Constitutional Right Not to Work?
marty.lederman at comcast.net
marty.lederman at comcast.net
Tue Oct 24 14:30:00 PDT 2006
Addressed and rejected in Butler, FWIW.
See this passage from Kozminski:
The Court has recognized that the prohibition against involuntary servitude does
not prevent the *944 State or Federal Governments from compelling their
citizens, by threat of criminal sanction, to perform certain civic duties. See
Hurtado v. United States, 410 U.S. 578, 589, n. 11, 93 S.Ct. 1157, 1164, n. 11,
35 L.Ed.2d 508 (1973) (jury service); Selective Draft Law Cases, 245 U.S. 366,
390, 38 S.Ct. 159, 165, 62 L.Ed. 349 (1918) (military service); Butler v. Perry,
supra (roadwork). Moreover, in Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326,
41 L.Ed. 715 (1897), the Court observed that the Thirteenth Amendment was not
intended to apply to "exceptional" cases well established in the common law at
the time of the Thirteenth Amendment, such as "the right of parents and
guardians to the custody of their minor children or wards," id., at 282, 17
S.Ct., at 329, or laws preventing sailors who contracted to work on vessels from
deserting their ships. Id., at 288, 17 S.Ct., at 331.
-------------- Original message ----------------------
From: "Paul Finkelman" <pfink at albanylaw.edu>
> 13th Amendment?
> paul finkelman
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
> and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York 12208-3494
> pfink at albanylaw.edu
> >>> <marty.lederman at comcast.net> 10/24/06 4:24 PM >>>
> John Fee writes: "For example, the government can't normally order a
> person to work, . . . ."
> Why not?
> See, e.g., Butler v. Perry, 240 U.S. 328 (1916).
> -------------- Original message ----------------------
> From: "John Fee" <Feej at lawgate.byu.edu>
> > I don't think it is possible to sustain a sensible "best interests of
> > the child" test without examining some parental behavior that is
> > constitutionally protected (protected in the sense that the government
> > could not mandate or prohibit the behavior). For example, the
> > government can't normally order a person to work, yet I think a court
> > should consider a parent's refusal to work (either to provide
> > support, or to perform household jobs) as relevant to child custody.
> > Likewise, I think it should be relevant if a parent has a habit of
> > saying abusive and mean things to children regularly, even if such
> > speech is constitutionally protected in the sense that government
> > put a person in jail for it.
> > Just as with government employment, this is a special context, in
> > consideration of a person's behavior, including some constitutionally
> > protected behavior, is unavoidable and therefore sometimes
> > The difficulty is determining which constitutionally protected
> > should be irrelevant to child custody. I believe that religion should
> > be irrelevant, not because it does not affect the best interests of
> > child, but because of special institutional concerns inherent in the
> > Establishment Clause, and the probability that any kind of religious
> > test would be systemically misused. I am not yet convinced that a
> > parent's speech or intimate association's should be irrelevant.
> > John Fee
> > BYU Law School
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