opinion held 4 decades ago must be applied rigorously to even only partially-analogous situations today?

    (Shrug)
    The answer to that would seem to depend on what principles were being applied to get to those divergent stands. Specifically, If the argument then was principled in terms of ‘any conscription is slavery’ then the argument being presented now fails the intelectual consistancy test, and miserably so.

    If on the other hand the ‘conscription is slavery’ argument was, as I suspected then and now, just a convienient handhold for what was purely an anti-military position….

    I meam, look; Can you imagine a proposal for a military draft coming from this president anytime in the future, absent a non-military conscription being already in place?

  29. odograph,

    For me it is explicitly a conversation about individual liberty.

    Whether service may be of benefit to someone is not relevant to a discussion of whether that service should be mandatory.

  30. anjin-san says:

    as I suspected then and now, just a convienient handhold for what was purely an anti-military position….

    Well, really it was just an anti-stupid position. Naturally, that pissses you off.

    Tthe people who opposed the draft during the Viet Nam war were opposed to us sending our kids to die to prop up a corrupt, non-democratic regime in a civil war against forces that were no thereat (none!) at all to the United States.

    The fact that communist Viet Nam is now a business partner of ours tends to lend validity to the argument.

  31. JKB says:

    the next generation will feel it was a good 2 years

    Of course, those same people could just volunteer without the government coercion. No one really oppose the government created opportunities for people to volunteer or encouraging volunteering, it is the being forced to “volunteer” to perform tasks that the government deems appropriate that is the issue.

    Say you would rather donate your time and effort to conducting gun safety classes for the NRA, do you think this will count as your mandatory “volunteer” service? I doubt it, but getting on a bus to protest at the homes of out-of-favor executives probably will.

    Liberty is the issue not whether you’ll come to enjoy the company of your fellow victims of subjugation.

  32. odograph says:

    Possibly a voluntary and attractive service would accomplish what I want … but I kind of worry that we’d over-incentivize it, because that’s who we are these days.

  33. Bithead says:

    Well, really it was just an anti-stupid position. Naturally, that pissses you off.

    Tthe people who opposed the draft during the Viet Nam war were opposed to us sending our kids to die to prop up a corrupt, non-democratic regime in a civil war against forces that were no thereat (none!) at all to the United States.

    The fact that communist Viet Nam is now a business partner of ours tends to lend validity to the argument.

    Yeah.

    Of course to become that, we had to forget about what happened to the Vietnamese that opposed the communists. I don’t envy you the job of selling withdrawing from ‘nam, and turning millions over to the loving care of the North and Pol Pot as a good thing. Then again, lefties tend to go for stupid, (See Obama) so maybe your job isn’t all that hard after all.

  34. PD Shaw says:

    The link below contains a summary of the Constitutional cases regarding conscription. The interesting bit was this:

    Although the Supreme Court has so far formally declined to pass on the question of the ”peacetime” draft,1447 its opinions leave no doubt of the constitutional validity of the act. In United States v. O’Brien,1448 upholding a statute prohibiting the destruction of selective service registrants’ certificate of registration, the Court, speaking through Chief Justice Warren, thought ”[t]he power of Congress to classify and conscript manpower for military service is ‘beyond question.”’1449 In noting Congress’ ”broad constitutional power” to raise and regulate armies and navies,1450 the Court has specifically observed that the conscription act was passed ”pursuant to” the grant of authority to Congress in clauses 12-14

    I assume there hasn’t been a definitive challenge to a peacetime draft because of its rarity and raises less opposition. But I wouldn’t assume its legality outside the context of the exigencies of military matters. JKB at 10:59 touches on a lot of issues that go beyond the 13th Amendment.

    LINK

  35. anjin-san says:

    what happened to the Vietnamese that opposed the communists

    Tell me something bit, how much blood have you shed to save people from oppression or death at the hand of tyrants, communist or otherwise? How much crap do you have in your house that was made in slave labor factories in communist China.

    I don’t envy you the job of selling withdrawing from ‘nam,

    Yes, the with withdrawl from the country we had no business being in to begin with. We got involved with a civil war in a country with a culture we did not understand, and we made a bad situation worse…

  36. DC Loser says:

    what happened to the Vietnamese that opposed the communists

    A lot of them ended up in Orange County, Falls Church, and other places in the USA. One of the good fallouts of that sad episode is that we can get great Pho, Bahn Mi, and other authentic Vietnamese food here.

  37. Bithead says:

    Yes, the with withdrawl from the country we had no business being in to begin with. We got involved with a civil war in a country with a culture we did not understand, and we made a bad situation worse…

    And that would decidedly not have been the outcome had we stayed and finished the job. The left here at home fought for, and got their victory… a defeat for the US. How you live with the deadly consequences of that Anjin, I don’t know. I assume it takes an extreme duality of mind… a compartmentalization like few I’ve seen before.

    Don’t be trying to play yours as the moral high ground, when everyone but you can see that elephant sitting in the room with you.

  38. Bithead says:

    True.
    I was thinking, though oif the literally millions who were not so lucky.

  39. Floyd says:

    DC Loser;
    What irony once again, can you imagine coming all this way, only to face the prospect of the same struggle? It’s like Deja-Vu all over again!

  40. jimT says:

    What is the effect of all this ‘free’ labor on the market place? If the government ‘volunteers’ are out fixing roads how does my paving company compete? Sure its great to look down our noses at the current generation of slackers and think back with nostalgia at our own ‘great sacrifices’ and how ‘character building’ they would be for these kids and fail to think through the impact of the influx of millions of man-hours of free labor on any industry. This is typical ‘act now – think later’ legislation we get from our elected ‘parents’.

  41. anjin-san says:

    And that would decidedly not have been the outcome had we stayed and finished the job.

    Covered ground. The US Army War College disagrees with you. I will go with the opinion of experts who are actually willing to put their lives on the line in combat over a blowhard armchair warrior… (that would be you)

  42. PD Shaw says:

    What is the effect of all this ‘free’ labor on the market place? If the government ‘volunteers’ are out fixing roads how does my paving company compete?

    Interesting question. My guess is that a road construction project involving a ton of unskilled labor would require the government to contract for paving companies to provide teaching and supervision. See 1930s Germany for an example of how that works.

  43. Bithead says:

    The US Army War College disagrees with you.

    Somehow, I doubt that were they to have dared to disagree with YOU, you’d have been quite so quick to leap into an appeal to authority.

    Personlly, I’m not quite so naieve to think that the place is immune to the political.

  44. anjin-san says:

    Personally, I’m not quite so naieve to think that the place is immune to the political.

    Right, you “support the troops” when it is politically convenient for you, and if it is not, why you don’t hesitate to accuse the men who actually wear the uniform of subordinating their duty to politics.

    Disgusting, but hardly surprising. When you political needs require it, you are very quick to take an anti-military position…

  45. Bithead says:

    So, Anjin now holds military leadership never errs, and never succombs to political reality.
    Amazing what Anjin can come up with when he feels himself cornered.

    Is this the same guy who complained about Bush’s generals being motivated by something other than military reality in Iraq, and that Bush’s generals were only feeding him what he wanted to hear?

    Laughable. You’d better quit while you’re behind, hoss.

  46. JKB says:

    What is the effect of all this ‘free’ labor on the market place? If the government ‘volunteers’ are out fixing roads how does my paving company compete?

    You’ll get the contract to go back and correct the repairs done by unskilled “free labor”. It always costs more to go back and re-do a job than it does to do it in the first place. Remember, these are unskilled people doing mandatory time. A person who volunteers out of free will is motivated to do a good job. One who is forced to “volunteer” has little motivation except to avoid the whip. Combat soldiers fight for the guy next to them, it is hard to imbue this into conscripts outside of life or death situations.

  47. Dave Schuler says:

    it is hard to imbue this into conscripts outside of life or death situations.

    Actually, it’s not that hard. The mechanisms for doing this have been known for centuries. However, I agree with you to the extent that I doubt we’ll put them in place. Actually, when put them in place is the time to start worrying.

  48. anjin-san says:

    So, Anjin now holds military leadership never errs, and never succombs to political reality.

    No, I hold that I won’t accuse the war college of being political toadies simply because they reach a conclusion that I don’t agree with. As for Peterus, HIS boss was the one who said he was too involved in politics. I guess you missed this part.

    In the absence of a coherent argument, you trod your well-traveled path of hyperbole followed by anointing yourself victor in yet another joust. “Fake it till you make it”.. right?

    Of Peterus, I must say politics aside, that his accomplishments are very impressive, and I give the Bush administration credit for a successful game plan change that we can file under better late than never…

  49. Michael says:

    While you’ve all been talking about the similarities/differences between national service and the draft, I’m surprised nobody has yet mentioned jury duty, a legal, non-military peace-time conscription.

  50. Steve Verdon says:

    I agree, it is a creepy concept and I do not support making it mandatory.

    I agree. There, take that Bernard! 🙂

  51. Bithead says:

    No, I hold that I won’t accuse the war college of being political toadies simply because they reach a conclusion that I don’t agree with.

    Of course, that you come to that conclusion even absent there pronouncement on the subject has no bearing on your support of them in this case, right? We both know better. Stop wasting my time.

  52. anjin-san says:

    Stop wasting my time.

    Its good that there is one person in the world who takes you seriously. Remember to thank yourself for your support…