The Volokh Conspiracy
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Earlier this week, I spoke at a panel on mandatory national service organized by the National Commission on Military, National, and Public Service. The panel consisted of several legal scholars with divergent viewpoints on the issue, which we understood as focusing on mandatory civilian service, not just the military kind. The following post is a revised version of my presentation to the Commission. I was told that the Commission does not currently plan to publicize an audio or transcript of the panel. If that changes, I will post a link. In the meantime, I am happy to make my own presentation public here. It explains why the enactment of mandatory national service would be both unjust and unconstitutional:
I. Why Mandatory National Service Is Unjust.
Mandatory national service is not just another policy proposal. It is an idea that undermines one of the fundamental principles of a free society: that people own themselves and their labor. We are not the property of the government, of a majority of the population, or of some employer. Mandatory national service is a frontal attack on that principle, because it is a form of forced labor—literally so. Millions of people would be forced to do jobs required by the government on pain of criminal punishment if they disobey. Under most proposals, they would have to perform this forced labor for months or even years on end.
We rightly abhor the extensive use of forced labor by authoritarian regimes, such as those of the Nazis and the communists. The same principle applies to democratic governments. The fact that a violation of fundamental human rights may have the support of a majority of the population does not make it just. Wrong does not become right merely because a large number of people support it.
It does not matter if the work the forced laborers are required to do has great value to society. The same was true of much work performed by slaves and forced laborers throughout history. The cotton grown by slaves in the antebellum South, for example, was considered vital to the American economy. That fact did not make slavery just, nor relieve plantation owners of the obligation to use only voluntary labor.
We can imagine hypothetical circumstances where forced labor is the only way to forestall an even worse outcome, for example if a military draft is the only way to raise an army large enough to prevent conquest by a brutal totalitarian regime. But no such painful dilemma threatens the United States today. The federal government has plenty of ways to recruit needed labor by voluntary means. If it needs more workers for some type of job, it can increase wages and benefits, provide tax incentives of various kinds, or hire more outside contractors. If these methods fail, there are millions of people outside the US who would be happy to do work needed by the government if they have the right to live in the US. There are many good reasons to liberalize immigration policy. If the federal government is suffering from labor shortages, this one could be added to the list.
What is true for civilian labor is also true of the military. With a population of over 300 million, the US could greatly expand its armed forces without resorting to a draft. Indeed, especially under modern conditions, a volunteer armed forces is likely to perform far better than one composed of conscripts, which may be one of the reasons why recent veterans oppose the reintroduction of the draft at even higher rates than the general public.
Some advocates of mandatory national service claim that it can help us achieve a greater sense of national unity by exposing draftees to people from other backgrounds. Perhaps so. But we could achieve even greater national unity by suppressing dissenting speech and religion. Yet we rightly recognize that unity is not a valid justification for violating these fundamental human rights. The same goes for the right to be free of forced labor. A unity achieved through coercion is not worth the price. Such unity could even be actively pernicious, since it could be used to promote further restrictions on liberty in the name of national solidarity. The better path to curbing civil conflict is not to increase the amount of coercion imposed by the federal government, but to reduce it, thereby diminishing our reasons to fear those with opposing political views.
Former Democratic Rep. Charles Rangel, and others, argue that we need a military draft to ensure that the burden of military service is distributed more equitably and to prevent the public from being too ready to go to war. I criticized such claims here. Among other things, the evidence simply does not support the notion that people who are likely to see combat are thereby more opposed to military action than those who are not. The exact opposite may well be closer to the truth.
The above analysis assumes that a mandatory national service program would be enacted and administered by a well-intentioned and competent government. Any actual national service program, however, would be controlled by real-world politicians and bureaucrats. If you are a liberal Democrat, do you really believe that Donald Trump and his ilk can be trusted with wide-ranging authority to impose forced labor on the public? If you are a conservative Republican, would you entrust such authority the likes of Hillary Clinton or Elizabeth Warren? The truth is that none of these people are worthy of such vast power, and the same goes for most, if not all, of the rest of the political class.
II. Why Mandatory National Service is Unconstitutional.
The constitutional issues raised by mandatory national service are not as important as the moral ones. Nonetheless, any such proposal is likely to be unconstitutional, as well: if it includes civilian service, it would be beyond the scope of federal power, and it also violates the Thirteenth Amendment.
One of the bedrock principles of American constitutional law is that the federal government only has those powers granted by the Constitution. Other authority is reserved to the states, or the people. A military draft is likely authorized by Congress' Article I power to "raise and support armies." But there is no such provision authorizing the imposition of mandatory civilian national service. It is possible that Congress' power to regulate interstate commerce can be stretched to justify mandatory national service. Under badly misguided modern precedents such as Gonzales v. Raich, the Supreme Court has ruled that the commerce power allows Congress to restrict any "economic" activity that has a substantial impact on interstate commerce. Failure to perform labor mandated by the government would likely affect interstate commerce, and so could in theory fall within the scope of the Commerce Clause.
But even the most expansive judicial decisions interpreting the commerce power still apply only to situations where Congress is regulating some sort of preexisting economic activity. In NFIB v. Sebelius (2012), the Obamacare case, the Court ruled that the commerce power does not allow the federal government to force people to engage in new economic transactions that they would prefer to avoid: in that case, by forcing them to purchase health insurance. As Chief Justice John Roberts put it, the commerce power is the authority to regulate "preexisting economic activity." He explained that "Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority." What is true of purchase mandates is even more true of the power to impose forced labor. Indeed, allowing the latter would be a far greater expansion of congressional authority than the former.
The same goes for efforts to justify mandatory national service through some combination of the Commerce Clause and the Necessary and Proper Clause, which gives Congress the authority to enact legislation "necessary and proper" to the execution of other powers given to the federal government. Even if forced labor might be "necessary" in the Supreme Court's expansive sense of the term, it is not "proper." The requirement of "propriety" is a distinct, separate limitation on federal power. As Chief Justice Roberts explained in NFIB (following a famous formulation presented by Chief Justice John Marshall in 1819), even a "necessary" power can only be proper if it is merely "incidental" to one of the other enumerated powers. It cannot be a "great substantive and independent power." A general power to impose forced labor any time doing so might affect interstate commerce is pretty obviously a "great… and independent power," if anything is.
The Court in NFIB ultimately upheld the individual mandate by reinterpreting it as a tax (wrongly in my view). But it is unlikely that any mandatory national service program worthy of the name could meet the Court's fairly restrictive criteria for qualifying as a tax. Among other things, failure to serve could only be punished with a relatively small fine, and resisters could not be classified as lawbreakers or subjected to criminal sanctions.
In addition to exceeding the scope of federal power, a mandatory national service program would also violate the Thirteenth Amendment, which bans not only slavery, but also "involuntary servitude." The point of the latter restriction is to forbid forms of forced labor that do not go as far as slavery. Here, I have to admit that Supreme Court precedent is against me. In Butler v. Perry (1916), the Supreme Court upheld a Florida law that required citizens to perform forced labor on the state's roads or pay a $3 tax. But, for reasons outlined here, I believe Butler was a badly flawed ruling, and a similar case might well not be decided the same way today:
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…
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…. 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…
[I]t 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.
In sum, Butler is a badly flawed precedent that I hope the Court will overrule when and if an appropriate opportunity arises. More controversially, I also oppose the Court's 1918 ruling upholding constitutionality of the military draft against a Thirteenth Amendment challenge. That one is far less likely to ever be overruled. But we should at least avoid extending it to cover other forms of forced labor.
Defenders of mandatory national service sometimes cite mandatory jury service as a relevant precedent. I think that case is distinguishable on legal grounds for reasons summarized here, and on moral grounds because it usually lasts for only a short period of time and (at least in most states) is relatively easy to avoid. That said, I do in fact oppose mandatory jury service on both moral and pragmatic grounds. Among the latter is the fact that it is often cited as a precedent justifying imposition of more severe forms of forced labor.
In sum, mandatory national service would be unconstitutional, at least if it applies to civilian service, as well as military. Far more importantly, it is deeply unjust.
UPDATE: I have made a few minor additions to this post.