Constitutional Right Not to Work?

[John Fee]

I agree that the right to refuse work isn't absolute.  But note that
Butler characterizes the cases of traditional civic duties as
"exceptional" in this respect.  All general constitutional rights have
exceptions, including the freedom of speech and sexual autonomy rights. 
I still maintain that a person's decision how to apply his labor is
constitutionally protected.  It is an important principle of individual
freedom that separates our system of government from communism and
slavery societies, and it has explicit grounding in the 13th Amendment. 
Indeed, the right has a much stronger grounding in the text of the
Constitution than the right of sexual autonomy or intimate association.


So, to tie this back to Eugene's original question, I think is no more
troubling in a constitutional sense to base child custody decisions on a
parent's sexual decisions than it is to do so based on a parent's labor
decisions -- assuming that the connection to the interests of the child
in each case is demonstrated and rational.

>>> <marty.lederman at comcast.net> 10/24/2006 3:30 PM >>>
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
> 
> 518-445-3386 
> 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
> financial
> > 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
> can't
> > put a person in jail for it.
> > 
> > Just as with government employment, this is a special context, in
> which
> > consideration of a person's behavior, including some
constitutionally
> > protected behavior, is unavoidable and therefore sometimes
> permissible. 
> > The difficulty is determining which constitutionally protected
> decisions
> > should be irrelevant to child custody.  I believe that religion
should
> > be irrelevant, not because it does not affect the best interests
of
> the
> > 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
> > 
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu 
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 
> 
> Please note that messages sent to this large list cannot be viewed
as
> private.  Anyone can subscribe to the list and read messages that
are
> posted; people can read the Web archives; and list members can
(rightly
> or wrongly) forward the messages to others.
>