Is there a better way to persuade citizens to serve?
by Fred E. Foldvary
I’ve written on jury duty before (http://www.progress.org/fold99.htm), but that was years ago, and there is a new aspect to it of which I was not previously aware. In California, Code of Civil Procedure 211 authorizes the sheriffs and court bailiffs of a county to kidnap people and force them to serve on a jury.
It so happened that a trial in the Superior Court in Mariposa County did not have sufficient jury members. Many who received a notice to appear for jury duty failed to respond. The judge realized that the post office was good place to grab people, so 50 people who went there to post a letter or get stamps or the mail instead were ordered to immediately report to the court. If they refused, they would be sent to jail.
The accused are entitled to a fair and speedy trial, but does that justify governmental kidnapping? Many of those who were snared had important tasks to do. They had jobs, or children in school, or other urgent things to do, and had to interrupt it with no prior warning. At least for normal jury duty, one receives a notice a few weeks in advance. In this case, the accused was charged with killing a man, and evidently his legal rights superceded the rights of people who were not accused of doing wrong.
California’s Civil Code 211 states, “When a court has no prospective jurors remaining available for voir dire from panels furnished by, or available from, the jury commissioner, and finds that not proceeding with voir dire will place a party's right to a trial by jury in jeopardy, the court may direct the sheriff or marshal to summon, serve, and immediately attach the person of a sufficient number of citizens having the qualifications of jurors, to complete the panel.”
California’s Constitution in Article I Section 6 states, “Slavery is prohibited. Involuntary servitude is prohibited except to punish crime.” The 13th Amendment to the U.S. Constitution states, “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.” Notice that involuntary servitude is explicitly included in addition to chattel slavery. Involuntary servitude means that a person is forced to provide labor to benefit another.
The U.S. Supreme Court decreed, in Butler v. Perry, 240 U.S. 328 (1916), in a case regarding Florida’s requirement of men to work on the public roads, that the Thirteenth Amendment does not prohibit the "enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc." The Court ruled that “In view of ancient usage and the unanimity of judicial opinion, it must be taken as settled that, unless restrained by some constitutional limitation, a state has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near his residence without direct compensation. This is a part of the duty which he owes to the public. The law of England is thus declared in Blackstone's Commentaries, bk. 1, page 357.”
In earlier times, several states both banned involuntary servitude and also required men to work on the public roads. The court decision stated, “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.... Conceding for some purposes labor must be considered as property, it is evident from what already has been said that to require work on the public roads has never been regarded as a deprivation of either liberty or property.”
So what it comes down to is this: The state may use force on a person to provide labor so long as this is under the traditional powers of the state in order to maintain its functions. Moreover, according to the Court, this coercion is not a violation of liberty nor a deprivation of property.
I am not an attorney, but it seems to me that basic law should be able to be understood by any citizen, and my understanding of liberty and property is that any coercive taking of property, or limitation of freedom on a person who has not harmed others, steals property and violates liberty. The fact that such coercion originated in ancient England should be irrelevant, as is the fact that such coercion was practiced in the U.S. despite the prohibition of involuntary servitude.
Forced labor on the roads is involuntary, and it is servitude, and so is compulsory jury duty, and it is even more coercive when imposed on the spot as it was in this California case. In my judgment, the Supreme Court ruled wrongly. It is a contradiction to say that forced labor does not deprive people of their labor property, or that coercion is liberty!
This reminds me of George Orwell’s classic book 1984, where the big-brother government used inverse logic to declare that war is peace, freedom is slavery, and ignorance is strength. The Nazi concentration camp slogan, placed on the entrances, was “Arbeit Macht Frei” or “work makes one free.”
That seems to also be the slogan of the U.S. and state governments. The taxation of labor, or its more direct taking as jury duty or a military draft, is said to make us free. We could have voluntary juries if we paid them enough, but that would show up in the government budget, whereas the implicit tax of jury duty imposes a greater cost and deadweight loss, but is not in the budget. We are ruled by fiscal illusion, and very few are protesting. Sheep shall safely graze.
This article first appeared in the Progress Report, www.progress.org. Reprinted with permission.
Dr. Fred Foldvary teaches economics at Santa Clara University and is the author of several books: The Soul of Liberty, Public Goods and Private Communities, and the Dictionary of Free-Market Economics.