Nonacs v Selten, Secretary of Defense: Justice Scalia, concurring in judgement

Re: Selective Service Registration

Associate Justice Scalia, concurring in judgement

joined by Chief Justice Suzuki at Section IV,

save in those areas declaring the majority

opinion (Suzuki, for the Court) dicta


If power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. Many who doubted yielded their doubts; many who did not doubt were silent.

Chief Justice Salmon Chase

Hepburn v Griswold

75 US 603, 626 (1869)

           With significant trepidation, I join the majority opinion voiding selective service registration as precursor of what surely would be involuntary servitude if activated. I write separately to distinguish what I believe constitutes involuntary servitude from the majority’s more generous position; and to reconcile, in my own mind if no other, how this foray into judicial revisionism is actually not so removed from the constitutional philosophy I have championed to date. I am aware of what today’s Court stance portends; so offer this confessional for scrutiny and correction.


             Judicial philosophy should not be commentary on sensationalism but a mechanism of the mind. We shape faceless lives with our minutiae, and I have ever thought we should approach our power with circumspection, not relish. The sensational demands a show, and we give it with all the solemnity our black robes can bear. We forget the words we use will later push us in directions unforseen. To point this out is to be labeled reactionary, callous. But we rarely decide a case of one. I speak, have been forced to speak, for those unseen who inhabit only the potential. Does this make me worse than my brethren who focus so amorously on the petitioner before us? Who is more blind? Sometimes I wonder if there is a measure adequate for the answering.
           Sensationalism of the case is hard enough on the judicial sense; theatrics by petitioners to produce a case is repugnant. The costs of decision are too high, costs litigants will never know nor care to know, costs Justices may not live to see sprout. I did not favor taking this case. Petitioner worked overlong to have the courts take notice. Almost certainly this young man’s life would have been harmed not one iota if we had but ignored him. Who knows? Perhaps, his life will fare worse now that we decide in his favor. Young man, great hatred will come to bar you on many sides for what you have done. You cannot know what you have done. But before us my colleagues have placed you, and I must decide. My principles come before me in internal rancor. I must reconcile them. For judicial conservatism is not denial of text; when meaning is there we must conform. So this concurrence.


             The 13th Amendment to the Constitution of the United States, ratified December 6, 1865, reads in its entirety:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall not exist within the United States, or any place subject to their jurisdiction.

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

Section 1 is a blanket prohibition of a kind of social structure within the United States. It must be self-executing; else the prohibition would be meaningless absent Congressional notice, being then no prohibition at all. I would read Section 2 as a deferral to Congress in the first instance; but, absent such action, the courts may certainly enforce Section 1 to provide constitutional standing. In this I agree with the majority.
           I also agree with the majority that slavery and involuntary servitude are distinct, surest proof being Section 1’s proviso that punishment for duly convicted crime includes involuntary servitude. The proviso occurs after involuntary servitude, not slavery. I think it not inclusive of both, for slavery allows the selling of offspring, and I think it unremarkable to say the selling of an inmate’s children would not be appropriate to any crime, being rather a barbaric corruption of blood voiding all constitutional protection for an innocent. But then that was slavery’s core.
           Involuntary servitude has distinct content, Slaughterhouse [83 US 36 (1872)] and the Civil Rights Cases [109 US 3 (1883)] notwithstanding. I see no reason to ascertain the detail of this content; this Court indulges in delimiting the inessential as an addict takes his fix. The question before us is straightforward: would selective service registration, if activated to a draft, constitute involuntary servitude? If so, then selective service registration is itself void, as its whole raison d’etre would be to violate the Constitution, which cannot be.
           At this point Congress’ liberal policy is its life-taking enemy. A voluntary army, we are told, will be adequate for all but dire emergency. Selective service registration is designed to facilitate the assembly of an emergency force. The emergency, presumably, will require exposure to possible death. The focal question before us is whether such exposure under the color of law constitutes involuntary servitude.
           At minimum, involuntary servitude constitutes loss of livelihood and choice of substantial magnitude, directed to the benefit of others, a loss not assumed but compelled. Death is unarguably the greatest such loss. Coercing someone into a path of death, under color of law, is inescapably involuntary servitude prohibited by the 13th Amendment.
           I reach this conclusion based on the plain meaning of the text and Congress’ own rationale for retaining selective service registration. I profoundly dislike the conclusion but cannot escape (“I do not think that the avoidance of unhappy consequences is adequate basis for interpreting a text.” Scalia, concurring in judgement, Nixon v Missouri Municipal League [2004]). At the same time I cannot but admit that the military draft is undoubtedly a significant post-13th Amendment tradition in this country. My interpretive principles have clashed, and I must counsel them.


When a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down. Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some principle … of adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court’s principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices are to be figured out. When it appears that the latest rule … devised by the Court has placed us on a collision course with such a landmark practice, it is the former that must be recalculated by us, and not the latter that must be abandoned by our citizens. I know of no other way to formulate a constitutional jurisprudence that reflects, as it should, the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court. (Scalia, dissenting, Rutan v Republican Party of Illinois [1990], 497 US 62, 95-6)

             Such was my view some plus twenty years ago, and I decline to repudiate it this day. Yet hindsight and, perhaps, nearing end of the competitive game, have left me less snippety to the late Justice Stevens’ reply:

If the age of a pernicious practice were a sufficient reason for its continued acceptance, the constitutional attack on racial discrimination would … have been doomed to failure. (Stevens, concurring, ante, 497 US 62, 82)

I said then that “no tradition can supersede the Constitution (Scalia, dissenting, ante, 95), but things said comfortably in 1990 may be fearful in 1896 when Plessy v Ferguson (163 US 537) upheld “separate but equal” over a lone dissent. What I now realize is that there can be a long tradition (in the measure of American existence) of refusal to implement, or even recognize, a constitutional provision. No better example of such blindness exists than Justice Bradley’s analysis of the Thirteenth Amendment in the Civil Rights Cases of 1883:

When a man has emerged from slavery, and by the aid of beneficial legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected. There were thousands of free colored people in the country before the abolition of slavery, enjoying all the essential rights of life, liberty, and property the same as white citizens; yet no one, at that time, thought that it was any invasion of their personal status as freemen because they were not admitted to all the privileges enjoyed by white citizens, or because they were subjected to discrimination in the enjoyment of accommodations in inns, public conveyances, and places of amusement. Mere discrimination on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these areas has become established by constitutional enactment, it is not by force of the Thirteenth Amendment, (which merely abolishes slavery), … (Bradley for the Court, Civil Rights Cases, 109 US 3, 25)

Gone the ideological drummer of Bradley, dissenting, in Slaughterhouse (1872), 83 US 36, 111, which forcefully and famously dissented from the majority’s conclusion that the 13th and 14th Amendments focus primarily, nearly exclusively, on the abolition of slavery. In 1883 Bradley pens an 8-1 opinion which affirms a tradition of blindness against constitutional implementation, a blindness all the more evident given his then decade old Slaughterhouse views. The late Justice Stevens was right–but so was I. While I recognized that tradition cannot trump the Constitution, I failed to recognize that tradition may blind us to constitutional implementation. How else could Justice Bradley use discrimination against freemen of color in public life before abolition as evidence that such discrimination after abolition is “not regarded as [a] badge of slavery” (ante, 25)? “It would,” says Bradley,

be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach … or admit to his concert or theater, or deal with in other matters of intercourse or business. (ante, 24-5)

In the South, of course, those antebellum discriminations against freemen of color existed because slavery existed. They were indeed “badges of slavery.”
           This Court, under Bradley’s pen, facilitated a tradition which obscured constitutional implementation. The Court has done so as well on the question of conscription and involuntary servitude. I want to be clear that I do not view any tradition as destructive of constitutional implementation. This would void my view in Ryan, ante, placing me in the timeless analysis doctrine I so abhor. To date, I see no obscuring tradition in cases of Due Process or Equal Protection. There was no reason to hide the question of “privacy” (Griswold v Connecticut [1965], 382 US 479) or “intimate association” (Lawrence v Texas [2003]) from correct Due Process implementation. My opposition to “liberty interest” analysis is unaffected by my stance today (“whatever abstract tests we may choose to devise, they cannot supersede–and indeed ought to be crafted so as to reflect–those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts” Scalia, dissenting, United States v Virginia [1996]). So I must begin analysis of conscription and involuntary servitude by identifying an obscuring tradition. I blush to say that tradition is patriotism.


             The question before us was decided directly in 1918, near close of the Great War which produced slaughter theretofore unseen (Arver v U.S., 245 US 366). Today this Court reverses Arver in its entirety. But before examining Arver I jump ahead some ten years, to that pithy embarrassment of Justice Holmes, Buck v Bell, 274 US 200 (1927), which applauds the forced sterilization of the “mentally defective” through implicit reference to Arver. In a handful of words Justice Holmes sustains a Virginia sterilization law, these the most striking:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. (274 US 200, 207)

Holmes himself was one of the better crop called forth to defend principle with life; barely of age, he volunteered his service to the State of Massachusetts in the Civil War. Arver underpins his logic in 1927. If men may be shipped to the theater of death which was Europe, how can others not be asked for lesser sacrifices to the same end–the survival and betterment of society? The mantle young Holmes assumed as a measure of individual dignity mature Holmes imposes as State obligation. Patriotism is no longer an individual quality; it is coerced necessity. The underlying volunteerism ostensibly birthing this nation is abandoned with the Draft laws.
           I find no fault with Holmes’ embarrassing logic. Patriotism is a general tool. If it may compel the draft to death it may compel lesser things. And so it did during the Revolution, and so it did.


             I agree with the majority that, minimally, involuntary servitude is a measure of social structure. As prohibition, the 13th Amendment is more expansive than the 1st; while the 1st constrains only government, the 13th prohibits regardless of genesis, State or otherwise. Such non-state genesis was essential to the endurance of Revolution, and it seems politic to consider how far coerced patriotism as involuntary servitude fueled rebellion.
           There was no State to march its men into Revolution. Conscription was perforce local, so shaped by social relationships beyond the needs of war. Famously, British commanders were unimpressed by the militias so formed. The French and Indian War had revealed militias unwilling to march at their British overseer’s whim. They would fight locally, more or less, especially against Indian in contest for land and game; but, ordered too far afield, they were want to disband for home. Some solemnly declared they would not leave their State, boundaries being inexact those days; some simply said they had never been beyond some river or such and didn’t plan to change now.
           The mechanism of conscription had ceased to function. Far afield, the orders of British officers become involuntary servitude; the yoke was overthrown, soldiers became men and went home. A puzzle to the British, who had no quarrel with servitude in the imperial army. A society abandoning servitude is defenseless–so they thought.
           There was indeed servitude in the colonial militias, but of variable kind. Social obligation is servitude depending on one’s slant. When calls to mobilize came, response was a social consensus on the believability of alarm. Failed outpouring would not result in mass arrests. But it might redefine valid alarm or local leadership. The militia mobilized as men calculated their places, their debts, their possible rewards. A stranger visiting would not be asked to join a call under all conditions expected of locals. Militia service was payment of a debt or garnering of credit; the two could blur into one another when calculus was memory and emotion.
           Even in consensus servitude might be present. Some would prefer to avoid risk, but feared more the certain sanctions faced otherwise. This is no different than servitude or, for that matter, slavery. But the servitude was seen as voluntary, a choice of where and how one lived. Abode produced debt. But as mobilization distanced from abode social debt vanished; the militia itself became involuntary servitude, a condition growing out of consensus until disbandment resulted. The bonds of social debt pulled men toward home, just as it had initially mobilized them for distant march.
           Involuntary servitude–military involuntary servitude–is a lesson of the British, not just in the arbitrary impressment of men, but in the considered opinion of militia abandoning their ostensive officers directing men to fights not their own. This tension between social obligation for local defense and involuntary servitude in distant, greater battle endured to Revolution–and far beyond.


             The Green Mountain Boys of Vermont mobilized to Indian-ambush marching British regulars in a wilderness known well. But the British army was famed destroyer of men; the Boys stealthed into uncertain outcome, uncertain cost. It is beyond plausibility that all those aligned hidden behind trees wanted to be there. Involuntary servitude was present that day, how far, how deep, cannot be said. The State played no role in this; there was no State of Vermont. And if there had been, and if involuntary servitude had been forbidden by it, there would be no difference. Enforcement was as impossible as mass conscription. The idea we debate here precedes the social technology we suppress today.
           The Green Mountain Boys are famed as patriotism without the State, a local, coercive patriotism, producing involuntary servitude among some mute or socially enfeebled. If involuntary servitude is later constitutionally proscribed, that proscription acts against a prior patriotism. We cannot, then, employ patriotism to void involuntary servitude in the realm of conscription, as patriotism itself is nullified by the proscription.
           This point was not lost on Vermonters during the Revolution. The revolutionary Constitution of Vermont, dated July 8, 1777, barred slavery as perpetual servitude.  Delaware’s Constitution of 1776 similarly barred the importation of “African slavery,” but said nothing of slaves resident, nor linked slavery with other servitude (Constitution of Delaware, Sept. 1776, Article 26).  Vermont went further, limiting apprenticeship and, by implication, what we now call the military draft. Chapter 1, Paragraph I reads

That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are the enjoying and defending of life and liberty; acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety. Therefore, no male person, born in this country, or brought from over sea, ought to be holden by law, to serve any person, as a servant, slave or apprentice, after he arrives to the age of twenty-one years, not female, in like manner, after she arrives to the age of eighteen years, unless they are bound by their own consent, after they arrive to such age, or bound by law, for the payment of debts, damages, fines, costs, or the like.

             It will pay to abstract from this dense paragraph. “Defending life and liberty” is inalienable, as is “protecting property” and “obtaining … safety.” All these I take to justify the militia and its associated non-state forms of debt and obligation. But the text clearly prohibits lawful servitude beyond a specific age unless it be voluntary. Servitude may otherwise be forced for payment of “fines” and “costs”–primary State sanctions, court “damages,” and “payment of debts.” This last is the sole hope of entry for conscription.
           “Payment” is the key. Payment is a specific obligation arising from a transaction–the “debt.” Patriotism is a social obligation by virtue of residence. Debts arising from daily life are of the first kind, paid in kind. Patriotism is an obligation over and above all these; it would exit absent these others, by virtue of living. To force the distinction into words, patriotism is a free standing obligation, not a debt.
           Chapter 1, Paragraph I enables colonial militia of the French and Indian War, save for the happy ambiguity of men less than 21 years of age. Generally, militias may form, driven by the social engine of debt and obligation. Patriotism acts as a threat to ostracize from future credit and service, not to compel as a matter of law. There is room to compel the young, but this clause reflects the general cycle of apprentice to independent artisan of the day, providing the master a guaranteed return on his instruction via service. That this analysis is not torturous to history finds support in Paragraph IX of the same Chapter:

That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore, is bound to contribute his proportion towards the expense of that protection, and yield his personal service, when necessary, or an equivalent thereto; but no … man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law but such as they have, in like manner, assented to, for their common good.

Chapter 1, Paragraph IX explicitly affirms militia service beyond that motivated by local social debt and obligation, coloring compulsion to service in law. The last clause of the paragraph is a bit ambiguous. I would take it to mean residence must clearly pre-define militia obligation.
           In any case, Paragraph IX, employing the language “is bound … to yield his personal service,” clearly restricts Paragraph I. I find this compelling evidence that, during the Revolution, unrestricted prohibition of involuntary servitude would forbid conscription. It is just such an unrestricted prohibition we have in the Federal 13th Amendment.


             Rebellion consumes men. If obligation and debt are primarily local, with involuntary servitude growing as the feet march distant from home, the rebellious States face the same resistence as did British officers during the French and Indian War. It is no surprise that Independence Constitutions declared militia service, with more or less precision, a duty of male citizens. Chapter 1, Paragraph IX of the Vermont Constitution (1777) is mirrored by several others. Article XI of New York’s Independence era Constitution reads

And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defense; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well as in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefore excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service as the same may, in the judgement of the legislature, be worth.

New York’s exemption is significantly weaker than Vermont’s, being corporate, limited to Quakers. Being a Quaker was more than refusing arms; some there must have been who would refuse both arms and Quakerism. These would find release in Vermont’s Chapter 1, Article IX, ante, but not in New York. Vermont’s individualistic release reflects its Chapter 1, Article I, which addresses involuntary servitude as against individual liberty; New York has no equivalent article. Vermont’s Chapter 1, Article I colors drafting and debate of its conscription article, evidence of a more articulated sense of servitude than in New York.
           Articulation varied by State. Maryland’s Independence Constitution of 1776 merely asserts “that a well-regulated militia is the proper and natural defense of a free government (Article XXV). Delaware’s of the same year says the president, with consent of his privy council, may “embody” and command the militia (Article 9). Virginia is similar to Maryland, despite the celebrated language of its Bill of Rights (Constitution of 1776, Section 13 of its Bill of Rights). Virginia was a slave State, and talk of servitude was necessarily circumspect; nowhere does its Bill address servitude directly. Georgia’s Independence Constitution of 1777, most explicitly committed to localism of the lot, organizes counties with at least 250 men “liable to bear arms” into “battalions” (Article XXXVI); liability is nowhere specified, but the extensive localist power of courts and juries granted by this constitution lead one to conclude liability, def facto, would be a local matter. Finally, Pennsylvania’s conscription clause lies somewhere between those of Vermont and New York:

That every member of society hath a right to be protected in the enjoyment of life, liberty, and property, and therefore is bound to contribute his proportion toward the expense of that protection, and yield his personal service when necessary, or an equivalent thereto. (Article 8, Constitution of 1776)

What constitutes an equivalent, or when such is allowed, are presumably matters for the legislature.
             Of all the Independence Era constitutions reviewed, only Vermont provides direct constitutional protection against conscription as an individual right of conscience; Vermont’s is also the only constitution to address servitude directly. One cannot then argue that the various State conscription articles of that day place unrestricted military service in the hands of government, contra Arver v US (245 US 366, 380), below; rather, once servitude is introduced as explicit constitutional concept, conscription is curtailed, even in time of rebellion against empire. Of course, the wilderness State of Vermont had less to fear from this constitutional largess to conscience than war target States such as Pennsylvania, New York, or Virginia. Nor is it surprising to find the greatest constitutional protection against servitude in a State where the enforcement of servitude would be most problematic. It is one of the tortures of human development that ideas are often implemented initially where they have the least impact to the prior social order.


           Arver irritably disposes of the 13th Amendment in its final paragraph:

Finally, 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. (245 US 366, 390)

This refutation is one of pure patriotism, essentially identical to the later Buck v Bell, ante. In fact, Arver cannot really be said to underpin Buck; both rely directly and independently on patriotism for their ground.
             The Colonies awoke to patriotism as a local affair, a patriotism later birthing and enduring Civil War. Alexis de Tocqueville well describes this engine of local America:

There is a patriotism which mainly springs from the disinterested, undefinable, and unpondered feeling that ties a man’s heart to the place where he is born. This instinctive love is mingled with a taste for old habits, respect for ancestors, and memories of the past; those who feel it love their country as one loves one’s father’s house. They love the peace they enjoy there; they are attached to the quiet habits they have formed; they are attached to the memories it recalls; and they even find a certain attraction in living their in obedience. (Democracy in America, George Lawrence (tr.), Harper and Row, New York, 1840 (1980). p. 275)

A love bred of confronting social obligation and well used debt–and, not to be overlooked, the fear of losing these. As discussed, military involuntary servitude (the majority opinion’s general discussion of servitude is unnecessary for the present decision so, in my view, dicta) was learned from the British. Independence Constitutions incorporated this patriotic localism through their militia clauses. Empowering the State to embody and control these militia generalized localism to the State. The generalization is forced by Rebellion, but is not in the hearts of citizens overall. Militia called to long distance duty would still disband piecemeal; localism continued to define absence or presence of involuntary servitude. Similarly, communities, asked to provide recruits for the Continental Army, often failed to comply. Those that did might provide the criminally or economically marginal (e.g., John Shy, 1990, A People Numerous and Armed: Reflections on the Military Struggle for American Independence, University of Michigan Press).
           Certainly a greater patriotism was developing, facilitated by the (rather distant) Continental Congress and its Army, especially through the officer corps, trade, and the like. But this contended with a rooted view of obligation and its inverse, involuntary servitude, still most common to most people. Only Vermont acknowledged the two forces (three, if you consider loyalty to Congress) in common constitutional contention. Common contention. Debated and decided in Vermont’s convention, a compromise is reached in Chapter 1, Article IX, ante. But involuntary servitude is prohibited in the Federal Constitution as unqualified Amendment. An amendment cannot be qualified by the Constitution’s prior text; else no prior clause could ever be completely removed (as in the case of Prohibition and its later rejection). An unqualified amendment controls all that comes before. In effect, this transforms the contingent-on distance prior use of involuntary servitude into an absolute–the inverse of Independence Constitutions such as Delaware’s, ante, having no restriction on State militia control.
           Arver is right that the Federal Constitution’s Article I, Section 8 war powers (declaring war; providing for a standing army and navy and regulation of same; mobilizing, organizing, arming, and disciplining the Militia; Paragraphs 11-16, Article I, Section 8), buttressed by the formidable Necessary and Proper Clause (Article I, Section 8, Paragraph 18), reach modern conscription. One cannot defend against all possible conscripted armies without, at least, the possibility of conscription as defense. It is also true, however, that before the advent of petroleum transportation, conscription was both difficult to enforce and dubious in value. Just as conscription became socially feasible, a Civil War numbed Congress, probably to embed what had become the unavoidable necessity of abolition into a secularly sacred document, drafted the 13th Amendment verbatim from the Northwest Ordinance of 1787. This politic move has become the foul smelling time capsule forcing today’s decision. Neither reason nor necessity force today; only an unavoidable canon of constitutional historical process–not interpretation–forces our self-immolation. A glance at the Northwest Ordinance shows why.


             While the Constitutional Convention debated the place of slavery in the Union, the Congress of the Articles of Confederation passed the Northwest Ordinance, a blueprint for the growth of territory into State. Almost as after thought, the Ordinance forbids the importation of slavery as institution:

There shall be neither slavery nor involuntary servitude, otherwise than in punishment of crimes whereof the party shall have been duly convected: Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid. (Section 14, Article 6, emphasis original)

Involuntary servitude as well is forbidden, and a fair reading of Article 6 cannot fail to note that the recovery of fugitive, in any kind of servitude in the States, is treated in common language. Involuntary servitude was the white version of African slavery, albeit a condition which crept up on one rather than bestowed at birth (Suzuki for the Court, Nonacs v Selten, Secretary of Defense).
           As an organizing document, the Ordinance provides for control of militia in the terse manor we have seen in State Independence Constitutions:

The governor, for the time being, shall be commander in chief of the militia, appoint and commission all officers in the same below the rank of general officers… (Section 6).

An implied conscription power must exist; but it comes from the natural formation of settlements in the sparsely populated territory. As in Vermont’s Constitution, ante, servitude and militia are mentioned in one document, at founding passage. There is no articulation of the limits of conscription as in Vermont’s Chapter 1, Article IX, ante. Congress drafted the Ordinance without representation from the territory; one would not expect articulation limiting power.
           Even so, as in Vermont, these passages, enacted together, are mutually limiting, conscription being mutual defense, involuntary servitude growing with the forced march (ante). If anything, the sparse population and underdeveloped territory would augment militia discontent away from home; only common cause, as in a general Indian war, might dampen charge of servitude and chance a governor to act as general commander. But modern conscription often acts when common cause is unreal to daily life.
           Section 1 of the 13th Amendment (ante) is nearly verbatim the first clause of the Ordinance’s Section 14, Article 6. Attempts to amend the language of Ordinance failed. The voting sense of Congress held that only the honored Northwest Ordinance would circumlocate the meaning of the Amendment; and certainly, debated in the States for ratification, the Ordinance was foreground.
           Political happenstance in 1864 places this mess before me. What was qualified by a concomitant Militia Clause in Ordinance comes to stand independently, unqualified and unbounded, as absolute as the abolition of slavery. A trying, terrible piece of language. Can intent of the day save us from this conclusion? I regret not.


             Before proceeding to the Civil War draft–which, as Justice Thomas, dissenting, stresses, is the most striking argument against the majority opinion–I want to show how a false identity between the Northwest Ordinance and 13th Amendment infected another first instance case before this Court. A Florida law of 1913 called all able-bodied males 21-45 years of age to road work for 6 ten-hour days per year, subject to fine and imprisonment upon failure to comply. One so convicted appealed, arguing, in part, that forced labor as civic duty was involuntary servitude, forbidden by the 13th Amendment (Butler v Perry, 240 US 328 [1916]). The Butler Court, recognizing that the Amendment was derived from the Northwest Ordinance, turned to territorial history:

[I]n 1792 the [Northwest] territorial legislative body passed an act providing: “That every male inhabitant of sixteen years of age and upwards on being duly warned to work on the highways by the supervisor in the township to which such inhabitant may belong shall repair to the place and at the time by the said superior appointed with such utensils and tools as may be ordered him wherewith he is to labour and there abide and obey the direction of the supervisor during the day in opening and repairing the highway.” (fidé 240 US 328, 331-2)

The process is similar to calling out a western militia, where conscripts would perforce supply their own weapons (here, tools), limited to local defense (here, that portion of highway in their locale). And, as with the militia, this process purportedly regulated by law undoubtedly predated that law. It was in a local’s interest to open highway acres to their township. Likely the act’s purpose is to coordinate highway maintenance across locales through the appointment of township supervisors. Supervisors, recognized in law beyond the community, would supplement, not replace, the more informal prior community social obligations propelling the task. These obligations still exist, indeed underpin, the law, with local leaders now vying for the post of supervisor (however defined locally), negotiating local labor allocation in support of appointment.
           This 1792 law implicitly asserts an unbounded obligation on the part of residents, much as British officers presumed militia obligation bounded only by superior authority. And, as in this former case, the presumption was bald face wrong. Law regulates social activity; creation of obligation is far more difficult. In 1799 the territorial legislature admits the mistake:

[A]ll male persons of the age of twenty-one years, not exceeding fifty, who have resided thirty days in any township of any county within this territory, who are not a township charge, shall over and above the rate of assessment … be liable, yearly and every year, to do and perform two days’ work on the public roads, under the direction of the supervisor within whose limits they shall be respectively residents. (fidé 240 US 328, 332)

This statute recognizes the social locale of involuntary servitude. Residency of both supervisor and laborer is still centered, preserving the engine of social obligation. But the open ended obligation of the 1792 statue is abandoned. Service is capped at two days. Those under 21 are not liable, while all over 16 were drafted in 1792; parental control trumps in 1799, suggesting the locus of social obligation lies in the household, not the (male) person. And, significantly, I think, those already “under township charge,” i.e., under town charity for their livelihood, are immune–too much the odor of slavery to force them, in their government dependent state, into labor beyond present obligation of their upkeep, underscoring that autonomous household creates the obligation. Now too those weakening in life, over 50, regardless of household status, are immune. The 1799 law suggests abuse under its 1792 predecessor, abuse undoubtedly checked, with varying success, by contention over the local limits of social obligation.
           Laws of that day, in an underdeveloped territory, were perforce cajoled more than dictated. What we see as a statute imposing a period of mandatory service could, rather, be interpreted as government intervention limiting local obligation in favor of prohibiting involuntary servitude. To cite these laws as evidence of acceptable conscription is an anarchism, ignoring history lived to force constitutional compatibility in the present.
           There is a curious provision in the Northwest Ordnance which further underscores the relationship between local service and servitude. Section 14 of that document is clearly its “Bill of Rights,” much of which, in content, is later reflected in the first 8 Amendments to the Federal Constitution. Article 2 of Section 14 reads in part

should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same.

The taking of property potentially expels from the community (e.g., O’Connor, dissenting, Susette Kelo, et al., Petitioners v. City of New London, Connecticut, et al. [2005]); forcing personal service can have the same effect by either limiting household production or, perhaps more importantly, interfering with either the maintenance or formation of social debt and credit. Absence, as we all know, can be a great cost in itself. The foregoing language attempts balance of State taking of expertise or manpower in a sparse land with prohibition against involuntary servitude, ante. Section 14, Article 2 bounds the degree of community obligation in militia or road service; perhaps more exactly, it distinguishes these home grown obligations from distant, State (territorial legislature) imposed duties. As evidenced by debates on the Federal Constitution and Bill of Rights, representative legislatures were themselves seen as hostile to localism, localism the bastion of lived rights. Representation reduced the danger of centralized State power, but danger remained.
           The territorial law of 1799 may fairly be read as corrective of that of 1792 based on the logic of involuntary servitude imbedded in the Territory’s founding document. While Butler cites these laws, the Butler Court ignores this content. Rather, that Court says the laws quoted show road service unrelated to involuntary servitude. Moreover, says Butler,

By their several Constitutions the states within the limits of the Northwest Territory prohibited involuntary servitude substantially in the language of the 1787 ordinance, and with the possible exception of Wisconsin, all of them early enacted and long enforced laws requiring labor upon public roads. (240 US 328, 332)

Those constitutions, of course, had the prohibition when first ratified. Involuntary servitude was thereby balanced by other provisions, but the words retained content independent of slavery. Butler will have none of this. Not only is the 13th Amendment treated as co-equal with the original document, the content of involuntary servitude therein is ignored:

Utilizing the language of the ordinance of 1787, the 13th Amendment declares that neither slavery nor involuntary servitude shall exist. This Amendment was adopted with reference to conditions existing since the foundation of our government, and 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, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers. (240 US 328, 332-3)

           The 1913 Florida statute prompting Butler lived in a world of (continuing) unraveling ambiguity in social obligation. Where social obligation is moribund, the six day service therein re-invents that obligation. Where local obligation still thrives in articulation, the State imposed six day cap may have another function. There it would constitute another point in debtor/creditor argument, perhaps as forceful as a limitation on service (over a year) than on a compulsion to serve. Those fulfilling their (somehow calculated) debt earlier might ignore the statutory mandate of 6 days–and might be so supported by local authority. Those working their six days will depart, regardless of social calculus, citing statute. In such cases, the six day limit operationalizes prohibition on involuntary servitude. A statute later read as imposing a State wide obligation, a patriotism, might be read, at passage, as an attempt to both recreate local obligation and limit its scope.
           Focus on the last dictum quoted of Butler, 240 US 328, 333, a dictum made law two years later in Arver, ante. Militia, jury, road maintenance are not identical to conscription in war; an army is no militia. The behavior of militias in the French and Indian War, then throughout Revolution, insist on this. Patriotism, the survival of the State, has expunged the content of involuntary servitude as lived. An obscuring tradition, born during Revolution, maturing through the Civil War and Great War, has, by the time of Arver in 1916, prevented constitutional implementation. I, for one, thank my God that it did.


             I come now to the most telling objection to today’s decision, the Federal Conscription Act of 1863, law one year before Congress sent the 13th Amendment to the States for ratification. Justice Thomas, dissenting, is affronted by the suggestion that these two Congresses, composed of so many of the same heads, could have so divergent views of involuntary servitude and conscription. Of course they didn’t. I freely admit my jurisprudence places great weight on such unambiguous evidence of the intent of Congress. And I agree with Justice Thomas that Lincoln was certainly aware of the limited conscription militias would endure; such partially motivated the Act. Great hypocrisy is necessary to sustain both the Conscription Act and the 13th Amendment as ratified–or great blindness. There is a viable path for the latter, driven by the necessities of what became the first modern war, and a clause in a document then some 70 plus years old.
           Both North and South the Civil War shifted obligation from somewhat local social credit/debt to impersonal national law grounded in patriotism. Birthing was hard, fitful, incomplete, miniature social wars within the contending blocks. Bernstein summarizes the plight of the North at the Act’s passage:

The federal Conscription Act was passed by Congress in March of 1863 to reinforce the Union Army at a low point in Northern military fortunes. Lincoln and his counselors had much cause for concern that spring. The war had been raging for nearly two years. The army was making uncertain progress on the battlefield and its ranks were thinned from the illegal absence of more than one hundred thousand persons. Before long, the three-year volunteers of 1861 who had fought the war thus far would come to the end of their enlistment. Horrifying tales of carnage at the front circulated through the North. Campaigns to raise new volunteers were flagging, and state drafts attempted the previous year in Maryland, Pennsylvania, and Wisconsin had met popular resistence and widespread evasion. The anticipation of such a response had probably helped to spare New York from a state conscription. (Iver Bernstein, 1990, The New York draft riots, Oxford University Press, p. 7)

Contention over social obligation and patriotism raged within the Northern States; the paper tiger States of Revolution, using words to ferment social obligation, were now sprouting enforcement teeth. Which is an important point. Patriotism becomes controlling as the social technology of enforcement grows. Prior to this, patriotism is framed as localism. Bernstein continues:

This grim scenario convinced many War Department officials that only a new and powerful federal draft bureau could accomplish the related tasks of raising an effective army and monitoring loyalty on the homefront. The “Act for Enrolling and Calling Out the National Forces” created a national Provost Marshal Bureau directed by a Provost Marshal General responsible solely for enforcing the draft. … [P]rovisions empowered a federal provost marshal in each congressional district to make summary arrest of draft evaders and resisters, deserters and spies. (ibid, pp. 7-8)

At a time when truth was a social accusation–at least more so than now–a marshal’s man could impress many into service; only the sustained voice of the socially known could prevent conscription. Lincoln’s men reinvented British impressment. The very presence of provost marshals was an intervention in local, Congressional, and State politics:

The fielding of an effective army was inseparable from a larger issue, the legitimacy of the Republican federal government and its wartime policies. The Republicans’ primary task from the beginning of the war was to reunify the nation. As it became clear after a few months of fighting that a simple police action would not subdue rebellion, the Republican government resorted to a series of extreme measures to enhance and centralize its authority. Two of these, federal taxation and the Legal Tender Act, were needed to finance the unprecedented cost of the Northern war effort. The third, the Emancipation Proclamation, was a drastic attempt to revive Northern military fortunes by interesting four million slaves in the Union cause. The expansion of federal powers entailed in these acts was deeply controversial … Black emancipation provoked an especially heated debate … In November, 1862, the Northern Democratic Party, increasingly critical of Republican conduct, … captured thirty-five Republican Congressional seats and a host of statewide offices. In a climate of growing opposition to the Lincoln Administration, the Conscription Act entitled the Provost Marshal Bureau to bypass hostile Democratic State and local governments; district provost marshals were largely free to define treason as they pleased. The most drastic example of Republican centralization, federal conscription was a political measure designed to contain opposition to the Washington regime. (ibid, p.8)

           Unfair, Bernstein, unfair. These measures where meant to keep the Union whole, which meant grafting localist patriotism onto the federal government. But, without doubt, opposition to State and Federal drafts, as well as massive abandonment of voluntary military service contracts, voiced, in part, a view of servitude where service to a stranger, untasselled by the limits of social obligation, approached slavery. And many would ask where lies the difference when both march to death. Both Lincoln and the Radical Republicans, propelled to war with more or less conviction, found they were nullifying a core principle of Free Labor Republicanism: opposition to involuntary servitude. Ratification of the 13th Amendment seals this pact with the devil.


           Congress first considered the 13th Amendment in the spring of 1864, before Lincoln’s reelection campaign was significantly underway. Two-thirds of the Senate approved the measure; two-thirds of the House did not, partly because of the proportionately greater representation of Northern Democrats therein. Lincoln embraced the Amendment as a re-election issue; passage would vindicate Administration war policy and define Southern reentry into the Union.
           The Amendment’s appropriation of language from the Northwest Ordinance was politic beyond historical veneration. The language tacitly accepted evolved Free Labor doctrine that slavery was merely the extreme of a continuum of involuntary servitude (Eric Foner, 1995, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, Oxford University Press). So Radical Republican Congressman Thaddus Stevens could say “laws which oppress the black man, and deprive him of all safeguards of liberty, will eventually enslave the white man” (D. A. Farber and Suzanna Sherry, 1990, A history of the American Constitution, West Publishing Company, Saint Paul, p. 256). Prohibiting slavery, the Amendment affirmed the Emancipation Proclamation and legitimized the war. Ideologues voting for the Amendment in Congress and ratifying it within States were, seemingly, cementing the Civil War in Free Labor. Lincoln’s reelection advocacy made Emancipation a Free Labor issue. But the apparatus implementing the Proclamation included the recent draft; Free Labor ideology thereby sold itself, dividing into two streams, one (Free Labor localism of obligation) dislegitimate if the other (Emancipation) is to prevail. Patriotism–survival of the Union–trumps the division in favor of proscribed slavery, vanquishing the content of involuntary servitude.
           Historical happenstance provided Lincoln a tactical weapon. The Northwest Ordinance provides that

whenever any of the said States [carved out of the Territory] shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the [Continental] Congress of the United States … and shall be at liberty to form a permanent constitution and State government: Provided, the constitution and government so to be formed, shall be Republican, and in conformity to the principles of these articles. (Section 14, Article 5, emphasis supplied)

States carved from the Northwest Territory already had the prospective 13th Amendment as constitutional principle. Lincoln began with a war-trapped ideology and constitutionally committed States. The post-election House mustered a two-thirds majority. A year later the Amendment sped to ratification in the truncated United States.


           Am I, as Justice Thomas, dissenting, charges, accusing Lincoln and the War Congresses of an overt lie? Expediency in passion is not constitutional analysis, or should not be. And politics, certainly war politics, is passion iced for slow, unyielding movement. War is slow motion hysteria where the bullet can be seen yet still not dodged. So too its law.
           Bernstein, ante, lists three acts as particularly expansive of Federal power: the Emancipation Proclamation, the Conscription Act, and the Legal Tender Act. This latter was later abjured by the man charged with its implementation. The Act mandated acceptance of federal notes–the “greenback”–as legal tender; a vendor could not, under law, demand payment in coined precious metal, as before. Wartime Secretary of the Treasury Solman Chase approved the measure, however reluctantly. Chief Justice Salmon Chase, seven years later, declared the Act unconstitutional, Hepburn v Griswold, 75 US 603 (1869). The Chief Justice concluded his self-repudiation thusly:

It is not surprising that amidst the tumult of the late civil war, and under the influence of apprehensions for the safety of the Republic almost universal, different views, never before entertained by American statesmen or jurists, where adopted by many. The time was not favorable to considerate reflection upon the constitutional limits of legislative or executive authority. If power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. Many who doubted yielded their doubts; many who did not doubt were silent. Some who were strongly averse to making government notes a legal tender felt themselves constrained to acquiesce in the views of the advocates of the measure. Not a few who then insisted upon its necessity, or acquiesced in that view, have, since the return of peace and under the influence of the calmer time, reconsidered their conclusions, and now concur in those which we have just announced. (75 US 603, 625-6)

There can be no better description of the obscuring potential of patriotism–from one who lived it, and used it.
           The Hepburn Court was undermanned. It’s 4-3 decision was reversed, 5-4, the very next year, after the appointment of two National Republicans by President Grant, Legal Tender Cases, 79 US 457 (1870), the prior four man majority now the minority. We have thrived on greenbacks since. Those holding greenbacks would, of course, abhor Hepburn. Not just the average man paid in these during and after war, but magnates who had amassed credit and reserves in the currency. The Grant Administration appointments could act both as populists and National (conservative) Republicans by upholding the greenback as currency; one, Justice Bradley, would reveal his Republican populist Free Labor leanings shortly in his Slaughterhouse dissent, 83 US 36, 111-24 (1872).
           We are not here to reconsider Legal Tender. Certainly Justice Thomas, dissenting, is right in believing Hepburn would have caused massive economic dislocation, perhaps even reversing war time growth. I provide only this shorthand: surely the potent three words of the Commerce Clause, “to regulate commerce” (Article I, Section 8, Clause 3), if capable of sustaining price controls (United States v. Carolene Products Co., 304 U.S. 144 [1938]), can too sustain the indispensable greenback. There are paths of constitutional legitimacy unforseen by then Chief Justice Chase. What matters at present is that the obscuring power of patriotism was acknowledged in our jurisprudence shortly after ratification of the 13th Amendment.
           The Conscription Act of 1863 provides another example of patriotic obfuscation. The Act allowed one to buy out of the draft for a sum of $300, a considerable amount of the day (Bernstein, ante, p. 81). We have since held a much smaller sum to be in violation of due process when necessary to obtain a divorce (Boddie v Connecticut, 401 US 371 [1970]), although I prefer Justice Douglas’ appeal to equal protection in that case (Douglas, concurring in result, 401 US 371, 385). I have no doubt that such a large sum of the day, when a buy out from possible death, would today violate equal protection. The truth was starkly simple: the wealthy, now often Nationalist Republican, would not go to war coerced. So money was a substitute for life, as in the Vermont and Pennsylvania Independence Constitutions, ante–a substitution I cannot make (e.g., Scalia, dissenting, Stenberg, Attorney General of Nebraska, et al. v. Carhart [2000]). As it was, the buy out fueled the New York City draft riots of 1863, where the city’s immigrant poor correctly saw the exemption as forcing the draft quota uniquely on themselves (Bernstein, ante).
           Equal protection via the 14th Amendment was just six years distant, the same lapse as between the Legal Tender Act and Chase’s mea culpa. Slaughterhouse restricted equal protection to the abolition of slavery (83 US 36, 81); four in dissent, including Chief Justice Chase and Justice Bradley, charged this a repudiation of Free Labor, the very ideology propelling abolition (83 US 36, 83-129). Later, Chase gone, Bradley will backpedal, claiming that pre-war discrimination on free blacks allows such after the war (Civil Rights Cases [1883], ante). Then comes Plessey v Ferguson, 163 US 537 (1896), where discrimination vanishes. This judicial blindness to racism began in patriotism. The immigrant Irish of New York City in 1863 were seen as a separate race, by all sides. Unequal treatment in outcome was then called national war necessity. Later, weary of unending Southern Reconstruction, Bradley proclaims in Civil Rights the national necessity of Jim Crow.
           Chief Justice Chase’s ideology dies through the patriotism which gave ostensive victory. The self repudiation he urged (Hepburn, ante) was never manifest in a majority of Justices. I stand in Chase’s self repudiation today. But, I fervently hope, only for a short while.


           I have dodged the question: did Lincoln lie on the import of the 13th Amendment? He certainly thought the draft constitutional before the Amendment. Yet he makes an odd caveat in an 1863 “Opinion on the draft”:

It is clear that a constitutional law may not be expedient or proper. Such would be a law to raise armies when no armies are needed. But this is not such. The Republican institutions, and territorial integrity of our country can not be maintained without the further raising and supporting of armies. There can be no army without men. Men can be had only voluntarily, or involuntarily. We have ceased to obtain them voluntarily; and to obtain them involuntarily, is the draft–the conscription (Lincoln, Selected speeches and writings, 1992, Library of America, Vintage Books, p. 397).

No Abe, its not clear. The draft is a “necessary and proper” pursual of Congress’ power to raise an army. A law to raise armies when no armies are needed would, according to him, be improper and so fail the Necessary and Proper Clause; the law would be unconstitutional. The involuntary servitude of exported militias enters the back door of Lincoln’s thought as an army unnecessarily called, his pre-election Free Labor populism not quite dead. Yet he would not call improper use of conscription unconstitutional; he denies localist determination of propriety for the obvious reason that many think the war unnecessary. He would say, quite truthfully, that localist determination has failed. So he abandons involuntary servitude as a core principle before the 13th Amendment. I conclude he indeed lied during his reelection campaign on the 13th Amendment. He would say, however, that as patriotism has shifted from the locale to nation, so too has the determination of “propriety” and servitude.
           A man of unavoidable ambiguous experiment, he elsewhere hopes patriotism can limit executive fiat. So he writes in September 1863 to then Secretary of the Treasury Chase:

Knowing your great anxiety that the emancipation proclamation shall now be applied to certain parts of Virginia and Louisiana which were exempted … I state briefly what appear to be difficulties in the way of such a step. The original proclamation has no constitutional or legal justification, except as a military measure. The exemptions were made because the military necessity did not apply to the exempted localities. Nor does that necessity apply any more to them than it did then. If I take that step must I not do so, without the argument of military necessity, and so, without any argument, except the one that I think the measure expedient, and morally right? Would I not thus give up all footing upon constitution and law? Would I not thus be in the boundless field of absolutism? Could that pass unnoticed, or unresisted? Could it fail to be perceived that without any further stretch I might … even change any law in any state? Would not many our friends shrink away appalled? Would it not lose us the [1864] elections, and with them, the very cause we seek to advance?” (Lincoln to Chase, Sept. 2, 1863, ibid, p. 394)

This to the future penitent of Free Labor. Chase would inject military necessity where Lincoln would not. Lincoln appreciates that the absence of volunteerism at the federal level does not preclude its operation elsewhere. A federal patriotism might be evoked against Lincoln as despot, congruent with local allegiances which presently stand as obstacles to him. The social technology of State control is still nascent, more effective on the already conscripted than on civilians; indeed, the New York draft riots employ the former to secure the latter when soldiers are ordered to fire upon citizen strangers.
           Lincoln would be no autocrat; he might abstractly approve consequent rebellion against him if he so tried. He knows the fierce independence of Free Labor–it brought him a minority Presidency. Still, unnecessary rebellion, in his view, creates federal patriotism which generally trumps localism. Before reelection, in April 1864, he writes:

Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it. (Lincoln to A. G. Hodges, Esq, April 4, 1864, ibid, p. 420; emphasis supplied)

The Constitution may be “turned off” when the nation, the local relations among people living in common social economy, allows it; when the rebellion which generated independence does not follow. There is a curious fatalism in this thought. If he is right, he will win the war, war now voice of the North; if wrong, otherwise. The Civil War is an internal Northern affair, a decision by locales to forego some autonomy, to shift patriotism to a distant nexus of decision–the Federal government. With each act Lincoln gambles this shift; he is in constant dialogue with the genesis of Revolution. So, on Emancipation, he says:

I was … driven to the alternative of either surrendering the Union, and with it, the constitution, or of laying strong hand upon the colored element. I chose the latter … More than a year of trial now shows no loss by it … in our home popular sentiment, none in our white military force–no loss by it any how or any where. (ibid, p.420)

For Lincoln, rebellion can be in election, and this he soon wins.
           Yes, Lincoln lied on the import of involuntary servitude in the 13th Amendment. But it was, I think, a temporary lie. The man admittedly employs “unconstitutional” measures he thinks temporary. Involuntary servitude was muzzled at passage but would later come to speak. Speaking to the 166th Ohio Regiment in August 1864 he hints of this:

It is in order that each of you may have through this free government … an open field and fair chance for your industry, enterprise and intelligence; that you may all have equal privileges in the race of life, with all its desirable human aspirations. It is for this the struggle should be maintained … The nation is worth fighting for, to secure such an inestimable jewel. (Speech to the 166th Ohio Regiment, August 22, 1864, ibid, p. 431)

“An open field and fair chance”: Lincoln’s nation is a shift in patriotism from locale to federal government to implement (future) prohibition of involuntary servitude. He resides, not in that nation, nor in the locales which advanced him, but in the shift itself. His nation is a geography of local communities, each with internal social obligations. He pulled men and resources out of these locales, but always worried rebellion could snap them back. So, off the battle field, his measures are often ambiguous, almost half-hearted. He provided pivots with which some mixture of the nation’s communities would turn one way or another. His genius lay in deciding where pivots should be placed. Involuntary servitude was such a pivot. Say nothing now; let it speak later. Today, in this Court, it speaks. It speaks under a different social political process than in Lincoln’s day, but it speaks. After more than a century, what I conjecture Lincoln thought would happen, in some form or another, has happened. Involuntary servitude speaks. It tell you straight out, Lincoln: I want to muzzle it again.


           The analysis is simple. There can be no servitude worse than forced death. When conscription leads to possible or probable death, it is involuntary servitude. Such servitude was expected during the colonial and independence eras, and thereafter, through the militia. But service was filtered by the theater of defense. The more distant the call, the less socially enforced obligation to answer. Militia service, formal or informal, was almost a side-consequence of more routine, although equally crucial, obligations of local community life. No one seriously expected a militia to leave its locale for long. This is not a matter of material supply; to force a militia overlong from the daily routines of livelihood which create it is, perforce, to destroy it; the militia dissolves in apathy, self-interest, cowardice. Involuntary servitude in militia service emerges as a Revolutionary principle, in counter-distinction to the British practice of impressment. It fueled Concord and Lexington, where miraculous volunteerism underscores an alternative of greater distaste.
           This conscriptive localism is reflected in both the Vermont Constitution of 1777 and the Northwest Ordinance of 1787. Both temper anti-servitude clauses with implied (in the Ordinance) or explicit (in Vermont) militia service. Both documents have clauses which temper that service, balancing anti-servitude and the social obligation of conscription. Vermont’s allows one to buy out of service, or provide a replacement. The Ordinance requires that those whose (presumably long distance) service is required by the territorial government be compensated; compensation reflects the loss of livelihood derived from (necessarily dormant) social ties.
           Modern conscription, the draft, knows no such mediation of principles. Servitude is absolute, within the bounds set by Congress. I have no problem substituting these bounds for local social obligation, contrary to the Opinion of the Court. One’s social group, through the vote, influences possible servitude. But my difference with the Court is here immaterial; for I agree with the majority that the 13th Amendment’s “involuntary servitude” does not just color, but supercedes and quashes, the latent conscriptive power of Congress to raise and maintain an army. To impose a balance given the sweeping declarative character of its language would be judicial fiat.
           Contrary to the Slaughterhouse majority, ante, involuntary servitude is, historically, not limited to “African slavery” (83 US 36, 70). I have detailed, ante, why I think the language is there, and why it has lain dormant. I declare evolving patriotism, from late Colonial to Civil War and thereafter, to be an obscuring tradition preventing full implementation of the 13th Amendment. Our decision today is a matter of happenstance. Absent the obscuring tradition, I cannot believe the 13th Amendment would now be as we have it. The peril of Civil War, and the survival of the first Republican government, would not, could not, abide it. But such implication cannot deny the clear historical import of its words (Scalia, dissenting, Lee v Weisman 505 U.S. 577, 631-46 [1992]).
           We have a volunteer army. Congress conceived of selective service registration as preparation for an emergency, one likely to threaten life and limb (e.g., Rosther v Goldberg, 453 US 57 [1981]). On Congress’ word, a draft based on registration would likely significantly jeopardize life. This would violate the 13th Amendment’s involuntary servitude prohibition–which is phrased as an absolute. A plausible alternative use of selective service registration not forthcoming, such registration must be annulled as repugnant to the Amendment. I concur with the Court in outcome, but would go no further that I have herein. To show just one place where I diverge from the Court, I believe my concurrence an artifact of our present national prosperity.


           The Court today baldly asserts that the State is prohibited by the 13th Amendment from ever conscripting men for jeopardy of life and limb. This stricture is overbroad and against the nature of life. Life is a choice among gambles. To proscribe a better gamble because it might lead to loss of life is in no one’s interest, neither the State’s nor the individual’s. I can envision worlds where conscription would lessen the probability of death, even under overt war. How can it be servitude to relieve an individual, relatively, from the prospect of death?
           One might reply that conscription is then unnecessary; the market of life will provide a surfeit of volunteers. Perhaps not. An objective need not be perceived correctly, or may take too long to be recognized from the State’s perspective. It cannot be involuntary servitude to make life more secure. Where the risk of life is ubiquitous, relative gain is all there is.
           Perhaps in some periods of history, in some locales, conscription was a boon. Today, on the measure of life and limb, it is not so–here, in this land. Justice Douglas, dissenting in United States v O’Brien, questioned whether conscription was constitutional in peace time (391 US 367, 389 [1968]). My analysis today, and I would say the Court’s today if they will but reflect, turns this question on its head. If loss of life is improbable, my analysis vanishes, as I am unwilling to use the broad strokes of the Court without a true case. The Court’s sweep is dicta.
           We live in the most prosperous land in all of history. My reservation is without application herein. Congress envisions selective service registration as a latent emergency measure jeopardizing life. The conscripts’ individualized gambles would be worse for life. To repeat, I must void selective service registration on its self-proclaimed intent.


           Justice Souter, concurring, says we can afford this decision today. Shortly, yes; but not overlong. In examining our fitful Establishment jurisprudence I have observed that the Court occasionally abandons its “neutrality” dogma in fear of the, dare I say, righteous indignation of the people:

What, then, could be the genuine “good reason” for occasionally ignoring the neutrality principle [in Establishment jurisprudence]? I suggest it is the instinct for self-preservation, and the recognition that the Court, which “has no influence over either the sword or the purse,” The Federalist, No. 78, p. 412 (J. Pole, ed., 2005), cannot go too far down the road of an enforced neutrality that contradicts both historical fact and current practice without losing all that sustains it: the willingness of the people to accept its interpretation of the Constitution as definitive, in preference to the contrary interpretation of the democratically elected branches. (Scalia, dissenting, McCreary County v ACLU [2005])

           Yet I have, on one occasion, gone against the heart-felt patriotism of the populace and, somewhat surprisingly, the deep feelings of one of my liberal colleagues. I joined, silently, the 5-4 majority voiding laws prohibiting burning of the American flag, concluding such laws were repugnant to the Free Speech Clause of the First Amendment (Texas v Johnson, 491 US 397 [1989]; United States v Eichman, 496 US 310 [1990]). Justice Stevens, generally a champion of expansive speech (except in religious expression), dissented vigorously on both occasions. He viewed flag burning as disruptive to the arena of free speech, attacking the forum of dissent itself:

The Government’s legitimate intent in preserving the symbolic value of the flag is essentially the same regardless of which of many different ideas may have motivated a particular act of flag burning … [T]he flag uniquely symbolizes the ideas of liberty, equality, and tolerance–ideas that Americans have passionately defended and debated throughout our history. The flag embodies the spirit of our national commitment to those ideals. The message thereby transmitted does not take a stand upon our disagreements, except to say that those disagreements are best regarded as competing interpretations of shared ideals. It does not judge particular policies, except to say that they command respect when they are enlightened by the spirit of liberty and equality. (Stevens, dissenting, United States v Eichman, 496 US 310, 321).

           Let us be unpleasantly honest. We sit on the highest Court of the land, not implausibly the most significant Court the world has ever seen. We are not at a cocktail party where the politically correct utterance might move us forward. The ancestors of our flag, the various flags of Revolution, tolerated little dissent. In some neighborhoods burning such a flag would be cause for celebration; elsewhere it might be cause for lynching. This was patriotism nascent. 1777–“the year of the hangman,” John Adams called it, each “7″ representing a too often encountered tree as makeshift gallows (John S. Pancake, Jr., 1777: the year of the hangman, 1977, University of Alabama Press). The Court’s marginal majority pronouncements in Johnson and Eichman were possible only because those neighborhoods are gone; that, and no global war jeopardized the well being of a majority of American households in 1990. The mechanisms of patriotism were inoperative. I would still uphold my silent assents of that time, but would now voice my view that the obscuring use of patriotism has been removed, placing flag burning under the protection of free speech.
           Put another way, patriotism can now endure flag burning. Which underscores an essential point. To say patriotism is occasionally obscuring is to neither disdain its value nor predict its demise. On the contrary, patriotism is the foundation of our house; constitutional assent is either solely by the gun or through patriotism. In this vast continent of a nation, mobile beyond any measured past, only patriotism sustains us as a community abstract. Justice Stevens, ante, sees our community abstract as commitment to the ideals of liberty and equality. It is much more. It is reverence of family and reverence of God. It is reverence for the sacrifice which is the wonder of patriotism.
           Then why spill so many words against the patriotism of the past as manifest? My Establishment dissent of 2005 says why:

What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that–thumbs up or thumbs down–as their personal preferences dictate. (Scalia, dissenting, McCreary County v ACLU [2005])

Oh, how we shift this day! I would make this shift one of principle; of reason; of intellectual integrity. I do not believe our nation can long endure today’s outcome. We are not of Lincoln’s time, where consequence might be hidden in a future beyond its maker; now our future is instantaneous, we more likely to hide from rather than within it. Today’s decision bites too deeply into the quintessential concept of protection grounding both our Constitution and jurisprudence. We must rid ourselves of this reasoned impasse as the Constitution permits.
           I consider myself a patriot in the ongoing war of freedom. But we cannot be free if we ignore, for convenience, plain principles of constitutional application. The issue resolved this day is more of application than interpretation. Only with peril can we jury-rig a solution by voiding the clear content of words. I will not leave that trap for the people of this nation to face another day. No. Patriotism requires us to face this defect, this collision of national security and jurisprudence, head on, with solution plain and unambiguous. It is time to amend the Constitution. National survival should not be involuntary servitude. Today’s decision is, in outcome, a good one. With it the Court inadvertently returns the constitutional process to the people. Let us amend our founding document to annul this well crafted decision. There is no need for words potent in obscurity to haunt us another day. We need only remove conscription from the purview of the 13th Amendment. This would do:

Congress shall have the authority to conscript residents under United States jurisdiction, and citizens irrespective of residence, for military service.

With this we would return to the political, patriotic process of our forebears, entrusting Congress with our safety in war as was the plain intent of the Founders. I think we shall soon see an amendment such as this. The people will take care of themselves.


           I concur with the Court in outcome, but would go no further than the relationship between involuntary servitude and conscription leading to plausible loss of life and limb. Reason takes me to this place; it is my fervent hope that here I need not long abide.

Antonin Scalia, Associate Justice

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