Of Swords, Shields, and a Gun to the Head: Coercing Individuals, but Not States

• Publication year: 2016

SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 3, SPRING 2016

Of Swords, Shields, and a Gun to the Head: Coercing Individuals, But Not States

Aviam Soifer(fn*)

The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing.

The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as a destroyer of liberty . . . .(fn1)

Mrs. Premise [on the phone with Mrs. Sartre]: When will [Jean-Paul Sartre] be free? . . . Oooooh. Ha ha ha ha. (To Mrs. Conclusion) She says he's spent the last sixty years trying to work that one out.(fn2)

CONTENTS

INTRODUCTION.....................................................................................788

I. CONGRESS'S ENFORCEMENT POWER................................................790

II. OVERWHELMING THE FREE WILL OF THE STATES..........................792

A. Social Security v. Obamacare......................................................792

B. Freeing the States from Federal Coercion...................................794

III. VOLUNTARY SERVITUDE................................................................ 798

A. State Action? ................................................................................ 798

B. Voluntary Servitude and the Story of Jacob ................................. 799

C. Tracking Justice Holmes .............................................................. 803

D. Permissible Coercion .................................................................. 805

E. Duress and Contract Law ............................................................ 808

CONCLUSION ......................................................................................... 812

INTRODUCTION

This excellent Symposium specifically celebrated the sesquicenten-nial year of the amendment that President Lincoln proclaimed to be "a King's cure for all the evils"(fn3) of slavery. Many of the participants have been fortunate to take part in a series of additional symposia on Thirteenth Amendment issues; some of us have focused on the historical context as well as the current and future implications of this amendment which "[b]y its own unaided force it abolished slavery, and established universal freedom."(fn4) Others pounded computer keyboards to illuminate the statutory framework that Congress established, the framework based on the Thirteenth Amendment and prior to passage of the Fourteenth Amendment.(fn5) And, to the credit of the organizers of this Symposium, its call for articles yielded impressive work by several newcomers to Thirteenth Amendment issues.

This Article begins with a brief reprise of what should be a textual "gotcha" about the Enforcement Clauses of the post-Civil War Amend-ments-if our current Supreme Court Justices actually cared about original texts, originalism, or a combination of the two. Next, the Article focuses on the gnarled issue of "coercion." It argues that, contrary to a great deal of Anglo-American legal doctrine, coercion is best understood along a spectrum rather than as a binary phenomenon. Coercion is actually much contested and highly contextual across many legal categories. Federal coercion-also described as commandeering(fn6) or dragooning(fn7)- has become a particular constitutional focus in recent decades.

Part II briefly describes the Court's particular concern regarding the need for agreements by states to be intelligent, voluntary, and uncoerced, which entails maintaining the equal dignity of all states and state officials. It compares this politesse, generally proclaimed to be anchored in federalism,(fn8) with the Court's considerably more relaxed acceptance of federal coercive power over individuals.

Part III considers the jagged edges around decisions about what could or should qualify as "voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or other-wise."(fn9) Starting with the recognition, at one end of the spectrum, that any contract could be considered coercive, Part III briefly compares and contrasts the doctrine of duress in mainstream standard contract law doctrine with the historic evisceration of the very concept of freedom from voluntary peonage. This evisceration was perpetrated by U.S. Supreme Court Justices as well as by innumerable employers imposing harsh realpolitik as a devastating form of law in action.(fn10)

It is thus noteworthy that even in the course of the Supreme Court's infamously crabbed description of what civil rights should entail in the Civil Rights Cases,(fn11) Justice Bradley's majority opinion also proclaimed:Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.(fn12)

In looking more deeply into the Thirteenth Amendment and statutes based upon it, I found that on the last day of the lame-duck 39th Congress, the authors of what became the Fourteenth Amendment passed the Peonage Abolition Act of 1867. They did so on March 2, 1867, the same day that Congress divided the South into five districts and sent in federal troops.(fn13)

I. CONGRESS'S ENFORCEMENT POWER

With adoption of the Thirteenth Amendment, "[a] structurally pro-slavery Constitution became, in a flash, stunningly antislavery."(fn14) For a myriad of reasons, for the first time in American history, Congress also added a clause giving Congress enforcement power. Elsewhere, I have reviewed the historic context for how and why Congress decided to use its new enforcement power to override President Johnson's veto of the 1866 Civil Rights Act-the first time Congress exercised such power regarding a major legislation-and how and why Congress decided to pass the Peonage Abolition Act of 1867.(fn15) But a basic logical point merits emphasis here.

The Thirteenth Amendment states:Section 1. 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. Section 2. Congress shall have power to enforce this article by appropriate legislation.(fn16) On January 3, 1867, the 39th Congress returned for its lame-duck session following the 1866 congressional election, which had turned out to be a disaster for President Johnson and an overwhelming victory for the Re-publicans.(fn17) Radical Republican leaders Senator Charles Sumner of Massachusetts and Representative Thaddeus Stevens of Pennsylvania immediately gave speeches decrying, respectively, the peonage of Mexicans and Indians in the Southwest and the failure to protect "loyal brethren at the South, whether they are black or white, whether they go there from the North or are natives of the South . . . from the barbarians who are daily murdering them."(fn18) By March 2, Congress had decided to send troops to protect those "loyal brethren at the South," and to enact the Peonage Abolition Act, which provided:[T]he holding of any person to service or labor under the system known as peonage is hereby declared to be unlawful, and the same is hereby abolished and forever prohibited in the Territory of New Mexico, or in any other Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of the Territory of New Mexico, or of any other Territory or State of the United States, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, be, and the same are hereby, declared null and void.(fn19)As it might have been put at the time, it cannot be gainsaid that the 39th Congress thus used its enforcement power to go beyond the rights protected in Section 1 of the Thirteenth Amendment. By adding a statutory prohibition of "voluntary" service to the Amendment's explicit prohibition of "involuntary service," the 39th Congress clearly believed that it possessed the power to protect rights in addition to those protected explicitly within the amendment's text.

It should be clear that such a "latitudinarian" approach to the power granted to Congress through the Enforcement Clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments comes much closer to the view of the extent of Congress's enforcement power taken by the Warren Court than it is to the crabbed view repeatedly embraced by the Rehnquist and Roberts Courts. It finds direct echoes in South Carolina v. Katzenbach(fn20) and Katzenbach v. Morgan;(fn21) but, this approach has been firmly rejected in more recent decisions such as City of Boerne v. Flores,(fn22) United States v. Morrison,(fn23) and Board of Trustees of the University of Alabama v. Garrett...