Thirteenth Amendment Another incident [of slavery] is the abolition practically of the parental relation, robbing the offspring of the care and attention of his parents, severing a relation which is universally cited as the emblem of the relation sustained by the Creator to the human family. And yet, according to the matured judgment of these slave states, this guardianship of the parent over his own children must be abrogated to secure the perpetuity of slavery. [W]hen this amendment to the Constitution shall be consummated . . . the sharp cry of the agonizing hearts of severed families will cease to vex the weary ear of the nation. . . . Then the sacred rights of nature, the hallowed family relation of husband and wife, parent and child, will be protected by the guardian spirit of that law which make sacred alike the proud homes and lowly cabins of freedom[.]
The Thirteenth Amendment commands that "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Many people are under the impression that the Thirteenth Amendment is a historic legal relic, with limited modern practical significance.
In reality, the reach of the Thirteenth Amendment extends far beyond African-American slavery in the nineteenth-century southern United States. Participation in involuntary servitude has tainted the record of nearly every civilization and demographic group known to historians. Some Native Americans, for example, had slaves who were raised internally or abducted from other tribes. See, e.g., In re Sah Quah, 31 F. 327 (D. Alaska 1886)(granting habeas corpus against Native American tribe in Alaska, despite an assertion of tribal sovereignty). As another example, from 1816 onward many African slaves were freed and sent from the United States to Liberia. Using many techniques of the ante-bellum Southern plantation owners, these Americo-Liberians successfully consolidated power, enslaving and oppressing the indigenous Liberians.
The Thirteenth Amendment applies in contexts where no white versus black racial dynamic is involved. Indentured servitude, peonage, specific performance on labor contracts, and similar conditions, all of which had ensnared Americans of many demographic backgrounds, were also done away by the Thirteenth Amendment. E.g. United States v. Kozminski, 487 U.S. 931 (1988); Bailey v. State of Alabama, 219 U.S. 219 (1911); English "Poor Laws".
The Framers of the Thirteenth Amendment intended to protect parental liberty and family autonomy. In the debate over the Thirteenth Amendment, Republican Senator James Harlan of Iowa noted:
The Thirteenth Amendment, by its own terms, is self-enacting and enforceable against the behavior of individuals, local governments, state governments, federal government, and all other institutions. It protects individuals from exploitation, confinement, child abduction, and the taking of labor without just compensation. The Thirteenth and Fourteenth Amendment reaffirm the principle that some individual liberties are beyond the legitimate interference of any government, including state government. The Thirteenth Amendment also protects the free market economy, by ensuring that economic behavior is driven by free will instead of government-coerced decision-making.
Limited exceptions exist. The obligations of sailors, military draftees, and jurors have been found to be unaffected by the Thirteenth Amendment. E.g. Selective Draft Law Cases, 245 U.S. 366 (1918); Robertson v. Baldwin, 165 U.S. 275 (1897). Likewise, the Thirteenth Amendment does not abrogate parental authority over one's child. Kozminski, 487 U.S. at 945; Baldwin, 165 U.S. at 282. Doctors may be compelled to complete operations on patients, and attorneys may be compelled to finish representation for certain undesirable clients. The implicit constitutional justification appears to be that narrowly-tailored abrogations of liberty are sometimes required in order to achieve a compelling state interest in preventing a clear, present, and more severe danger to lives or liberties within the society.
On certain tragic occasions, the Thirteenth Amendment has been ignored rather than enforced. During World War II, Japanese Americans were forced to provide involuntary servitude to the federal government inside internment camps, without any presented evidence of pre-internment sabotage or terrorism. On many occasions, Native American children have been forced to provide labor in government-sanctioned boarding schools, against the will of their parents. Some schools and government officials have attempted to force high-school students to perform community service in non-emergency situations. See also Butler v. Perry, 240 U.S. 328 (1916)(upholding Jim Crow law designed to extract free labor from African-Americans).
Involuntary servitude can take many forms. In an agrarian economy, it usually entails compelled manual labor to produce labor-intensive crops, such as African-American cultivation of tobacco in the Antebellum South. In an industrial economy, it usually involves forced sweatshop labor, performed in assembly lines upon consumer goods, as occurs in such places as Asia. In an information economy, it consists of informational servitude, where captives are compelled to view, process, or manage information (and/or endure intense and comprehensive deprivation of information) for the political or economic benefit of the master(s) of the information system. In a biotechnological society, involuntary servitude would entail forcible usurpation of the physical body itself, achieving alteration of biological functions to produce goods or services for the benefit of someone other than the person who inhabits the body.
In each case, the work imposes an inherently repugnant experience upon the slave. In each case, the slave's condition exacts an enormous personal opportunity cost. Each variant of involuntary servitude tends to be interdependent with the others, and they tend to coexist together in some form. Over time, technologically primitive forms of slavery tend to spawn additional, more sophisticated technological forms of exploitation, in correlation with the technological evolution of the underlying economy. The core moral, ethical, and legal dilemma posed is constant, regardless of the technological form.
Educators are not exempt from the Thirteenth Amendment. Whenever a person is compelled to study or participate as a member of a captive audience, without informed adult or parental consent or due conviction for a crime, the Thirteenth Amendment and the "liberty" clauses of the Fifth and Fourteenth Amendments are violated. Put another way, the assemblage of a captive audience by educators constitutes an inherent human rights violation, regardless of what regimen is inculcated upon the captives. But the primary abuses of confinement and involuntary servitude will inevitably lead to numerous secondary abuses, most noticeably violations of First Amendment rights to engage in free exercise, free speech, and free association, and Fourth Amendment protections against unreasonable search and seizure.
Many families around the world face challenges because they are recent immigrants, living in a developing economy, suffering from poverty, experiencing medical challenges, encountering cultural and linguistic barriers, or enduring discrimination and harassment. Under such circumstances, respect for parental liberty is still preferable to paternalistic involuntary servitude.
Parents have a unique ethical mandate to direct the upbringing of their child, because they played a key role in making possible the child's very existence. Parents are in the best position to efficiently reconcile their family needs with social circumstances. These facts are true even though some parents will make mistakes or fall prey to moral hazards.
Governmental derogation of parental liberty does not solve problems attributed to flawed immigration policy, economic deprivation, or conflict between demographic groups. If anything, history has shown that paternalistic governmental intervention only exacerbates the existing problems.
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Another incident [of slavery] is the abolition practically of the parental relation, robbing the offspring of the care and attention of his parents, severing a relation which is universally cited as the emblem of the relation sustained by the Creator to the human family. And yet, according to the matured judgment of these slave states, this guardianship of the parent over his own children must be abrogated to secure the perpetuity of slavery.Cong. Globe, 38th Cong., 1st Sess. 1439 (1864). Republican Senator Henry Wilson of Massachusetts endorsed the same justification:
[W]hen this amendment to the Constitution shall be consummated . . . the sharp cry of the agonizing hearts of severed families will cease to vex the weary ear of the nation. . . . Then the sacred rights of nature, the hallowed family relation of husband and wife, parent and child, will be protected by the guardian spirit of that law which make sacred alike the proud homes and lowly cabins of freedom[.]Cong. Globe, 38th Cong., 1st Sess. 1424 (1864). See also Cong. Globe, 38th Cong., 1st Sess. 193 (1865)(Republican Congressman John A. Kasson of Iowa states abolition would protect "the right of father to his child--the parental relation"); Cong. Globe, 39th Cong., 1st Sess. 504 (1866)(Sen. Howard); Cong. Globe, 38th Cong., 1st Sess. 2990 (1864)(Sen. Ingersoll); id. at 2955 (Sen. Kellogg).