Are Parents Constitutional?
Last week my neighbors withheld their kid’s $20 allowance for failing to rake and mow the yard as instructed. The kid, who will remain nameless (let’s just call him Bradley), approached me seeking legal advice. Bradley made a persuasive case that to the extent that payment of the allowance is conditioned on his performance of his duties, it is for all intents and purposes a wage. Given that, the wage is clearly too low, as there is no way that Bradley or any other kid his age can be expected to clear and mow five acres in less than four hours’ time, as he would have to do in order for a $20.00 payment to comply with the $5.15 minimum wage law – to say nothing of the obvious violation of child labor laws.
Upon learning that Bradley had consulted a lawyer, his parents tried to consult me as well. I cautioned them that I was already representing their son adversely to them, and therefore they should seek at least minimally competent counsel of their own. They declined, choosing instead to present their competing arguments to me in pro per (fake Latin for “improper,” a private joke among lawyers at the expense of those who choose not to retain them). The parents’ principal argument was that the allowance was a gift, and was technically not conditioned on clearing the yard per se, only on a general behavioral pattern of doing as he was told. Repeating my admonition that they seek competent counsel, I advised them that if that argument worked, every employer seeking to skirt the minimum wage law, mandatory overtime, or any other inconvenient labor law would use it. I also cautioned them that their failure to withhold income tax or, at a minimum, 1099 Bradley as an “independent contractor” could subject them to serious penalties from the I.R.S. Leaving in a huff, the father said “For cripe’s sake Xrlq, he has to do what we say. We have to feed, clothe and educate him, but we don’t have to give him any spending money unless we think it appropriate to do so. We’re his friggin’ parents, for crying out loud!”
Indeed they are, but does that allow them to force Bradley to perform work he does not wish to perform, either for no pay or for a wage he does not agree to voluntarily? The Thirteenth Amendment to the U.S. Constitution suggests that the answer may be “no.” That amendment reads, in relevant part:
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.
Notwithstanding its official designation as a commonwealth, Virginia is in fact a state. Not only is slavery illegal here today, it was outlawed effective January 1, 1863, more than two years before the Thirteenth Amendment was ratified. A two-year difference between events that happened almost as many centuries ago may sound like no great shakes, but consider this: Virginia split during the Civil War. One Virginia abolished slavery in 1863, and has since gone on to become the first U.S. state to elect a black governor, appoint a black Chief Justice, or deny a Senator a second term for using a stupid, obscure slang term that someone managed to construe as racist, while the other Virginia abolished slavery two years later, and is represented in the Senate by an ex-Klansman to this day.
Amendment 13 has no “reasonableness” limitation, so clearly, if the parents are “enslaving” The Brat, that’s not cool, constitutionally or otherwise, no matter how good a case they can make for the arrangement in principle. Of course they would object to the use of the word “slave” to describe an ordinary family environment, particularly of the variety that existed in the antebellum North as well as the South. But what of the phrase “involuntary servitude?” They may counter that given the high cost of raising a kid vs. the low quality of work he puts out when he works at all, he’s getting a good deal. That’s irrelevant. Good deal or bad deal; voluntary is voluntary, and involuntary is involuntary. Nor is there any evidence that Bradley is being punished for any crime. Bradley maintains he never agreed to do the work in question, nor was he advised in advance that his failure to do so would result in the deprivation of his expected allowance. His parents insist that he did agree to do the work, but have no written or other extrinsic evidence to corroborate that assertion which, even if proven, would show at most a breach of contract, not a criminal offense warranting slavery or involuntary servitude as a punishment. So basically, all we’re left with is the definition of “servitude.” I defy anyone to come up with a definition of “servitude” that does not apply to Bradley’s chores, but does apply to anything else of significance to avoid rendering the Thirteenth Amendment meaningless.
The Ninth Circuit Court of Appeals applied the plain meaning test in Goose v. Gander, 123 F’ed Upp. 4th 69 (2003) where it conceded that the drafters of the Thirteenth Amendment probably did not intend this result, but argued that the plain meaning of the Amendment left them no other choice. The Court wrote:
Often we have set up laws feeling that by custom or other legal barriers that it would not apply to some situation or other, though there is no real reason it should not. It is not unreasonable to examine the implications of what general laws should be beyond the intention of the laws authors. That is different from making the words mean something different than what they plainly say, or the opposite of its intention. Expanding something in line with its intention is not the same as expanding something to pervert its meaning such as claiming a law which says everyone should be treated equally under the law means they should be treated differently under the law in order to make the outcome more similar. No such dilemma confronts us here. Petitioner has not asserted any right to tell his parents what to do or assert dominion over them in any way; he merely challenges their right to assert such authority over him.
Goose was appealed to the Supreme Court, but the court denied certiorari, temporarily convincing legal scholars Julian Sanchez, Radley Balko and Richard “Cabeza” Bennett that it endorsed the holding wholeheartedly. These heavyweights were proven wrong, however, when the Supremes took up the issue in the Fourth Circuit case of Fox v. Henhouse, 5 B.S. 1 (2005), to resolve a circuit split. In Fox, the Court held that:
Lest we miss the forest for the trees, we must remain mindful of the reason why the Thirteenth Amendment was put into place. Slavery – the genuine kind, not parenthood, not the draft, not listening to Kenny G. while trapped in an elevator, not even that kinky stuff they do in Frisco – was a moral scourge on the nation that ripped our nation apart and, in fact, very nearly ended it. Family structure was not an issue; indeed, it was probably one of the few things that the North and the South agreed on at the time. While some may quibble in the margins about the various and sundry ironies of the North “enslaving” young men to fight against slavery while the South freed Negro slaves-turned-soldier to preserve it, no one questioned the legitimacy of the traditional family structure (unless, of course, one or more family members were owned by somebody else, but we’ve since resolved that question haven’t we?). More importantly, as respondent has noted, many of the drafters of the Thirteenth Amendment were parents themselves, while petitioner has provided no evidence that any – ANY! – of them were minors under the custody of oppressive parents from whom they were likely to have been attempting to liberate themselves. Thus, we decline to hold, as petitioner argues, that the framers of the Thirteenth Amendment intended their amendment to undermine their own parental authority. The Fourth Circuit’s judgment is upheld, with costs to be paid by petitioner, who is ordered to go directly to bed without passing “go” or collecting dinner, and is hereby grounded for three weeks.
Based on the straight text of the Fourteenth Amendment, I have to say that the Goose court got it right, and Fox got it wrong simply to produce a desired political result. Let me know what you think, but before you do, be sure to brush up on your Thirteenth Amendment jurisprudence here, here, here and here.
November 28th, 2006 at 7:59 pm
First half of post read–isn’t it a bit disingenuous to say that “Virginia” abolished slavery in 1863? President Lincoln abolished it, and Virgina wasn’t very fracking happy about it, by the fact that they continued to do armed combat against Lincoln’s administration until 1865.
November 28th, 2006 at 8:04 pm
One man’s disingenuous is another’s sarcastic. My understanding is that the abolitionist movement was stronger in the counties that seceded and became West Virginia, but this had the perverse impact of delaying abolition there until the 13th Amendment was ratified, as the Emancipation Proclamation only applied to the states that rebelled.
BTW, have you followed the links to other 13th Amendment posts yet? I don’t think this post will make much sense unless you do.
November 28th, 2006 at 8:12 pm
One woman’s disingenuous, anyway. :) Reading on …
November 28th, 2006 at 9:07 pm
Isn’t it a bit disregarding reality to claim the child is the slave and the parent the master? I know who rules the household my four and a half-year old lives in and it’s neither my wife nor I. And I am enjoying every minute of it. I would write more but she just said, “Daddy, can I have some more chocolate milk?”
November 28th, 2006 at 9:09 pm
So Xrlq, based on this post, are you retracting your opinion that the draft is constitutional?
November 28th, 2006 at 9:16 pm
Ok, I’m back. I know what X is talking about because I followed three out of the four discussions he linked. How about this changing of the subject? Why do prisoners have any constitutional rights after conviction? To nutrition, medical care, freedom from being whipped to death to satisfy the whipper’s sadistic whims? Doesn’t the second clause (grammatically) of the Thirteenth Amendment, mean anything?
November 28th, 2006 at 11:50 pm
Heh! Take that, Byrd!
As for the rest of your argument (which is clearly designed to get a rise out of someone making a better argument [cough]Me![cough]), you don’t distinguish between someone who is already a ward of someone else (e.g. prisoner:state::child:parents), and someone who is placed in indentured servitude without just cause.
IOW, since the parents are already legally bound to care for their wards, and those children are provided for in every freakin’ capacity known to man, how can those wards possibly be considered indentured servants? Moreover, in order to entirely take into account just what the alleged indentured servant is being paid, one must add to the $20 room and board, schooling, activity fees, medical costs, insurance, and … um … utilities. And probably some other stuff I’m blocking out.
Finally, the USSC has actually opined on the meaning of “indentured servant” in United States v. Kozminski, 487 U.S. 931 (1988). I quote from the syllabus:
Id. at 939-953.
Based on that definition, Bradley cannot be considered an indentured servant unless and until his parents threaten him with “physical retraint or injury or legal coercion.” Paying him $20 hardly meets that test, and this line of argument presupposes that, as a ward for whom the parents are required to care for, a child could even be considered a “servant” much less an “indetured” one.
And, BTW, no fair putting the 9th Circuit on my side … that was a set up.
November 29th, 2006 at 5:00 am
Fun With the Constitution…
Xlrq, a lawyer with a hard-to-pronounce name and too much time on his hands, examines the legal ramifications of parent-child labor relations vis-a-vis minimum wage laws, income tax withholding, and the 13th Amendment’s prohibition against involu…
November 29th, 2006 at 8:36 am
At the moment I am withholding making any non-definitive, easily excused and run away from judgment on this, but I agree with Michael. The 9th circuit bit is dirty pool;^)
November 29th, 2006 at 8:43 am
Michael:
The 13th Amendment has no reasonableness / just cause exception, let alone a grandfather clause for slaves already owned prior to its ratification. Besides, “just cause” can be argued for the draft, as well, at least if it’s used for a legitimate reason rather than the retarded one Charles Rangel is advancing.
The same way drafted soldiers can be. The state provides a lot of services to them, too.
If the only consequence is nonpayment of $20, I agree. However, Bradley’s parents insist they have a right to discipline him more seriously, even to the point of physically restraining him for weeks at a time or, if push comes to shove, enlisting the assistance of the state to herd him into line. They also dropped hints they may have spanked him on occasion in the past.
Lance:
Oh, c’mon. You know as well as I do that if any circuit were really to rule that way, it would be the Ninth!
November 29th, 2006 at 10:03 am
[...] Xrlq brings the snark. Heh. [...]
November 29th, 2006 at 10:36 am
I guess I’m just going to have to admit that this particular sarchasm is too deep for me. Xrlq, you said the plain reading test passed, so are you thus saying that the draft is unconstitutional?
Or am I just being dim?
November 29th, 2006 at 12:14 pm
No, I’m saying that anyone who reads the 13th Amendment so hyperliterally as to conclude that it prohibits the draft, will also have to admit that by the same logic, it also bans parenthood. It’s a reductio ad absurdum (or, to the extent that the original argument about the draft was itself absurd, a reductio ad even-more-absurdum).
November 29th, 2006 at 2:02 pm
I know this is more of an extreme example to make a point than a serious statement, but you got the premise wrong:
1) Children working for their parents are not subject to the Child labor provisions of the FLSA
2) The “business” likely makes less than $500,000 a year, and is also thus not bound by the FLSA
3) The child makes less than $1400 a year in “wages” and also is exempt under the domestic worker exemption
4) Even if you could stretch things to the point the child was required to be payed minimum wage; room and board is allowed to be considered part of “wages” So, you have to include that, plus all the clothing and trasnportation provided by the “employer”
See: Pinocchio v. Geppetto (1883)
November 29th, 2006 at 2:04 pm
November 29th, 2006 at 4:43 pm
I thought Xrlq made a very decent argument for original intent. Even Justice Scalia’s “[Contitutional provisions] should not be read either strictly or liberally — they should be read fairly” and Justice Thomas’s “every word should be given meaning” lead to what we think are absurd interpretations of the 13th Amendment. Or does anybody here think that we can sell convicts down the river?
November 29th, 2006 at 5:22 pm
[...] Whoa, parents withheld allowance when a teen didn’t do his chores? Can’t walk all over them. Can’t sneak around them. Can’t get through to them. Better obscure them. [...]
December 1st, 2006 at 12:05 pm
Oh, it’s definitely a Just Cause issue.
Child: How come I gotta rake the lawn?
Parent: Just ‘Cause I say so.