Law Students

Attack of the 50-Foot Straw Man

Prof. Ilya Somin of George Mason University School of Law has recently posted a series of arguments against any sort of national mandatory service program. By a "mandatory national service program," Somin means the broad proposition of mandating that young people at some point after high school participate in a civilian work service program for a year or two, perhaps working in national parks, teaching, or some other national service (think combining the draft with Americorps). I am not certain that there is a specific proposal, only vague ideas along the lines of those European nations that offer civilian service as an alternative to mandatory military service.

Somin clearly does not like this idea. In a tone and approach that I think can reasonably be labeled as a bit histrionic, he comes close to comparing the proposal to slavery, suggests that it might someday be used as some sort of private forced labor pool, and states his belief that the proposal targets the young because they are politically weak.

Of course, reasonable people can disagree on whether there should be a mandatory national service program. But by misrepresenting the aims of a hypothetical national service program, suggesting absurd comparisons to slavery, refusing to acknowledge the arguments in favor of a program and generally fighting the shadows of the proposal rather than the proposal itself, Somin reduces his anti-national service argument to just another libertarian rant far out of the mainstream of American legal and political thought.

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Full disclosure: in a broad, non-particularized sense, I have favored this idea in the past, and continue to support it. I believe that a consequence, perhaps unintended, of mandatory military service was a boost to our sense of civic duty. I believe that a shared experience of duty by young men from various parts of the country and ethnic, educational and socioeconomic backgrounds may have contributed to any number of public goods: an improved understanding of America by its citizens, a more developed ideal of service to one's community, and an opportunity for young people to break from the rigidity of their local upbringing and experience a broader range of the American experience. Thus, I wonder if a mandatory program of civic service, whether as an alternative to a military draft or not (which I also vaguely support), might have similar effects.

I think many other proponents of such a system feel similarly that the main benefit would be the contribution to the national civic psyche. Which is why I was astounded when I saw no mention of this point in Somin's extensive writing on the topic. What confused me even further was when he proposed that the national service proposals target the young instead of the old because young people are politically weak and therefore susceptible to being lured into this scheme for forced labor. Inherent in this suggestion is the idea that the proponents of the system somehow aim to benefit from the labor itself in such a way as to justify the system.

Now, I realize that Somin may think many policymakers are pretty dumb, but I do not know of a single person who thinks that a mandated national service program including living wages and possibly housing options for all Americans of a particular age would be a more efficient means of obtaining labor than simply contracting for it on the open market. The costs will be incredible... a point which Somin makes elsewhere. The purpose is the hypothetical effects that such a program will have on the young people, not the benefit of the labor (which presumably will cost more than labor that is simply contracted for). Thus, it's clear why the program targets the young: they are the group the state would want to impart the lessons of the service to.

So why does Somin twist this into a straw man? Even the WSJ opinion page picked up on this, and turned the piece into an op-ed with the threatening title "Uncle Sam Wants You, Gramps." Are the proponents of a national service program really threatening to target Grandpa? Where is the support for that, except in the paranoid delusions of the WSJ editorial board and Prof. Somin?

While Somin is careful enough to not explicitly compare a national service program to slavery, he does certainly leave the door wide open for others to do so. A mandatory service program (or, if you and/or Somin like, "forced labor) is obviously not slavery; slavery is absolute control over the individual, more akin to a property interest than to the state's police powers to order certain behaviors. While forced labor and involuntary servitude might be elements of slavery, slavery is a far more pernicious and morally repugnant state. The two really are not even comparable.
The distinction is particularly clear when one considers the times when the state does compel labor. Compulsory education, military service and punishment are all areas where the state explicitly forces labor. Other areas, such as child support and taxes, are areas where the government implicitly compels labor. Further, there are areas like jury duty, where the state compels labor for the resolution of a civic duty. Are these all akin to slavery? Most Americans would disagree, as does all branches of our democratic government.

Somin tries, then, to suggest that a national service program would violate the 13th amendment prohibition against involuntary servitude. As a basic proposition, I think this argument has some merit. But again, Somin refuses to acknowledge the viewpoints contrary to his own, instead positing that there are no exceptions to the prohibition (except for the listed exception of punitive forced labor for convicts).

However, there are two arguments for why that proposition is wrong. One, there are clearly the examples above where a government interest allows for compulsory labor (and which courts have upheld, even under 13th amendment challenges... see here and here). Second, if we were to interpret the 13th amendment, including its prohibition on involuntary servitude, as being without unlisted exceptions, it would be the only amendment that we found does not contain some exception for a valid governmental interest.

It would be great to hear from a law prof on how they think an interesting question like this might be resolved. Unfortunately, Somin is incapable of that analysis, since he is obviously either not willing or not able to analyze the merits of competing viewpoints, blinded as he is by his own libertarian knee jerk reaction.

Full post as published by Traditional Notions on September 27, 2007 (boomark / email).