Conscription and involuntary servitude
In a discussion of the National Commission on Military, National, and Public Service, Bob Zadek raised the constitutional question of how conscription can be lawful, describing it as requiring people to work against their will and calling it involuntary servitude even though the military gets paid. He noted that the words “involuntary servitude” appear in the 13th Amendment, which he placed among the Civil War amendments alongside 13, 14 and 15, and said the amendment basically bans involuntary servitude in all forms. He asked how there could be a more direct form of involuntary servitude than the draft Conscription Gets a Face Lift (2020).
Guest Warren Gibson, a retired economics professor, described a lawsuit filed in 1918 soon after the draft was instituted for World War I. He said the suit was filed by a progressive group, that the progressive movement dates back to the early 1900s, and that the group challenged the draft on the basis of the 13th Amendment and went all the way to the Supreme Court. According to Gibson, the Supreme Court decided in 1918 that the draft was constitutional because Congress has the right to raise armies. Zadek supplied the phrase “raise and support armies.” Gibson said he was hesitant to use the word slavery but that the precedent exists, and repeated that the 13th Amendment says no involuntary servitude unless one has been convicted of a crime, while a person drafted into the army is serving involuntarily Conscription Gets a Face Lift (2020).
Zadek then cited a piece by Ilya Somin, described as a frequent guest on the show, in which Somin re-examined the constitutionality of the draft, cited the 1918 decision, and concluded, as many others have, that it probably rested on a very weak constitutional law basis. Zadek said it is fair speculation whether the Supreme Court would reach the same conclusion if the question were litigated today, and characterized the current position as a doctrine of weak constitutional law, with a serious constitutional question to be re-examined as to whether requiring anyone to perform work, paid or not, on pain of jail is lawful Conscription Gets a Face Lift (2020).
The amendment that binds the people
In a separate episode on originalism, Randy Barnett gave two reasons for his commitment to the approach. The first concerned the rule of law: judges and all government officials take an oath to adhere to a written constitution, and they are given power in return for that promise. He said the Constitution does not govern “We the People” — with the exception of the 13th Amendment, which bans slavery and bans the people, not just the government, from endorsing it. Apart from that amendment, in his account, the Constitution is the law that governs those who govern us Amy Coney Barrett on Trial (2020).
Barnett’s second reason was that the particular Constitution happens to be a good one, and that following its original meaning would reduce the significance of national elections and of who sits on the Supreme Court, by allocating power to 50 states for 50-state solutions. He added that the 14th Amendment would still protect individual rights against one’s own state Amy Coney Barrett on Trial (2020).
Completing emancipation
In an episode on America’s second founding, Zadek put the phrase “Lincoln freed the slaves” to guest John Cribb as simplistic, saying Lincoln did not quite free the slaves and that this was done by constitutional amendment. Cribb said he prefers to say Lincoln helped lead the effort to free the slaves, noting the many people involved, including many slaves themselves, abolitionists such as Frederick Douglass, and people on Capitol Hill such as Charles Sumner. He described the war as becoming dual-purpose with the Gettysburg Address — both to save the Union and to free the slaves America’s Second Founding (2021).
Cribb described the Emancipation Proclamation as what would today be called an executive order, and as a military proclamation. He said Lincoln believed the principles of the Declaration of Independence applied to everyone, black and white, but also realized the Constitution legalized slavery in the states and gave him no power as chief executive to do away with slavery at the stroke of a pen. Once the South had rebelled, Cribb said, Lincoln came to the view that as commander-in-chief he had vaster powers to win the war, and since Southerners were using slaves to grow food and dig trenches, the argument was that he could declare those slaves free as a means of helping win the war America’s Second Founding (2021).
Cribb noted that the Proclamation immediately freed no one, because it declared free all people enslaved in areas still controlled by the South. That, he said, is why it took the 13th Amendment to finalize it and make it official. Lincoln worried that after the war some courts, hostile to the idea of the federal government emancipating the slaves, would strike the Proclamation down as unconstitutional, and wanted the constitutional amendment to put a nail in the coffin of slavery. Cribb said Lincoln succeeded in getting the 13th Amendment passed through Congress before he died, and that it was not ratified until after he was gone America’s Second Founding (2021).
Across episodes: no development
The 13th Amendment appears in three episodes — the 2020 discussion of conscription with Warren Gibson, the 2020 originalism discussion with Randy Barnett, and the 2021 discussion of emancipation with John Cribb — but the excerpts show no development of a shared question between them: Gibson and Zadek press the amendment as a limit on conscription, Barnett cites it in passing as the exception that binds the people, and Cribb treats it as the instrument that completed abolition.
What the sources do not cover
The excerpts do not quote the text of the 13th Amendment beyond the phrase “involuntary servitude” and the exception for those convicted of a crime, and they do not identify the 1918 case by name or say which amendment or clause the Court relied on beyond Congress’s power to raise and support armies. They do not describe the amendment’s ratification process, its sectional divisions, or its enforcement legislation. Nor do they address how the amendment has been applied in later litigation beyond the draft question raised in the conscription episode.