Denver Bar Association
April 2011
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A Very Strict Construction

by Frank Schuchat

A

ll of Washington is abuzz about a very influential organization of conservative legal scholars who have been touting a concept they suggest could be “the biggest single engine for job creation in North America in 400 years.”

Their idea, first elaborated in a law review article and by now in op-eds, blogs, speeches, and on talk shows, starts with what everyone knows: millions and millions of Americans are out of work and are falling hopelessly behind on their mortgages, and millions more cash-starved Americans are just getting by because they are living off of high-interest credit cards. The truth is that few of these people will ever get ahead of their debts. Unless we find some other way for them to pay back what they owe, with interest, their inability to cover their arrears will cause terrible pain and suffering—for the management and shareholders of the very largest banks and other financial firms that derive substantial income from all this debt.  

What the constitutional law experts propose is a return to the “original meaning” of the “punishment exception” in the Thirteenth Amendment.  Most Americans, if they recall anything from studying the Reconstruction period in high school, will tell you that the Thirteenth Amendment, ratified in December 1865, outlawed slavery throughout the United States. But the conservative legal scholars have fixed their attention on the precise text of the amendment, and they argue it should be interpreted as it was drafted, which gives it a more limited effect. 

The Thirteenth Amendment reads, “Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or anyplace subject to their jurisdiction.”

Political pundits of all persuasions have noted that with Republicans running more state legislatures, this is the perfect time for banks to press them to enact laws that make it a crime for Americans to fail to pay their mortgages and all other forms of bank debt, with involuntary servitude as the standard sentence for the crime. (The proponents are careful to note that in this context, and only in this context, because corporations are not really persons, they should be able to avoid their debts without any adverse consequences for their officers and directors.) 

A newly elected Republican senator received a standing ovation from a U.S. Chamber of Commerce audience when he told them that, given the large numbers of skilled workers and professionals eligible for the involuntary servitude program, the proposal could be “the key to reviving America’s manufacturing sector.”

One hedge fund manager who bankrolled the right-of-center think tank that issued the proposal told a reporter, “All of those people with good educations and work experience who have been relaxing on their 99 weeks of unemployment, there is no reason they can’t report for work.  For example, at one of my houses, where they can clean the stables, mop the floors, and cut the lawns.”

When asked to comment, a White House spokesman said the administration does not intend to “get rolled” on this issue. He said they will insist that whatever process is used by the states to try, convict, and sentence struggling mortgage and credit card debtors must be “fair to all parties and constitutional.”  A high-level White House official, speaking off the record, drew a line in the sand when he warned that the procedures used to sentence people to involuntary servitude had better be “at least as good” as the ones the banks and the courts have been using for home foreclosures. D


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