With reference to Gfactor’s Mailbag-du-Jour, Does the collection of income tax violate the Thirteenth Amendment?, I have always thought that the involuntary servitude argument against income tax was stretching the concept a bit, but the military draft, which conscripts the unwilling, fits the bill rather well. How can forcing someone against their will to literally work for the government not be called involuntary servitude?
It’s one of the civic duties mentioned in the third paragraph. See, e.g., United States v. Kozminski, 487 U.S. 931 (1988)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=487&invol=931
Sorry, I must have skipped over that part, since “civic duties” don’t conjure up an image of troops, but civilian service.
From ARVER v. U.S. , 245 U.S. 366 (1918):
If that is what you are referring to (is there a better passage?), I don’t think I follow that logic. But I note that “defense…of the nation” appears to be a significant justification factor.
So I would think that an argument could be made about use of the military for other purposes than defense (handing out food, repairing levees, marching in parades, playing in concerts) or for wars that can’t easily be explained as “defense”. Yes, I know that, to some ways of thinking, Vietnam and Gulf I/II were necessary to avoid having Houston overrun with heathen hordes, but “defense” seems like a flimsy excuse for such a massive violation of citizen rights.
I was referring to the part of Kozminski that I quoted where the Court says there is a civic duties exception and cites* The Selective Draft Law Cases* for the proposition that military service is part of that category. Justice O’Connor wrote that opinion, and cites to page 390 of the opinion, which includes the passage that you quoted. It’s possible the Selective Draft cases could have been read more narrowly, but later cases have not done so.
Once again, consription was well known to the framers, ratifiers, and early readers of the Thirteenth Amendment because during the Civil War, Congress adopted “the first wartime draft of U.S. citizens in American history.” http://www.history.com/this-day-in-history.do?action=Article&id=4808 ;
http://www.pchswi.org/archives/misc/cwdraft.html ; http://www.civilwarhome.com/conscription.htm ; The Draft in the Civil War
And we might expect that if they wanted to prohibit compelled military service (especially if the prohibition was limited to only some military service), they could have made that clear.
This appears to be yet another case of a fundamental misunderstanding that is widespread in the US. Neither independence nor the Constitution created a new body of law, de novo. The Constitution is not a set of axioms to be treated as the ultimate legal authority; rather, it is the outline of a new arrangement of the Legislative, Executive, and Judicial functions for a new Federal government, a set of rules for interaction between that government and the existing state sovereignties, and a fairly small set of amendments to the existing English Common Law already obtaining in the states and in the pre-Federal national government that was to be superseded.
If there had not been such a thing as conscription prior to the 13[sup]th[/sup] Amendment, then a subsequent attempt to introduce it (say, in 1917), would almost certainly have been found un-Constitutional, unless a new amendment were introduced to permit it. But in reality, the Amendment was proposed while the Civil War was still being fought, a war that saw massive use of conscription, and conscription for various purposes is a legal concept as old as civilization. There is no doubt whatever that the Amendment was not proposed or ratified with the understanding that it had any such meaning.
However, at the time the Constitution was written, I doubt that the idea of wars as remote in concept, if not in distance, of Vietnam/Gulf were even considered.
I also doubt that the idea of the military used as remote ambassadors, for humitanitarian relief efforts or as the world’s cops was expected.
Neither Manifest Destiny or the Monroe Doctrine were in place in 1776, and it was still in the future that Britian began hijacking US sailors for their navy (which was wrong on three counts: kidnapping, involuntary servitude and national sovereignty.)
- The Thirteenth Amendment wasn’t adopted as part of the Constitution or the Bill of Rights. It was adopted after the Civil War. And while it wasn’t ratified until the end of 1865. That said, the portion that you are interested in was based on part of the Northwest Ordinance (1787) which said:
http://www.earlyamerica.com/earlyamerica/milestones/ordinance/text.html
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By the time the 13th amendment was adopted we’d fought an undeclared war with France Quasi-War - Wikipedia, a war againts Barbary pirates, Battle of Derna During the First Barbary War , and a war that was declared based in part, as you say, on impressment of sailors, War of 1812 - Wikipedia
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I seriously doubt that the 13th amendment was intended or understood the amendment to give citizens the right to pick and choose how they serve in the military, which is precisely the implication of your argument. The War Powers may not have been understood to include the sorts of things you are talking about, but that’s a completely separate constitutional argument.
Outstanding report, GFactor. I would note only that you failed to address the ultimate weak point in the government’s case for taxation: namely, the gold fringe on the flags in the courtroom, which clearly prove the courts to be admiralty courts with no authority over taxation.
I was saving that one for those of us who know about it. Thanks. 
Sorry for the confusion, Gfactor, I wasn’t thinking straight about the Constitution timeline of origination and amendments. Thanks for your detailed replies.
I can’t help but wish that the writers of the text passages in question (involuntary servitude, etc.) had been more clear. If their intention was to exclude the draft, it sure would have been nice to say so, and if they had considered it, why didn’t they? Did the desire to eliminate slavery (the traditional kind) cloud their minds as to alternate and future interpretations?
A little like the wish that the 2nd Amendment writers had been a bit more clear about what that oft-quoted phrase means. Think of all the problems non-ambiguity would solve.
Possibly, but there are two very good answers to that:
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In many cases, it was use of slightly ambiguous terms or phrases that allowed the Congress at the time to pass the bill authorizing the amendment, because then multiple factions could sign on, willing to believe that their interpretation would be the one used,
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Those who write such things should expect us to understand what they were saying, and not try to graft onto it later thoughts and theories that don’t take into account the probable meanings of the time,
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Hi, Opal!
I’d also like to point out that modern legislation often works hard to avoid ambiguous phrasing, producing enormously long and detailed bills, and the courts of the land are no less burdened with having to engage in constitutional interpretation of legislative language as a result. There is always inherent ambiguity in the English language, which is one of the beauties of the language.
There are those who would suggest that this is one of the reasons that originalism is an unhelpful interpretive approach most of the time. But in this case it’s fairly clear that they wanted to stop racially based slavery–the kind upheld in the *Dred Scott * case. So the focus was on making certain that that sort of slavery and domination of one race by another was eradicated. They added the involuntary servitude bit because they knew about peonage and other means of closely replicating the same relationship under a different name. The thing that slavery and peonage have in common is that in both cases a private master owns or controls a private slave, and the government enforces that relationship through its courts and law enforcement mechanisms–they didn’t have in mind at all state imposed service or income taxes.
As you say, though, the clause might well be read to include those sorts of things. One important question to ask is whether the original meaning or original intention is the only source of interpretive material for constitutional provisions. If it is, then the other possible readings don’t matter much. Otherwise, the analysis gets more complicated. I talk a little about this issue in post 8 here: Gfactor on executive privilege - Cecil's Columns/Staff Reports - Straight Dope Message Board
I can agree that a non-specific statute can be a good thing, but not an ambiguous one, and I think there is a subtle difference. A non-specific one can be general, but have clearly defined maximum boundaries which an ambiguous one cannot.
To expand on that, I have always noted that people often readily agree that freedom of speech is a good thing, and everyone should have it, until I bring up specific situations. How about hate speech? Commercial speech? Blasphemous utterances? Expounding on theories you believe are not true?
“Oh, not those.”
So it seems that framing a law in somewhat general terms, with reference to a high purpose, and letting the courts narrow it down or define the limits as time progresses, can be a good thing.
Scalia might not agree with me.
People are saying that the writers of the 13th Amendment were painfully aware of conscription, and would have written something into the bill if they wanted to stop it. Yet, isn’t that argument double-edged? Why wouldn’t they explicitly permit this huge thing, like they did for labor-as-punishment?
I, knowing nothing, would guess that people were pretty divided on the whole forcing-half-a-million-conscripts-to-die-to-quelch-some-states’-aspirations-to-freedom thing.
Seems to me this is one of those things where people vehemently couldn’t agree and decided to just chalk it up to a later Supreme Court to judge. And when the SC said “we are constrained to the conclusion that the contention to that effect is refuted by its mere statement,” you can tell they knew they didn’t have a true raft to stand on.
I’d also like to point out from the ARVER v. U.S. quote that the court felt conscription was justified to defend the nation’s ‘honor’. What the fuck?
This is a problem with originalism in general. Anything that was known at the time and not expressly commented upon could either have been seen as obviously included in the amendment or intentionally not mentioned because the amendment wasn’t meant to apply to it. And see, The Volokh Conspiracy - The Civil War Draft and the Constitutionality of Mandatory National Service Under the Thirteenth Amendment: for additional arguments about why the fact that concription predates the amendment is either irrelevant or suggests that the amendment does ban conscription. Similar arguments were made about desegregation under the 14th amendment–many schools were segregated when the amendment was adopted, so the amendment couldn’t have been understood to prohibit segregation. They were ultimately rejected.
The real point here though, is that few saw it as similar to slavery or peonage.
And we should, I think, keep in mind that it is impossible to ascribe to the Congress any one, unified, particular interpretation of what it is doing with the language it uses in a bill. Each and every Congressman who votes has a different idea of what it means. This is why I think that attempting to rely upon what “they” meant is a fundamentally stupid way of looking at things.
Which is quite different from attempting to re-interpret language to mean something that later generations have thought up for it.
Musicat, you talk about non-specific as opposed to “ambiguous.” I would argue that they are the same thing. A term that is ambiguous is a term that has the ability to be interpreted in more than one way, or, if you prefer, that people will ascribe more than one “meaning” to. This is also what non-specific accomplishes.
For example, the term “freedom of speech” is decidedly “ambiguous.” Each person’s idea of what it means will vary, and did at the time (see, for example, the Alien and Sedition Acts).
Very good article.
That is the way I always read it: it forbids chattel slavery, peonage, serfdom and private indentured servitude.
I wonder if compulsory service for the public benefit could be more akin to analogy to the “takings” clause. That is, if one could think of it as an expropriation of your labor: So just as the state is empowered to take a citizen’s or subject’s physical property against your will as long as it is for a justified public purpose and you are compensated for it, so it is empowered to compel their labor for a public purpose (such as manning a military force – what’s a “public purpose” is what the legislature and courts say it is) so long as they are compensated for it and it’s for a finite time.
Different times. Way back when, “honor” (national and personal) was considered to be a real thing worth shedding blood about. (The events of around the same historic period (1914-18) and of a couple of decades later eroded that notion quite abit among many, but some people still think that, y’know; blows your mind, doesn’t it? 
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Thanks.
And that’s generally how courts come out in cases that are perhaps even closer to involuntary servitude: command assistance statutes. http://www.straightdope.com/mailbag/mcommandeer.html
I don’t think I’ll have a chance today, but I’ll try to go back and read the cases and articles to see if any of them have addressed a 13th amendment challenge.
As always, great column, Gfactor. I’m afraid that citing OECD statistics in your third paragraph is just going to feed the Tinfoil-Hat Brigade’s paranoia, though.
A useful quotation for considering eyeroll-worthy antitax arguments: “Some people believe with great fervor preposterous things that just happen to coincide with their self-interest.” Coleman v. CIR (7th Cir. 1986), 791 F.2d 68, 69.