CHAPTER 3

THE RIGHT TO BE FREE FROM INVOLUNTARY SERVITUDE

Filmmaker Steven Spielberg has been building for us an inspirational legacy, in film images and rising scales of music, of enslaved peoples finding allies among their "oppressors," seizing hold of their freedom and then taking it back.

Amistad, in fact, depicted one of the most horrifying sights I've ever witnessed in my vicarious little world. Young black men, and some women, absolutely naked, their thighs and buttocks sweaty and buffed, chained or roped together like slugs, stuffing vomit-like gruel down their parched throats with their bare hands.

I can remember studying for essay tests in high school history classes, and not really internalizing the moral outrage of slavery. It seemed like a historical fact. The economy of the South had come to depend on it, and people had found soft ways to rationalize it, even though further slave trade was already illegal early in the 19th century (it would have been outlawed by the Articles of Confederation). It seems hard to believe that white people didn't suspect that blacks were human beings equal to them, differentiated from all beasts in the capacity for deliberate, deductive thought. I think they knew and blocked it from their minds. If the economic and social need seemed great enough, if the people born to more fortunate circumstances could segregate themselves enough, they could get away with it, in their own consciences. The Baptist denomination actually split into Southern and American conventions over slavery something classical liberals now call "man-stealing."

Of course, the Holocaust (as depicted in the films Schindler's List and Bent) provides an even more graphic example of servitude, as concentration camp victims were often used in medical experiments of horrifying cruelty, or sometimes just given busywork so they would die of exhaustion and exposure. As a preview of the indignities to come, prisoners were often totally body-shaven during their first hours of incarceration. Yet both the Japanese and Russia's Stalin perpetrated even deadlier holocausts of their own; Stalin claimed 20 million victims.

Slavery became officially prohibited in the United States with the passage of the 13th Amendment, immediately at the end of the War Between the States. But in 1861 an amendment had actually been proposed to make it impossible to amend the Constitution to prohibit slavery! Taken literally, the 13th Amendment would prohibit the existence of involuntary servitude within the United States except upon conviction of a crime as part of the sentence.

A second historically acceptable example of servitude is the military draft - conscription. Apparently, involuntary military service (which in Vietnam days paid 11 cents per hour to an inductee) has never counted as "servitude." (Understandably the military has never wanted military service to become a sentence for a crime; the fact that one had been drafted was, in the 1960's, at least presumptive evidence of decent character, and in public men in uniform were supposedly available succor in any emergency.) For almost all of civilized history, governments and politicians have felt the moral warrant to require young men to offer their bodies and lives for their country. Some countries, such as Israel and even neutral Switzerland, regard the draft as an instrument of nationalism. (Switzerland bemuses the gun control crowd by requiring all able-bodied adult males to maintain weapons and ammo in their own homes!) Moralists sometimes argued for universal military service, claiming all young men need introduction to things military in order to grasp their manly responsibilities to take care of others! In 1917, just before America entered World War I, President Wilson issued a proclamation ordering young men to report for draft examinations, and the federal government prosecuted those who criticized the draft for sedition! Wilson augmented his draft calls and troop-ships in the face of the 1918 influenza epidemic that preyed on the young and strong. The service of our young men during World War II was heroic and sacrificial (as demonstrated by Saving Private Ryan), but we often heard stories of young men prosecuted for "cowardice." During the Vietnam era, the moral support for the draft fell apart, largely because of the scuttlebutt over deferments as well as the policy failure over the war itself. In the early 60's, the government experimented with deferments for married men, and then only men with children; these were gradually eliminated. But student deferments were retained; this led to the cynical anti-selection of men (usually white) from more privileged backgrounds. Even when, late in the Vietnam war, a lottery replaced most deferments, the "privilege" system continued, as well-to-do young men got reserve unit appointments or phony medical disqualifications (even for "homosexuality"). In the military itself, less educated men and especially blacks (whatever their concomitant progress in civil rights) were more likely to wind up in the infantry and be treated as cannon fodder, not only for death but also for horrible maimings. So the draft actually carried on a previous tradition of racial slavery. If you were religious enough, you could get out of it, too; but this didn't seem to bother as many people. The draft, just as did the AIDS epidemic two decades later, carried out a nasty reverse Darwinism. Today, with no active draft around, it seems that the relationships between professors and college students have become much less adversarial.

Few people realize that Selective Service is still in operation today. (It had been suspended in 1974 and was reinstated in 1980 with the Afghanistan crisis, even though no one has actually been drafted since 1973). Young men are still required to register for a potential draft at age 18 (even though they must remain teetotalers until age 21). As we will see later, this still has the potential to set homosexuals up for (implicitly deserved) future discrimination. President Clinton has resisted ironic efforts by conservatives in Congress to eliminate Selective Service altogether, partly over specific concerns about the capability to recruit enough medical personnel. War becomes fought increasingly like a video game, with computers and remote cruise missiles, yet standard military doctrine insists you need substantive and skilled ground forces to recapture and hold territory that has been wrongfully taken. The need for a significant ground and sea force (even as the military downsizes) cannot be overlooked, since potential danger exists all over the world, from the Middle East, to North Korea, to an unstable "free" Russia itself. Some services, particularly the Marine Corps, have difficulty meeting their recruiting targets, even as they trim their senior ranks. Can we be sure a volunteer force will always work? The libertarian argument, sounding glib to some, is that if a war is justifiable, people (men and women alike) will volunteer (by definition, of their own "free will").

Some people argue that a volunteer force effectively places much of the burden of fighting on the poor. President Kennedy had once warned that an all volunteer army might be an "all black" army. People also argue that with a volunteer army or even with a draft that allows deferments, government will tend to be more careless about committing our forces overseas. My concern is this: if government can say that young male (or even young adult) lives are more expendable when push comes to shove, it can do anything it wants. It can favor one group over another, and it can, say, tolerate homosexuality when it thinks society can "afford it." Indeed, it can use the military to flush it out if it wants.

Yet another irony is a double whammy: during World War II, blacks were drafted yet were segregated and denied leadership positions in the military - and they were expected to show their "worth" as individuals by fighting for a society that discriminated against them. (This during a "liberal" administration.) Even the Japanese Nisei were drafted after we interred them.

The Supreme Court, because of its extreme deference in military and national security matters, has upheld the constitutionality of the male-only draft (and registration) despite general federal laws prohibiting gender discrimination. (This fact was even mentioned by the 4th Circuit in upholding the military's "Don't Ask, Don't Tell" in Thomasson v. Perry (1996)). It has not been willing to restrict the use of conscription to actions where Congress has formally declared war (which it has not done since World War II). Today, some people still propose a universal national service, with a choice between military and civilian community service (for both sexes Americorps provides the paradigm), as a way of making young people more "responsible," especially in the wake of the insider trading and stock scandals of the 1980's. It might not be enforced by conscription, but by strong financial carrots. Perhaps volunteer sabbaticals would be expected at various portions of a lifetime, at least from those with no dependents, if corporate culture (at least in socially conservative industries) went along.

And, even as the military is a "volunteer" force, we have concerns, as we have found dealing with the issue of gays in the military, about the way servicemembers are treated (indeed, as if they were still conscripts!) Better examples of protective volunteerism occur, for example, in rural volunteer fire departments.

One could say there are other kinds of indirect servitude. Migrant workers are still "exploited" in agriculture today. Some people would see the minimum wage as a "servitude" issue. Young disadvantaged men and women (particularly black and Hispanic) join the military because of lack of opportunity elsewhere.

Some libertarians even see taxation as a form of "conscription." Indeed, there are pressure groups which argue that the use of tax money for military purposes is a form of "conscription" and advocate that their members live off the books to avoid paying all income taxes. Extremists tend to see all positive law as a form of servitude, and have resorted to illegal liens and "common law courts" in rural parts of this country.

Is jury duty (with its below minimum-wage remuneration) a form of servitude? This is a bridge issue, as most of us see trial by jury as an essential foundation for human rights as originally and affirmatively stated in the Bill of Rights.

The ultimate test of conscription resistance might be whether we are willing to take away government's warrant to declare martial law in a grave emergency. The 5th Amendment actually implies that government has this national security prerogative. Some quasi-libertarians and reformers, in fact, favor a limited conscription (even male-only) managed at the local level in case of actual Red Dawn-style invasion or terrorist takeover. Martial law, and its accompanying triage, would be the ultimate extension of the state's power over civilians.

The military, after all, represents the ultimate capacity of the state to use force to enforce a policy. As we know from the extreme example of war, there is no way to make things right by the use of force without injuring many individuals who did not personally harm anyone. We should remember this paradigm as we think about the use of state police power to make new rights out of wrongs.