Another Judge on the Acela Corridor Takes The Thirteenth Amendment Seriously

Judge Matey's concurrence sketches out the original meaning of "involuntary servitude."

Apparently, not all judges along I-95 are lost. Today the Third Circuit decided Burrell v. Staff. The plaintiffs argued that violations of labor laws amounted to involuntary servitude, in violation of the Thirteenth Amendment. The majority opinion rejected those claims in light of modern precedent.

From Zavala we derive the principle that using an otherwise legal process for a purpose for which it was not created or intended to be used is not, on its own, sufficient to constitute the threat of legal sanction necessary to find a Thirteenth Amendment violation. Here, restricting access to the work release program and threatening plaintiffs with serving the entirety of their otherwise legal contempt sentences is akin to the threats of deportation in Zavala. Because plaintiffs do not sufficiently allege involuntary servitude, they fail to state a Thirteenth Amendment § 1983 claim on which relief can be granted, and we will affirm the District Court's dismissal of those claims.

Judge Matey concurred, and included a lengthy footnote concerning the original meaning of the Thirteenth Amendment.

After an abhorrent chapter in our Nation's history, the Thirteenth Amendment confirmed the natural rights of all persons through "a practical application of that self-evident truth, 'that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.'" Jacobus tenBroek, Thirteenth Amendment to the Constitution of the United States: Consummation to Abolition and Key to the Fourteenth Amendment, 39 Calif. L. Rev. 171, 178 (1951) (quoting Cong. Globe, 38th Cong., 2d Sess. 142 (1865) (statement of Rep. Godlove S. Orth)). The Amendment reiterated the natural law that supports our Constitution, making slavery irreconcilable "with the fundamental principles upon which our government rests." Joel Tiffany, A Treatise on the Unconstitutionality of American Slavery (1849), reprinted in 2 The Reconstruction Amendments: The Essential Documents 237, 237–38 (Kurt T. Lash ed., 2021) ("All men are possessed of the same natural rights, secured by the same natural guarantys—held by the same tenure—their title is derived from the same source. . . . Deny these truths, and you destroy the foundation upon which society is based. Violate them, and you are at war with yourself, with Man and God."). The Amendment, rooted in "our ancient faith [that] the just powers of governments are derived from the consent of the governed," recognized that slavery's existence was "a total violation of this principle . . . [of] self government." Abraham Lincoln, Speech at Peoria, Illinois (Oct. 16, 1854), reprinted in 2 The Collected Works of Abraham Lincoln 247, 265–66 (Roy Basler ed., 1953). "By the law of nature all men are born free and equal, and man has no jus dominii in man. . . . [F]or freedom is the natural right of every man, and slavery is abridgment by positive law." Slavery and the Incoming Administration, in 2 Brownson's Quarterly Review 65, 109 (1857). See also Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 624 (1857) (Curtis, J., dissenting) ("Slavery, being contrary to natural right, is created only by municipal law."). The Thirteenth Amendment codified the truth that slavery could be treated as constitutional "only by disregarding the plain and common-sense reading of the Constitution itself." Frederick Douglass, The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery? (1860), reprinted in 2 The Reconstruction Amendments: The Essential Documents 303, 308. See also Peter C. Myers, Seed-Time and Harvest-Time: Natural Law and Rational Hopefulness in Frederick Douglass's Life and Times, 99 J. Afr. Am. Hist. 56 (2014), reprinted in A Political Companion to Frederick Douglass 285, 287 (Neil Roberts ed., 2018) ("Douglass frequently invoked the law of nature both because he was convinced of its profound truth and also by virtue of its utility in various practical applications.").

Matey concluded that the plaintiffs' constitutional claims have no merit.

None of Plaintiffs' claims approach a violation of the natural principles guarded in the Reconstruction Amendments, nor could the nature of their work approach the atrocities the Thirteenth Amendment protects against. Calling what amounts to a wage and hour dispute a violation of these laws would be a most remarkable departure from the Amendment's original meaning and disrespectful to that historic achievement.

DOJ, take note for your brief.

Comments

[Intelligent Mr Toad]

I hope Judge Matey has the presence of mind to have a son and name him Richard or Ron or Robert or Roger. So that he can be called "R. Matey." "R." to be pronounced "Arrrrgh". As in "Arrrrrgh, Matey!" which (as Robert Newton and Wallace Beery taught us) is what pirates say when they are drinking.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

When you arrrrrre right, you arrrrrre Right!

[MatthewSlyfield]

The theoretical son's name should definitely be Roger.

[wolfefan]

And he should laugh a lot.

[Brett Bellmore]

No analysis of "except as a punishment for crime whereof the party shall have been duly convicted"? How disappointing.

It's arguable that prison labor and work release programs are categorically outside the reach of the 13th amendment, on account of this clause. The court could have explicitly sentenced the defendants to be enslaved, and while the 8th amendment would have been implicated, the 13th wouldn't have been.

[Dilan Esper]

I don't think your interpretation is right. The "except as punishment" clause modifies involuntary servitude but not slavery. Sentencing a person into slavery is unconstitutional under the 13A.

[Brett Bellmore]

“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.”

Notice where that comma is? Nope, that’s not how you parse this sentence using the rules of English grammar. If they’d meant what you suggest, they’d have written,

“Either slavery, nor involuntary servitude except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The comma would have been differently located.

Now, if you’ve got some evidence in the form of on point Congressional debate or published advocacy at the time, to suggest this comma placement is just a scrivener’s error, I’d be interested to see it. I'll admit it's not entirely possible that they just screwed up their grammar. But I've seen no such evidence to date.

[Dilan Esper]

I think your addiction to commas over what the actual context of the provision is, is cute, and convinces me I don't want you anywhere near the enterprise of interpreting contracts or statutes.

[Ridgeway]

So if I am driving without insurance, and get into an accident, is it a 13th Amendment violation if the judge sentences me to be the victim's butler?

[EscherEnigma]

Most likely.

Off-the-cuff, driving wihtout insurance is an infraction, not a crime. So you can be fined for it, and held financially liable in various cases, but that's not what's going to send you to jail.

Could a state pass a new law such that driving without insurance was a criminal offense that would send you to jail? Sure. And in that case, the state could also pass a new law such that in cases like you described, part of your sentence could be community service for the person you harmed.

And if those hypotheticals were met, that probably would't be unconstitutional.

But with laws as they currently are? Yeah, pretty sure.

[Ben of Houston]

No. It's clearly allowed by the black and white text of the law.

You might challenge it as cruel and unusual punishment, the value of the labor would have to be commensurate with the crime committed, and there are a lot of laws about prisoner labor, but if you commit a crime against someone and are convicted in a court, it wouldn't violate the 13th to force you to work off the debt.

[Ben of Houston]

Look Dilan, you can say that it's against the intent as stated by Lincoln, Johnson, and the clearly expressed intent of the voters, but there's no getting around that slavery is technically allowed as a punishment under the black and white text of the law. After all, there is no meaningful difference between a life sentence of hard labor and slavery.

However, this would omit many of the worst issues with the practice, most notably, inheritability, as children cannot be punished for the crimes of the parents.

[Brett Bellmore]

I'm a textualist, sue me. And an originalist, at that.

Like I said, do you have any contemporary evidence for the proposition that the exception only applied to involuntary servitude, and not slavery? Because that is NOT how it's written.

[ReaderY]

I think it was completely wrong to regard this case as a mere “wage and hour dispute.” Plaintiffs were incarcerated and offered release if they worked. That’s compulsory labor. The existence of wages was totally irrelevant to the essential claim.

These plaintiffs were forced to work under threat of continued imprisonment after being held in civil contempt for failing to pay child support. The state could have made failing to pay child support a crime and could have made the work requirement part of the punishment. Or it could have used criminal contempt rather than civil contempt. There would be no 13th Amendment issue if it had.

But to do so, it would have had to offer these plaintiffs the additional procedural process due them prior to a criminal conviction as distinct from a civil judgment in order to force them to work if they wanted to be released. That’s an important constitutional right that should be preserved.

As a matter of historical fact, the use of broad and vague laws (like vagrancy) combined with work prison gangs was a common way Southern states used legal processes to keep their black population in servitude and provide cheap labor for state projects and private industey after the 13th Amendment was passed. Similarly, debt peonage became a widespread method of maintaining a de facto slavery. The relatively recent history of both debt peonage and abuse of penal servitude both tend to favor the plaintiffs’ side. Both are in fact exactly the sorts of things the 13th Amendment intended to abolish. The historical use of workaround strategemsto avoid the 13th Amendment’s clear import cautions in favor of strictly safeguarding parties’ procedural rights before they can be subjected to involuntary servitiude in either a debt or a penal context.

[ReaderY]

Broad civil categories like “contempt” lack strict notice, specificity, heightened burden of proof, and other procedural safeguards afforded criminal defendants. The 13th Amendment said conviction for crime for a reason, and the historical systematic use of civil proceedings to get out of its prohibitions reinforces its wisdom. Involuntary servitude should not be based on a mere civil judgment, especially not over a broad and vaguely defined civil violation like “contempt.” There are historical exceptions like the draft, jury duty, the duty of common carriers to serve the public, school assignments and service projects, and much else. But this case more resembles the historical abuses invalidated in 13th Amendment jurisprudence than the historical exceptions to it.

[Brett Bellmore]

Oh, I agree, they're being very abusive here, in a manner which comes close to resembling slavery in some regards. But I think it required some analysis, especially given that clause I cited.

I think the application of the 8th amendment would be much less problematic.

[Longtobefree]

I am easily confused these days.
Please explain to me how being offered a choice is compulsory.

"Plaintiffs were incarcerated and offered release if they worked. That’s compulsory labor."

[Brett Bellmore]

"Your money or your life!"

That's a choice, isn't it?

[Rossami]

You've heard of Hobson, right? Not every "choice" is a choice.

[LawTalkingGuy]

Is there anything more tedious than an amateur lecture from a FedSoc judge with a JD on what the reconstruction amendments really mean?

[tkamenick]

"The Thirteenth Amendment codified the truth that slavery could be treated as constitutional 'only by disregarding the plain and common-sense reading of the Constitution itself.'"

It's a nice sentiment, but if true, XII-A wasn't necessary.

[EscherEnigma]

I love reading about "natural laws" that need mankind to enforce them.

It's almost like they're not laws of nature, but laws of man.

[Brett Bellmore]

Well, they are, unless you phrase them in the form of a conditional imperative; "If you don't want bad [thusly defined] to happen, don't do X" can represent a law of nature, because laws of nature are about consequences of acts, not whether you like them.