Subject: Re: Jail costs: (was) Didn't need no welfare state (Was: Re: news...)

From: Jeff Davis (
Date: Sun Apr 23 2000 - 12:21:10 MDT


On Sat, 22 Apr 2000 00:08:17 PDT,
"Zero Powers" <> wrote:

>Far be it from me to pass on an opportunity to pick a nit. So long as it
>doesn't rise to the level of "cruel and unusual punishment" it is not
>unconstitutional to be sentenced to hard labor. However, this is not really
>the same thing as slavery. Obviously the convict cannot be bought or sold
>and unlike the former slaves in the US, a convict does have certain civil
>rights which cannot (legally) be violated.

Zero, did you check out the amendment before writing this?

Well, here it is:

Section 1. 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

Section 2. Congress shall have power to enforce this article by appropriate

The above wording compels the conclusion that, by the standards of the
amendment writers, the "punishment" they envision fits the definition of
"slavery/involuntary servitude". The two clauses are specifically and
indisputably linked. The equivalence was clear to the writers.

My point in the original posting was to show that the common belief that
slavery is abolished by the 13th amendment is not entirely true.

Now, as you pointed out, slavery has several different elements--ownership
of humans as property, forced labor, different/reduced legal
rights/rules--and some variability. My focus, though unstated, was on the
forced labor aspect.

I did not have the amendment on hand when I composed the post, but drew on
my recollection. When I subsequently tracked it down again (a web search
for "US constitution"), I found it at:

 I found that it was not quite as I had remembered. My recollection was
mistaken in that I thought all prisoners qualified as a potential slaves.
It appears rather that this is the case only for those whose punishment
specifies forced labor.

However, while rediscovering the details of the 13th amendment, I came
across additional material about the limitations of its applicability.
That is to say, further cases in which slavery/indentured servitude is not
illegal (control the definition--the legal definition--and you can do any
damn thing). So the intent of my original post, which was to issue a
warning that "Watch out! Slavery isn't as dead as you think." gets a bit
more ammunition.
I am particularly fascinated by the way that military conscription, an
example obvious to me, of involuntary servitude, is dismissed by the court
as "beyond question". In a test of logical consistency, where the rights
of the individual vie with the authoritarian priviledge of the government,
the court comes down on the side of authoritarianism. Surprise, surprise!

Anyway, check it out.

(excerpt follows)

Situations in Which the Amendment Is Inapplicable

In a wide range of situations the Thirteenth Amendment has been
unsuccessfully pressed into service. Thus, under a rubric of ''services
which have from time immemorial been treated as exceptional,'' the Court
held that contracts of seamen, involving to a certain extent the surrender
of personal liberty, may be enforced without regard to the Amendment.36
Similarly, enforcement of those duties which individuals owe the
government, such as service in the military and on juries, is not
covered.37 A state law requiring every able-bodied man within its
jurisdiction to labor for a reasonable time on public roads near his
residence without direct compensation was sustained.38 A Thirteenth
Amendment challenge to conscription for military service was summarily
rejected.39 A state law making it a misdemeanor for a lessor, or his agent
or janitor, intentionally to fail to furnish such water, heat, light,
elevator, telephone, or other services as may be required by the terms of
the lease and necessary to the proper and customary use of the building was
held not to create an involuntary servitude.40 A federal statute making
it unlawful to coerce, compel, or constrain a communications licensee to
employ persons in excess of the number of the employees needed to conduct
his business was held not to implicate the Amendment. 41

[Footnote 36] Robertson v. Baldwin, 165 U.S. 275, 282 (1897).

[Footnote 37] Butler v. Perry, 240 U.S. 328, 333 (1916).

[Footnote 38] Id.

[Footnote 39] Selective Draft Law Cases, 245 U.S. 366 (1918). The Court's
analysis, in full, of the Thirteenth Amendment issue raised by a compulsory
military draft was the following: ''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.''

*****I (almost) cannot express how awestruck I am at the evil beauty of
this legalese. How about this as an alternate theory: Leave it to the
conscience of each individual to assess the moral legitimacy of the
intended military action, and then, on the basis of that assessment, leave
it to each individual to decide whether or not to participate.*****

Id. at 390. While the Supreme Court has never squarely held that
conscription need not be premised on a declaration of war, indications are
that the power is not constrained by the need for a formal declaration of
war by ''the great representative body of the people.'' During the Vietnam
War (an undeclared war) the Court, upholding a conviction for burning a
draft card, declared that the power to classify and conscript manpower for
military service was ''beyond question.'' United States v. O'Brien, 391
U.S. 367, 377 (1968). See also United States v. Holmes, 387 F.2d 781, 784
(7th Cir. 1968) (''the power of Congress to raise armies and to take
effective measures to preserve their efficiency, is not limited by either
the Thirteenth Amendment or the absence of a military emergency''), cert.
denied 391 U.S. 956.

                        Best, Jeff Davis

           "Everything's hard till you know how to do it."
                                        Ray Charles

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