Civic Duties and Cultural Change — California Law Review

It is a standard axiom that American government exists to serve the people—not the other way around.[1] Our institutions cannot simply conscript us to perform unpaid labor. We are, at bottom, a nation of “free and independent individuals”[2] whose liberties our leaders must treat with delicacy. We are not vassals whose very minds, bodies, and wallets are at the government’s disposal.

Except when we are. Lost in our legal culture’s preoccupation with rights is an equally robust tradition of civic obligation.[3] Despite the Thirteenth Amendment’s prohibition on “involuntary servitude,”[4] courts have long recognized that individual Americans can be forced to serve the state in ways small and profound. Governments have required their residents to shovel snow, repair busted roads, send their children to school, subdue dangerous fugitives, hold office against their will, submit to vaccination, and even risk their lives in combat.[5] As the Supreme Court once instructed, “[c]itizenship has its responsibilities as well as its privileges.”[6] Aged judicial precedents are rife with recognition of “duties which individuals owe to the State.”[7] These courts saw nothing untoward about enabling mass compulsion in its many varieties.

Today’s Justices, however, pen few odes to collective sacrifice. The Court has not recognized a new civic duty since 1957,[8] and judicial defenses of conscription have all but disappeared.[9] Such public requisitions have no obvious place in a legal culture that prioritizes written text. The Constitution says much about the rights of American citizenship but scarcely anything about its burdens.[10] The clause-driven frameworks of modern constitutional litigation thus offer few criteria for discerning communal obligations. And it is not remotely clear—at least under current doctrine—how a mere governmental interest could ripen into an entitlement to extract private labor. What was once a vital feature of judicial reasoning has receded into a pre-interpretive instinct that shapes how courts adjudicate standard claims of power and right.[11]

Numerous Justices also speak of individual liberty as an ideal to be maximized—the ultimate aim of a healthy constitutional structure.[12] According to Justice Gorsuch, the Court “err[s] in the most fundamental of things” when it insists that “the collective [i]s more important than the individual.”[13] This general hostility to compulsion both echoes and elevates a powerful strand of America’s political tradition.[14] It also mirrors the broader culture’s rising insistence on personal choice in matters affecting social welfare.[15] Somewhere along the way, though, a thriving discourse of civic obligation faded from professional view. The Court has lost touch with the logic of earlier opinions validating behavioral mandates. And with the law of civic duties absent from the Justices’ working memories, the Court has become intensely skeptical of compulsions in the common interest.[16] Novel impositions are coded as un‑American, rather than creative solutions for solving social problems.

This hostility was on full display in the first wave of litigation over the Affordable Care Act (ACA). A federal court of appeals complained that a congressional power to require the purchase of health insurance had “no basis in the history of our nation.”[17] And in Chief Justice Roberts’s view, the ACA’s so‑called individual mandate would have “fundamentally chang[ed] the relation between the citizen and the Federal Government.”[18] Roberts acknowledged the existence of other federal mandates—all of which greatly intruded on liberty.[19] But he protested that Congress had “never” attempted to compel purchases using its commerce power.[20]

The Commerce Clause holding in National Federation of Independent Business v. Sebelius closely paralleled an influential scholarly framing. Professor Randy Barnett had characterized the ACA as a daring attempt to impose a new obligation of citizenship—a “duty to purchase health insurance from a private company.”[21] But in Barnett’s telling, our civic obligations are historically fixed. The duties of American citizenship are—by definition—few in number and circumscribed by tradition.[22] There can be no constitutional room for legislative expansion of this slim category. The ACA, not embodying a “pre-existing”[23] societal obligation, wrongly tampered with the people’s time-honored liberties.[24]

Such narratives of constraint have only taken firmer hold in recent years. The Court has thwarted governmental novelty in multiple additional settings,[25] and it has embraced the formula of “history and tradition” as a way of reorienting constitutional thinking.[26] But the Justices have not seriously grappled with the evidentiary basis for ascertaining civic duties. Instead, the Court has quietly spearheaded that concept’s near-total disappearance from litigation. As a result, courts’ mawkish tributes to individual liberty[27] pay no heed to the magnitude of state-ordered servitude. And doctrines that disfavor new compulsions are developed with no regard for previously recognized duties.[28] It is as if our culture had never allowed those massive intrusions on liberty—and our courts had never ratified them.

This Article aims to rekindle a dormant conversation about civic duties. It recounts what history would reveal if the Court were actually to pursue its history-and-tradition project in this overlooked domain. The evidence shows that American civic duties are constantly in motion; society has constructed, reshaped, and discarded them in decades-long struggles over the meaning of freedom. Innovations once assailed as monstrous and despotic have become staples of modern life.[29] Conversely, many compulsions with ancient historical roots have faded into oblivion.[30] Even the most widely accepted duties have experienced drastic changes in scope.[31] Put simply, the obligations we owe to the state are not fixed features of our constitutional order. They are necessarily—and properly—responsive to moral, political, technological, and institutional evolution.[32] It is not history alone, but contingent cultural acceptance, that clinches our civic duties.

This correction matters because courts continue to hear challenges to compulsions animated by latent visions of civic obligation. The Justices’ shift away from such language has not eliminated the need to reason about civic duties. It has simply deadened our conceptual vocabulary for doing so. Most momentously, abortion restrictions presume that pregnant women may be required to serve the public through a vast surrender of bodily autonomy.[33] These laws’ validity will naturally track intuitions about the sphere of civic obligation. Abortion restrictions are surely constitutional if pregnant women owe the state the prolonged use of their wombs. Conversely, if carrying one’s pregnancy to term is not a civic duty, upholding these intrusions would be legally and morally unjustifiable.

Other scholars have ably parsed much of the case law on obligations owed to the state.[34] But these court-centric treatments—none of which are comprehensive—do not explore the cultural dynamics that govern the construction, evolution, and decomposition of civic duties. This Article breaks new ground in recording these duties’ sheer fluidity. It refutes the assumption that governments may extract only those services demanded in the distant past. Whether in adopting compulsory education, initiating a military draft, pivoting to peacetime conscription, shortening the census, easing the burdens of jury duty, ditching mandatory road work, or phasing out population-wide vaccination, living Americans have renegotiated their own generations’ duties by repudiating prior traditions.

Part I of this Article contrasts recent skepticism over regulatory compulsions with the reality of past law. As manifold judicial precedents reveal, identifying the duties of citizenship has long been a staple of constitutional practice. Earlier courts did not presume any general immunity from compulsion. Much to the contrary, they viewed a healthy dose of civic obligations as conducive to collective flourishing. History belies any suggestion that the United States has distinguished itself through “the minimal and fundamental nature of the duties its citizens owe the state.”[35]

Part II critiques the prevailing narrative of historical fixity by documenting the rise, fall, and adaptation of civic duties. Rather than relying on the distortions of modern memory, it probes contemporaneous evidence of actual cultural beliefs concerning the bounds of individual obligation. Central to this study are the examples of compulsory education and federal military conscription. These practices were not continuations of long-held traditions; they emerged from the rubble of discarded traditions. Policies once deemed tyrannical and un-American came to exemplify a growing norm of civic responsibility. Far from being locked in place, however, even recognized civic duties are subject to deep cultural pressures. They have evolved—and dissolved—to meet the demands of a changing nation. Today’s Justices are party to this very dynamic, souring on legal compulsions that have become less a source of social unity than of partisan controversy.[36]

Part III.A charts the crucial role of analogy in the ongoing development of civic duties. Just as the content of civic duties defies facile narratives of historical permanence, the same can be said of how Americans have reasoned about proposed obligations. In considering whether to construct (or reaffirm) a duty owed to the state, public and private actors have not simply scouted out applicable historical traditions. They have also drawn functional comparisons to existing compulsions in an effort to formulate wise social policy. This longstanding practice further undercuts an antinovelty approach to civic duties. The possibility of innovation is the entire premise on which much fruitful discourse about these duties has occurred.

Part III.B emphasizes the limits of analogical reasoning in determining whether new duties take hold. As experience has shown, it is path-dependent cultural attitudes—not logic or principle—that seals the fate of most proposed obligations. I offer two case studies to illustrate this phenomenon: Americans’ scant receptiveness to compulsory health insurance and compulsory voting.

Part III.C rounds out the Article’s comparative focus by urging greater coherence in the law of compulsions. When the Court scraps a proposed compulsion, it necessarily decides that individuals cannot be required to serve the state in a particular way. Unfortunately, the Justices routinely fail to harmonize their negative holdings with those acknowledging the legality of other mandates. These lines of cases have much to say to each other, but they have never been brought into conversation. Such perspective is sorely needed in assessing the Court’s general hostility to compelled speech and intrusions on bodily autonomy.

Part IV closes with two key implications of the Article’s inquiry into American civic duties. First, I highlight the interpretive significance of applying this frame in modern public-law litigation. If the concept of duties owed to the state is intrinsically fluid, then rigid historical methodologies are unsuited to reviewing laws that effectuate visions of communal responsibility. Litigants will continue challenging such compulsions even if the Court never revives its prior rhetoric of obligation. These moments deserve more than naïve efforts to engineer permanent outcomes anchored in the past. They call for realistic appreciation of how compulsions gain and lose their legal legitimacy over time. Every generation must decide for itself, for example, whether pregnant women owe childbearing duties to the state. Purely backward-looking approaches like that employed in Dobbs v. Jackson Women’s Health Organization[37] only conceal normative choices properly made in the present.

And second, a panoramic view of civic duties casts new light on the permissibility of the federal Indian Child Welfare Act (ICWA).[38] The statute’s declared purpose is to help preserve tribes as governments—in particular, by preventing the undue severing of communal ties in child-custody proceedings.[39] ICWA’s challengers claim that the law instrumentalizes Indian children by treating them as mere objects or resources of the tribe.[40] Yet ICWA is hardly novel in regarding individuals as elements of collective flourishing. Compulsory education claims years of children’s lives for the sake of improved self-government, and military conscription has long been denounced for treating American citizens as human chattel.[41] In evaluating the anti-ICWA campaign’s dubious legal claims, it is worth recalling the state-protecting functions of civic duties. Tribes are governments, too, and limitations on free choice may be equally necessary to ensure their continued existence.

A.      Stories of Constraint

Following decades of regular engagement, the Supreme Court has not identified a new civic duty in almost seventy years.[42] The concept of social obligation forms no part of the typical law student’s or practitioner’s toolkit. With official narratives on the subject almost nonexistent, an opportunity existed for scholars to craft their own. So it was that one academic’s cramped rendering of American civic duties fueled a raft of libertarian challenges to the Affordable Care Act.[43]

The ACA was passed in response to what Congress viewed as a grave social ill: the skyrocketing price of health insurance. Before 2010, over fifty million Americans lacked such coverage,[44] whether due to insufficient resources or a calculated risk that their good health would continue. When medical catastrophes occurred, doctors passed on their uncompensated costs to insurance companies, which were forced to raise their premiums to cover necessary expenses.[45] These higher costs naturally made health insurance even less affordable. Fewer purchasers, of course, required companies to raise their premiums still higher in order to stay afloat.[46] And so the cycle would continue.

Congress’s response to this feared “death spiral” was to create the largest possible risk pool—and portray participation as an urgent civic responsibility. No longer would American adults be left free to make their healthcare choices in a moral vacuum. Non-exempt individuals would have two options: either obtain minimum health insurance or face a sizeable monetary exaction (labeled a “[s]hared-responsibility payment”) each year.[47] Viewed in broader context, this technocratic solution can be understood as an effort to reshape the duties of American citizenship.[48] Having been left to private choice, the health-insurance market had fared abysmally. Individuals would now be shaken from their inaction—downright coerced—to contribute to a collective solution.

The key constitutional challenges to this feature were ostensibly structural in nature. (The ACA’s minimum-coverage provision was said to be unauthorized by any combination of the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause.[49]) But at bottom, NFIB v. Sebelius was about the kind of nation we are and ought to be. Is this the sort of country where private citizens can be forced to part with some of their earnings for the sake of collective national health? More broadly, can governments curtail existing liberties to solidify newly identified civic duties?

The ACA’s opponents answered with a resounding no. Professor Randy Barnett, in particular, inveighed against Congress’s effort to construct a new duty of citizenship. Barnett rightly noted that “there is no traditionally recognized pre-existing duty” to obtain health insurance.[50] But instead of grappling with that fact’s relevance, Barnett simply assumed that history alone determines our basic social responsibilities. He claimed that citizens may be called on to serve the state only in ways that are “narrowly defined and deeply rooted in the nation’s traditions.”[51] And Barnett’s research uncovered just four: registering for the draft, performing jury duty, completing the census, and filing one’s taxes.[52] Indeed, the “minimal and fundamental nature of the duties [American] citizens owe the state” is supposedly what distinguishes the United States from the rest of the world.[53] Allowing Congress to construct new civic obligations, therefore, would “fundamentally alter the relationship of citizen and state.”[54]

Barnett offered little guidance on exactly what makes a duty fundamental, pre-existing, or traditional. He likely viewed such analytical precision as unnecessary in the ACA context; after all, Congress had sought to create an obligation without direct precedent in American history.[55] With his opening scholarly contribution, Barnett espoused a vision of civic duties as static and untouchable. Those obligations simply are—and have been for many generations.[56] No legislature may validly supplement them, and it is unclear how the American people could alter or renounce them (short of amending the Constitution).

Barnett’s antinovelty framework came to shape opposition to the ACA’s newfound burdens on personal liberty. In striking down the individual mandate, the U.S. Court of Appeals for the Eleventh Circuit claimed that “Americans have, historically, been subject only to a limited set of personal mandates”—the four Barnett identified.[57] The ACA, by contrast, was not predicated on “a duty owed to the government as a condition of citizenship.”[58] Unlike the military draft, the ACA’s mandate “ha[d] no basis in the history of our nation, much less a long and storied one.”[59]

A slew of amicus briefs made the same basic point: The duties of American citizenship—just four in number[60]—have been settled by history.[61] On this understanding, the individual mandate plainly failed to qualify as a “fundamental, preexisting, or traditional duty of citizenship.”[62] And a brief of former U.S. attorneys general made explicit what Barnett’s argument naturally entailed: that states, too, are powerless to recognize new civic duties.[63] To do so would be to spurn the indispensable constraint of past practice.

This preference for historical fixity found powerful expression at the Supreme Court. At oral argument, Justice Kennedy accused Congress of attempting to “chang[e] the relation of the individual to the government.”[64] Chief Justice Roberts’s opinion picked up this theme in reasoning about the Commerce Clause’s reach. He complained that Congress had “never attempted to rely on that power to compel individuals” to become active in the economy.[65] Allowing Congress to regulate our “doing nothing,” he believed, would “fundamentally chang[e] the relation between the citizen and the federal government.”[66] A nation that tolerated this “new”[67] power would “not [be] the country the Framers of our Constitution envisioned.”[68] The joint dissent likewise portrayed a power to compel private purchases as invading an inviolable sphere of individual autonomy.[69]

Having dispensed with the government’s primary theory, Roberts then rejected the Necessary and Proper Clause as an ancillary basis for the minimum-coverage provision. In his view, a law is not “proper” if it purports to coerce otherwise-inactive persons into affirmative conduct.[70] For it would “work a substantial expansion of federal authority” to treat inactivity as a fit subject of regulation.[71] This conclusion faced an obvious problem: the acknowledged existence of congressional mandates concerning other topics.[72] Roberts minimized these examples by simply noting that they drew support from “constitutional provisions other than the Commerce Clause.”[73]

While accurate, this distinction lacked any basis in principle. At various times in the past, institutional actors have chosen to interpret the Necessary and Proper Clause as allowing the federal government to compel private conduct.[74] So the Clause clearly can be read to enable the creation of new civic duties. But the Chief Justice refused to apply a similar analysis to the health-insurance market. Under his NFIB opinion, federal regulation of inactivity is constitutionally unseemly whenever Congress has never attempted to compel that specific type of behavior. (What type of novel compulsion could not be said to alter “the relation between the citizen and the federal government”?[75]) History thus sets an upper limit on the universe of valid federal mandates.

Roberts’s opinion was a signal moment in the modern jurisprudence of civic duties. Congress is now effectively forbidden from using private mandates to carry out new theories of social obligation.[76] NFIB thus highlights the remarkable success of Professor Barnett’s scholarly project. The Court has lent significant credibility to the idea that our civic duties are historically fixed, and that innovative compulsions are deeply suspect as a constitutional matter.

But why must this be so? If skepticism of obligations owed to the state is to influence modern-day outcomes, surely the reasons for that reluctance should be examined with rigor. We should not simply take for granted that our duties are few and limited, or that history has fixed them with precision. Rather, we should strive to understand which compulsions our legal system came to regard as civic duties—and then ask what that history means for our own time.

B.      Doctrinal Reality

I begin this inquiry by canvassing the history of judicially recognized civic duties. A far richer picture emerges than was presented by litigants, commentators, and courts during the NFIB saga.[77] Americans have traditionally been subject to a startling array of legal compulsions at the federal, state, and local levels. Many of these mandates would arguably qualify as involuntary servitude were it not for a widespread belief that the state may justly extract each type of service.

Studying the full sweep of accepted obligations greatly complicates any effort to freeze in place a mythologized quartet of “fundamental” duties. And it reveals what is lost when advocates focus only on obligations owed to the federal government. State and local compulsions equally implicate the libertarian anxieties underlying resistance to a fluid conception of civic duties. Cultural discourse concerning the bounds of political tyranny has long reflected this reality.[78] Indeed, judicial portrayals of civic duties are often so generalized that it is impossible to classify an obligation as either federal or subfederal in nature. And it makes little sense to consider only the burdens of national citizenship if one regards early historical practice as pivotal. That is because Americans’ primary allegiance initially flowed to state and local governments, in keeping with the institutional reality of Founding-era rights protection.[79]

Four clarifications are in order before canvassing the existing case law on civic duties. First, the phrase “civic duty” is more of an informal term of art than an exclusive doctrinal moniker. It evokes the idea that individuals owe obligations to the government—and that efforts to implement those obligations are immune from constitutional attack on liberty grounds.[80] I include in this section any line of doctrine, however formulated, that explicitly invokes this sense of duty. Declining to insist on specific phraseology can capture additional compulsions that require individual sacrifice in service of communitarian values.

Second, I use the term “duty” in a strict legal sense. Not all political or moral obligations have been translated into enforceable legal compulsions.[81] We may in some sense have a “duty” to follow current events or to raise our children to be kind, but those cultural expectations tell us nothing about the state’s coercive power. I have steered clear of examples that appear to reflect only softer or rhetorical conceptions of social responsibility.[82]

Third, I do not confine my list to “freestanding” compulsions—those (such as jury service) that apply to individuals simply because they are living, breathing humans of a certain age. These examples powerfully illuminate the intrusive potential of public duties, but they hardly exhaust that category. Precisely because affirmative conduct can implicate societal concerns, governments often mandate further action from persons whose behavior arouses legislative interest. It is perfectly coherent to describe these conditional compulsions as resting on duties owed to the state.[83] Courts have certainly done so.[84] And the distinction between activity and inactivity often proves pliable in practice.[85] What matters, then, is whether individuals have been made to contribute their time, energy, or resources to serving claimed public needs. If the list of civic duties becomes uncomfortably large as a result, that is a reason to reexamine any gratuitous exactions—not to arbitrarily curtail the category.

Finally, we should not expect judicial opinions to contain anything close to a full catalogue of American civic duties. A court-centric model of civic obligation overlooks the power of cultural norms to deter head-on challenges to legal compulsions. Some exactions are so widely accepted that they are never attacked on liberty grounds—and thus escape direct judicial attention. Legal compulsions, then, can be grounded in presumed duties owed to the state even when no court has said so.[86] Indeed, it is likely that most civic duties remain judicially unspoken during their lifetimes.

*          *          *

In the 1916 case of Butler v. Perry, the Supreme Court rejected a constitutional challenge to a state law requiring able-bodied males to spend six days per year working the public roads unless they furnished a substitute or paid a fee.[87] After detailing the practice’s lengthy history, the Court declared the physical labor of helping to improve public roads “part of the duty which [one] owes to the public.”[88] Butler specifically rejected the defendant’s Thirteenth Amendment claim, reasoning that the Amendment’s ban on involuntary servitude was not meant to cover “those duties which individuals owe to the State.”[89] The Court’s phraseology mirrored that of earlier lower-court opinions that had explicitly labeled road work a core civic obligation.[90]

Two years later, the Selective Draft Law Cases described military service during wartime as the “supreme and noble duty” of a citizen.[91] Denying that federal military conscription was “repugnant to a free government,”[92] a unanimous Court tethered its constitutional analysis to social-compact theory. The Justices reasoned that government’s duties toward its people entailed “the reciprocal obligation of the citizen to render military service in case of need and the right to compel it.”[93] As in Butler, the Court denied that this compulsion amounted to involuntary servitude. In light of citizens’ overriding duty, merely to state the Thirteenth Amendment argument was apparently to refute it.[94] Earlier dicta had made it entirely unsurprising that the Court would uphold forced military service under the banner of individual obligation.[95]

Federal military conscription could be viewed as the logical culmination of compelled service at the state level. For decades, the colonies—and later state governments—required able-bodied males to drill at regular intervals in anticipation of military conflict.[96] Even without a direct constitutional challenge, the Court has repeatedly signaled that states may compel their residents to engage in military training.[97] A closely affiliated institution—one designed to suppress internal threats—pervaded the South when militias still operated. That institution was the slave patrol. According to a South Carolina appellate court, all (white) citizens had a “duty” to take part in “inflicting corporal punishment on slaves found out of their owner’s plantation.”[98] This grisly task was one “which all the citizens are bound in common to perform.”[99]

Courts have also recognized an individual duty to aid in law enforcement generally. Under the common law, still reflected in many state codes,[100] private persons can be compelled to join a “posse comitatus”—meaning, to assist a nearby official in investigating, pursuing, or subduing a suspected offender.[101] Courts have long used the language of civic obligation in describing this feature of the legal system.[102] Under these precedents, individuals have no choice about whether to comply with an official command[103]—even at the risk of grave harm to themselves.[104]

Perhaps the most striking omission from the recent discourse over civic obligation concerns the federal posse comitatus power. Under the Fugitive Slave Act of 1850, “all good citizens” were “commanded to aid and assist” in the rendition of enslaved persons whenever summoned by appropriate federal officials.[105] The Court soon affirmed the constitutionality of this and other features of the Act.[106] Far from repudiating the direct federal conscription of individuals, the Reconstruction Congress commanded all citizens to help enforce federal statutes on three additional occasions (this time in service of racial equality).[107] The Court, too, subsequently spoke of the federal posse comitatus power as an unexceptional feature of national governance—and a wellspring of individual “duty.”[108]

Current doctrine recognizes several other obligations designed to ensure the proper functioning of legal institutions. Most familiarly, jury service has long been described as a paradigmatic civic duty.[109] It is thus uncontroversial that citizens may be “instrumentalized” and “compelled to use their rational capacities” as the government directs, often for days or weeks on end.[110] Private individuals may also be conscripted into serving as witnesses before grand juries[111] or at criminal or civil trials.[112] As with jury service, the logic of social responsibility pervades courts’ explanations for these compulsions.[113] Congress also benefits from existing forms of civic duty. For example, it is commonplace that all persons must respond to the decennial census,[114] which allows Congress to exercise its powers in a more informed fashion. And it has been called “the duty of all citizens” to comply with valid congressional subpoenas.[115]

More generally, individuals can be required to pay taxes to support the totality of government functions. These exactions—a massive intrusion on liberty—are generally justified as a basic societal responsibility.[116] And current doctrine envisions that private citizens may be compelled not just to help governmental institutions operate effectively, but to serve in those institutions. According to the Court, “[t]he public has a right to the services of all the citizens, and may demand them in all civil departments.”[117] It has been described as “the obvious duty of the citizen” to serve in office once chosen, even if appointed or elected involuntarily.[118]

Courts have also employed the language of civic duty in detailing the requirement to educate one’s children. Compulsory education is a tremendous intrusion on individual autonomy—both for the parents whose homes are sites of state intervention and for the children whose very upbringings occur in the shadow of government coercion. Yet courts have applauded this mass compulsion as a means of general societal betterment.[119] A second intrusion into family relations concerns familial-support requirements. Providing financial assistance to one’s spouse and children has long been described as a duty owed to society, rather than a moral obligation appertaining only to private persons.[120]

Judicial precedents have also tolerated numerous bodily intrusions and restrictions in service of perceived public needs. Citing “manifold restraints to which every person is necessarily subject for the common good,”[121] the Court in Jacobson v. Massachusetts upheld a local requirement that all residents submit to smallpox vaccination (on pain of criminal fines).[122] The Justices’ approval of “compulsory vaccination”[123] stemmed from their refusal to allow individual preferences to endanger “the welfare and safety of an entire population.”[124] Relying on Jacobson, the Court later affirmed the constitutionality of compelling vaccination as a condition of school attendance.[125] Lower courts have reliably cast these vaccination requirements as elements of civic obligation.[126] Substantially the same rationale has been offered for instances of quarantine and involuntary detention on public-health grounds.[127]

On two further occasions—neither honorable—the Court has ratified limitations on bodily integrity or free movement with a nod to individuals’ societal obligations. In Buck v. Bell, the Justices upheld Virginia’s program of coercively sterilizing certain “mental defectives.”[128] Noting the state’s finding that the “welfare of society” would be enhanced by the plaintiff’s sterilization,[129] the Court compared these personal “sacrifices” to those entailed by military conscription and mandatory vaccination.[130] And in Korematsu v. United States, the Court condoned the “[c]ompulsory exclusion” of Japanese-American citizens from their homes on the West Coast by noting that “[c]itizenship has its responsibilities as well as its privileges.”[131] Echoing the rationale for conscription, the Justices explained that “[a]ll citizens alike” must make difficult sacrifices during war.[132]

Finally, many local governments have required private-property owners to remove snow and ice from the portions of public sidewalks abutting their property.[133] Courts conventionally view these mandates as a form of service to the state that may be extracted for the greater good.[134] And individual courts have used near-identical language in upholding assorted compulsions, even ones without a strong basis in tradition.[135]

With this fuller picture in view, it is difficult to argue that what distinguishes the United States is “the minimal and fundamental nature of the duties its citizens owe the state.”[136] According to judicial opinions alone—a modest subset of relevant evidence—Americans owe a multitude of duties to the state. The ethic of social obligation has long pervaded judicial reason-giving at every level. At some point, these asserted civic duties cease to be narrow “historical exceptions”[137] to some assumed baseline of freedom from coercion. The historical record instead reveals institutional comfort with compulsions in a wide variety of federal, state, and local governance contexts. To presume that any new mandate is constitutionally unsound is to indulge a normative preference with little basis in history or tradition.

The sheer quantity of recognized civic duties is but one flaw in the traditionalist presumption against new obligations. Even more revealing are the processes by which those duties have come in and out of existence. This history shows that society has unashamedly forged new obligations to meet the evolving needs of national life. Individual duties have also been significantly reworked—or discarded altogether—to adapt to a changing cultural landscape. Far from representing rigid features of an ancient legal inheritance, American civic duties have always been dynamic instruments for confronting modern challenges. To illustrate this fluidity, this Part documents the creation, evolution, and disappearance of several recognized duties.

A.      Creation1.       Compulsory Education

Today, compulsory school-attendance laws elicit virtually no controversy. Our culture simply accepts that children may be required to receive a minimum education according to governmental standards.[138] There is no political movement protesting the odious despotism of universal schooling—no serious effort to convince courts of a fundamental right to raise one’s children in ignorance.

It was not always so. Under the common law, and for decades following the Constitution’s ratification, parents enjoyed untrammeled authority to provide their children as much or as little education as the family’s circumstances called for.[139] This zone of autonomy was widely assumed to be sacrosanct and inviolable—a “defining feature of republican self-government.”[140] Many children simply remained at home and received hands-on training for the lives of physical labor their parents planned for them.[141]

A growing number of actors eventually began to rethink this time-honored arrangement. In a republic, they believed, equality of political power should be accompanied by a roughly equal distribution of knowledge. The health of the state demanded that all who exercised a portion of sovereignty have their minds illumined by a formal education.[142] These reformers also argued that mandatory schooling would reduce crime—to the nation’s benefit—by remolding the minds of children susceptible to brutish influences.[143] Those children, moreover, had a right not to have their life potential artificially constricted.[144] Reformers thus viewed any loss of freedom as either illusory or justified by overwhelming governmental needs.

When state after state began mandating school attendance in the mid-to-late nineteenth century, commentators raised their pens in holy horror. They viewed this bold innovation as an assault on cherished American liberties.[145] Compulsory education was denounced in print as “monarchical,”[146] “despotic,”[147] “oppressive,”[148] “tyrannical,”[149] “autocratic,”[150] “monstrous,”[151] “radical,”[152] “un-American,”[153] “crack-brained,”[154] “repugnant to the spirit of free government,”[155] a “horror,”[156] an “outrageous absurdity,”[157] and even a form of “slavery.”[158] Many writers predicted that the coercion intrinsic to this system could never survive in America.[159] Critiques of compulsory education echoed sharply through the halls of Congress as well.[160]

Yet in the span of half a century, agitation over the issue largely ceased. By 1918, every state in the Union had enacted a law mandating school attendance.[161] And enforcement improved significantly once child-labor opponents aligned their cause with that of educational reformers.[162] Our political culture came to accept that parents could be compelled to have their children educated; argument simply shifted to the proper ages for, and duration of, this civic necessity. Continued contestation was so minimal that the U.S. Supreme Court never heard a direct challenge to compulsory schooling.[163] Had one appeared, the Justices might well have followed state courts in portraying the education of one’s children as a fundamental civic duty.[164]

There was nothing inevitable about this resolution.[165] Norms of parental authority were so deeply ingrained that the campaign to dispense with them could easily have failed. Compulsory education’s rise thus represents a remarkable transformation in the relation between citizen and state. This civic duty cemented itself in American life not because history demanded it, but because later generations chose to cast aside a deeply rooted tradition.[166] The cultural struggle they waged successfully enshrined a new set of public responsibilities for self-governing family units.

2.       Military Conscription

The federal government’s power to raise armies by force is well established under federal law. Even those who take a narrow view of citizens’ obligations agree that all (male)[167] American adults must register for the draft, thereby enabling the government to thwart their life plans and hasten their deaths. This gravest of compulsions is said to be “deeply rooted in the nation’s traditions”[168]—part of a “long and storied” history of state coercion.[169] At a minimum, it is assumed to follow ineluctably from Congress’s power to “raise and support Armies.”[170]

These perceptions are heavily conditioned by institutional choices made in the twentieth century. They entirely fail to account for the recurrent ideological conflict that preceded the Court’s rather bombastic performance in the Selective Draft Law Cases. The obligation to fight and die for one’s country is not hard-wired into our constitutional order; it was voted into existence by hyper-patriotic politicians who openly renounced traditional conceptions of liberty, all on the heels of an elite-driven social movement.

a.       Beginnings

Start with the text: The power to “raise and support Armies” need not be read as contemplating the forcible appropriation of human beings.[171] Able-bodied men had been subject to conscription before the Constitution was ratified, but only for carefully limited service in their local militias.[172] Of course, the Armies Clause can be read to license a federal draft; its language alone does not preclude that result. But it would be farcical to suggest that the ratifiers consciously imposed on private citizens a duty to serve the new federal government in a military capacity. The prospect of a federal draft yielded virtually no recorded discussion among the Constitution’s supporters or opponents.[173] This silence followed centuries in which the British government had raised armies entirely by voluntary means.[174] The Founders, to be sure, gave later generations textual tools capacious enough to construct a new duty of American citizenship. But they were in no position—and had no need—to attempt that culture-transforming work themselves.[175]

Precisely because military service was not viewed as a duty owed to the federal government, Congress did not conscript a single soldier during the War of 1812. Only toward the end of that existential conflict did the Madison administration venture to propose compulsory induction.[176] This loaded task fell to Secretary of War James Monroe. His report to Congress was a somewhat strained effort at persuasion, rather than a distillation of existing precepts.[177] Analogizing to state militia service, Monroe claimed that “[t]he commonwealth has a right to the service of all its citizens . . . to repel any danger.”[178] And he brusquely denied that the power to raise and support armies contemplates only voluntary service. This would be “repugnant to the uniform construction of all grants of power,” insofar as “[a]n unqualified grant of power gives the means necessary to carry it into effect.”[179]

It is unclear whether Monroe realized where this logic might lead. For one, it would plainly authorize the forcible impressment of American citizens into the Navy.[180] Monroe himself, though, had recently decried impressment as “not an American practice, but utterly repugnant to our constitution and laws.”[181] His defense of conscription would also allow the federal government to coerce Americans into loaning money to Congress;[182] serving as tax collectors,[183] census-takers,[184] judges,[185] and bailiffs; and constructing post roads,[186] government buildings, and public monuments. Having affirmed the compulsory potential of “all grants of power,” Monroe could hardly confine his reasoning to the Armies Clause alone.

The War ended before Monroe’s proposal could receive a final vote.[187] But his conscription plan was discussed thoroughly in the House and Senate. Numerous speakers highlighted the sheer novelty of the idea that individuals could be forced to serve the federal government.[188] And they denounced Monroe’s plan as if the Republic’s future depended on it. These critics insisted that Congress’s implied powers must be interpreted in line with prevailing notions of freedom and liberty.[189] Monroe’s reasoning, to the contrary, plainly licensed new intrusions on long-enjoyed liberties. Congressional opponents spared no fury in depicting conscription as repugnant to the basic values of American society.[190] They deemed the practice “monstrous,”[191] “unjust,”[192] “detestable,”[193] “abhorrent,”[194] “despotic,”[195] and “[t]he most odious and cruel slavery.”[196] A young Representative Daniel Webster was especially venomous in his assessment.[197] If military service had originally been viewed as a duty owed to the nation, the sheer intensity of this moral-legal vitriol in the halls of Congress would be hard to explain.

Little changed in the ensuing half century. After observing America at length in the early 1830s, Alexis de Tocqueville concluded that “[t]he notions and habits of the people of the United States are so opposed to compulsory recruiting, that I do not think it can ever be sanctioned by the laws.”[198] No such sanction appeared during the Mexican-American War (1846–48), in which U.S. forces were raised purely through voluntary enlistment.[199] Scholars agree that American culture was overwhelmingly hostile to federal conscription during this period.[200]

b.       Civil War

It was not until March 1863—two years into the Civil War—that federal conscription in any form was adopted. The Enrollment Act of 1863 declared that all able-bodied male citizens between ages twenty and forty-five were “liable to perform military duty” at the President’s direction.[201] The statute recounted the dire peril facing the Republic: an ongoing insurrection that threatened the very foundations of free government.[202] Conscription’s congressional proponents likewise painted the strategy of coercion as borne of the utmost national necessity.[203] In this light, “all persons” should contribute to the Constitution’s preservation—a form of “praiseworthy and honorable” service to the federal government.[204]

The sheer novelty of this proposition was lost on neither supporters[205] nor opponents[206] of the draft law. The latter denounced mandatory service as grossly un-American, much as had been done in 1814.[207] (The irony of inaugurating a system of forced labor to uproot slavery was not lost on them.[208]) The Enrollment Act, however, did not implement the ideal of universal sacrifice. It relieved any draftee of the requirement to serve as long as he either paid a sum of $300 or furnished a substitute soldier.[209] These exemptions wholly undercut the putative rationale for the draft law—that grave national burdens must be borne by all.[210] The manifest injustice of wealth-based service fueled existing rage at the prospect of compulsory death. Rioting broke out across the North, with hundreds of fatalities in New York City alone.[211]

As a tool of filling out the Union ranks, conscription proved stunningly ineffective. The draft ultimately furnished a mere 51,000 men for the Union army, as compared to the 2.2 million who ultimately fought.[212] Nor was conscription expected to endure as a national policy. The draft’s bureaucratic apparatus was dismantled at the War’s close,[213] and the practice assumed an unsavory place in American cultural memory.[214] To no one’s surprise, the Spanish-American War (1898) was fought solely with volunteers.[215] Commentators routinely spoke of forced service as inconsistent with American traditions and values. The 1900 Democratic platform, for example, declared coercive recruiting to be “un-American” and “a subversion of the ancient and fixed principles of a free people.”[216] And one author claimed in 1916 that conscription “would require decades of Napoleonic political evangelism to introduce.”[217]

c.       World War I

But that evangelism was already ongoing. In the years before World War I, a network of industrialists, publishers, politicians, and other professionals set out to convince the public of the necessity of universal military training.[218] The stated aim of this “elite-dominated, multi-faceted social movement”[219] was to break down Americans’ traditional resistance to conscription. Through editorials, speeches, and martial pageantry, these preparedness advocates threw their reputations behind a historically despised system. In doing so, they laid the groundwork for the Wilson administration’s April 1917 conscription proposal to be viewed as not just constitutionally plausible, but a clear strategic imperative. One legislative supporter of conscription would specifically note “[t]he change of sentiment . . . among our people within the past two years” concerning military compulsion.[220]

In his speech requesting a declaration of war on Germany, President Wilson urged that newly raised forces be selected “upon the principle of universal liability to service.”[221] The resulting Selective Service Act of 1917 indeed created a draft “based upon liability to military service of all male citizens” between ages twenty-one and thirty.[222] But this outcome was not predetermined by history. Conscription’s congressional foes—and there were many—assailed the bill as a betrayal of American ideals. They were ultimately outvoted by colleagues who viewed obligatory service as the best way to prosecute modern wars in light of modern values. Far from being deeply rooted in tradition, then, conscription represents a dynamic attempt to unshackle the nation from its former habits. The draft’s congressional champions proudly understood themselves to be creating a duty, not discovering one.

If ever there were a law that transformed the relation between citizen and state, it was the 1917 Act.[223] The fiery floor debates preceding its passage revealed “fundamentally different visions of the nature of America.”[224] Proponents made no secret about what they were doing. They were “turning away from the traditional policy of this Nation.”[225] Whatever the pedigree of compulsory state militia service, federal conscription was admittedly “a complete reversal of our accepted policy”[226]—a “radical departure.”[227] One member proudly alluded to “a great many traditions from which we have departed” due to “changing conditions” that demanded innovation.[228] The tradition of voluntarism would now be added to the list. Indeed, “the sooner we get away from that tradition the better.”[229] Established practices must always evolve “as conditions change and as our people desire changes in governmental life.”[230] Outside observers agreed that conscription would represent a cultural transformation.[231]

Conscription’s supporters stressed the importance of adapting to global changes in the nature of warfare. Most European powers had organized mass conscript armies in the late nineteenth century, and the United States risked falling a step behind.[232] But supporters mostly proclaimed the need for equality—the equal distribution of shared national burdens. As one representative noted, there had been a “change in the national temperament” concerning individual obligation.[233] By this account, “the tendency of the times” was “to equalize . . . responsibilities, benefits, and duties.”[234] No longer could the most cowardly be allowed to remain at home while the strongest and most patriotic leaped to the nation’s defense.[235] Now, all who benefited from the government’s protection would carry a reciprocal duty to protect the government.[236] Far from being undemocratic, conscription was the only method of recruitment consistent with political equality.[237] Liability to military service was thus framed as a universal obligation of citizenship.[238] It was to be “the duty of every American citizen to lay down his life, if need be.”[239]

This campaign to entrench a new civic duty triggered fierce resistance. Opponents rightly portrayed federal military conscription as a massive departure from the tradition of voluntary recruiting. At almost no point in the previous 130 years had Congress laid full claim to private citizens’ lives. In fact, countless European immigrants had recently come to America to escape the perils of compulsory combat.[240] Even during the Civil War—the gravest possible national crisis—Congress implemented a rather lackluster draft, and only after prior rounds of volunteers had proved insufficient.[241] The value of preserving free choice had become “deeply embedded in the thought and custom of our people.”[242] Anticipating modern parlance, voluntarism was said to constitute our “history and traditions.”[243] A staggering number of participants lamented this abandonment of a long-held cultural belief.[244]

Precisely because of this history, opponents insisted that conscription would amount to a shocking contortion of basic American values.[245] A system that tore families apart, thwarted career plans, killed the innocent, and disregarded individual conscience could not possibly implement a duty owed to the state. Rather, conscription would unmake the free society that the draft’s proponents aimed to preserve. Its total deprivation of liberty would emulate the very features of autocracy that America had pledged itself to destroy.[246] Illustrating the depth of their convictions, numerous legislators branded forced enlistment as a form of either slavery or involuntary servitude.[247]  

Conscription’s modern reputation as a civic obligation can be traced to the Selective Draft Law Cases.[248] Chief Justice White’s unanimous opinion upheld Congress’s authority to compel military service under its power “[t]o raise and support Armies.”[249] White’s effort has been rightly criticized for its cursory and one-sided historical recitation.[250] The opinion’s tone, too, is openly disdainful of those who viewed the constitutional issues differently. Nowhere is this crankiness clearer than in addressing the issues of liberty and national values implicated by recent congressional debates. The draft’s challengers—in White’s words—deemed conscription “repugnant to a free government and in conflict with all the great guarantees of the Constitution as to individual liberty.”[251] White derided this position as “so devoid of foundation that it leaves not even a shadow of ground” for argument.[252]

In so ruling, the Court repeatedly employed tropes used by congressional supporters of conscription, while suppressing dissenting perspectives voiced just as forcefully. Echoing earlier floor statements,[253] White insisted that government’s duties to the citizen entailed “the reciprocal obligation of the citizen to render military service in case of need and the right to compel it.”[254] He described wartime enlistment as a citizen’s “supreme and noble duty”[255]—a patriotic tweak on legislators’ copious rhetoric of obligation.[256] And the Court dismissed the challengers’ Thirteenth Amendment claim by declaring itself “unable to conceive” the argument—one “refuted by its mere statement.”[257] (Perhaps the opposing viewpoints would have seemed more plausible had private citizens not been precluded from expressing them.[258])

At no point was the Court so dismissive as in deeming military service a civic obligation. Rather than acknowledge the deep cultural and political disagreement from which the Selective Service Act emerged, the Court proceeded as if any other perspective were unfathomable. The Justices plainly allowed modern political and military imperatives to shape how they recounted the legal past.[259] Put somewhat crassly, military service became a duty owed to the federal government because one bloc of legislators outvoted another in 1917, and because the Justices reinforced that victory through raw assertion. As always, electoral contingencies could well have produced a different resolution. This civic duty was in no sense “pre-existing”;[260] it was assembled by living actors who consciously labored to reconstruct traditional values.

*          *          *

Similar stories could be told about other judicially recognized civic duties. The federal posse comitatus power—and its associated obligations—were virtually unknown until 1850, when national policymakers first identified a pressing need for private citizens to enforce federal law.[261] And large-scale compulsory vaccination was unthinkable in the moral climate of early America.[262] Vaccine mandates for schoolchildren and the general public were rare before the late nineteenth century,[263] and when they did appear, opponents reacted with a volcanic rage similar to that leveled against compulsory education.[264] Each of these compulsions was a weighty policy choice rather than a historical discovery. Political actors successfully made the case that individuals could be forced to serve the state in ways unknown to the Founding Era. For military conscription in particular, the temporal gulf between 1787 and eventual duty-creation is especially vast.

One of two things must be true: Either each generation remains empowered to develop new civic duties, or the American people somehow lost the capacity to do so after 1917. The duty to fight for one’s nation is far less deeply rooted than other types of laws that—according to the Court—are too recent to constitute a valid “American tradition.”[265] It is simply mistaken to describe civic duties as the products of longstanding historical practice. As the examples in this Section show, some of those duties arose long after the Founding. And these changes occurred precisely because later actors broke with embedded cultural assumptions.

B.      Evolution

Not only have new civic duties uprooted lasting traditions; individual obligations have experienced profound changes in scope.[266] The very concept of a civic duty presumes that the government may require certain defined sacrifices to advance collective interests. But for some duties, the nature of the exaction has fluctuated significantly across time and place. The capacity of individual civic duties to evolve—and sometimes to escape originally assumed limitations—further undermines the idea that these obligations are static historical artifacts. If civic duties must be “specifically or narrowly defined,”[267] then vastly different impositions should not be treated as constituting an unbroken tradition.

Military conscription illustrates this point nicely. The assumed factual preconditions for a federal draft have undergone a remarkable transformation. In 1863, Republican congressmen repeatedly depicted compulsory service as a last resort—a strategy for confronting a pressing threat to the nation’s existence.[268] In 1917, foes of conscription seized on this limitation to argue that the proposed measure contravened American traditions.[269] But proponents at least tethered their support to the fact that Congress had formally declared war. Multiple members went on the record to clarify that their comfort with conscription extended no further.[270] Indeed, the Supreme Court’s embrace of conscription also seemed to carry this important caveat.[271] At war’s end, one member warned that “it would bankrupt the English language . . . to describe what compulsory military service means in time of peace.”[272]

In September 1940, though, Congress would inaugurate peacetime conscription—well over a year before the United States formally entered World War II.[273] All male citizens between ages twenty-one and thirty-six were deemed “liable for training and service” in the Army or Navy.[274] They were made subject to induction at the President’s discretion—“whether or not a state of war exists.”[275] Opponents of this measure denounced it as an affront to America’s past. One member ruefully remarked that peacetime conscription was being enacted for “the first time in the history of our country.”[276] A prominent senator accused his colleagues of “tearing up 150 years of American history and tradition.”[277] It was even said that freedom from serving during peacetime had become “one of our rights, privileges, and immunities” as Americans.[278] Complaints like these echoed repeatedly and powerfully during the floor debates.[279]

Supporters of peacetime conscription reasoned that actual wartime was far too late to begin training new soldiers. In their view, military effectiveness required a lengthy period of preparation and acclimation.[280] But opponents emphasized the sweeping claim of authority implicit in this theory. If no visible exigency is needed to justify conscription, then private individuals may have their entire lives and careers toppled at any moment.[281] Congress—in its discretion—can simply convert unsuspecting civilians into warriors, subjecting them to military law and truncating their constitutional rights.[282] In such a system, members argued, American citizens would become “mere vassals of the state.”[283] The United States would be identical to the fascist behemoths that simply “dictate to [the people] what their civic duties will be.”[284]

At the close of World War II, conscription lost much of its former urgency. The draft had never been expected to endure beyond an actual or impending military emergency.[285] In a 1946 report on military enlistment, the Senate Committee on Military Affairs declared that “[t]he people of the country at large overwhelmingly favor the volunteer system for the armed forces. There is complete unanimity on this point.”[286] Unsurprisingly, Congress allowed the draft to lapse in 1947.[287] Yet by 1948, with Soviet communism on the march in Eastern Europe, Congress set out to redefine the basic preconditions for conscription. No longer would actual war (or the specter of war) be insisted on; it would suffice that legislators could anticipate a credible threat to American ideological primacy throughout the globe.[288]

When Congress reinstituted conscription in 1948—this time, with no prospect of emerging military hostilities—it capped off what one historian has termed “a sharp and major new departure in American history.”[289] In hindsight, the 1940 law could be artfully recast as an anticipation of impending “war clouds.”[290] But no such pretense was even attempted in 1948. Advocates of the measure did not sugarcoat its historically deviant nature.[291] They instead preferred to view our constitutional tradition as “a growing thing.”[292] As expected, opponents bitterly denounced the government’s resort to conflict-free conscription—a formerly inconceivable about-face.[293] Given this gradual transformation of conscription’s meaning and scope, it is far too imprecise to speak of “the draft” as an unchanging phenomenon, much less one deeply rooted in history.

Nor is federal military conscription the only civic duty whose contours have shifted dramatically. In the early nineteenth century, jury service often required “a significant journey by horse, wagon, or even on foot,” with jurors expected to pay for their own lodging for weeks on end.[294] Taverns were a frequent site of overnight stays; jurors could expect to sleep on haystacks or dirt floors alongside the parties and attorneys who would appear before them.[295] Later on, when sequestration became common, jurors were forced to sleep in small, poorly ventilated courthouse rooms—often with no cots or bedding.[296] In these respects, jury service has unquestionably “become less onerous.”[297] It is doubtful that the jury as an institution could have survived in modern America had the level of required sacrifice not dwindled considerably. A similar trend occurred with state militia service, which likewise adapted to cultural imperatives before its eventual downfall.[298]

The evolution of compulsory education also illustrates how the scope of a particular duty can morph over time. This is true of both the ages of students who must attend school and the length of required attendance. The first wave of mandatory-attendance laws typically covered only ages eight to fourteen and required a mere twelve weeks’ attendance per year.[299] During the Progressive Era, educational reformers “expanded the scope of compulsory attendance” and thereby “redefined its meaning.”[300] Obligatory education of any length bespeaks a staggering claim of authority over the minds and bodies of literally all Americans. It is no small matter to double the number of years in which children must endure this type of conscription[301]—and to triple the required length of schooling within each year.[302] These expanded duties required new justifications, and reformers entrenched them by successfully navigating (and shaping) a shifting social climate.[303]

Finally, the obligations inherent in completing the decennial census have fluctuated along with popular attitudes. This task has never consisted of simply tallying the nation’s population. Congress (or its delegate) has always used the census to obtain additional demographic information,[304] on the theory that such data would equip the federal government to exercise its other powers in a more enlightened fashion.[305] In this sense, individuals’ “duty” would seem to be coextensive with the reach of the Necessary and Proper Clause.

But Congress would discover that its compulsory authority came with practical limits. In debating the proper scope of the 1850 census, members looked back with regret at prior flurries of information-gathering. Ten years earlier, many people had resented being asked at length about their household activities and agricultural practices.[306] This on-the-ground resistance had yielded distorted responses, undermining the entire reason for the enterprise.[307] Congress has since scaled back its ambitions significantly in using the census as a built-in multipurpose questionnaire. Since 1960, the census has contained only “a few basic demographic questions” to supplement the core project of enumeration.[308] Congress, then, has altered the scope of individuals’ obligations over time. Were it to revert to its much earlier practice, the census form would become unrecognizably bloated. People would be subject to coercive state questioning beyond what they had ever lawfully encountered.

C.      Disappearance

Part I.B’s list of judicially recognized civic duties is awkward to behold. These precedents function as historical snapshots—textual monuments to the cultural norms perceived by judges generations ago.[309] However authoritative the rhetoric they use, courts cannot entrench civic duties for all time. Precedents ratifying claims of compulsory authority can never ensure permanent social acceptance of that authority. Conventional morality often changes drastically across generations,[310] as do the real-world conditions that seemed to necessitate mass compulsion. These changes can lead society to outgrow the widespread assumption that a particular exaction is justified. When individuals lose any sense of obligation to serve the state, the “civic duty” label becomes a stale and embarrassing artifact. It cannot be that all persons owe the government services that it would be unthinkable to demand.

The clearest example of this trend concerns mandatory road work. Over the nation’s first several decades—following the prior colonial practice—many states required able-bodied male residents to labor for a specified number of days per year to build, repair, and maintain public roads.[311] In a literal sense, such forced labor smacks of involuntary servitude. But the Supreme Court could not comprehend how a practice with centuries-old roots might run afoul of that prohibition.[312] Commentators almost uniformly assumed that the power to conscript road labor fell within the police powers of state and local governments.[313]

This seemingly fixed feature of the regulatory landscape has become a distant memory. Americans no longer expect to be summoned for road duty, and it would be ludicrous for any government to attempt such an oppressive policy. Three main factors contributed to this massive shift in cultural sentiment. First, it became apparent that roads could be maintained more competently and efficiently by professionals, rather than unskilled residents.[314] This may have been due in part to conscripts’ lack of devotion to state-assigned tasks.[315] But it is most easily attributable to the modernization of roads and highways and the mechanization of travel.[316] Second, the roads maintained by rural residents tended to be used mostly by literal free-riders—wealthy town-dwellers whose carriages created the very ruts that required periodic filling.[317] The injustice of this arrangement became increasingly palpable.[318]

And third, coercive road labor came to be seen as an intolerable intrusion on liberty in a nation that was becoming increasingly rights-focused.[319] Having caught wind of this sentiment, many jurisdictions modified their road laws to allow residents to choose between paying an annual road tax or “working out” their civic obligation.[320] Remaining authorizations gradually disappeared over time.[321] Road duty’s total cessation—and continued nonexistence—have generated a widely shared sense of immunity from such outmoded labors. That perception will only grow stronger with time, whatever the Court may have ruled in 1916.

A similar story can be told about state militia service. Although the Court has repeatedly described militia training as a duty of citizenship,[322] that system has been functionally extinct since the late antebellum era. Most males subject to militia service began to “resent[] it as an imposition,”[323] viewing the practice as “an archaic remnant of the pre-industrial past.”[324] Musters became occasions for comic exploits, rather than sober preparation.[325] One Massachusetts legislator put it perfectly: “[T]he country outgrew its institutions.”[326] For generations, commentators have noted the total absence of militia duty from American life.[327] For any unit of government to revive that tradition would strike most people as preposterous. And to continue describing this forgotten obligation as a civic duty is to elevate idle abstractions above reality.

Three additional compulsions formerly regarded as civic duties have plainly become repugnant to cultural values. The first is mandatory officeholding. Whatever courts’ earlier pronouncements,[328] our society no longer expects citizens to sacrifice months or years of their working lives by holding public office against their will. Similarly antiquated is the federal posse comitatus doctrine.[329] During the principle’s heyday, individual citizens were commanded to serve the national government directly by facilitating the enforcement of federal law.[330] It is only the utter disappearance of this practice that enabled twenty-first-century opponents of mandatory health insurance to characterize the ACA as a gross federal overreach. And third, it would now be unthinkable for any court to call upon persons with developmental disabilities to sacrifice their reproductive organs for the greater good.[331]

Finally, whether or not they have fully perished, three putative civic duties have long been in steady decline. First, police officers have largely ceased to require the assistance of bystanders, preferring instead to enlist their professionally trained colleagues.[332] Indeed, ever-increasing reliance on professional law enforcement is what drained this former duty of its vitality.[333] It is especially difficult to imagine a norm of unquestioning submissiveness in an era of popular fury over racialized policing and its downstream effects. Gone, too, is any shared sense that state authorities can compel private individuals to risk their lives at a moment’s notice. It is thus telling—and appropriate—that the Supreme Court speaks of this form of conscription in the past tense.[334]

A second increasingly moribund duty is compulsory vaccination. In 1905, the Supreme Court confirmed that state and local governments may command their residents to be vaccinated during times of need, or else suffer a legal penalty.[335] Some jurisdictions went even further, mandating population-wide vaccination as a matter of course.[336] A lower court’s cultural commentary from several decades later revealed how thoroughly this general sensibility had taken hold.[337] During the height of the COVID-19 pandemic, though, not a single unit of government in the entire United States required its general population to be vaccinated. Mandates were instead linked to voluntary participation in certain public and private institutions.[338]

Why did policymakers avoid a virus-fighting tool the Supreme Court had specifically ratified? By the time COVID vaccines became available, the national discourse had been flooded with libertarian resistance to masking and stay-at-home orders.[339] Even institutional vaccine mandates (or nudges) were denounced as tyrannical.[340] General vaccine mandates, then, plainly lacked the level of cultural consensus necessary for governments to implement them under the cover of civic duty. The Court’s COVID docket reinforced this connection between current social norms and compulsory authority. Gone are Jacobson’s paeans to individual sacrifice and communal protection. In their place, the Justices have begun emphasizing the controversial nature of vaccination,[341] its weighty effects on individuals,[342] and the respect-worthiness of religious objections.[343] In Justice Gorsuch’s words, the Court “err[s] in the most fundamental of things” when it insists that “the collective [i]s more important than the individual.”[344] Little about the formal doctrine has changed, but the background conditions for translating the Court’s aging assertions into actual mass compulsion have changed profoundly.

Lastly, we come again to military conscription. With only a one-year blip in coverage, the United States operated a military draft continuously from 1940 through 1973.[345] What had previously been an occasional wartime expedient was now definitional to the American experience. An entire generation of young men had come of age knowing that their lives were ultimately their government’s. As one observer noted, the draft had seemingly become “institutionalized as a permanent fixture in American life.”[346] The anti-tradition of conscription was acquiring serious historical heft of its own.[347] Competing traditions were now jockeying for ascendancy, and one could no longer take for granted that free choice represented the American way.

As conscription reached its institutional apex, though, its popular support plummeted. Broad-based disenchantment with the Vietnam War eroded any political barriers to attacking the draft.[348] Opponents decried conscription’s baleful effects in the here and now: its profound disruption of family life, career plans, romantic connections, and constitutional rights, to say nothing of draftees’ aversion to slaughtering other human beings for a cause they abhorred.[349] As these mounting critiques revealed, Americans were becoming less complacent about the afflictions of permanent conscription. They resented their government’s raw claim of authority to dictate everyone’s destiny[350]—and its seemingly irresponsible use of that power.

In this bid to remold present-day cultural values, conscription’s foes drew heavily upon the past. They capitalized on the draft’s unpopularity to reignite debates lost generations ago. Opponents again contended that forcible military service defied the true essence of American traditions.[351] Perplexed by the idea of stamping out freedom to preserve freedom, they argued that such radical intrusions could be tolerated only in the last extremity.[352] And they reasserted a claim brusquely dismissed by the Court in 1918: that the draft amounted to involuntary servitude.[353] The basic Americanness of conscription was up for discussion once again.

That so many observers—including elected officials—could openly analogize the draft to chattel slavery reveals just how thoroughly any consensus over civic obligation had evaporated. Although Thirteenth Amendment arguments tend to strike lawyers as fanciful or even offensive,[354] the rhetoric of involuntary servitude can be a potent tool in the deconstruction of civic duties. Its provocative power can encourage a fresh look at compulsions sanctified by tradition. One writer keenly warned of the dangers of stale thinking in this regard: “[O]f all the forms of involuntary servitude, military conscription seems to be curiously immune from recognition for what it is, since it so easily disguises its denial of personal freedom under the rhetoric of . . . duty and patriotic obligation.”[355]

As things turned out, the draft did not survive its bout with modernity. No American soldier has been conscripted since 1973. Males must register for the draft upon turning eighteen, but this requirement is essentially meaningless.[356] It is almost unfathomable that Congress might upend a basic assumption of the last half-century and command private citizens to lay aside their entire lives.[357] In an era of rampant partisan division, only 23 percent of American adults claim to support a resumption of the draft.[358] It is no wonder that contemporary observers tend to describe this supposed civic duty as a requirement to register for the draft.[359] Anything more would not be the fulfillment of an existing obligation, but a daring effort to re-impose one.

*          *          *

As this multi-pronged history has shown, American civic duties have always been conceptually malleable. New compulsions have sprouted up to meet modern challenges. Familiar obligations have morphed to keep pace with popular sentiment or address unforeseen conditions. And existing duties have receded when coercive methods lost their original attraction. These evolutionary processes can infiltrate any domain and destabilize even the most established obligations. For example, it is not hard to imagine a day when the government can reliably conduct a census without widespread self-reporting. Were that to happen often enough, the notional duty of cooperation would come to seem quaint and tyrannical. To re-impose that forgotten burden would require an extraordinary act of political persuasion.

It may be perfectly defensible to prefer a tightly cabined set of civic duties. Any personal service owed to the state, after all, entails a corresponding power to contract the sphere of individual freedom. But it is inaccurate to claim that American civic duties derive from deeply rooted traditions. The rise, fall, and transformation of these duties usually results from the repudiation of past traditions. With this descriptive foundation in place, the next Part takes up the crucial—but limited—role of analogical reasoning in the development of civic duties.

A.      Enabling Analogies

Institutional actors have always faced choices about whether and how to expand the universe of recognized civic duties. Neither judges nor policymakers have traditionally viewed themselves as chained to past resolutions. Instead, they have reasoned pragmatically about current governmental needs and liberty-based burdens. This methodological flexibility often results in what I call “enabling” analogies: efforts to validate proposed duties by comparing them to accepted obligations. These analogies tend to take one of three forms: that a new compulsion is conceptually similar to an existing mandate, that it would be less burdensome than an existing mandate, or that its goals are even more imperative than those thought to justify existing mandates. Both courts and legislatures have employed such logic, spurning any suggestion that civic duties may arise only from longstanding practice.

Consider Jacobson v. Massachusetts, the Court’s first foray into compulsory vaccination. In bolstering its holding that individual liberty may sometimes be subordinated to the public welfare, Jacobson cited two historical compulsions: federal military conscription and submission to quarantine regulations.[360] Jacobson, in turn, would be used to ratify an additional intrusion on bodily autonomy. Buck v. Bell infamously upheld Virginia’s eugenic-sterilization law by claiming that “[t]he principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”[361] Buck also drew upon Congress’s authority to conscript soldiers—a source of seemingly heavier burdens than the mere loss of reproductive capacity.[362] However sordid these comparisons, the Court unquestionably analogized to known duties in building out a doctrine of civic obligation.[363]

Even Butler v. Perry—which detailed road work’s “ancient usage”[364]—relied centrally on analogical reasoning. Citing Blackstone’s Commentaries, the Court traced modern road duty to the Roman concept of trinoda necessitas.[365] This doctrine imposed three burdens on every man’s estate: “military service and the repair of bridges and fortresses.”[366] If relevant historical traditions must be specifically and narrowly defined, these ancient practices would furnish no precedent for mandatory road work. The Court addressed this difficulty by crediting a Blackstonian ipse dixit: “[T]hough the reparation of bridges only is expressed, yet that of roads also must be understood.”[367] Why? Presumably because, centuries ago, governmental actors found it expedient to begin extracting road labor and found a ready analog in bridge repair. Butler’s apparent historicism thus cloaks a deeper comfort with evolutionary change. This type of organic growth was also modeled in prior lower-court opinions analogizing road work to existing civic duties.[368]

Consider, too, the rise of compulsory education. This example shows how appeals to familiar duties can create a perception of legal regularity around what are actually attempts to alter social values. True, mandatory schooling had existed nowhere in America before the 1870s. But its components could be portrayed as reasonable extensions of existing obligations. If parents could be required to feed, clothe, and shelter their children,[369] why could they not be made to provide them another of life’s essentials? Were public schools not funded—uncontroversially—through involuntary tax payments?[370] Extending the compulsory principle to school attendance would not upend sacred American values; it would simply apply customary solutions to a new setting.

Members of Congress employed similar reasoning when debating the Selective Service Act of 1917. Aware of what mass conscription would mean for human liberty, members sought to soften this extraordinary burden by normalizing service to the state.[371] They pointed out that jury duty,[372] compulsory education,[373] road work,[374] taxation,[375] public-health laws,[376] and posse comitatus service[377] all involved forced sacrifice for collective ends. By my count, the example of taxation was invoked at least twenty-one times. Supporters found this analogy “unanswerable,” for it represented a clear instance of “levying burdens on our citizens for the support of the Government.”[378] And if manifold duties could be enforced in time of peace, “how much more necessary must it be” to fairly distribute the wartime burden of preserving the government itself?[379]

Given the regularity of cross-duty analogies, it should not be surprising that lower courts have used them to uphold innovative mandates. Several examples illustrate this trend. Courts have referenced the Thirteenth Amendment’s “civic duty” exception in approving public schools’ community-service requirements for graduation.[380] One of these cases even acknowledged that its facts “d[id] not fit neatly within the ambit of any previously recognized historical exclusions.”[381] Invoking the concept of “civic duties,” a federal court of appeals held that a city’s grass-mowing ordinance did not violate the Thirteenth Amendment.[382] A federal district court cited Jacobson, Butler, and the Selective Draft Law Cases in allowing a public school to impose uncompensated “cafeteria duty” on its students.[383] And the concept of duties owed to the state has helped legitimize the widespread practice of requiring pretrial inmates to perform “housekeeping” chores without pay.[384]

Most recently, Fifth Circuit Judge James Ho employed this analogical technique in an undisguised bid to construct a new obligation of citizenship. Surveying the contemporary landscape, Judge Ho claimed that concerns about voter fraud “endanger[] the perception” of free and fair elections.[385] He thus endorsed requiring voters to take on the “modest duty” of obtaining a photo ID.[386] “[I]n any free society,” Ho wrote, “we ask citizens to accept certain modest obligations to secure our liberties and the effective operation of democratic governance.”[387] Ho identified four obligations in particular: compulsory education, tax compliance, jury service, and draft registration.[388] If anything, obtaining a photo ID would be “less burdensome than [these] other basic obligations of citizenship that everybody accepts and no one questions.”[389] Judge Ho’s suggestion echoes past attempts to forge new civic duties to solve current-day problems.

Of course, not all such analogies will hit the mark. Merely gesturing at the existence of other compulsions cannot suffice, for that minimal standard could always be met in any context. Opponents of conscription have never been satisfied by the recitation of existing civic duties. In their view, thrusting innocent civilians into the jaws of death transcends any comparison to bloodless activities.[390] On the other hand, we should not require too close a match between accepted and proposed duties. It is often telling that other vexing social problems have been solved through compulsion, or that proposed burdens pale in comparison to existing ones, or that existing and proposed duties are relevantly similar. Judges who dismiss such analogies by identifying factual distinctions come close to erecting an antinovelty limitation within the doctrine of civic duties.[391]

Another objection to compulsion-by-analogy is that the method might be used to justify literally any forced service to the state. A government capable of military conscription enjoys a near-limitless claim of authority over the lives of its entire population. If ultimate sacrifices may be coerced, why not an endless variety of lesser ones? In response to this fear, Professor Charles Black insisted that the draft should remain a “striking, even a startling, exception, and not a thing which can readily be used for founding arguments by analogy.”[392] But the quasi-totalitarian nature of conscription might instead cut in a different direction. Instead of suspending ordinary methods of legal reasoning for one duty only, perhaps we should rethink the draft’s basic compatibility with our legal system. In any case, conscription’s uniqueness is no reason to reject analogical arguments that rely on other recognized duties.

In reasoning by analogy, however, one should not rely unthinkingly on outmoded compulsions. Many civic responsibilities once taken for granted would now be viewed as outrageous intrusions on liberty. Imagine holding that private citizens may be ordered to clean government buildings, given the common law’s acceptance of compulsory officeholding. Or that they may be forced to procure meals for police officers, given the venerable tradition of compelled assistance in securing arrests. This concern is not so hypothetical—long after the demise of compulsory road work, courts have continued citing that practice supportively.[393] The same sensibility would provide legal cover for coercing private citizens into repairing railroads,[394] interstate highways, and airport runways. Discarded traditions are not the solution to striking a modern balance between individual and collective interests.

B.      Analogy and Cultural Aversion

If history places no hard limits on allowable civic duties, one can imagine an endless range of new public obligations. Picture a world of compulsory cancer screenings, compulsory composting, compulsory firearm ownership,[395] and compulsory foreign-language immersion,[396] to name just a few possibilities. Some scholars have even argued that government-ordered service can never violate the Thirteenth Amendment.[397] Whether or not this is true, experience shows that a healthy slate of compulsions can be readily accommodated within the constitutional system.

This Section profiles two proposed civic duties with little direct basis in tradition: compulsory health insurance and compulsory voting. Although cross-duty analogies can soften the ground for novel mandates, legal reasoning plays little role in whether a suggested duty thrives politically. Advocates of new obligations always bear the burden of convincing affected parties that their proposals are consistent with American values. Even impressive analogical grounding cannot overcome the force of instinctual loathing. It is on this ever-shifting cultural terrain that proposed civic duties succeed or fail.

1.       Compulsory Health Insurance

Congress triggered a political firestorm when it voted in 2010 to require most Americans to obtain health insurance or pay a sum of money to the Treasury each year. This measure was denounced as a tyrannical encroachment on the people’s liberties—specifically, the freedom to disassociate oneself from the health and well-being of the rest of society.[398] As always, visceral disgust with a novel compulsion eventually appeared in a more lawyerly register. Slippery-slope arguments helped bridge this cultural and technical divide. If the federal government could conscript people into fixing a downstream market malfunction, could it not also use compulsion to make doctors’ visits less likely in the first place? The specter of government-mandated vegetables came to define libertarian opposition to the ACA.[399] This bizarre hypothetical haunted the NFIB litigation, surfacing in multiple Justices’ written opinions.[400]

The ACA’s foes were right to highlight the novelty of Congress’s specific solution to the problem of skyrocketing insurance costs. Viewed in historical context, though, one can only chuckle at depictions of the ACA as an unprecedented assault on liberty. Most Americans have long been compelled to contribute money to the federal government each year to be spent for the “general welfare.”[401] Private citizens have also been forced to fight raging fires,[402] lay down their lives in combat, repair roads in the scorching sun, shovel snow from nearby sidewalks, comply with dangerous police commands, undergo regular militia training, provide their children a sustained education, submit to quarantine, undergo vaccination, serve on juries for extended periods, testify involuntarily, help enforce federal statutes, complete demographic questionnaires, and even hold public office against their will.[403] A legal system that has tolerated all of these compulsions cannot have been revolutionized by a public call to part with incrementally more money.[404]

It is curious that a constitutional challenge so reliant on history could suffer such serious amnesia. If the ACA’s individual mandate seemed like a radical imposition, that is only because cultural change has effectively phased out many traditional compulsions—and because the remaining ones are so taken for granted that they are not viewed as tyrannical. Recall that compulsory education, too, was initially condemned as a ghastly assault on liberty.[405] This failed opposition also relied centrally on slippery-slope hypotheticals. Opponents argued that if the law could compel schooling to reduce crime and encourage good citizenship, then it could also compel an array of seemingly virtuous behaviors.[406] Yet this parade of mandates did not doom the campaign to universalize education. Reformers (and courts) considered the initial step on its own terms, confident that future legislators would vote down any absurd-sounding obligations.

A century before the ACA’s passage, the sociologist Charles Henderson proposed the very sort of individual mandate that federal law would eventually incorporate. Henderson noticed that low-income individuals sought needed medical care “only in the last resort,” leading to tremendous “public loss and danger.”[407] These massive expenses fell not only on physicians—who deserved “a social guarantee of payment”—but also on paying customers now forced to shoulder disproportionate burdens.[408] Henderson saw but one way to ensure a sustainable medical system: “compulsory and universal sickness insurance.”[409] In “equitably distribut[ing]” healthcare costs, such a system would also fully support the doctors and hospitals who refused to turn sick patients away.[410]

Henderson anticipated the obvious objection: “that compulsory social insurance is ‘not American.’”[411] To disprove this claim, he cited the existing regimes of compulsory taxation, compulsory education, compulsory road work, and compulsory disease prevention.[412] Indeed, “[w]e are so used to compulsion in the common interest that we forget it, as we are unconscious of the atmosphere.”[413] Henderson was plainly correct that communally oriented mandates are no stranger to our legal traditions. Indeed, countless novel obligations could be justified in a fortiori fashion if one considered only liberty-based burdens and broader communal benefits.

Decades later, however, Henderson’s ready-made analogies faltered in the face of popular aversion. This saga shows that logic and principle cannot control popular perceptions of tyranny. There will always be an element of arbitrariness to this process, since legal reasoning seldom affects which policies strike engaged citizens as viscerally revolting. Those beliefs also tend to operate at the level of specific practices, rather than accounting for the full sweep of regulatory analogues. A reactive opposition will rarely pause to appreciate the demands entailed by existing compulsions. And claims of un-Americanness are always fueled by present goals and concerns, even if past institutional experience surely helps shape today’s normative atmosphere.

NFIB v. Sebelius was ultimately about whether a new civic duty should take hold in the current environment.[414] That is a question that neither logicians nor “the Framers of our Constitution”[415] can answer. Duty-creation must always navigate the rocky channels of cultural contestation.

2.       Compulsory Voting

In contemplating potential civic duties, few seem as unrealistic as compulsory voting. The idea that individuals could be fined or jailed for failing to cast a ballot strikes most people as farcical. Much like checking one’s mail regularly, the act of voting is socially desirable, but neglecting to perform it hardly seems a valid basis for legal penalties. Observers have long argued that compulsory voting would be an unthinkable breach of basic American freedoms.[416] This belief has not faded in recent decades.[417]

Our nation’s enduring hostility to compulsory voting, though, makes little comparative sense. Fulfilling one’s electoral duties would require but a tiny expenditure of time every several months. Compulsory education, by contrast, demands extraordinary sacrifices of time and energy, powerfully shaping the upbringing and destiny of every living American. Jury duty is almost guaranteed to disrupt one’s life more than casting a ballot. And cumulative levels of taxation can be notoriously oppressive. Analogies like these have long sustained repeated calls for compulsory voting.[418] The proposal’s hardships seem even less serious when one recalls the physical strains and mortal peril associated with duties whose cultural salience has waned. To reduce expressive burdens, moreover, a system of universal voting could be so devised as to allow blank responses if a voter found the candidate pool wanting.[419]

Compulsory voting also follows naturally from the underlying rationales for other civic duties. Virtually any of these obligations could be justified as a duty owed to the state in light of protections afforded by the state. This reciprocity rationale has indeed undergirded defenses of compulsory taxation,[420] officeholding,[421] and military service.[422] Compulsory voting could be easily defended in this way, obliging all citizens to help sustain the democratic legitimacy of the government under which they live.[423] In addition, to the extent that compulsory education exists to prepare a nation of political equals to cast their ballots competently,[424] mandatory voting would appear to be a modest culmination of that system. And voting, like jury duty and taxation, is a public good with a free-rider problem that could be most effectively solved by compulsion.[425] It is hardly fair to characterize a duty to vote as a stunning departure from the principles and lessons of the past.

Even so, compulsory voting will not take hold in the United States absent a fundamental shift in social values.[426] Conceptual similarity is no match for cultural unthinkability. But that is not to say that broad-based attitudinal change is impossible. Such shifts are a recurring feature of Americans’ experience with legal compulsion. They are what enabled numerous civic duties to emerge, adapt, and retreat over the centuries. Visionary calls for new obligations of citizenship may thus be less a reflection of naivete than of prescience informed by past societal evolution. Is it really so baffling that governments might someday mandate a democratic practice in which many millions of Americans already engage—and that the Court itself has anointed as a “civic duty”?[427]

C.      Disabling Analogies

The previous Section highlighted the limits of analogy in forecasting cultural comfort with new obligations. Lawyers have no special authority in leveling charges of tyranny. Lay intuitions have always fueled campaigns to oppose novel mandates, with legal argument playing a supporting role. However puzzling popular revulsion might be, any apparent inconsistencies are hardly blameworthy. The American people are perfectly entitled to shun compulsory voting while indulging the occasional jury summons.[428]

Courts, however, do not have the luxury of logical holidays. They deserve sharp criticism when their opinions create intolerable tensions that go entirely unmentioned. This failing is especially palpable in comparing Supreme Court cases that refuse to recognize new civic duties with ones that do. This Section critiques the unfortunate absence of what I call “disabling” analogies: arguments that if one compulsion is repugnant, an even graver one must necessarily be suspect.

The Court’s comparative silence is most indefensible with respect to intrusions on bodily integrity. In the civil context, the Justices have held that plaintiffs cannot be made to undergo surgical examinations to verify the extent of claimed injuries.[429] Such invasions, the Court reasoned, would be “[un]suited to the habits and conditions of the people”[430] and antithetical to the “sacred” common-law right of personal bodily control.[431]

Nor have the heightened stakes of criminal investigation changed this outlook. The Justices have forbidden state actors from inducing vomiting as an evidence-gathering technique.[432] A unanimous Court condemned such “brutal conduct,” insisting that forced stomach-pumping “shocks the conscience” and evokes medieval torture techniques.[433] The Court has also refused to allow the police to compel a criminal suspect to undergo surgery to remove a bullet lodged within his chest.[434] As the Justices saw it, the government had “propose[d] to take control of respondent’s body,” demanding “a virtually total divestment” of his right to refuse external intrusions.[435] Bullet-removal surgery would undoubtedly impair the suspect’s “dignitary interests in personal privacy and bodily integrity.”[436] These indignities were enough to require the state to “demonstrate a compelling need” for its desired action, which it failed to do.[437]

More recently, several Justices expressed dismay at the hypothetical possibility of a federal mandate to “eat broccoli.”[438] And multiple Justices have telegraphed their preference that vaccination—an irreversible bodily alteration—remain entirely voluntary.[439] More broadly, the Court’s due-process cases have championed the importance of “bodily integrity”: the idea that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.”[440] This principle means that competent persons enjoy “a constitutionally protected liberty interest in refusing unwanted medical treatment” of any variety.[441]

If a single use of vomit-inducing chemicals reeks of savagery—and if nonconsensual surgery offends basic decency—how much more horrifying must be a governmental dictate to surrender one’s body to an emerging creature for months on end?[442] Pregnancy imposes “massive physical transformations” on the affected person,[443] extracting numerous bodily sacrifices “every second, minute, hour, day, week, and month for nine months.”[444] But the Court has flatly refused to draw lessons from its other bodily-integrity cases in evaluating compulsory pregnancy. Its opinion in Dobbs v. Jackson Women’s Health Organization[445] permits states to ignore the obvious autonomy concerns at stake, assigning no weight to pregnant persons’ interest in not having their bodies appropriated for the incubation of future citizens.

It is hard to stomach Dobbs’s casual indifference to compelled pregnancy when so many other decisions refuse to tolerate even minor invasions. And it is difficult to take seriously the Justices’ varied paeans to self-control now that the Court itself has become the architect of mass gestational coercion. It is especially ironic that the Dobbs Court accused its predecessors of “engineer[ing] exceptions to longstanding background rules.”[446] By allowing states to force young girls to carry their rapists’ offspring—and risk dying in childbirth—the Court has abandoned any pretense of solicitude for bodily autonomy. Or maybe its protection will prove to be situational. Perhaps relevant liberty interests will be acknowledged when women resist inoculation, but not when they oppose the state’s efforts to impose searing and transformative burdens upon them.

Modern compelled-speech doctrine furnishes another troubling tension. The Court interprets the First Amendment as presumptively forbidding any type of compelled expression.[447] In refusing to allow the state to “conscript[]” or “coopt” private voices,[448] the doctrine seeks to avoid the evil of forcing individuals to “abandon [their] conscience”[449] or “contradict their most deeply held beliefs.”[450] We are told that “tolerance, not coercion, is our Nation’s answer” to viewpoints believed to threaten societal welfare.[451]

This rule against expressive compulsion—coupled with the Justices’ continued comfort with military conscription[452]—yields a string of anomalies. The state cannot force people to display a “Live Free or Die” license plate,[453] but it can force them to relinquish their freedom and die in combat. Individuals cannot be made “instrument[s] for fostering public adherence” to various policies,[454] but their bodies may be instrumentalized to carry out those same policies. Compelling Americans to salute the flag would be a bridge too far,[455] but compelling them to fight for the flag simply reaps services duly owed.[456] Individuals cannot be required to say that they are willing to fight in a war, but they can be physically coerced into taking up that very fight. For all its zeal to safeguard individual conscience, the Court is strangely apathetic toward the conscience-crushing effects of conscription.[457] The law of compulsions will remain disjointed until the Justices appreciate that their affirmative and negative holdings speak to the same basic phenomenon.

The Court’s retreat from overt duty-based reasoning has not halted the law of societal obligation. Such rationales have simply been pushed underground, shorn of their most telling language. This Article’s portrait of civic duties holds vital lessons for deciding cases that present unvoiced or un-briefed theories of obligation. No court can responsibly opine on the constitutionality of legal compulsions by simply channeling fixed moments in the past. Part IV.A identifies several modern controversies in which the lessons of experience stood ready to be applied. It urges courts to heed the shifting foundations of civic duties’ legality by refusing to reason about compulsions in purely historical terms.

Part IV.B closes by arguing that the preservative function of civic duties bolsters congressional efforts to secure a future for Indian tribes as flourishing polities. Far from being inimical to American traditions, the Indian Child Welfare Act draws considerable support from the community-oriented techniques of compulsory education and military conscription.

A.      Embedded Duties: Abortion and Beyond

When courts reject a proposed compulsion, they necessarily hold that individuals cannot be made to serve the state in that way.[458] The converse is also true. Even without explicit language like that featured in Part I.B, a court’s validation of a challenged compulsion signifies its comfort with an embedded theory of civic duty.

As the above Parts have suggested, there is a crucial relationship between civic obligation and interpretive methodology. Cultural beliefs about duties owed to the state surely affect how claims of constitutional power and liberty are assessed. In other words, constitutional interpretation often occurs downstream of pre-interpretive conceptions of civic duty. For example, one’s view of the power to “raise and support Armies”[459] will naturally be influenced by a perceived need to avoid either civic shirking or totalitarian creep.[460] It would be disturbing if interpreters avoided any thought of national values in construing a clause capable of both eviscerating meaningful freedom and leaving the country undefended. Likewise, constitutional liberty doctrines simply must accommodate our society’s present view of education as a civic duty. And so on.

The history canvassed in Part II bears powerfully on these interpretive tasks. It reveals that cultural conceptions of civic duty are intrinsically unstable. No court can lock in place the presence or absence of a perceived obligation to society. Changes in external conditions routinely upend cultural common sense about the bounds of expected sacrifice. Because these fluid beliefs inescapably affect legal interpretation, it would be foolish for judges to pronounce on American civic duties—either explicitly or implicitly—by looking only to the past.

To implement this insight, one must identify constitutional doctrines that tacitly recognize duties owed to the state. There, the fact of behavioral compulsion can become lost behind the doctrinal shrubbery of three-part tests and guided balancing. As it turns out, several familiar lines of precedent have upheld practices that rest on presumed obligations to society.[461] That these judgments go formally unstated in no way softens their effects on individual liberty. Nor does it eliminate the need for methodologies sensitive to current conditions. Fortunately, most such doctrines are highly responsive to present-day concerns.

One line of cases involves whether criminal suspects must submit to involuntary blood draws to measure their blood alcohol content. As with stomach-pumping, blood tests require the use of an external object to expel bodily fluids. But the Court found that the latter procedure does not “shock[] the conscience,”[462] distinguishing it on the basis of its growing cultural familiarity. The Justices observed that blood tests had “become routine in our everyday life,”[463] an intrusion “to which millions of Americans submit as a matter of course nearly every day.”[464] The Court rejected the defendant’s due-process challenge in light of the investigative powers that “[m]odern community living requires.”[465] In other words, the defendant’s interest in avoiding a compulsory blood draw had to yield to “the interests of society.”[466] Challenges to involuntary blood extraction are now litigated under the Fourth Amendment, which is acutely sensitive to contemporary background conditions.[467]

Other embedded duties can be found in Fourth Amendment cases upholding traffic checkpoints. Motorists stopped at checkpoints are compelled to relinquish their time and freedom of movement in service of state-defined goals. To avoid becoming limited-purpose conscripts, they must take alternative routes that do not trigger compulsory questioning or examination. Each time the Court has rejected a challenge to a checkpoint, it has portrayed the government’s interest as a sensible pursuit of current policy imperatives.[468] And it has at least accounted for very real liberty interests in viewing these suspicionless impositions as reasonable.[469]

Public-accommodations laws are also premised on ideas of civic responsibility. In forbidding various types of discrimination in the provision of commercial services, these laws plainly intrude on individual liberty. They compel countless actors to offer their services to persons they might otherwise be inclined to turn away. Public-accommodations laws thus forcibly enlist business owners to help advance the social values of equality and inclusion.[470] Indeed, the federal prohibition on race discrimination in places of public accommodation was earnestly challenged as a form of involuntary servitude.[471] Yet our legal system has decisively rejected this warped conception of freedom (even if the proper ends of commercial compulsion remain hotly disputed).[472] It did so because elite actors perceived that marketplace racism had ceased to be a practice entitled to social respect.[473] It is entirely fair to describe the resulting statutory obligation as a duty owed to the state.

Finally, the concept of public duty undergirds restrictions on access to abortion. Even if these laws are morally justifiable, they transparently compel pregnant women to use their bodies as the state directs.[474] Women who are prevented from ending their pregnancies are effectively subject to a government-ordered physical occupation. The state suspends their bodily autonomy so that an emerging organism can redirect their physiological functions until gestation is complete. However the state’s interest is defined—whether as a concern for protecting developing fetuses, securing future workers,[475] preserving the integrity of the medical profession, or (more abstractly) fostering a culture of life—the rationale for such mass compulsion is decidedly public-facing. It is implausible to view compelled pregnancy as involving only a benefit to private parties (namely, the individual fetuses who are eventually born).[476] No legislator who supports abortion laws understands their goals so modestly. And courts have readily found public motivations at work in the “private” context of obligatory payments to family members.[477]

The pattern should by now be familiar. Abortion restrictions, like other compulsions, presume the existence of a duty owed to the state. Governments that force pregnant persons to remain pregnant do so on the assumption that months of arduous labors may validly be extracted from them. It is not surprising that foes of abortion rarely use such terms as “civic duty.” That language would call to mind earlier eras when laws and social norms openly relegated women to the statuses of wives, mothers, and nurturers.[478] Some modern politicians have come shockingly close to describing women as reproductive vessels,[479] but they have stopped short of using terms like “duty” and “obligation.”

Sugarcoating this connection does our democracy no favors. It reduces much-needed accountability for legislators who have carried out a startling theory of civic obligation. It does an injustice to the women forced to shoulder uncompensated burdens with little comparative context to illuminate those burdens. And it conceals the historical lineage of abortion regulations, one rife with expectations about women’s duties to family and society.[480] Abortion laws should be understood—and defended, if at all—under the rubric of what responsibilities pregnant women owe (or do not owe) the state.

In addressing this ultimate question, it is worth considering two potential reasons why the civic-duty label might be inapt in the abortion setting. First, some scholars contend that civic duties, by definition, compel only those services that are “necessary to secure our country’s existence or sustain its core freedoms.”[481] But this assertion is historically inaccurate. Civic duties have long served interests less dramatic than full-on national survival. Census data provide all levels of government with useful information, but both America and its freedoms could outlast a shift to voluntary reporting. It is hardly obvious that constitutional protections would collapse without compulsory education. Snowy sidewalks are perfectly compatible with republican rule. And peacetime conscription was much more a strategic luxury than an existential imperative. There is no reason why new civic duties could not follow a similar model.

And second, recognizing childbirth as a civic duty might seem flatly incompatible with modern sex-equality doctrine. In reading the Fourteenth Amendment, the Court has repudiated the earlier idea that women are “destined solely for the home and the rearing of the family.”[482] Yet this interpretive vision is admittedly grounded in an account of changed cultural values. The Court always remains free to express, or act upon, a different perception of cultural morality. Whatever prior Justices may have thought, the Dobbs majority found no equal-protection problem with compulsory pregnancy.[483] These six Justices upheld a law premised on the idea that pregnant women owe the state the prolonged use of their wombs. Yet again, constitutional law was molded to fit an exogenous notion of civic duty. Judicial precedents are unlikely to deter political actors from attempting new compulsions—or the Court from reinforcing desired cultural shifts.

What this means for abortion law is that every generation must decide for itself whether women owe childbearing duties to the state. Legislatures that regulate abortion—and compel pregnant women to become mothers—are attempting to construct just such a duty in real time. Dobbs can thus be understood as a formal legitimation of this implicit theory of civic duty. The Dobbs majority went badly astray, however, in presuming that the validity of coercive pregnancy has been forever fixed by the historical state of enacted law.[484] History cannot control which compulsions living Americans code as tyrannical. And future judicial decisions will inevitably account for these popular perceptions. However judges rationalize such changes from the internal perspective, cultural condemnation never fails to engulf prior legal learning.[485] If society comes around to the view that forced birth—like forced sterilization[486]—is barbaric, our patriarchal traditions will lose their legal relevance.[487]

Time will tell whether the Dobbs Court chose wisely in allowing states to impose an excruciating and life-altering civic obligation. What we can know is that living Americans—and not their long-buried ancestors—will ultimately determine history’s verdict. Judicial decisions can never afford permanent cover to extract uncompensated labor. It is especially naïve, then, to navigate the future of civic duties with tradition as one’s north star.

B.      Congress and Tribal Preservation

By the mid-1970s, many Indian tribes could see their futures fading. After decades of assimilative federal policies, Indian children were now being taken from their homes at alarming rates by state and private adoption agencies.[488] These actors often cited distinctive cultural practices, such as extended-family households, as a justification for intervening.[489] An estimated 25 to 35 percent of all Indian children nationally were forced from their homes in this way.[490] And roughly 90 percent of these children were redirected to non-Indian families.[491] Tribal leaders understandably viewed this crisis as a threat to their nations’ very existence. A community cannot sustain itself over time if external forces systematically target its youngest members for removal and cultural rebirth.[492]

After years of careful investigation, Congress responded in 1978 with the Indian Child Welfare Act (ICWA).[493] Given its past shameful dealings—and perceived legal duties—Congress solemnly announced its “responsibility for the protection and preservation of Indian tribes.”[494] And it identified as “the policy of this Nation” the continued “stability and security of Indian tribes.”[495] But this commitment would founder if state family law were allowed to continue operating unchecked.[496] As Congress recognized, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”[497]

To help safeguard tribes’ very futures, ICWA established a set of “minimum Federal standards” for custody proceedings in order to “reflect the unique values of Indian culture.”[498] Among these standards were a set of presumptions to govern adoption proceedings under state law. In any such placement involving “an Indian child,”[499] a preference is given—absent “good cause”—to “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”[500] This provision, notably, puts non-Indians at a competitive disadvantage in covered proceedings. It also devalues children’s and natural parents’ placement preferences to the extent that they clash with federal law. But Congress viewed this strategy of maintaining communal cohesiveness as essential to tribes’ survival as governments.

ICWA has faced repeated constitutional attacks in recent years.[501] These challengers are engaged in a familiar practice: portraying a novel regulatory arrangement as grossly un-American. Their moral narrative centers on the claim that ICWA instrumentalizes Indian children by reducing them to mere pawns of their tribes. Insofar as ICWA departs from the usual “best interests of the child” standard, ICWA’s opponents argue, the welfare of very real persons is sacrificed.[502] Vulnerable children are treated as human chattel—not as full and equal American citizens entitled to individualized regard.[503] Under this view, ICWA’s depiction of Indian children as tribal “resource[s]”[504] is a telling admission of the statute’s proprietary ethos.

This pathos-driven plea should not be accepted uncritically. In crafting ICWA, Congress focused intently on “protect[ing] the best interests of Indian children.”[505] It did not sacrifice children’s needs to boost tribal collectives; it instead developed an evidence-based framework that centered the interests of Indian children in both the short and long term.[506] Congress even included a “good cause” exception for those rare instances in which remaining with one’s extended family or tribal community would truly disserve child welfare.[507] It is therefore wrong to accuse ICWA of subordinating the needs and dignity of vulnerable children. The statute was written with their well-being firmly in mind.

That said, ICWA does not unfailingly honor the wishes of Indian children and their natural parents, because those wishes can conflict with the pressing goal of tribal preservation. The “good cause” exception is hardly a rubber stamp under current regulations.[508] That is as it should be, given ICWA’s role in remedying the tragic absence of procedural safeguards in states’ family-law systems. So it is possible for ICWA to result in placements that dissatisfy affected children and their natural parents. Built into ICWA, then, is the premise that individual freedom of choice may be constrained by the polity’s collective needs. The current attacks on ICWA can be interpreted charitably to capture at least this truth.

Even so viewed, the challengers’ stirring narrative unravels. Individual sacrifices have long served as engines of governmental endurance. For one, compulsory education plainly instrumentalizes America’s youth. It regards them not as unique persons whose best interests may lie outside of the classroom, but as human ingredients in a recipe for sustaining “the very existence of our government.”[509] The system subordinates individuals’ stated preferences so that a theory of political equality can stand the best chance of succeeding in practice.[510] Yet mandatory schooling has not been seriously challenged in over a century.

A similar story can be told about military conscription. Critics of the draft have long decried its grim premise: that all Americans are subject to the government’s ultimate control.[511] Indeed, the core rationale of conscription is that individuals may be forced to serve the state so that the state will survive. Public officials have never disguised this protective motive.[512] And courts have long accepted national preservation as a justification for military conscription.[513] Just three years ago, the Justices described an unbounded power to raise and support armies as “essential to the survival of the Union.”[514] ICWA is thus hardly novel in regarding individuals as agents of national durability.

ICWA’s challengers also argue that the statute breaks up loving, committed family units.[515] For starters, it is doubtful whether a “family unit” can be said to exist in the context of a foster relationship subject to unilateral state termination.[516] But well-chosen plaintiffs can give the objection some surface appeal. In rare situations, ICWA’s placement preferences can disappoint both Indian children and the non-Indian foster parents who are unable to adopt them after lengthy periods of bonding.[517] Even so, the military draft proved far more destructive of close-knit households. Ever since Daniel Webster’s scathing oration, critics of conscription have reviled its tendency to rip fathers from children, husbands from wives, and young men from their families during an especially formative period of their lives.[518] Yet our legal system came to view those great displeasures as justified by the polity’s collective needs.

Finally, ICWA’s critics complain that the statute overrides natural parents’ stated desires for how their children should be raised.[519] For parents who wish to have their children adopted by non-Indian parents (or by members of other tribes), ICWA does in fact devalue those preferences. Some have even argued that ICWA violates the constitutional right to direct the upbringing of one’s children.[520] Yet objections like these—dubious on their own terms[521]—have been heard before. Opponents of compulsory-education laws protested what they viewed as gross usurpations of parental authority.[522] These grievances, of course, were rejected in favor of the state’s ability to cultivate a polity primed for lasting self-government.[523] In neither context may parents thwart this aim by claiming an unlimited right to shape their children’s futures.

If anything, ICWA’s hardships are far less objectionable than those of military conscription. ICWA does not compel children, natural parents, or prospective parents to do anything. It neither consigns them to combat zones nor forces them to surrender their consciences by slaughtering fellow human beings. A power to defeat preferred custodial matches—even with its potential for emotional harm—is nowhere near as offensive as a power to coerce millions of fatalities.

ICWA also implements a sounder theory of national preservation than conscription ever has.[524] The statute’s placement preferences help ensure that tribal citizenries will be robust enough to continue their ancient practices of self-government. Absent ICWA, some tribes’ membership might have continued dwindling to unsustainably low levels.[525] It is difficult to identify such a direct relationship between conscription and national survival. Not even during the Civil War did the incremental boost in manpower materially alter the Union’s prospects.[526] (Indeed, conscription’s waning popularity may be due in part to a realization that technological advances have made colossal fighting forces unnecessary.[527])

In sum, ICWA is far from unique in curtailing individual choice for the sake of political preservation. Neither the statute’s goals nor its methods are particularly suspect from the standpoint of historical practice. If anything, ICWA advances governmental continuity far more directly than either conscription or compulsory education. These lessons should be kept in mind as advocates continue to portray ICWA as a sharp break from American traditions.

Modern Americans tend not to argue about which duties they owe the state. Lawyers have little need to think in these terms, and politicians would court electoral disaster by coercing their constituents to devote significant energy to public needs. Yet it is profoundly ahistorical to simply ignore this neglected concept. For many generations, the idea of civic duty was no ancient curiosity—it was foundational to constitutional practice and citizens’ lived experiences. Courts lent this system its working vocabulary as they repeatedly validated politically constructed duties.

Modern doctrine bears only faint traces of this earlier world. But the Supreme Court’s shift toward history and tradition presents an apt opportunity to rediscover it. This Article has begun that process by chronicling the emergence and development of American civic duties. History shows that these obligations have never held static; living actors have forged, reworked, and dismantled them in response to evolving societal pressures. Recent depictions of civic duties as changeless artifacts do an injustice to the adaptability of cultural values. The Dobbs Court went badly astray, then, in upholding forced fetal incubation—and its implicit theory of public responsibility—by relying solely on antique authorities. History can never be an exclusive guide to the legitimacy of state-ordered service.

Copyright © 2025 Daniel B. Rice, Assistant Professor, University of North Carolina School of Law. For helpful conversations and feedback, I thank Jeremy Bearer-Friend, Tommy Bennett, Joseph Blocher, Jake Charles, Alex Chou, Anthony Cooling, Haley Gorman, Jill Lens, Dan Lewerenz, Alex Nunn, Reva Siegel, and Chas Tyler, as well as participants in the George Washington University Law School Faculty Workshop and the 2024 National Conference of Constitutional Law Scholars. Thanks also to Travis Linn and Maddy McCullough for terrific research assistance.

          [1].     See 86 Cong. Rec. 10954, 10957 (1940) (statement of Sen. Smathers) (“The philosophy upon which a democracy is founded is that the state exists for the people, and not the people for the state.”).

          [2].     Janus v. AFSCME, 585 U.S. 878, 893 (2018).

          [3].     See Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen 6 (2008) (“[T]hroughout American history, a citizenship of obligation has always coexisted with one of rights.”); William N. Eskridge, Jr., Relationship Between Obligations and Rights of Citizens, 69 Fordham L. Rev. 1721, 1722 (2001) (“[T]he dominant American tradition of liberal rights has existed in a dialectical relationship with a tradition of communitarian relationships and obligations.”); Charles Richmond Henderson, The Logic of Social Insurance, 33 Annals of Am. Acad. of Pol. & Soc. Sci. 41, 47 (1909) (“We are so used to compulsion in the common interest that we forget it, as we are unconscious of the atmosphere.”).

          [4].     U.S. Const. amend. XIII, § 1.

          [5].     For a full accounting of judicially recognized civic duties, see infra Part I.B.

          [6].     Korematsu v. United States, 323 U.S. 214, 219 (1944), abrogation recognized by Trump v. Hawaii, 585 U.S. 667 (2018).

          [7].     Butler v. Perry, 240 U.S. 328, 333 (1916); see also, e.g., West v. State, 1 Wis. 209, 234 (1853) (explaining that “[t]here are very many instances in which the citizen is required to perform personal service, or render aid to his government”); State v. McMahon, 55 A. 591, 593 (Conn. 1903) (declaring that “there are many duties a citizen owes the state”); Crews v. Lundquist, 197 N.E. 768, 772 (Ill. 1935) (“It is generally recognized that an individual may be required to give services to the state without compensation therefor.”); 1 William Blackstone, Commentaries *119 (relating that all citizens may be “commanded” to perform certain “civil duties”).

          [8].     See Watkins v. United States, 354 U.S. 178, 187 (1957) (deeming it “unquestionably the duty of all citizens” to comply with congressional subpoenas—“their unremitting obligation”).

          [9].     Not since 1973 has the Court meaningfully invoked the concept of duties owed to the state. See Hurtado v. United States, 410 U.S. 578, 588 (1973) (upholding a paltry award of $1 per day to persons detained pretrial as material witnesses, given that “the Government [need not] pay for the performance of a public duty it is already owed”).

        [10].     See John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America 5 (1987) (“[T]he basic documents of the United States . . . asserted only the rights of the citizenry, and not its obligations.”); Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship 8 (1998) (“American constitutional theory . . . has usually emphasized rights rather than obligations.”); Daniel Webster, Unpublished Speech (Dec. 9, 1814), in The Military Draft: Selected Readings on Conscription 633, 639 (Martin Anderson ed., 1982) (“Who will show me any constitutional injunction, which makes it the duty of the American people to [serve in the federal military]?”).

        [11].     To be sure, the Court does occasionally reference previously identified duties—often for added rhetorical punch. See Trump v. Vance, 591 U.S. 786, 804 (2020) (deeming the act of responding to a criminal subpoena “an important public duty”); Dietz v. Bouldin, 579 U.S. 40, 53 (2016) (labeling jury service a “civic duty”); United States v. Kozminski, 487 U.S. 931, 943–44 (1988) (noting, in passing, three “civic duties” that the Court “ha[d] recognized”). But these rote invocations function to maintain the status quo; they do not reveal a broader interest in re-opening the category of enforceable civic obligations.

        [12].     See, e.g., SEC v. Jarkesy, 603 U.S. 109, 167 (2024) (Gorsuch, J., concurring) (asserting that “the Constitution built ‘high walls and clear distinctions’ to safeguard individual liberty” (quoting Plaut v. Spendthrift Farm, 514 U.S. 211, 239 (1995))); Collins v. Yellen, 594 U.S. 220, 245 (2021) (“[T]he separation of powers is designed to preserve the liberty of all the people.”); Bond v. United States, 564 U.S. 211, 222 (2011) (extolling “the individual liberty secured by federalism”).

        [13].     Dr. A v. Hochul, 142 S. Ct. 552, 558 (2021) (mem.) (Gorsuch., J., dissenting from denial of application for injunctive relief).

        [14].     See, e.g., Charles L. Black, Jr., Constitutional Problems in Compulsory “National Service,” in The Humane Imagination 156, 162 (1986) (“Large-scale coercion of labor is foreign to our traditions and to our Constitution.”); William G. Ross, World War I and the American Constitution 19 (2017) (“[P]ride in freedom from governmental coercion has always been one of the most fundamental features of American social and political culture.”); Compulsory Education, Mirror (Stillwater), May 15, 1902, at 1 (“When you tell an American he must do this or that, he naturally revolts against the mandate.”); Manpower Draft, Monitor-Leader (Mount Clemens), Feb. 17, 1943, at 4 (“Compulsion is odious to the American temperament. We do not like to be herded.”).

        [15].     For a terrific overview of the collision between unwavering individualism and public-health measures, see generally Neil Fulton, COVID, Constitution, Individualism, and Death, 27 Widener L. Rev. 123 (2021).

        [16].     See, e.g., Michael C. Dorf, Commerce, Death Panels, and Broccoli: Or Why the Activity/Inactivity Distinction in the Health Care Case Was Really About the Right to Bodily Integrity, 29 Ga. St. U. L. Rev. 897, 899 (2013) (perceiving the Roberts Court’s “intuition . . . that government—at any level—may properly tell people what they cannot do, but not what they must do”); 303 Creative LLC v. Elenis, 600 U.S. 570, 603 (2023) (declaring that “tolerance, not coercion, is our Nation’s answer” to expressive refusals to serve paying customers); Arizona v. Mayorkas, 143 S. Ct. 1312, 1314 (2023) (mem.) (statement of Gorsuch, J.) (characterizing governments’ efforts at COVID mitigation as potentially “the greatest intrusions on civil liberties in the peacetime history of this country”); Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin., 595 U.S. 109, 117 (2022) (deeming an agency’s vaccinate-or-test mandate for much of the American workforce “a significant encroachment into the lives—and health—of a vast number of employees”).

        [17].     Florida v. U.S. Dep’t of Health & Hum. Servs., 648 F.3d 1235, 1291 (11th Cir. 2011).

        [18].     Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 555 (2012) (opinion of Roberts, C.J.).

        [19].     See id. at 549 n.3 (identifying past or present mandates “to report for jury duty, to register for the draft, to purchase firearms in anticipation of militia service, to exchange gold currency for paper currency, and to file a tax return”).

        [20].     Id. at 549; see also id. (detecting “[l]egislative novelty”); id. at 552 (describing the government’s Commerce Clause theory as “new”).

        [21].     Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & Liberty 581, 634 (2010).

        [22].     See id. at 582, 630 (claiming that “very few” mandates are imposed on Americans, each of which “ha[s] traditionally been considered fundamental”); Randy Barnett, No Commandeering, Volokh Conspiracy (Jan. 20, 2012), https://volokh.com/2012/01/20/no-commandeering/ [https://perma.cc/F54L-LPH7] (contending that any “duty of citizenship” must be “deeply rooted in the nation’s traditions”).

        [23].     Barnett, supra note 21, at 634.

        [24].     See id. (impugning the ACA for embodying a “duty . . . entirely of Congress’s creation”); Florida v. U.S. Dep’t of Health & Hum. Servs., 648 F.3d 1235, 1291 (11th Cir. 2011) (asserting that the individual mandate “does not represent the solution to a duty owed the government as a condition of citizenship”); John T. Valauri, Federalism, Mandates, and Individual Liberty, 43 N. Ky. L. Rev. 175, 205 (2016) (claiming that “[w]e have no civic obligation enforceable by law to buy health insurance”).

        [25].     See Seila Law LLC v. CFPB, 591 U.S. 197, 204 (2020) (rejecting the “novel” construct of a single-director independent agency); N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022) (disapproving of a law deemed insufficiently grounded in “this Nation’s historical tradition of firearm regulation”); West Virginia v. EPA, 597 U.S. 697, 724 (2022) (vacating an agency’s exercise of a “newfound power”).

        [26].     For a cross-doctrinal overview of this development, see Dov Fox & Mary Ziegler, The Lost History of “History and Tradition,” 98 S. Cal. L. Rev. 1, 3–5 (2025).

        [27].     See, e.g., Collins v. Mnuchin, 938 F.3d 553, 562 (5th Cir. 2019) (en banc), aff’d in part, rev’d in part sub nom. Collins v. Yellen, 594 U.S. 220 (2021) (insisting that “preserving individual liberty” is the Constitution’s “paramount aim”—one accomplished through “Madisonian architecture infused with Newtonian genius”); Mance v. Sessions, 896 F.3d 390, 405 (5th Cir. 2018) (en banc) (Ho, J., dissenting) (claiming that “[o]ur Founders crafted a Constitution to promote the liberty of the individual”).

        [28].     For example, the Court’s stated justifications for its compelled-speech doctrine would seem to render military conscription morally grotesque. See infra notes 447–457 and accompanying text.

        [29].     See infra Part II.A.

        [30].     See infra Part II.C.

        [31].     See infra Part II.B.

        [32].     See Compulsory Education, N.Y. Times, Jan. 15, 1874, at 4 (“Society is no longer what it used to be. Other conditions create other needs and other duties.”); State v. McMahon, 55 A. 591, 593 (Conn. 1903) (claiming that the “duties a citizen owes the state . . . must depend largely upon conditions and circumstances that change”).

        [33].     See Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 366 (1992) (recognizing that abortion restrictions “publicly appropriate[]” women’s labors, compelling them “to perform services for the community”); Julie C. Suk, After Misogyny: How the Law Fails Women and What to Do About It 216 (2023) (“When a state bans abortion, it requires the pregnant person to endure a physically demanding bodily change for nine months . . . for the collective public good.”); Mary Anne Franks, The Supreme Court as Death Panel: The Necropolitics of Bruen and Dobbs, 98 N.Y.U. L. Rev. 1881, 1899 (2023) (describing compulsory childbirth as a “sacrifice[] that women are obligated to make when the government decides it is in . . . society’s[] best interest” (internal quotation marks omitted)); Jennifer Hendricks, Essentially a Mother: A Feminist Approach to the Law of Pregnancy and Motherhood 154 (2023) (noting that abortion bans effectively impose a “duty to gestate”); Sherry F. Colb & Michael C. Dorf, Beating Hearts: Abortion and Animal Rights 81 (2016) (arguing that abortion prohibitions “conscript women . . . into reproductive servitude”). For further elaboration of this point, see infra note 476.

        [34].     See Jerry L. Anderson, Court-Appointed Counsel: The Constitutionality of Uncompensated Conscription, 3 Geo. J. Legal Ethics 503, 515–16 (1990); Jennifer Aronsohn, Community Claim of Right, 51 Urb. Law. 135, 162–63 (2021); Andrea C. Armstrong, Unconvicted Incarcerated Labor, 57 Harv. C.R.-C.L. L. Rev. 1, 18–23 (2022); Note, Civil Conscription in the United States, 30 Harv. L. Rev. 263, 265–69 (1917); Carl H. Coleman, Beyond the Call of Duty: Compelling Health Care Professionals to Work During an Influenza Pandemic, 94 Iowa L. Rev. 1, 35–37 (2008); Daniel R. Correa, After Liberalism? Using Public Service Law to Advance Public Goods, 16 U. St. Thomas J.L. & Pub. Pol’y 104, 118–24 (2023); Nan D. Hunter, Health Insurance Reform and the Intimations of Citizenship, 159 U. Pa. L. Rev. 1955, 1963–65 (2011); Lauren Kares, Note, The Unlucky Thirteenth: A Constitutional Amendment in Search of a Doctrine, 80 Cornell L. Rev. 372, 392–94 (1995); Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480, 518–22 (1990); Michael H. LeRoy, The Inequality of Sacrifice—Reducing Moral Hazard for Bailed-Out Homeowners: The Case for Compulsory Community Service, 36 J. Legis. 139, 143–48 (2010); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles, Part II—Takings as Intentional Deprivations of Property Without Moral Justification, 78 Calif. L. Rev. 53, 133–36 (1990); Bernard Schwartz, Commentary on the Constitution of the United States 804–07 (1968).

        [35].     Barnett, supra note 21 at 631–32.

        [36].     Compare Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (endorsing “compulsory vaccination” by insisting that “[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease”), with Does 1–3 v. Mills, 142 S. Ct. 17, 18 (2021) (mem.) (Gorsuch, J., dissenting from denial of application for injunctive relief) (objecting that a state’s vaccination requirement for healthcare workers contained “no exemption for those whose sincerely held religious beliefs preclude[d] them from” complying). See also Richard R. Carlson, OSHA and Public Health in an Emergency and a Culture War, 87 Mo. L. Rev. 1001, 1037 (2022) (highlighting the Court’s receptiveness to the fact that “COVID-19 vaccine opposition had become deeply politicized and cultural”).

        [37].     See 597 U.S. 215, 245 (2022) (demanding historical evidence of “a positive right to procure an abortion” in analyzing the challengers’ due-process claim); id. at 250 (deeming dispositive the Court’s finding that such a right was “not deeply rooted in the Nation’s history and traditions”).

        [38].     25 U.S.C. §§ 1901–63.

        [39].     See id. § 1902 (declaring it to be “the policy of this Nation . . . to promote the stability and security of Indian tribes” in this way); Maggie Blackhawk, The Supreme Court, 2022 Term–Foreword: The Constitution of American Colonialism, 137 Harv. L. Rev. 1, 96 (2023) (characterizing ICWA as “one of the most visible forms of success of colonized peoples . . . to codify preservation of their communities for the future”); Emily J. Stolzenberg, Tribes, States, and Sovereigns’ Interest in Children, 102 N.C. L. Rev. 1093, 1107 (2024) (explaining that ICWA seeks to advance “tribes’ interest in self-perpetuation” as political communities).

        [40].     See Brief for Individual Petitioners at 32, Haaland v. Brackeen, 599 U.S. 255 (2023) (No. 21-376) (accusing ICWA of “deem[ing] children little more than chattel, a ‘resource’ to be gathered up by a tribe”); Brief for Petitioner State of Texas at 57, Brackeen, 599 U.S. 255 (No. 21-376) (claiming that ICWA treats affected Indian children as simply “instrument[s] for tribal growth”); Transcript of Oral Argument at 31, 43, Brackeen, 599 U.S. 255 (No. 21-376) (statement of Matthew McGill) (portraying ICWA as endowing tribes with “a proprietary interest in these children”).

        [41].     See infra notes 247, 350 & 353 and accompanying text.

        [42].     See Watkins v. United States, 354 U.S. 178, 187 (1957).

        [43].     See Hunter, supra note 34, at 1965 (noting that the ACA’s opponents “used this lack of clarity to argue for the narrowest understanding of citizenship norms”).

        [44].     U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2009, at 23 (2010).

        [45].     See 42 U.S.C. § 18091(2)(F).

        [46].     See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 547 (2012) (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (“Higher premiums, in turn, render health insurance less affordable, forcing more people to go without insurance and leading to further cost-shifting.”).

        [47].     26 U.S.C. § 5000A(b).

        [48].     See Noa Ben-Asher, Obligatory Health, 15 Yale Hum. Rts. & Dev. L.J. 3, 11 (2012) (explaining that the ACA embodied an ethos of “individual obligation” to “solve an acute phenomenon of social injustice”); Hunter, supra note 34, at 1978 (relating Congress’s view that “a sacrifice of individual economic liberty is justified by an obligation to contribute to the common good that accompanies membership in the American political community”); Abigail R. Moncrieff, Safeguarding the Safeguards: The ACA Litigation and the Extension of Indirect Protection to Nonfundamental Liberties, 64 Fla. L. Rev. 639, 670 (2012) (observing that “the ACA mandate has been accompanied by an extensive rhetoric of obligation”).

        [49].     NFIB, 567 U.S. at 547.                       

        [50].     Barnett, supra note 21, at 634.

        [51].     Barnett, supra note 22.

        [52].     Barnett, supra note 21, at 630; see also James Taranto, “A Commandeering of the People,” Wall St. J. (July 23, 2010), https://www.wsj.com/articles/
SB10001424052748703467304575383702986874016 [https://perma.cc/C37Y-BKZP] (“That’s all we commandeer the people to do.”) (quoting Professor Randy Barnett). In an abridged version of his original article, Barnett identified another putative civic duty: to “join a posse organized by a United States Marshal[].” Randy E. Barnett, Turning Citizens into Subjects: Why the Health Insurance Mandate Is Unconstitutional, 62 Mercer L. Rev. 608, 608 (2011). But this discovery did not dampen his insistence that the list of such obligations is a closed set. See id. (“The existence and nature of these very few duties . . . illuminates the truly extraordinary and objectionable nature of the individual insurance mandate.”). In a similar vein, Justice Brandeis once claimed that, before World War I, “[t]he Government had exacted from American citizens no service except the prompt payment of taxes.” Gilbert v. Minnesota, 254 U.S. 325, 340 (1920) (Brandeis, J., dissenting).

        [53].     Barnett, supra note 21, at 631–32.

        [54].     Id. at 583.

        [55].     See Taranto, supra note 52 (“This is a new kind of commandeering, and it’s offensive to a lot of people.”) (quoting Prof. Randy Barnett).

        [56].     See Barnett, supra note 21, at 630 (merely referencing those “fundamental duties that each person owes to the government by virtue of American citizenship or residency”); id. at 608 (contending that any valid civic duty must “ha[ve] traditionally been widely recognized as inherent in being a citizen of the United States”).

        [57].     Florida v. U.S. Dep’t of Health & Hum. Servs., 648 F.3d 1235, 1290 (11th Cir. 2011).

        [58].     Id. at 1291.

        [59].     Id.

        [60].     See Brief of Amicus Curiae Stephen M. Trattner in Support of Respondents at 27–28, Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (No. 11-398) (stating that “[t]here are but four” obligations of citizenship, each corresponding to a type of mandate historically imposed by Congress); see also Memorandum of Amici Curiae Cato Institute et al. in Support of Plaintiffs’ Opposition to Defendant’s Motion to Dismiss at 13, Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010) (No. 3:10-cv-00188) (claiming that the “exceptional situations” in which Congress may mandate individual activity represent “duties [that] go to the heart of American citizenship”).

        [61].     See Memorandum of Amici Curiae Former United States Attorneys General in Support of Plaintiffs’ Motion for Summary Judgment at 19, Cuccinelli, 728 F. Supp. 2d 768 (No. 3:10-cv-00188) (claiming that “longstanding tradition” marks the “limited circumstances” in which the federal government may impose affirmative duties on individuals); Brief of Amicus Curiae Cato Institute et al. in Support of Respondents at 27, NFIB, 567 U.S. 519 (No. 11-398) (arguing that “the fundamental preexisting duties that citizens owe th[e] government” help explain “the few legal mandates” historically imposed at the federal level).

        [62].     Brief of Amicus Curiae Cato Institute in Support of Appellees at 28, Florida v. U.S. Dep’t of Health & Hum. Servs., 648 F.3d 1235, 1290 (11th Cir. 2011) (Nos. 11-11021 & 11-11067); see also Valauri, supra note 24, at 205 (asserting that “[w]e have no civic obligation enforceable by law to buy health insurance”).

        [63].     See Attorneys General Amicus, supra note 61, at 17–18 (contending that states may use their police powers to “require affirmative action” only in ways that are “rooted in tradition”).

        [64].     Transcript of Oral Argument at 11–12, NFIB, 567 U.S. 519 (No. 11-398).

        [65].     NFIB, 567 U.S. at 549 (opinion of Roberts, C.J.).

        [66].     Id. at 555.

        [67].     Id. at 552.

        [68].     Id. at 554.

        [69].     Id. at 658 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) (arguing that regulating individuals’ “failure to act . . . would alter the accepted constitutional relation between the individual and the National Government”).

        [70].     Id. at 560 (opinion of Roberts, C.J.).

        [71].     Id.

        [72].     See id. at 549 n.3.

        [73].     Id.

        [74].     See Jamal Greene, What the New Deal Settled, 15 U. Pa. J. Const. L. 265, 273 (2012) (insisting, based on historical practice, that the Necessary and Proper Clause “certainly does not preclude federal regulation of a decision not to do something”); Neil S. Siegel, Free Riding on Benevolence: Collective Action Federalism and the Minimum Coverage Provision, 75 Law & Contemp. Probs. 29, 51 (2012) (explaining that Article 1, Section 8 “has long been understood to authorize Congress to mandate various actions by private individuals”); William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738, 1818 (2013) (arguing that “early individual mandates . . . suggest[] that there was no categorical exclusion of mandates from the Necessary and Proper Clause”).

        [75].     NFIB, 567 U.S. at 555 (opinion of Roberts, C.J.).

        [76].     To be sure, the line between “mandating” conduct and imposing conditions on preexisting conduct is neither theoretically nor practically simple. See Dan T. Coenen, The Commerce Power and Congressional Mandates, 82 Geo. Wash. L. Rev. 1052, 1063 (2014) (observing that NFIB “reflected a new and specialized anti-mandate principle” whose “boundaries . . . are far from clear”).

        [77].     See sources cited supra note 7; see also 55 Cong. Rec. 1097 (1917) (statement of Rep. Bankhead) (“Universal obligations of service and burden are inextricably interwoven in all our political and civic relations to the State.”); State ex rel. Arn v. State Comm’n of Revenue & Tax’n, 181 P.2d 532, 541 (Kan. 1947) (“[I]t is a common practice, both for the Federal government and for the state, to call upon citizens to perform some service for the state without compensation.”); Moss v. Superior Ct. (Ortiz), 950 P.2d 59, 66 (Cal. 1998) (alluding to “many fundamental societal obligations involving compelled labor”); Kerber, supra note 10, at 303 (“We spend our lives submerged in civic obligations.”); Ekow N. Yankah, Compulsory Voting and Black Citizenship, 90 Fordham L. Rev. 639, 656 (2021) (noting that “[t]here are countless positive political duties that already inconvenience citizens”).

        [78].     See infra notes 145–158, 264.

        [79].     See Robert Kaczorowski, To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War, 92 Am. Hist. Rev. 45, 47 (1987); see also Chambers, supra note 10, at 27 (noting that early Americans “had little sense of responsibility to the nation or the new central government”).

        [80].     To be sure, modern free-exercise rulings may well have begun to weaken the historical notion of duties as trumps. See, e.g., Fulton v. City of Philadelphia, 593 U.S. 522, 583–84 (2021) (Alito, J., concurring in the judgment) (suggesting—contrary to existing doctrine—that religious objectors are constitutionally entitled to an exemption from military conscription); Wisconsin v. Yoder, 406 U.S. 205, 221, 236 (1972) (holding, even after describing education as a “general obligation of citizenship,” that states may not compel Amish children to attend school after they have completed the eighth grade). This development says more about the contemporary Court’s posture toward social obligation—and its solicitude toward religious freedom—than about what the concept of public duty once entailed.

        [81].     See H.B. Mayo, A Note on the Alleged Duty to Vote, 21 J. Pol. 319, 320 (1959) (contending that “[m]any social duties are left, and may properly be left, to the individual conscience”).

        [82].     See, e.g., Interstate Com. Comm’n v. Brimson, 155 U.S. 3, 7–8 (1894) (Brewer, J., dissenting) (asserting that “to lead a life of social purity” is a “dut[y] of good citizenship”).

        [83].     See Greene, supra note 74, at 273 n.45 (“[I]t is difficult to imagine why constitutional significance should attach to the distinction between requiring someone to do something by virtue of being human and requiring her to do it only if she earns income or engages in some other activity essential to one’s livelihood.”); Valauri, supra note 24, at 189 (defining “conditional” mandates as ones in which individuals “voluntarily engage in the activity to which the mandate is attached”). Otherwise, for example, compulsory testimony could not be said to rest on a civic obligation, because one could conceivably seal oneself off from society so as to avoid witnessing unlawful activity.

        [84].     See, e.g., Levy v. Louisiana, 391 U.S. 68, 71 (1968) (describing taxpaying as one of the “responsibilities of a citizen,” despite the theoretical possibility of earning no taxable income, owning no taxable property, and making no taxable purchases).

        [85].     See sources cited supra note 76; see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 562–63 (2012) (characterizing as a “mandate” a requirement that did not apply unless one were active enough in commerce to trigger the Internal Revenue Code’s filing threshold); Kenneth S. Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty, 104 Iowa L. Rev. 1649, 1698 (2019) (arguing that, in tort law, “[w]hat counts as acting, and as not acting, is harder to identify than one might suppose”).

        [86].     For a tiny sampling of possibilities, see Ernst Freund, The Police Power: Public Policy and Constitutional Rights § 614–15 (1904) (stating that “common public services” may be compelled “in case of a conflagration”); E.D. Saunders, The Law of Taxation in Louisiana 299 (1887) (indicating that residents may be required to work on the levees in time of danger); Stylish New Yorkers, Saint Paul Daily Globe, May 9, 1886, at 4 (describing the wearing of clothes in public as “a duty owed to society”); Whitewright Sun, Feb. 27, 1930, at 6 (referencing an ordinance “compel[ling] all citizens to clean up their premises” as part of “a war on mosquitoes”); Julie Ayling & Peter Grabosky, Policing by Command: Enhancing Law Enforcement Capacity Through Coercion, 28 Law & Pol’y 420, 421 (2006) (citing “the mandatory reporting of financial transactions over a certain threshold of value”); Richard S. Saver, Patients First, Public Health Last, in COVID-19 and the Law: Disruption, Impact and Legacy 28, 31 (I. Glenn Cohen, Abbe R. Gluck, Katherine Kraschel & Carmel Shachar eds., 2024) (reporting that multiple states’ laws “permit commandeering the services of physicians during a public health crisis”).

        [87].     240 U.S. 328, 329–30, 333 (1916).

        [88].     Id. at 330; see also Pollock v. Williams, 322 U.S. 4, 17–18 (1944) (“[T]here are duties such as work on highways which society may compel.”); United States v. Kozminski, 487 U.S. 931, 944 (1988) (characterizing road work as a “civic dut[y]”).

        [89].     Butler, 240 U.S. at 333.

        [90].     See, e.g., State v. Comm’rs of Roads for Lancaster Dist., 3 Hill 314, 321 (S.C. App. L. 1837) (describing road work as “a duty of paramount importance”); State v. Cauble, 70 N.C. 62, 65 (1874) (“an important and necessary public duty”); In re Dassler, 12 P. 130, 134 (Kan. 1886) (a “service[] which may be commanded of every citizen by his government”); State v. Tracy, 84 N.W. 1015, 1016 (Minn. 1901) (one’s “just and proper contribution” to society); The Peonage Cases, 123 F. 671, 681 (M.D. Ala. 1903) (an “honorable public dut[y], which every patriotic citizen or subject owes to his government”).

        [91].     Arver v. United States (The Selective Draft Law Cases), 245 U.S. 366, 390 (1918).

        [92].     Id. at 378.

        [93].     Id.

        [94].     Id. at 390.

        [95].     See, e.g., Edwards v. United States, 103 U.S. 471, 476 (1881) (“The public has a right to the services of all the citizens, and may demand them . . . in the military.”); Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905) (declaring that every American “may be compelled, by force if need be, against his will . . . to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense”).

        [96].     Louis Morton, The Origins of American Military Policy, 22 Mil. Affs. 75, 76 (1958).

        [97].     See, e.g., Butler v. Perry, 240 U.S. 328, 333 (1916) (classifying militia service as a “dut[y] . . . owe[d] to the State”); Hamilton v. Regents of Univ. of Cal., 293 U.S. 245, 260 (1934) (“Undoubtedly every State has authority to train its able-bodied male citizens . . . to serve . . . in [the] state militia.”); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943) (“[T]he State has power to raise militia and impose the duties of service therein upon its citizens.”).

        [98].     State ex rel. Johnson v. Martindale, 1 Bail. 163, 167, 169 (S.C. App. L. & Eq. 1829).

        [99].     Id. at 167; see also Sally E. Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas 6 (2001) (“[A]ll white Southerners recognized their collective responsibility for maintaining dominance over the black slaves among them.”); id. at 45 (“[S]elections for patrol duty formed a regular pattern of civic duty for eighteenth- and early nineteenth-century males.”).

      [100].     See Jon C. Blue, High Noon Revisited: Commands of Assistance by Peace Officers in the Age of the Fourth Amendment, 101 Yale L.J. 1475, 1475–76 (1992).

      [101].     See Coyles v. Hurtin, 10 Johns. 85, 88 (N.Y. 1813); Filarsky v. Delia, 566 U.S. 377, 388 (2012).

      [102].     See, e.g., Hamilton, 293 U.S. at 260 (noting that states may impose the “duty” of serving “as members of local constabulary forces”); Comfort v. Commonwealth, 5 Whart. 437, 440 (Pa. 1840) (describing posse comitatus participation as “the duty of every citizen”); West v. State, 1 Wis. 209, 234 (1853) (a “personal dut[y] which every good citizen owes to his country”).

      [103].     See Watson v. State, 3 So. 441, 441 (Ala. 1888) (“[P]rompt obedience is the duty of the person summoned or commanded.”); McMahan v. Green, 34 Vt. 69, 72 (1861) (“[I]t was his duty to yield immediate obedience to the demand.”).

      [104].     See Dougherty v. State, 17 So. 393, 394 (Ala. 1895) (“The fact that there is danger involved is the very thing which calls for and makes obedience a duty.”); Cornett v. Commonwealth, 248 S.W. 540, 542 (Ky. 1923) (detailing the violent death of one person so summoned).

      [105].     Fugitive Slave Act of 1850, 9 Stat. 462, 463, § 5; see Thompson v. Young, 30 Miss. 17, 18 (1855) (“[T]he policy of the country, makes it the duty of every citizen to arrest a runaway slave.”).

      [106].     See Ableman v. Booth, 62 U.S. (21 How.) 506, 526 (1859) (adjudging the Act to be, “in all of its provisions, fully authorized by the Constitution of the United States”).

      [107].     See Civil Rights Act of 1866, 14 Stat. 27, 28, § 5; Enforcement Act of 1870, 16 Stat. 140, 142, § 10; Enforcement Act of 1871, 16 Stat. 433, 437, § 12.

      [108].     See In re Quarles & Butler, 158 U.S. 532, 535 (1895) (“It is the duty . . . of every citizen, when called upon by the proper officer, to act as part of the posse comitatus in upholding the laws of his country.”); In re Neagle, 135 U.S. 1, 65 (1890) (assuming the authority of U.S. marshals to enlist “a posse comitatus properly armed and equipped”).

      [109].     See, e.g., Thiel v. S. Pac. Co., 328 U.S. 217, 224 (1946) (“a duty . . . of citizenship . . . that cannot be shirked”); Butler v. Perry, 240 U.S. 328, 333 (1916) (a “dut[y] which individuals owe to the State”); United States v. Babichenko, 508 F. Supp. 3d 774, 779 (D. Idaho 2020) (a “sacred civic obligation”).

      [110].     Todd E. Pettys, The Immoral Application of Exclusionary Rules, 2008 Wis. L. Rev. 463, 484 (2008).

      [111].     See, e.g., Blair v. United States, 250 U.S. 273, 281 (1919) (a “public dut[y] which every person . . . is bound to perform” upon being called); New York v. O’Neill, 359 U.S. 1, 11 (1959) (a citizen’s “duty” and “obligation”).

      [112].     See, e.g., Blackmer v. United States, 284 U.S. 421, 438 (1932) (“one of the duties which the citizen owes to his government”); Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961) (a “duty” owed to society).

      [113].     See Blair, 250 U.S. at 281 (“The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.”).

      [114].     See Florida v. U.S. Dep’t of Health & Hum. Servs., 648 F.3d 1235, 1290 (11th Cir. 2011) (describing this as a “dut[y] owed to the government attendant to citizenship”); Interstate Com. Comm’n v. Brimson, 155 U.S. 3, 7–8 (1894) (Brewer, J., dissenting) (“[I]t is unquestionably the duty of every citizen to respond to the inquiries made by the census officers and furnish the information desired.”).

      [115].     Watkins v. United States, 354 U.S. 178, 187 (1957); see id. (underscoring this “unremitting obligation”); United States v. Seeger, 303 F.2d 478, 484 (2d Cir. 1962) (“the duty of every citizen”).

      [116].     See, e.g., Graves v. State Tax Comm’n of N.Y., 306 U.S. 466, 490 (1939) (Frankfurter, J., concurring) (a “universal dut[y] of citizenship”); Levy v. Louisiana, 391 U.S. 68, 71 (1968) (one of “the responsibilities of a citizen”); Glunt v. City & Cnty. of San Francisco, 274 Cal. App. 2d 269, 278 (Ct. App. 1969) (“one of the highest civic duties of a citizen”).

      [117].     Edwards v. United States, 103 U.S. 471, 476 (1881); see also Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 43–44 (1868) (stating that the federal government “has a right to call to [the nation’s capital] any or all of its citizens to aid in its service”).

      [118].     People ex rel. German Ins. Co. v. Williams, 33 N.E. 849, 853 (Ill. 1893); see also id. at 852 (“All citizens owe the duty of aiding in carrying on the civil departments of government.”); Hoy v. State, 81 N.E. 509, 514 (Ind. 1907) (“[I]t is the duty of every citizen who is elected to a public office . . . to discharge the duties thereof.”); Civil Conscription, supra note 34, at 266 (deeming compelled officeholding “[t]he classic example” of civil conscription).

      [119].     See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 221 (1972) (describing the receipt of an education as “a general obligation of citizenship”); State v. Bailey, 61 N.E. 730, 732 (Ind. 1901) (labeling the education of one’s child a “duty” owed “to the commonwealth”); Fogg v. Bd. of Educ. of Union Sch. Dist. of Littleton, 82 A. 173, 175 (N.H. 1912) (“a duty imposed . . . for the public good”); Commonwealth v. Beiler, 79 A.2d 134, 137 (Pa. 1951) (a “civic obligation[]”); Andrew Jay Kleinfeld, The Balance of Power Among Infants, Their Parents, and the State, 5 Fam. L.Q. 63, 93 (1971) (summarizing courts’ view that “parents owe a duty to the state to educate their children”).

      [120].     See, e.g., Bronk v. State, 31 So. 248, 252 (Fla. 1901) (a “duty . . . to society”) (former spouses); Commonwealth v. Pouliot, 198 N.E. 256, 257 (Mass. 1935) (“one of the primary responsibilities established . . . by civilized society”) (children and spouses); Gibson v. Bennett, 561 So. 2d 565, 570 (Fla. 1990) (a “duty . . . to society generally”) (children and former spouses).

      [121].     Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).

      [122].     Id. at 12–13, 39.

      [123].     Id. at 37.

      [124].     Id. at 38; see also Lawrence O. Gostin, Jacobson v. Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, 95 Am. J. Pub. Health 576, 578 (2005) (explaining that Jacobson articulated “a community-oriented philosophy where citizens have duties to . . . society as a whole”).

      [125].     Zucht v. King, 260 U.S. 174, 176 (1922); see also id. (“Jacobson . . . settled that it is within the police power of a State to provide for compulsory vaccination.”); Lawton v. Steele, 152 U.S. 133, 136 (1894) (explaining that states’ police power encompasses “the compulsory vaccination of children”).

      [126].     See, e.g., Commonwealth v. Pear, 66 N.E. 719, 720 (Mass. 1903) (“The rights of individuals must yield . . . when the welfare of the whole community is at stake.”); In re Whitmore, 47 N.Y.S.2d 143, 145 (N.Y. Dom. Rel. Ct. 1944) (“The needs of the community come first in matters of health.”).

      [127].     See, e.g., Jacobson, 197 U.S. at 25, 29; Compagnie Francaise de Navigation a Vapeur v. La. Bd. of Health, 186 U.S. 380, 387 (1902); Robinson v. California, 370 U.S. 660, 666 (1962) (“A State might determine that the general health and welfare require that the victims of [certain] afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration.”).

      [128].     274 U.S. 200, 205 (1927).

      [129].     Id. at 205; see also id. at 206 (noting the statutorily required finding that a sterilization be “for the best interests of . . . society”).

      [130].     See id. at 207 (reasoning that, since “the public welfare may call upon the best citizens for their lives,” “[i]t would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices”); id. (“The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”).

      [131].     323 U.S. 214, 219–20 (1944).

      [132].     Id. Of course, the military exclusion order applied to all persons of Japanese ancestry, rather than just citizens. Id. at 216.

      [133].     Larissa Katz, Governing Through Owners: How and Why Formal Private Property Rights Enhance State Power, 160 U. Pa. L. Rev. 2029, 2031–32 (2012); Michael C. Pollack, Sidewalk Government, 122 Mich. L. Rev. 613, 638–39 (2024).

      [134].     See State v. McMahon, 55 A. 591, 593 (Conn. 1903) (a “dut[y]” which “[e]very citizen is bound by the inherent conditions of citizenship to render”); State ex rel. Egan v. McCrillis, 66 A. 301, 305 (R.I. 1907) (a form of “unpaid service” which “every citizen is under obligation to render”); Goodenow v. City Council of Maquoketa, 574 N.W.2d 18, 24 (Ia. 1998) (a “duty . . . that every citizen has an obligation” to fulfill).

      [135].     See Ule v. State, 194 N.E. 140, 142–43 (Ind. 1935) (finding that a requirement to render assistance to persons struck by one’s vehicle is a “dut[y] which individuals owe to the state” (quoting Butler v. Perry, 240 U.S. 328, 332 (1916))); State ex rel. Arn v. State Comm’n of Revenue & Tax’n, 181 P.2d 532, 541 (Kan. 1947) (categorizing a requirement that certain vendors collect and remit a sales tax as a rightful “service [performed] for the state without compensation”); City of St. Louis v. Liberman, 547 S.W.2d 452, 457 (Mo. 1977) (describing a set of mandates imposed on pawnbrokers as an “uncompensated . . . service to meet the need of the public as a whole”); United States v. Tivian Labs., Inc., 589 F.2d 49, 54 (4th Cir. 1978) (characterizing a requirement that regulated entities provide certain information to the EPA as “a call for service made . . . to meet a public need” (quoting Heflin v. Sanford, 142 F.2d 798, 799 (5th Cir. 1944))); Bayh v. Sonnenburg, 573 N.E.2d 398, 411 (Ind. 1991) (labeling compulsory labor by persons committed to state mental hospitals a “civic duty”); Boyle v. City of Liberty, 833 F. Supp. 1436, 1445 (W.D. Mo. 1993) (deeming forced participation in a roadblock a type of “civic duty[] . . . excepted from the Thirteenth Amendment”); Larson v. Swanson, Civ. No. 09-2270, 2009 WL 3246854, at *3 (D. Minn. 2009) (concluding that “[r]egistration as a predatory offender is . . . akin to a civic duty”); see also infra notes 380–384 and accompanying text.

      [136].     Barnett, supra note 21, at 631–32.

      [137].     Barnett, supra note 22.

      [138].     See Project, Education and the Law: State Interests and Individual Rights, 74 Mich. L. Rev. 1373, 1383 (1976) (“The system of universal compulsory education is such an integral part of American society that its underlying assumptions are rarely questioned.”).

      [139].     Tracy L. Steffes, School, Society & State: A New Education to Govern Modern America, 1890–1940, at 122 (2012).

      [140].     Id.; see also Bd. of Educ. v. Purse, 28 S.E. 896, 900 (Ga. 1897) (“A law which would take from [the father] this control . . . would be in conflict with our established institutions.”).

      [141].     See Compulsory Education, Seymour Times, Mar. 13, 1873, at 4.

      [142].     See Francis E. Abbot, Compulsory Education 9 (1878); 13 Cong. Rec. 4821 (1882) (statement of Sen. Blair); Erwin Craighead, Compulsory Education and the Southern States, 16 Sewanee Rev. 298, 298 (1908).

      [143].     See Shall Children Be Educated?, Ft. Wayne Daily Gazette, Jan. 22, 1873, at 2; L.H. Wells, Compulsory Education, Baker City Bedrock Dem., Aug. 13, 1873, at 1.

      [144].     Abbot, supra note 142, at 13.

      [145].     See David B. Tyack, Ways of Seeing: An Essay on the History of Compulsory Schooling, 46 Harv. Educ. Rev. 355, 368 (1976) (“[A]ttempts to coerce parents to send their children to school were often seen as un-American and no business of the state.”).

      [146].     Compulsory Education, Janesville Gazette, Feb. 10, 1871, at 1.

      [147].     Compulsory Education, Macon Daily Teleg. & Messenger, Oct. 8, 1873, at 1.

      [148].     Compulsory Education, Saint Mary’s Beacon, Sept. 21, 1886, at 1.

      [149].     Denouncing Compulsory Education, Forrest City Times, Apr. 12, 1890, at 1.

      [150].     Compulsory Education, Tazewell Clinch Valley News, Dec. 19, 1902, at 5.

      [151].     Lucien Julien Walker, Tyrannical Paternalism in Education’s Name, Birmingham Age Herald, Feb. 12, 1901, at 4.

      [152].     Compulsory Education, Sparta Ishmaelite, June 21, 1889, at 1.

      [153].     A Death Struggle, Hazel Green Herald, Mar. 18, 1892, at 2.

      [154].     Compulsory Education, Auburn Placer Herald, Apr. 11, 1874, at 4.

      [155].     Compulsory Education, Hamilton Guidon, Mar. 4, 1875, at 4.

      [156].     Francis B. Livesey, Letter to the Editor, Abolish—Then Construct a Simpler Educational System, Annapolis Evening Cap., July 28, 1911, at 4.

      [157].     Compulsory Education, Indiana Dem., Feb. 18, 1875, at 2.

      [158].     Compulsory Attendance, Yorkville Enquirer, Mar. 14, 1913, at 1 (quoting former U.S. Senator John McLaurin).

      [159].     See, e.g., Compulsory Education, supra note 155 (“The sense of justice is too deeply rooted in the American people . . . to allow children to be practically taken from the control of their parents.”); Cin. Cath. Tel., July 24, 1890, at 4 (“Compulsory education laws will never find favor in the eyes of the liberty-loving, fair-dealing American.”).

      [160].     See, e.g., 3 Cong. Rec. 1248 (1875) (statement of Sen. Bayard) (complaining that “these inquisitorial, prying, coercive regulations are wholly contrary to the spirit of our institutions”); 21 Cong. Rec. 2686 (1890) (statement of Rep. Oates) (describing compulsory education as “revolting, harsh, and unnatural, and utterly un-American”); 21 Cong. Rec. 6513 (1890) (statement of Sen. Jones) (“[C]ompulsory education is not American.”).

      [161].     Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 490 n.4 (1954).

      [162].     Steffes, supra note 139, at 87, 127.

      [163].     Lacking such a challenge, the Court was initially left to make suggestive statements about the scope of litigants’ arguments. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 402 (1923) (“The power of the State to compel attendance at some school . . . is not questioned.”).

      [164].     See supra note 119; see also Tracy Steffes, Governing the Child: The State, the Family, and the Compulsory School in the Early Twentieth Century, in Boundaries of the State in US History 157, 161 (James T. Sparrow, William J. Novak & Stephen W. Sawyer eds., 2015) (stating that a series of state supreme-court decisions were “widely viewed as settling the issue” of constitutionality).

      [165].     See Stephen Provasnik, Judicial Activism and the Origins of Parental Choice: The Court’s Role in the Institutionalization of Compulsory Education in the United States, 1891–1925, 46 Hist. of Educ. Q. 311, 313, 317 (2006) (stating that the constitutionality of compulsory-attendance laws was an “open question[] at the end of the nineteenth century,” and that state-court decisions upholding them “were neither perfunctory nor foreordained”).

      [166].     See Charles K. Woltz, Compulsory Attendance at School, 20 Law & Contemp. Probs. 3, 4 (1955) (attributing this new settlement to an “evolution in social concepts following upon changing economic and social conditions”); Wells, supra note 143 (striving to replace “old fogy ideas” with “the thoughts and ideas of the 19th century”); 55 Cong. Rec. 1346 (1917) (statement of Sen. Chamberlain) (recalling that compulsory education was at first “bitterly assailed . . . . But now who would abandon it?”).

      [167].     See 50 U.S.C. § 3802(a) (deeming it the duty of every “male” American to register for the draft upon turning eighteen). It is difficult to imagine this patriarchal remnant surviving an actual round of conscription.

      [168].     Barnett, supra note 21; see also id. at 631 (designating conscription a “traditionally recognized fundamental dut[y] of citizenship”); Cato Supreme Court Brief, supra note 60, at 27 (labeling military service a “fundamental preexisting dut[y] that citizens owe th[e] government”).

      [169].     Florida v. U.S. Dep’t of Health & Hum. Servs., 648 F.3d 1235, 1291 (11th Cir. 2011).

      [170].     U.S. Const. art. I, § 8, cl. 12; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 n.3 (2012) (opinion of Roberts, C.J.); Florida, 648 F.3d at 1290 n.90; Thomas More L. Ctr. v. Obama, 651 F.3d 529, 559 (6th Cir. 2011) (Sutton, J., concurring in part).

      [171].     See David Dawson, Posse Comitatus, in 3 Persuasion 43 (1966), reprinted in The Military Draft, supra note 10, at 3, 8 (“It takes an act of imagination to read [conscription] as being implied by the power given Congress to raise armies.”).

      [172].     Chambers, supra note 10, at 14.

      [173].     See J.L. Bernstein, Conscription and the Constitution: The Amazing Case of Kneedler v. Lane, 53 A.B.A. J. 708, 710 (1967) (“[F]orced service . . . was neither considered nor granted by the founding fathers.”); Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich. L. Rev. 1493, 1520, 1525 (1969) (noting that “[t]he idea that citizens have an obligation to bear arms for a national authority . . . never occurred to the framers”—or to the Antifederalists); David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 636 (2000) (claiming that opposition to the new Constitution “would have been orders of magnitude louder had any among the Founders believed the federal government could conscript soldiers directly”).

      [174].     Chambers, supra note 10, at 26. Accordingly, the Armies Clause “was generally understood in the 1780s to authorize the raising of volunteer armies.” Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 89 (2012).

      [175].     See Chambers, supra note 10, at 26 (arguing that the Framers “left the issue [of conscription] to future generations”).

      [176].     See generally James Monroe, Recommendations for a Federal Draft, Oct. 17, 1814, reprinted in The Military Draft, supra note 10, at 506.

      [177].     See Chambers, supra note 10, at 33 (deeming Monroe’s proposal “radical” in its time, and calling it “the boldest assertion of national power yet attempted in America”).

      [178].     Monroe, supra note 176, at 508.

      [179].     Id.

      [180].     See U.S. Const. art. I, § 8, cl. 13 (authorizing Congress to “provide and maintain a Navy”).

      [181].     Sec’y of State James Monroe, Instructions to the Plenipotentiaries of the United States for Treating of Peace with Great Britain (Apr. 15, 1813), reprinted in IX State Papers and Publick Documents of the United States 339, 349 (2d ed. 1817); see also Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 53 (1998) (“[M]ore than mere implication from the naked text authorizing a navy would seem necessary to allow . . . the historically odious practice of impressment.”).

      [182].     See U.S. Const. art. I, § 8, cl. 2 (authorizing Congress to “borrow Money on the credit of the United States”).

      [183].     See U.S. Const. art. I, § 8, cl. 1 (authorizing Congress to “lay and collect Taxes”).

      [184].     See U.S. Const. art. I, § 2, cl. 3 (contemplating that an “actual Enumeration” of persons will occur every ten years).

      [185].     See U.S. Const. art. I, § 8, cl. 9 (authorizing Congress to “constitute Tribunals inferior to the supreme Court”).

      [186].     See U.S. Const. art. I, § 8, cl. 7 (authorizing Congress to “establish . . . post Roads”).

      [187].     Cotton M. Lindsay, Our National Tradition of Conscription: The Early Years, in Why the Draft? The Case for a Volunteer Army 107, 120 (James C. Miller III ed., 1968).

      [188].     See, e.g., 28 Annals of Cong. 789 (1814) (statement of Rep. Miller) (“By it, you propose to abandon all your former systems.”); id. at 819 (statement of Rep. Shipherd) (describing Monroe’s proposal as “a measure so new and extraordinary”); id. at 839 (statement of Rep. Stockton) (“I consider the claim now for the first time set up by the General Government to the personal service of every citizen . . . entirely unwarranted.”); Webster, supra note 10, at 644 (“The nation is not yet in a temper to submit to conscription.”).

      [189].     See, e.g., 28 Annals of Cong. 72 (1814) (statement of Sen. Daggett) (arguing that armies may be raised only “in a manner and by means consistent with the great principles of civil liberty”); id. at 780 (statement of Rep. Miller) (claiming that the Armies Clause “is not an unqualified grant,” but “is qualified by the spirit of our Constitution”—“the spirit of freedom”).

      [190].     For a tiny sampling of such accusations, see id. at 781 (statement of Rep. Miller) (conscription deemed antithetical to “the whole character and genius of your people”); id. at 823 (statement of Rep. Shipherd) (“totally irreconcileable with . . . the freedom of our Government and habits”); id. at 908 (statement of Rep. Ward) (“repugnant to the genius and nature of our Government”).

      [191].     Id. at 835 (statement of Rep. Stockton).

      [192].     Id. at 774 (statement of Rep. Lewis).

      [193].     Id. at 924 (statement of Rep. Gaston).

      [194].     Id. at 75 (statement of Sen. Daggett).

      [195].     Id. at 854 (statement of Rep. Sheffey).

      [196].     Id. at 83 (statement of Sen. Mason).

      [197].     See Webster, supra note 10, at 639 (“[S]uch an abominable doctrine has no foundation in the Constitution of the country.”); id. (deeming Monroe’s proposal “an exercise of perverse ingenuity to extract slavery from the substance of a free government”).

      [198].     Alexis de Tocqueville, Democracy in America 185 (1835) (Francis Bowen ed. 2003).

      [199].     Chambers, supra note 10, at 36.

      [200].     See William G. Carleton, Raising Armies Before the Civil War, 54 Current Hist. 327, 331 (1968) (claiming that early Americans “abhorred the military draft,” viewing it as “a monstrous violation of individual freedom and a relic of the feudal lord’s mass levy”); Margaret Levi, The Institution of Conscription, 20 Soc. Sci. Hist. 133, 144 (1996) (recounting that, before the Civil War, “national conscription was politically unacceptable to the populace”).

      [201].     Enrollment Act of 1863, 12 Stat. 731, § 1.

      [202].     Id., pmbl.

      [203].     See, e.g., Cong. Globe, 37th Cong., 3d Sess. 976 (1863) (statement of Sen. Wilson); id. at 998 (statement of Sen. McDougall); id. at 1214 (statement of Sen. Olin); id. at 1224 (statement of Rep. Sheffield).

      [204].     Enrollment Act of 1863, 12 Stat. 731, pmbl.

      [205].     See Cong. Globe, 37th Cong., 3d Sess. 984 (1863) (statement of Sen. Clark) (referring to volunteering as “the old system”); id. at 1214 (statement of Rep. Olin) (acknowledging that Congress was seeking to conscript for “the first time in the history of the Republic”); id. at 1222 (statement of Rep. Sargent) (claiming that the bill “corrects errors in our past practice”); id. at 1289 (of earlier reliance on volunteers: “Doubtless such has heretofore been the practice.”).

      [206].     See, e.g., id. at 981 (statement of Sen. Cowan) (remarking that “[o]ur whole theory has gone upon a different hypothesis heretofore”); id. at 1255 (statement of Rep. Pendleton) (“[I]n the history of this country, . . . this is the first conscription bill which has attempted to be passed.”); id. at 1363 (statement of Sen. Bayard) (conscription being sought “[f]or the first time in the history of this country”).

      [207].     See, e.g., id. at 984 (statement of Sen. Cowan) (deeming the proposed conscription bill “tyrannical, harsh, arbitrary, and oppressive”); id. at 1225 (statement of Rep. White) (a system of “centralized imperial despotism”); id. at 1259 (statement of Rep. Wickliffe) (a “surrender” of “the liberty of the citizen”); id. at 1364 (statement of Sen. Bayard) (would bring about “the utter subversion of free Government[]”); id. at 1383 (statement of Sen. Powell) (incompatible with “this free country”).

      [208].     See Old Precedents—Conscription, E. Saginaw Courier, Feb. 24, 1864, at 1 (asking why those who “look upon involuntary servitude as the greatest outrage” did not “shudder at conscript acts”).

      [209].     Enrollment Act of 1863, 12 Stat. 731, § 13; see also id. (clarifying that such persons would be “discharged from further liability”).

      [210].     See Cong. Globe, 37th Cong., 3d Sess. 977 (1863) (statement of Sen. Wilson) (deeming military service in the Civil War “a high and sacred duty, resting alike upon all the citizens of the Republic”); id. at 994 (statement of Sen. McDougall) (opining that “the obligation rests equally upon all”); id. at 1214 (statement of Rep. Olin) (noting that Congress was seeking “to compel all our citizens” to serve the Republic); id. at 1222 (statement of Rep. Sargent) (insisting that the bill “distributes equally the burdens of the war”).

      [211].     Lindsay, supra note 187, at 124, 134.

      [212].     Id. at 137.

      [213].     Chambers, supra note 10, at 65.

      [214].     See id. at 41 (observing that this first experience with conscription was “widely denounced as tyrannical, oppressive and un-American”); id. at 65 (“Most Americans viewed the Civil War and the U.S. need for mass armies as an aberration.”).

      [215].     Richard Gillam, The Peacetime Draft: Voluntarism to Coercion, in 57 Yale Rev. 495 (1968), reprinted in The Military Draft, supra note 10, at 97, 102.

      [216].     35 Cong. Rec. 884 (1902); see also Compulsory Education, Ind. Democrat (Pa.), Feb. 18, 1875, at 2 (warning that conscription would be “subversive of true liberty”); Problems of the Peace Conference, S.F. Call, Apr. 17, 1907, at 8 (denouncing conscription as “a form of penal servitude” that “[t]he American people want none of”); Letter to the Editor, No War for Him, Day Book (Chicago), Feb. 4, 1915, at 9 (predicting that if Congress were to adopt conscription, “hell will break loose”).

      [217].     Randolph S. Bourne, A Moral Equivalent for Universal Military Service, New Republic, July 1, 1916, at 217, 218; see also 53 Cong. Rec. 323 (1915) (statement of Sen. Works) (predicting that “[t]he people of this country . . . would not submit willingly or patiently to compulsory military service in any form”).

      [218].     For a detailed overview of this “conscription crusade,” see Chambers, supra note 10, at 73–101.

      [219].     Id. at 74.

      [220].     55 Cong. Rec. 974 (1917) (statement of Rep. Crago); see also id. at 1333 (statement of Sen. Sterling) (marveling at the recent “change or growth in sentiment in regard to conscription”).

      [221].     Id. at 103 (statement of Pres. Woodrow Wilson).

      [222].     Selective Service Act of 1917, 40 Stat. 76, 78, § 2. The Act did contain a narrow carve-out for conscientious objectors, but such persons were still liable to perform noncombatant duties. See id. § 4. In the end, only .02 percent of all men who registered for the draft successfully avoided military service in this way. Christopher Capozzola, Body and Soul: The Selective Draft Law Cases and World War I, 44 J. Sup. Ct. Hist. 295, 301 (2019).

      [223].     See Capozzola, supra note 3, at 17–18 (describing the 1917 Act as “the nation’s first experience with mass conscription”); Chambers, supra note 10, at 268 (explaining that World War I ushered in an “expanded concept of national citizenship which increased the obligation of the citizen to the nation-State”); Forrest Revere Black, The Selective Draft Cases—A Judicial Milepost on the Road to Absolutism, 11 B.U. L. Rev. 37, 37 (1931) (“[In 1917], our government was attempting to exercise a novel power without a precedent in the history of the republic.”); id. at 42 (underscoring the “vital distinction” between compulsory service and service conditioned on one’s inability to afford an alternative); Robert Leider, Federalism and the Military Power of the United States, 73 Vand. L. Rev. 989, 1043 (2020) (stating that the 1863 law “was not a full conscription act”).

      [224].     Chambers, supra note 10, at 164.

      [225].     55 Cong. Rec. 1316 (1917) (statement of Sen. Kellogg).

      [226].     Id. at 1439 (statement of Sen. Harding).

      [227].     Id. at 1010 (statement of Sen. Frelinghuysen). For similar statements from conscription’s supporters, see id. at 968 (statement of Rep. McKenzie) (admitting that conscription “changes the policy that has been in vogue in our country” since Revolutionary times); id. at 1380 (statement of Rep. Black) (“[T]he volunteer system is representative of the traditional policy of the American people.”); id. at 1162 (statement of Sen. Beckham) (conceding that anti-conscriptionists “have the advantage of custom and usage upon their side”); id. at 1247 (statement of Rep. Dale) (describing conscription as “a new experience to citizens of the Republic”); id. at 1481 (statement of Sen. Johnson (Cal.)) (acknowledging that “[o]urs are a people who have never known drastic restrictive measures”).

      [228].     Id. at 1347 (statement of Sen. Chamberlain); see also id. at 1292 (statement of Rep. Elston) (explaining that “[t]his House has repeatedly broken from the traditions and practices of the past”).

      [229].     Id. at 971 (statement of Rep. Lunn); see also id. at 1147 (statement of Rep. O’Shaunessy) (aiming to “correct the mistakes of the past”); id. at 1231 (statement of Rep. Zihlman) (“[V]ictory at this time . . . is worth more than tradition.”); id. at 1290 (statement of Rep. Miller) (“We can not live forever amid principles and systems of yesterday.”).

      [230].     Id. at 1346 (statement of Sen. Chamberlain).

      [231].     See Conscription at Last, N.Y. Trib., Apr. 30, 1917, at 8 (“The idea that one may serve the state or not, as he pleases, had taken deep root in our easygoing American individualism.”).

      [232].     Chambers, supra note 10, at 69–70; see also, e.g., 55 Cong. Rec. 1329 (1917) (statement of Sen. Smith (Ariz.)) (“The modern experience of the world has discarded the volunteer system.”); id. at 1482 (statement of Sen. Smith (S.C.)) (“[T]he methods of modern warfare have changed so rapidly and so radically that we are . . . without any precedent or ancient landmarks to guide us.”).

      [233].     55 Cong. Rec. 1289 (1917) (statement of Rep. Miller (Wash.)).

      [234].     Id.

      [235].     For one attack on so-called “slackers,” see id. at 1199 (statement of Rep. Welty).

      [236].     See, e.g., id. at 732 (statement of Rep. Borland) (“He owes this duty to the Nation which protects him. . . .”); id. at 1009 (statement of Sen. McLean) (“[E]quality of governmental benefits . . . require[s] equality of service and responsibility.”).

      [237].     See, e.g., id. at 731 (statement of Rep. Borland); id. at 1059 (statement of Rep. Bathrick); id. at 1194 (statement of Rep. Madden).

      [238].     For a partial accounting of such claims, see id. at 839 (statement of Sen. Nelson) (stating that Congress may “compel[] every citizen to perform his duty as a soldier”); id. at 941 (statement of Sen. Weeks) (labeling military service one of the “duties of citizenship”); id. at 1051 (statement of Rep. Lenroot) (citing the “[u]niversal obligation to serve”); id. at 1113 (statement of Rep. Fuller) (conscription “a duty we owe to our Government”); id. at 1396 (statement of Rep. Hardy) (the “supreme duty” of every citizen); id. at 1399 (statement of Rep. Miller (Minn.)) (“the duty every citizen owes”); id. at 1483 (statement of Sen. Ransdell) (“the very highest duty of the citizen”).

      [239].     Id. at 1376 (statement of Rep. Kahn).

      [240].     Anti-conscriptionists made this point repeatedly. See, e.g., id. at 996 (statement of Sen. Thomas); id. at 1242 (statement of Rep. Van Dyke).

      [241].     Lindsay, supra note 187, at 130.

      [242].     55 Cong. Rec. app. at 200 (1917) (statement of Rep. Steagall).

      [243].     Id. at 1022 (statement of Rep. McKellar).

      [244].     For a narrow sampling of these complaints, see id. at 997 (statement of Sen. Thomas) (deeming voluntarism “a fundamental tradition of our democracy”); id. at 1072 (statement of Sen. Reed) (“[Voluntarism] is the historic doctrine of the Republic. We are now asked to repudiate it.”); id. at 1087 (statement of Sen. Vardaman) (asking, “[a]re the lessons of the past to be thrown in the wastebasket”?); id. at 1095 (statement of Rep. Huddleston) (“Conscription is violative of American traditions.”); id. at 1120 (statement of Rep. Garrett) (conscription “fl[ies] squarely in the face . . . of our own history”); id. at 1363 (statement of Rep. La Follette) (bemoaning “such flagrant violation of our traditions”); id. at 1421 (statement of Rep. Claypool) (characterizing conscription as an “abrupt” change from “our national custom of nearly a hundred and fifty years”); id. app. at 178 (statement of Rep. Brand) (“[T]he volunteer system has become . . . the law of the land.”).

      [245].     See, e.g., id. at 996 (statement of Sen. Thomas) (denouncing conscription as “a weed of pestilent growth wholly abhorrent to the genius of our institutions”); id. at 1028 (statement of Rep. Fields) (“contrary to American ideals”); id. at 1044 (statement of Rep. Anthony) (“absolutely un-American”); id. at 1098 (statement of Rep. Byrnes) (“the most infamous proposition ever submitted to this or any other American Congress”); id. at 1233 (statement of Rep. Roberts) (“wholly incompatible with any conception of personal liberty”); id. at 1407 (statement of Rep. Stafford) (“a foreign system, alien to our thought”).

      [246].     See Ross, supra note 14, at 21 (“Opponents of the draft deplored what they perceived as the hypocrisy of using autocratic methods to achieve democratic goals.”).

      [247].     See, e.g., 55 Cong. Rec. 974 (1917) (statement of Rep. Nichols) (“[A] conscript is a slave.”); id. at 1084 (statement of Sen. Reed) (“Its essential feature is that of involuntary servitude.”); id. at 1095 (statement of Rep. Huddleston) (“Conscription is State slavery. It is involuntary servitude, not for crime.”); id. at 1099 (statement of Rep. Byrnes) (conscripts deemed “slaves”); id. at 1211 (statement of Rep. Wise) (conscription a form of “slavery”); id. at 1222 (statement of Rep. Thomas) (“another name for slavery”); id. at 1357 (statement of Rep. La Follette) (“involuntary military servitude”); id. at 1489 (statement of Sen. Hardwick) (a form of “slavery”); id. at 1490 (statement of Sen. Gronna) (“Military conscription is involuntary servitude.”).

      [248].     Arver v. United States (The Selective Draft Law Cases), 245 U.S. 366 (1918). Sources citing the Selective Draft Law Cases for this proposition include United States v. Kozminski, 487 U.S. 931, 944 (1988); Barnett, supra note 21, at 631; Cato Supreme Court Brief, supra note 62, at 27; and Trattner Brief, supra note 60, at 27.

      [249].     The Selective Draft Law Cases, 245 U.S. at 377.

      [250].     See, e.g., Chambers, supra note 10, at 222 (lamenting the “largely fictive history” presented by the Court); Friedman, supra note 173, at 1495 (accusing the Court of “disregard[ing] . . . substantial historical evidence”); Leider, supra note 223, at 1038 (arguing that White’s opinion rested on a “selectively historical reading of the Army Power”).

      [251].     The Selective Draft Law Cases, 245 U.S. at 378.

      [252].     Id.

      [253].     See supra note 236.

      [254].     The Selective Draft Law Cases, 245 U.S. at 378.

      [255].     Id. at 390.

      [256].     See supra note 238.

      [257].     The Selective Draft Law Cases, 245 U.S. at 390; see also Validity of the War Acts of Congress, 2 Const. Rev. 108, 112 (1918) (deeming this argument “ridiculous”).

      [258].     See Chambers, supra note 10, at 205 (explaining that “outright repression helped fragment and suppress opposition” to the draft); Harlem Pacifists Moved on by Police, N.Y. Times, Apr. 18, 1917, at 6 (reporting that “[t]wo thousand anti-conscriptionists were dispersed by the police in Harlem last night”); Two Arrested for Sedition, N.W. Worker (Everett), May 24, 1917, at 1 (detailing the arrest of two persons for distributing a circular entitled, “No Conscription! No Involuntary Servitude! No Slavery!”).

      [259].     See Chambers, supra note 10, at 220 (arguing that the Selective Draft Law Cases “sp[oke] to a 20th-century audience rather than . . . the nation’s Founders,” who “undoubtedly would have rejected” the opinion’s holding and brash certitude); Friedman, supra note 173, at 1497, 1551 (deeming the outcome “almost inevitable” in light of “the political pressures of World War I”).

      [260].     Barnett, supra note 21, at 634.

      [261].     For a terrific overview of this concept’s emergence, see generally Gautham Rao, The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America, 26 Law & Hist. Rev. 1 (2008).

      [262].     See 39 Annals of Cong. 1637 (1822) (statement of Rep. Condict) (claiming that, “under our free Government, no compulsory measures can be resorted to” concerning vaccination); id. at 1635 (statement of Rep. Burton) (labeling such a power “despotic”).

      [263].     See Compulsory Vaccination, 12 Yale L.J. 504, 505 (1902) (reporting that, in “recent years,” state legislatures had passed laws mandating, “in certain exigencies, vaccination on the part of all persons in the community”); James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 Ky. L.J. 831, 851 (2001) (detailing a wave of school-based vaccine mandates enacted in the late 19th century).

      [264].     See, e.g., Vaccination, Worthington Advance, Feb. 10, 1881, at 4 (“[T]o compel people to submit to such a process is a barbarism and an infamy which should be resisted to the last.”); Alexandria Gazette & Virginia Advertiser, Jan. 31, 1883, at 2 (calling compulsory vaccination a “grotesque absurdity”); Henry Rohlang, Opinion, On the Subject of Compulsory Vaccination, Brooklyn Daily Eagle, May 21, 1896, at 16 (claiming that it amounts to “the total destruction of human liberty”); Montague R. Leverson, Vaccination. Should It Be Enforced by Law?, 14 Medico-Legal J. 421, 438, 441 (1896) (branding it an “odious tyranny” redolent of “the dark ages”); Little Bethel Folk Against Vaccination, Newport News Daily Press, Jan. 8, 1907, at 11 (denouncing it as a violation of “our rights as freeborn American citizens”).

      [265].     N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 70 (2022); see id. at 66 (dismissing “late-19th-century evidence” due to its “temporal distance from the founding”).

      [266].     The same is also true of the categories of persons subject to those obligations. See Kerber, supra note 10, at 305 (explaining that, for married women, “[t]he gradual deterioration of coverture was accompanied by the substitution of obligation to the state for obligations to husbands and family”); Bell v. Maryland, 378 U.S. 226, 288 (1964) (Goldberg, J., concurring) (celebrating that “[t]he heaviest duties of citizenship” had come to be “imposed evenhandedly upon black and white,” with “no racial distinctions”).

      [267].     Barnett, supra note 22.

      [268].     See sources cited supra note 203 and accompanying text.

      [269].     See, e.g., 55 Cong. Rec. 1018 (1917) (statement of Sen. McKellar) (“[W]e never have resorted to conscription except as a last resort to aid our country in time of peril.”); id. at 1111 (statement of Rep. Sims) (observing that the draft was “in former days only resorted to in cases of dire need, when the national danger made it imperative”).

      [270].     See id. at 1177 (statement of Sen. Stone) (“In a time of peace I would be unwilling to vote to pass a compulsory military service law. To me the principle involved in such a law is obnoxious.”); id. at 1197 (statement of Rep. Osborne) (stating that conscription would have been “repulsive” before April 6, 1917, when “the United States was at peace with all the world”).

      [271].     See Arver v. United States (The Selective Draft Law Cases), 245 U.S. 366, 375 (1918) (noting that additional forces “w[ere] required by the existing emergency, the war then and now flagrant”); id. at 378 (stating that service may be exacted “in case of need”); id. at 390 (affirming each citizen’s duty to serve in “a war declared by the great representative body of the people”); United States v. Macintosh, 283 U.S. 605, 624 (1931) (reiterating that Congress may, “in the last extremity,” require military service).

      [272].     59 Cong. Rec. 2922 (1920) (statement of Rep. Quin).

      [273].     See Selective Training and Service Act of 1940, 54 Stat. 885.

      [274].     Id. at 885, § 3(a). As in World War I, conscientious objectors were required to provide “noncombatant service.” Id. at 889, § 5(g).

      [275].     Id. at 885, § 3(a).

      [276].     86 Cong. Rec. 12218 (1940) (statement of Rep. Robsion); see also id. at 11433 (statement of Rep. Rees) (“[N]ever before in the history of our Nation, has such far-reaching legislation been submitted to Congress in peacetime.”).

      [277].     Id. at 10123 (statement of Sen. Vandenberg).

      [278].     Id. at 11458 (statement of Rep. Martin).

      [279].     See, e.g., id. at 10476 (statement of Sen. Capper) (deeming peacetime conscription an “absolute negation of American tradition”); id. at 10957 (statement of Sen. Johnson) (“a most radical departure from American tradition”); id. at 11361 (statement of Rep. Fish) (“a dangerous and disastrous departure from American ideals and traditions”); id. at 11371 (statement of Rep. Keefe) (“Never before in the history of our Nation has such a proposal been suggested in time of peace.”); id. at 11395 (statement of Rep. Voorhis) (a “far-reaching change in the way America has done things”); id. at 11469 (statement of Rep. Byrns) (“a departure from everything we have ever done in this country”); id. at 11485 (statement of Rep. Hull) (“a radical departure from our American way”).

      [280].     For two expressions of this rationale, see id. at 10474 (statement of Sen. Hill); id. at 11433 (statement of Rep. Celler).

      [281].     See id. at 10987 (statement of Sen. McCarran) (conscription “force[s] an individual to sacrifice everything dear in life and even life itself”).

      [282].     See Parker v. Levy, 417 U.S. 733, 751 (1974) (“[W]ithin the military community there is simply not the same autonomy as there is in the larger civilian community.”); Jason Britt, Unwilling Warriors: An Examination of the Power to Conscript in Peacetime, 4 Nw. J.L. & Soc. Pol’y 400, 413 (2009) (insisting that “the rights to free speech, association, and movement are essentially worthless if the state can disregard those rights by inducting people into the military”).

      [283].     86 Cong. Rec. app. at 4601 (1940) (statement of Sen. Capper); see also id. at 10957 (statement of Sen. Johnson) (claiming that peacetime conscription “assum[es] that the individual . . . is the pawn of the state”).

      [284].     Id. at 11513 (statement of Rep. Hare); see also id. at 10477 (statement of Sen. Capper) (“[C]onscription in peacetime is not the American way, but the Hitler way.”); id. at 11361 (statement of Rep. Fish) (“[W]e are merely copying Nazi methods and ideology.”).

      [285].     See Gillam, supra note 215, at 103–04; see also Richard M. Nixon, The All-Volunteer Armed Force, CBS Radio Address (Oct. 17, 1968), reprinted in The Military Draft, supra note 10, at 603 (describing the 1940 draft as a “temporary, emergency measure”).

      [286].     Selective Service Extension, S. Rep. No. 1167, S. Comm. on Military Affs., 79th Cong., Apr. 11, 1946, at 2.

      [287].     See Gillam, supra note 215, at 107.

      [288].     See id. at 113 (“There existed a state of quiet consensus that America had entered a period of perpetual national emergency which demanded and justified creation of a garrison state based on peacetime military conscription.”); Chambers, supra note 10, at 255 (claiming that policymakers, aware of Americans’ traditional aversion to peacetime conscription, “described the international situation as a ‘Cold War’ in which American interests and ideals of freedom and democracy were at stake”).

      [289].     Gillam, supra note 215, at 99.

      [290].     94 Cong. Rec. 8668 (1948) (statement of Rep. Harris). For similar efforts to minimize the 1940 law’s novelty, see id. at 8360 (statement of Rep. McCowen); id. at 8383 (statement of Rep. Blatnik).

      [291].     See id. at 8386 (statement of Rep. Van Zandt) (“I realize that traditionally we are departing from a long established policy of depending upon a peacetime military establishment composed of volunteers.”); id. at 8369 (statement of Rep. Johnson) (conceding that “[i]t goes contrary to our ideas in peacetime[] to do a thing like this”).

      [292].     Id. at 8702 (statement of Rep. Murdock).

      [293].     See, e.g., id. at 8346 (statement of Rep. Rich) (“Never in the history of our country in peacetime have we done that.”); id. at 8358 (statement of Rep. Havenner) (“[T]he American people, in their wisdom, have always rejected this doctrine.”); id. at 8360 (statement of Rep. McCowen) (deeming peacetime conscription “a radical change in our Government”); id. at 8368 (statement of Rep. Gillie) (a “radical departure from traditional American policy”); id. at 8377 (statement of Rep. Philbin) (“a dangerous departure from traditional American practice”); id. at 8383 (statement of Rep. Blatnick) (“a serious departure from American tradition”); id. at 8664 (statement of Rep. Keating) (“foreign to American traditions”); id. at A664 (statement of Rep. Grant) (“a revolution in our way of living”); id. app. at A4005 (statement of Rep. Short) (“a radical departure from the American ways of life”); id. app. at A4006 (statement of Rep. Sabath) (“a reversal of age-long policy”).

      [294].     Nancy J. King, Juror Delinquency in Criminal Trials in America, 1796-1996, 94 Mich. L. Rev. 2673, 2678 (1996).

      [295].     See id. at 2679.

      [296].     See id. at 2689–90, 2689 n.60.

      [297].     Id. at 2696.

      [298].     See Jeffrey Rogers Hummel, The American Militia and the Origin of Conscription: A Reassessment, 15 J. Libertarian Stud. 29, 61 (2001) (explaining that state legislatures initially decreased the frequency of militia training before abolishing the system altogether).

      [299].     See Steffes, supra note 164, at 168; see also 40 Cong. Rec. 7571 (1906) (statement of Rep. Williams) (claiming to be “bitterly opposed” to the compulsory education of six-year-olds, and deeming it “absolute cruelty” to require the same of five-year-olds); Wisconsin v. Yoder, 406 U.S. 205, 226 (1972) (“[C]ompulsory education beyond the eighth grade is a relatively recent development in our history.”).

      [300].     Steffes, supra note 139, at 120; see also Woltz, supra note 166, at 6 (marking the change “toward a greatly increased total period of compulsory schooling”).

      [301].     See Compulsory School Attendance Laws, Minimum and Maximum Age Limits for Required Free Education, by State: 2017, Nat’l Ctr. for Educ. Stat., https://nces.ed.gov/programs/
statereform/tab1_2-2020.asp [https://perma.cc/Z5M9-8EAU] (showing that the shortest age range of required school attendance in the country is now 7 to 16, with the national average being closer to 6 to 18).

      [302].     See Minimum Number of Instructional Days and Hours in the School Year, Minimum Numbers of Hours Per School Day, and School Start/Finish Dates, by State: 2020, Nat’l Ctr. For Educ. Stat., https://nces.ed.gov/programs/statereform/tab1_1-2020.asp [https://perma.cc/R6WM-7XAF] (showing that the smallest number of required school days in the country is now 160, with the national average being closer to 180).

      303.     See Steffes, supra note 139, at 120 (explaining that Progressive Era reformers—in the face of ideological resistance—successfully “buil[t] community support” for a norm of increased school attendance).

      [304].     See Dep’t of Com. v. New York, 588 U.S. 752, 769 (2019) (observing that “demographic questions have been asked in every census since 1790”); id. at 760 (“Over the years, the census has asked questions about (for example) race, sex, age, health, education, occupation, housing, and military service. It has also asked about radio ownership, age at first marriage, and native tongue.”).

      [305].     See 1 Annals of Cong. 1077 (1790) (statement of Rep. Madison) (identifying “an opportunity of obtaining the most useful information for those who should hereafter be called upon to legislate for their country”).

      [306].     See Cong. Globe, 30th Cong., 2d. Sess. 627 (1849) (statement of Sen. Westcott) (noting that the people were “disgusted” at having been “interrogat[ed] . . . as to the number of chickens, geese, and ducks they raise, and how many eggs are laid daily by their poultry”); id. (“[The people] will ridicule [such questions], scorn them, and tell your marshal and tell Congress to mind its own business.”); id. (statement of Sen. Calhoun) (“[W]hen, under the census law of 1840, the agents began to inquire of the people the number of eggs and hens . . . which they possessed, . . . [t]hey instinctively resisted the operations of the law . . . .”); see also 1840 Census: Compendium of the Enumeration of the Inhabitants and Statistics of the United States 107–13 (1841) (reporting county-level data from the 1840 census on the volume of pickled fish and tallow candles respondents produced, as well as how many horses and pigs they owned).

      [307].     See Cong. Globe, 30th Cong., 2d. Sess. 627 (1849) (statement of Sen. Westcott) (“Everybody knows the difficulties that these provisions caused. Everybody knows that the people will not answer all these questions. . . . All these statistics are of no use when you get them.”); id. at 628 (statement of Rep. Badger) (explaining that in 1840, “the census itself was, to some extent, sacrificed in its accuracy to the statistics”); id. at 809 (statement of Rep. Thompson) (recalling that the hundreds of inquiries had “led to numerous mistakes and errors”).

      [308].     New York, 588 U.S. at 760. A modest subset of households has still been required to answer additional questions in the form of the long-form census and, since 2010, the American Community Survey. Id. at 761.

      [309].     See Daniel B. Rice, Repugnant Precedents and the Court of History, 121 Mich. L. Rev. 577, 580 (2023) (“[C]onstitutional doctrine is teeming with artifacts that are culturally unrecognizable.”).

      [310].     See Daniel B. Rice, Judicial Moral Prophecy, 101 Wash. U. L. Rev. 177, 184 (2023) (“Throughout American history, practices that once seemed reasonable began instead to elicit collective horror.”).

      [311].     See Butler v. Perry, 240 U.S. 328, 331 (1916); see also Jeremy Bearer-Friend, Tax Without Cash, 106 Minn. L. Rev. 953, 955 (2021) (reporting that “a common practice for building public roads in the United States was to assess taxes in labor”).

      [312].     See Butler, 240 U.S. at 333 (claiming that the Thirteenth Amendment “introduced no novel doctrine with respect of services always treated as exceptional,” such as “duties which individuals owe to the State”).

      [313].     See, e.g., John F. Dillon, 4 Commentaries on the Law of Municipal Corporations § 1407 (5th ed. 1911); Byron K. Elliott & William F. Elliott, 1 A Treatise on the Law of Roads and Streets § 480 (3d ed. 1911); 27 American and English Encyclopedia of Law 917 (David S. Garland & Lucius P. McGehee eds., 2d ed. 1904).

      [314].     See State v. Sharp, 34 S.E. 264, 265 (N.C. 1899) (“It is a matter of common knowledge that the system of working the public roads by conscription of labor is expensive, wasteful, and inefficient.”); Charles L. Dearing, American Highway Policy 44 (1941) (“[T]he American system of road administration was obsolete and the quality of the roads strikingly inferior.”).

      [315].     See The Roads, Brenham Wkly. Banner, Feb. 2, 1882, at 2 (reporting that residents “get mad at [the road overseer] when he asks them out to work”); Early Roads in Illinois and Work Done on Them, Decatur Daily Rev., Feb. 13, 1916, at 11 (recounting that “[m]any stories were told” and “many jokes were cracked” during the days of compulsory road work).

      [316].     See Lawrence v. State, 161 So. 260, 261 (Ala. 1935) (deeming road duty “a relic of those times in our history, before the days of automobiles, rapid transit, and improved highways,” when roads had to be made “passable for buggies, wagons, and horse-drawn vehicles”).

      [317].     See Moose v. Bd. of Comm’rs of Alexander Cnty., 90 S.E. 441, 455 (N.C. 1916).

      [318].     See The Road Law, Fort Worth Daily Gazette, Jan. 16, 1889, at 4 (deeming this discrepancy “outrageous in its injustice and inequality”); Opinion, Public Roads, Richmond Times-Dispatch, Dec. 30, 1917, at 7 (“It is unwise, unjust and tyrannical to tax labor for the benefit of capital.”).

      [319].     See Manitowoc Pilot, June 19, 1890, at 3 (“To compel the people to put the road in passable condition would be an infringement upon personal liberty . . . .”); Needful Good Roads Legislation, New Albany Trib., Jan. 14, 1895, at 2 (deeming “the perfunctory slavish road work” a “relic of feudalism”); W.T. Harkness, Opinion, Harkness v. Street Tax, Biloxi Daily Herald, June 12, 1912, at 4 (labeling road work a form of “peonage” and “involuntary servitude”); Early Roads in Illinois, supra note 315 (“The hands of every able bodied citizen of Illinois would today be raised in holy horror if he were warned out to work on the roads . . . .”); James F. McCaleb, My Recollections of Claiborne County, Port Gibson Reveille, Sept. 22, 1921, at 3 (recalling that some men subject to road duty became “restive under what they considered an imposition”).

      [320].     See State v. Taylor, 86 S.E. 787, 788 (N.C. 1915) (documenting this tendency).

      [321].     See Robert C. Ellickson, The Affirmative Duties of Property Owners: An Essay for Tom Merrill, 3 Property Rights Conf. J. 43, 69 (2014) (“[No states] continue to enlist amateurs in this fashion.”); Peter Wallenstein, Blue Laws and Black Codes: Conflict, Courts, and Change in Twentieth-Century Virginia 18 (2004) (explaining that, “[b]y the years around 1900, states began to take legislative action” to abolish compulsory road work).

      [322].     See supra note 97.

      [323].     Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815–1848, at 491 (2007).

      [324].     Chambers, supra note 10, at 37.

      [325].     See The New National Guard Law, N.Y. Times, Jan. 25, 1870, at 4 (recounting that “[t]he parades became laughing-stock[s]; the musters were contemptible”); Compulsory Militia Service, Abbeville Press & Banner, July 11, 1883, at 2 (“[T]he muster of ante-bellum days was a miserable trave[s]ty upon military training, and only afforded material for the humorist.”); Hummel, supra note 298, at 61 (explaining that “[m]en would muster for mandatory training with cornstalks, brooms, or other silly substitutes for weapons”).

      [326].     Chambers, supra note 10, at 37.

      [327].     See, e.g., Compulsory Militia Service, supra note 325, at 2 (“[I]t would be a very unwise measure to make militia duty compulsory.”); Memorandum from Gen. Leonard Wood to Jacob Dickinson, Sec’y of War (Jan. 11, 1911), quoted in 46 Cong. Rec. 3701 (1911) (“[T]here is no obligation on the part of the citizen to serve; at least, no valid obligation which can be effectively enforced.”); Harrop A. Freeman, The Constitutionality of Peacetime Conscription, 31 Va. L. Rev. 40, 71 (1944) (“Gradually the states abandoned the enrollment of militiamen and did not enforce their compulsory service laws.”).

      [328].     See supra notes 117–118.

      [329].     See Siegel, supra note 74, at 51 n.139 (“The Marshals Service has long declined to require the assistance of private individuals due to concerns about the reliability of people who do not want the job.”).

      [330].     See sources cited supra notes 105–108.

      [331].     For the Court’s earlier performance to this effect, see sources cited supra notes 128–130.

      [332].     See Blue, supra note 100, at 1476 (“The anecdotal, experiential, and jurisprudential information available suggests that these laws are not widely used.”).

      [333].     See Ayling & Grabosky, supra note 86, at 421.

      [334].     See Filarsky v. Delia, 566 U.S. 377, 388 (2012) (noting that “[s]heriffs executing a warrant were empowered by the common law to enlist the aid of able-bodied men of the community,” and that “a private individual had the same authority as the sheriff” (emphases added)).

      [335].     See sources cited supra notes 121–125.

      [336].     See J.W. Kerr, Vaccination: An Analysis of the Laws and Regulations Relating Thereto in Force in the United States 8 (1919) (citing Kentucky’s law, which “require[d] vaccination of all adults . . . and of children within one year after birth”).

      [337].     See City of Phoenix v. Fehlner, 363 P.2d 607, 610 (Ariz. 1961) (“Where once the thought of an injection with a needle to prevent smallpox would have horrified even the most sophisticated in society we now accept it as a matter of course and may constitutionally compel every citizen to submit to the treatment in the interest of general welfare. To suggest otherwise would be laughable in our times.”); see also Commonwealth v. Gillen, 65 Pa. Super. 31, 36 (1916) (“[I]t has been found to be desirable and necessary to make vaccination . . . obligatory in one form or another for the general civil population.”).

      [338].     See Wendy E. Parmet, Constitutional Contagion: COVID, the Courts, and Public Health 95–96 (2023) (describing vaccine mandates applicable to certain public employees, university students and staff, public-health workers, and restaurant customers).

      [339].     See Fulton, supra note 15, at 128–32.

      [340].     See Fran Spelman, Lightfoot Forges Ahead with Oct. 15 Vaccine Mandate for City Employees, Despite Opposition from All Four Police Unions, Chi. Sun-Times (Aug. 25, 2021), https://chicago.suntimes.com/city-hall/2021/8/25/22641495/chicago-coronavirus-vaccine-mandate-october-15-city-employees-police-unions-lightfoot-catanzara [https://perma.cc/NP4F-ZXD9] (quoting the president of Chicago’s Fraternal Order of Police: “This has literally lit a bomb underneath the membership. . . . We’re in America, G-ddamn it. We don’t want to be forced to do anything. Period. This ain’t Nazi f—ing Germany.”); Rep. Jim Jordan (@Jim_Jordan), Twitter (Sept. 6, 2021, 4:34 PM), https://twitter.com/Jim_Jordan/status/1434978332513292291 [https://perma.cc/4QHK-LZFZ] (“Vaccine mandates are un-American.”).

      [341].     See Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 595 U.S. 109, 117 (2022) (describing OSHA’s conditional vaccine mandate for all employers with at least one hundred employees as carrying “vast . . . political significance”); id. at 120 (underscoring that the mandate’s polarizing nature “will cause hundreds of thousands of employees to leave their jobs”).

      [342].     See id. at 117 (deeming OSHA’s mandate “a significant encroachment into the lives—and health—of a vast number of employees”); id. at 124 (Gorsuch, J., concurring) (remarking that OSHA had sought “to regulate the daily lives and liberties of millions of Americans”); Biden v. Missouri, 595 U.S. 87, 104 (2022) (Thomas, J., dissenting) (viewing skeptically a claim of authority “to force healthcare workers . . . to undergo a medical procedure they do not want and cannot undo”).

      [343].     See Does 1–3 v. Mills, 142 S. Ct. 17, 18 (2021) (mem.) (Gorsuch, J., dissenting from denial of application for injunctive relief) (protesting that a state vaccine mandate for healthcare workers “contains no exemption for those whose sincerely held religious beliefs preclude them from accepting the vaccination”); Austin v. U.S. Navy Seals 1–26, 142 S. Ct. 1301, 1304 (2022) (mem.) (Alito, J., dissenting) (highlighting that “compliance with the [Navy’s] vaccination requirement would impose a substantial burden on respondents’ free exercise of religion”).

      [344].     Dr. A v. Hochul, 142 S. Ct. 552, 558 (2021) (mem.) (Gorsuch., J., dissenting from denial of application for injunctive relief).

      [345].     See Kristy N. Kamarck, Cong. Rsch. Serv., The Selective Service System and Draft Registration: Issues for Congress 4, 7–13 (Aug. 18, 2021), https://crsreports.congress.gov/product/pdf/R/R44452 [https://perma.cc/HRU8-G653].

      [346].     115 Cong. Rec. 2447 (1969) (statement of Rep. Kastenmeier).

      [347].     See id. at 22642 (statement of Rep. Clay) (“By its sheer longevity [the draft] has acquired the powerful backing of the status quo . . . .”); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 215 (1963) (Stewart, J., dissenting) (“Ours is a tradition of the citizen soldier.”).

      [348].     See Norman Dorsen & David Rudovsky, Some Thoughts on Dissent, Personal Liberty and War, 54 A.B.A. J. 752, 753 (1968) (observing that “[t]he Vietnam [W]ar has rekindled a latent national hostility to conscription,” yielding condemnation by “disparate political voices”).

      [349].     For sources emphasizing a broad range of material and psychological hardships, see Hanson W. Baldwin, Should We End the Draft?, N.Y. Times, Sept. 27, 1964, at SM113; Ernest Gruening, End the Draft—Now, N.Y. Times, May 5, 1971, at 47; Helen G. Alexander, Letter to the Editor, Writer Labels Draft ‘Slavery,’ Frederick News Post, Mar. 10, 1971, at 19.

      [350].     See Robert Ingram Powell, Involuntary Draft I[s] Violation of the Constitution, Hayward Daily Rev., June 20, 1971, at 30 (“The youths of America recognize that they are expendable and sacrificial animals by congressional pronouncement.”).

      [351].     See, e.g., 110 Cong. Rec. 16811 (1964) (statement of Sen. McGovern) (“Americans have a long tradition of opposition to the idea of compulsory miliary service.”); Extension of the Universal Military Training and Service Act: Hearings Before the H. Comm. on Armed Servs., 90th Cong. 2468 (1967) (statement of Dagmar Wilson) (“Opposition on principle to involuntary military service has been a long and deep-rooted American tradition.”); 115 Cong. Rec. 2447 (1969) (statement of Rep. Kastenmeier) (deeming conscription “a wrenching departure from the traditional American ideal of liberty”).

      [352].     For three expressions of this limitation, see 115 Cong. Rec. 2447 (1969) (statement of Rep. Kastenmeier); id. at 32462 (statement of Rep. Conyers); 117 Cong. Rec. 9022 (1971) (statement of Rep. Ryan).

      [353].     See, e.g., Ayn Rand, The Wreckage of the Consensus, in Capitalism: The Unknown Ideal (2d. ed. 1967), reprinted in The Military Draft, supra note 10, at 172 (“No amount of rationalization . . . can alter the fact that [conscription] represents ‘involuntary servitude.’”); 115 Cong. Rec. 1435 (1969) (statement of Sen. Hatfield) (“[F]ree men should not be forced into involuntary servitude in violation of the 13th Amendment.”) (quoting a Time magazine article); 117 Cong. Rec. 3678 (1971) (statement of Rep. Dellums) (urging that “[t]he time has come to end this 20th Century involuntary servitude”); id. at 5001 (statement of Rep. Abzug) (describing conscription as “involuntary servitude” and “actual slavery”); id. at 8662 (statement of Rep. Dow) (“a form of space age slavery”); id. at 8664 (statement of Rep. Badillo) (“involuntary servitude”); Nicholas von Hoffman, The American Selective Slavery System Is Unamerican, Athens Sunday Messenger, Feb. 28, 1971, at 18 (“This kind of compulsion is involuntary servitude. In short, slavery.”); Gruening, supra note 349 (“I cannot understand why conscription is not the involuntary servitude which the Thirteenth Amendment . . . forbids.”); Powell, supra note 350 (arguing that the draft “enslave[s] the citizens of the United States”).

      [354].     See Jamal Greene, Thirteenth Amendment Optimism, 112 Colum. L. Rev. 1733, 1734, 1739 (2012) (noting how Thirteenth Amendment arguments that may be “conceptually sound” are virtually never “doctrinally promising”).

      [355].     117 Cong. Rec. 11714 (1971) (statement of Sen. Hatfield) (quoting Edward L. Ericson, president of the American Ethical Union).

      [356].     See In re Webb, 586 F. Supp. 1480, 1483 (N.D. Ohio 1984) (“Although we have a military draft, no one is called today.”).

      [357].     See Neal Devins, Bring Back the Draft?, 19 Ga. St. U. L. Rev. 1107, 1122 (2003) (“Congress has virtually no chance of embracing this initiative.”).

      [358].     Most Americans Still Oppose Military Draft, Rasmussen Reps. (Aug. 11, 2022), https://www.rasmussenreports.com/public_content/politics/general_politics/august_2022/most_americans_still_oppose_military_draft [https://perma.cc/BW4A-Y2X5].

      [359].     See Barnett, supra note 21, at 606; Florida v. U.S. Dep’t of Health & Hum. Servs., 648 F.3d 1235, 1290 (11th Cir. 2011); Cato E.D. Va. Brief, supra note 62, at 13; Trattner Brief, supra note 60, at 27; Veasey v. Abbott, 13 F.4th 362, 374 (5th Cir. 2021) (Ho, J., concurring).

      [360].     See 197 U.S. 11, 29 (1905); see also State v. Hay, 35 S.E. 459, 461 (N.C. 1900) (claiming that, “if a people can draft or conscript its citizens to defend its borders from invasion, it can protect itself from . . . deadly pestilence[s]” through compulsory vaccination); id. at 462 (Douglas, J., concurring in the judgment) (assessing vaccination as “ordinarily less harsh than quarantine or isolation”).

      [361].     274 U.S. 200, 207 (1927).

      [362].     See id. (reasoning that, because “the public welfare may call upon the best citizens for their lives,” “[i]t would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices”); Capozzola, supra note 222, at 304–05 (“The involuntary sterilization of a feebleminded woman, [Justice Holmes] claimed, was legally analogous to the noble sacrifices of a citizen-soldier.”).

      [363].     For an additional example, see United States v. Bethlehem Steel Corp., 315 U.S. 289, 305 (1942) (holding that, given Congress’s power to “draft men for battle service,” “[i]ts power to draft business organizations to support the fighting men who risk their lives can be no less”).

      [364].     240 U.S. 328, 330 (1916).

      [365].     Id. at 331.

      [366].     W.H. Stevenson, Trinoda Necessitas, 29 Eng. Hist. Rev. 689, 689 (1914).

      [367].     Butler, 240 U.S. at 331 (quoting 1 William Blackstone, Commentaries *357).

      [368].     See Bank of Ithaca v. King, 12 Wend. 390, 392 (N.Y. Sup. Ct. 1834) (“military” duty); Sawyer v. City of Alton, 3 Scam. 127, 130 (Ill. 1841) (jury and militia duty); In re Dassler, 12 P. 130, 134 (Kan. 1886) (militia duty); State ex rel. Curtis v. City of Topeka, 12 P. 310, 315 (Kan. 1886) (jury and militia duty, federal military conscription, and compulsory snow removal); State v. Covington, 34 S.E. 272, 272 (N.C. 1899) (jury duty, “military” service, and service as a witness); State v. Rayburn, 101 P. 1029, 1034 (Okla. Crim. Ct. App. 1909) (jury duty and “military” service).

      [369].     See, e.g., Chi. Daily Trib., Jan. 23, 1874, at 4 (“[N]obody complains against this interference with private concerns.”).

      [370].     See The Coming Profession, Carroll Free Press, Feb. 19, 1892, at 2 (“Compulsory education naturally follows from compulsory taxation.”).

      [371].     See, e.g., 55 Cong. Rec. 936 (1917) (statement of Sen. Weeks) (arguing that “there is nothing in national compulsion repellent to democracy”); id. at 1097 (statement of Rep. Bankhead) (“Universal obligations of service and burden are inextricably interwoven in all our political and civic relations to the State.”); id. at 1416 (statement of Rep. French) (arguing that conscription “is in harmony with our whole system of Government”).

      [372].     See, e.g., id. at 1112 (statement of Rep. Fuller); id. at 1239 (statement of Rep. Dallinger).

      [373].     See, e.g., id. at 1013 (statement of Sen. Frelinghuysen); id. at 1499 (statement of Sen. Poindexter).

      [374].     See, e.g., id. at 1200 (statement of Rep. Jones (Tex.)); id. at 1416 (statement of Rep. French).

      [375].     See, e.g., id. at 732 (statement of Rep. Borland); id. at 1046 (statement of Rep. Anderson).

      [376].     See, e.g., id. at 936 (statement of Sen. Weeks); id. at 1483 (statement of Sen. Ransdell).

      [377].     See, e.g., id. at 1097 (statement of Rep. Bankhead); id. at 1485 (statement of Sen. Sheppard).

      [378].     Id. at 1056 (statement of Rep. Stephens (Neb.)); see also William Irwin Grubb, Compulsory Military Service, 2 S.L.Q. 277, 278 (1917) (arguing that “a power to enforce men to fight for their country” was just as necessary as one “to enforce contributions of money by taxation”).

      [379].     55 Cong. Rec. 936 (1917) (statement of Sen. Weeks).

      [380].     See Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 459 (2d Cir. 1996); Steirer ex rel. Steirer v. Bethlehem Area Sch. Dist., 987 F.2d 989, 999 (3d Cir. 1993).

      [381].     Herndon ex rel. Herndon v. Chapel Hill–Carrboro City Bd. of Educ., 899 F. Supp. 1443, 1447 (M.D.N.C. 1995), aff’d, 89 F.3d 174 (4th Cir. 1996).

      [382].     Rowe v. City of Elyria, 38 F. App’x 277, 283 (6th Cir. 2002) (quoting United States v. Kozminski, 487 U.S. 931, 944 (1988)); see also Gasses v. City of Riverdale, 701 S.E.2d 157, 160 (Ga. 2010) (holding, immediately after identifying various “civic duties,” that localities may “requir[e] a citizen to maintain grass, weeds, and vegetation for the welfare of the community”).

      [383].     Bobilin v. Bd. of Educ. of Hawaii, 403 F. Supp. 1095, 1102–03 (D. Haw. 1975).

      [384].     See generally Armstrong, supra note 34.

      [385].     Veasey v. Abbott, 13 F.4th 362, 372 (5th Cir. 2021) (Ho, J., concurring).

      [386].     Id. at 374.

      [387].     Id.

      [388].     Id.

      [389].     Id. Here, Judge Ho might have cited a rather surprising source—Chief Justice Warren. See Trop v. Dulles, 356 U.S. 86, 92 (1958) (opinion of Warren, C.J.) (classifying among “[t]he duties of citizenship” the act of “abid[ing] by the laws safeguarding the integrity of elections”).

      [390].     See 55 Cong. Rec. 1265 (1917) (statement of Rep. Burnett) (“[H]ave you no higher estimate of human life than to compare the selecting of a man to sit for a week in a peaceful court room to that of selecting men to be sent 3,000 miles from home across the seas to face death among aliens and strangers?”); Selective Compulsory Military Training and Service, Hearings Before the H. Comm. on Military Affs., 76th Cong. 560 (1940) (statement of Calvin Sutherlin) (“[I]n taxation you are not asking that he give his life, but you are asking that he give a part of his wealth that he and others produce.”); George Kateb, The Inner Ocean: Individualism and Democratic Culture 187 (1992) (critiquing the Court’s “untroubled equation of jury service and military service”).

      [391].     See Florida v. U.S. Dep’t of Health & Hum. Servs., 648 F.3d 1235, 1290 (11th Cir. 2011) (holding that Congress cannot create civic duties that entail “compulsory contract[s] with a private company,” because all existing mandates “involve a citizen directly interacting with the government”); Thomas More L. Ctr. v. Obama, 651 F.3d 529, 559 (6th Cir. 2011) (Sutton, J., concurring in part) (arguing that any defense of the ACA’s individual mandate that invoked military conscription “gives analogy a bad name”); id. (“There is a difference between drafting a citizen to join the military and forcing him to respond to a price quote from Aetna.”).

      [392].     Black, supra note 14, at 157; see also id. (“If one uses the military draft as an analogical basis for other invasions of personal freedom, then it seems evident that almost anything can be justified.”).

      [393].     See Rice, supra note 309, at 625 (documenting courts’ reliance on Butler v. Perry to uphold unpaid labor in school cafeterias and state-run mental hospitals).

      [394].     See Arthur A. Ballintine, Railway Strikes and the Constitution, 17 Colum. L. Rev. 502, 512 (1917) (“It would be difficult to argue today that work on railways is in its essence less public than work on highways.”); P.A. Pare, The Right of Enforced Labor, Notwithstanding the 13th Amendment to the United States Constitution, 7 Bi-Monthly L. Rev. 4, 10 (1923) (“The railroads are the highways of the nation.”).

      [395].     See Joseph Blocher, The Right Not to Keep or Bear Arms, 64 Stan. L. Rev. 1, 37 (2012) (“Mandatory gun possession is not widespread, but some communities have either proposed or passed laws embracing it.”).

      [396].     See Oldest Consul Dead; Horatio J. Sprague Served Under 14 Presidents, Boston Daily Globe, July 18, 1901, at 17 (quoting Sprague: “If I had it my way I would make it compulsory for all Americans to learn at least two foreign languages.”).

      [397].     See Civil Conscription, supra note 34, at 269 (maintaining that “[c]onscription to serve the state’s needs is neither slavery nor involuntary servitude”); Correa, supra note 34, at 129 (endorsing the position that “statutorily prescribed public service is never involuntary servitude”); Michael H. LeRoy, Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude? The Case of Crippled Ports, 28 Berkeley J. Emp. & Lab. L. 321, 360 (2007) (claiming that the Thirteenth Amendment contains “an exception for public service compelled by a government body”). But see Francis Hoague, Russell M. Brown & Philip Marcus, Wartime Conscription and Control of Labor, 54 Harv. L. Rev. 50, 86 (1940) (arguing that “the current picture in totalitarian states” refutes the idea that compulsory public service “could never result in a state of peonage”).

      [398].     See The People Out of Doors: Health-Care Demonstrations at the Supreme Court, Rice on History (Mar. 28, 2012), https://riceonhistory.wordpress.com/2012/03/28/aca-scotus-3/ [https://perma.cc/A5QW-63NV] (presenting numerous photographs of protest signs that depicted the ACA as a dangerous assault on liberty).

      [399].     See Mark D. Rosen & Christopher W. Schmidt, Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case, 61 UCLA L. Rev. 66, 100–13 (2013) (offering a cultural and legal history of the broccoli hypothetical).

      [400].     See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 557–58 (2012) (opinion of Roberts, C.J.) (rejecting the constitutionality of a hypothesized federal broccoli-purchase mandate); id. at 660 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (arguing that the government’s theory would authorize forced broccoli consumption).

      [401].     See U.S. Const. art. I, § 8, cl. 1. Social Security taxes are an obvious parallel. Hunter, supra note 34, at 1970–72.

      [402].     See William J. Novak, The People’s Welfare: Law & Regulation in Nineteenth-Century America 57 (1996) (citing an 1813 New York City code provision that empowered officials “to compel the service of the citizenry (and their buckets) to extinguish fires”).

      [403].     See State v. Wheeler, 53 S.E. 358, 359 (N.C. 1906) (claiming that persons fulfilling public duties may justly be exposed “to weather, to disease, to danger, and to death”).

      [404].     See Peter Brandon Bayer, The Individual Mandate’s Due Process Legality: A Kantian Explanation, and Why It Matters, 44 Loy. U. Chi. L.J. 865, 869 n.10 (2013) (arguing that the ACA’s financial compulsion “seems a trivial burden” in comparison to the draft and quarantine restrictions).

      [405].     See sources cited supra notes 145–160 and accompanying text.

      [406].     See, e.g., Terre Haute Saturday Evening Mail, Sept. 23, 1871, at 8 (“If the State can insist upon compulsory education it can also insist upon compulsory cleanliness, compulsory politeness, and compulsory orthodox morality.”); Compulsory Education, Rochester Cath. J., Oct. 4, 1890, at 7 (claiming that “it would follow with logical necessity that the State has the right to prescribe the quality of the food, clothing and exercise of its children”); LeMars Wkly. Sun, Feb. 13, 1892, at 8 (“Is the law to enter the household and regulate its manners, its cookery and its everyday wear?”).

      [407].     Henderson, supra note 3, at 48.

      [408].     Id.

      [409].     Id.

      [410].     Id. at 48–49.

      [411].     Id. at 47.

      [412].     See id. at 47–48.

      [413].     Id. at 47; see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 655 (1943) (Frankfurter, J., dissenting) (“Law . . . rests in large measure upon compulsion.”).

      [414].     See Hunter, supra note 34, at 1978 (arguing that, at bottom, the individual mandate’s legitimacy “turns on whether . . . a sacrifice of individual economic liberty is justified by an obligation to contribute to the common good”).

      [415].     See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 554 (2012) (opinion of Roberts, C.J.).

      [416].     See Compulsory Voting, Catskill Recorder, Jan. 10, 1873, at 2 (describing compulsory voting as “too obviously unnatural in a republic to be even momentarily entertained”); Compulsory Voting, N.Y. Times, Aug. 2, 1894, at 4 (“not consistent with free institutions or with the spirit of a free people”); Pennsylvania Wins the Debate, Phila. Daily Pennsylvanian, Mar. 8, 1902, at 1 (“an unparalleled subversion of our principles of government”) (quoting Merlin L. Wiley); Useless, Heppner Gazette Times, Oct. 7, 1920, at 4 (flouts “the ingrained American love of personal liberty”); Majority Is Opposed to Compulsory Voting Plan, Modesto Bee & News Herald, July 26, 1956, at 27 (“against American principles”) (quoting local resident Bruce E. Crawford).

      [417].     See Richard L. Hasen, Voting Without Law?, 144 U. Pa. L. Rev. 2135, 2173 (1996) (“[C]ompulsory voting has virtually no chance of enactment in the United States.”); Anthony Ciccone, The Constitutional Right to Vote Is Not a Duty, 23 Hamline J. Pub. L. & Pol’y 325, 350 (2002) (arguing that compulsory voting “would violate the underlying thesis of American life”); Hans A. von Spakovsky, Compulsory Voting Is Unconstitutional, Heritage Found. (Apr. 1, 2015), https://www.heritage.org/political-process/commentary/compulsory-voting-unconstitutional [https://perma.cc/FS28-2JGU] (deeming compulsory voting inconsistent with “our most cherished liberty: the right to be left alone by the government”).

      [418].     See, e.g., New Reform Ideas, Denton J., Feb. 18, 1882, at 3 (citing jury service, military conscription, compulsory office-holding, and compulsory education); Harris J. Clinton, Compulsory Voting Demanded, 145 N. Am. Rev. 685, 685 (1887) (jury service); Compulsory Voting, New Albany Daily Ledger, Oct. 11, 1889, at 4 (taxation, road work, jury service, and compulsory education); Frederick William Holls, Compulsory Voting, 1 Annals of Am. Acad. of Pol. & Soc. Sci. 586, 589 (1891) (jury service); For Compulsory Voting, Ark. Gazette, Oct. 17, 1913, at 1 (jury service, military conscription, compulsory testimony, road work, and taxation) (quoting Secretary of the Navy Josephus Daniels); 55 Cong. Rec. 1346 (1917) (statement of Sen. Chamberlain) (military conscription); Ross Parish, For Compulsory Voting, 8 Pol’y 15, 17–18 (1992) (jury service and draft registration); Jason Brennan & Lisa Hill, Compulsory Voting: For and Against 113 (2014) (taxation and compulsory education); Yankah, supra note 77, at 658–59 (taxation, compulsory education, draft registration, and jury service).

      [419].     See Sean Matsler, Note, Compulsory Voting in America, 76 S. Cal. L. Rev. 953, 974 (2003).

      [420].     See, e.g., Whitlock v. Hawkins, 53 S.E. 401, 405 (Va. 1906) (“It is the duty of every citizen, in return for the protection he receives of his person and property, to bear his just proportion of the burden of taxation.”).

      [421].     See People ex rel. German Ins. Co. v. Williams, 33 N.E. 849, 852 (Ill. 1893) (“The burden of government must be borne as a contribution by the citizen in return for the protection afforded.”).

      [422].     See, e.g., Arver v. United States (The Selective Draft Law Cases), 245 U.S. 366, 378 (1918) (stating that the government’s “duty to the citizen” entails “the reciprocal obligation of the citizen to render military service in case of need”).

      [423].     See Note, The Case for Compulsory Voting in the United States, 121 Harv. L. Rev. 591, 594 (2007) (“There are serious questions about how legitimate a government is when the vast majority of citizens have not elected it.”).

      [424].     See Abbot, supra note 142, at 9.

      [425].     See Alan Wertheimer, Opinion, For Compulsory Voting, N.Y. Times, Aug. 23, 1976, at 23.

      [426].     Professor Ekow Yankah—undeterred by “the American allergy to universal voting”—argues that “we should change just such a norm.” See Yankah, supra note 77, at 660.

      [427].     Minn. Voters All. v. Mansky, 585 U.S. 1, 23 (2018).

      [428].     See Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting) (observing that “the people, unlike judges, need not carry things to their logical conclusion”).

      [429].     See Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 257 (1891).

      [430].     Id. at 253.

      [431].     Id. at 251; see also id. at 252 (emphasizing the “indignity” of having to “submit [one’s body] to the touch of a stranger”).

      [432].     See Rochin v. California, 342 U.S. 165, 166, 174 (1952).

      [433].     Id. at 172–73.

      [434].     See Winston v. Lee, 470 U.S. 753, 756–57, 766 (1985).

      [435].     Id. at 765.

      [436].     Id. at 761. Less abstractly, he faced “some risk[]” of injury to nearby muscle and other tissues. Id. at 763–74.

      [437].     Id. at 766.

      [438].     Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 660 (2012) (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).

      [439].     See Biden v. Missouri, 595 U.S. 87, 104 (2022) (Thomas, J., dissenting) (characterizing the relevant issue as whether an agency was empowered “to force healthcare workers . . . to undergo a medical procedure they do not want and cannot undo”); id. at 108 (Alito, J., dissenting) (describing vaccination as “an irreversible medical treatment”).

      [440].     Cruzan v. Missouri, 497 U.S. 261, 269 (1990) (quoting Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914)).

      [441].     Id. at 278; see also id. at 287 (O’Connor, J., concurring) (“[T]he Court has often deemed state incursions into the body repugnant to the interests protected by the Due Process Clause.”).

      [442].     See Mary Anne Franks (@ma_franks), Twitter (May 2, 2022, 8:14 PM), https://twitter.com/ma_franks/status/1521297081700388865 [https://perma.cc/G5EF-4J4B] (“Forcing women to give birth against their will is barbaric.”); Dorf, supra note 16, at 919 (“If it is an intolerable infringement on liberty for the government to require anyone to ingest a single piece of broccoli, surely it is no less an infringement for the government to mandate that a woman give over her uterus to another being for nine months.”). For an argument that abortion restrictions rest on an embedded theory of civic duty, see infra Part IV.A.

      [443].     Eileen McDonagh, Breaking the Abortion Deadlock: From Choice to Consent 73 (1996).

      [444].     Id. at 71.

      [445].     597 U.S. 215 (2022).

      [446].     Id. at 287.

      [447].     More-deferential review is said to be warranted for laws requiring the disclosure of “factual, noncontroversial information.” Nat’l Inst. of Family & Life Advocs. v. Becerra (NIFLA), 585 U.S. 755, 768 (2018).

      [448].     303 Creative LLC v. Elenis, 600 U.S. 570, 592 (2023).

      [449].     Id. at 597.

      [450].     NIFLA, 585 U.S. at 779 (Kennedy, J., concurring).

      [451].     303 Creative, 600 U.S. at 603.

      [452].     See Torres v. Tex. Dep’t of Pub. Safety, 597 U.S. 580, 591–94 (2022) (quoting President Lincoln’s defense of military conscription, citing the Selective Draft Law Cases, and insisting that “every resource of the people must be at [Congress’s] command” in raising armies (quoting Lichter v. United States, 334 U.S. 742, 757 n.4 (1948))).

      [453].     Wooley v. Maynard, 430 U.S. 705, 707, 717 (1977).

      [454].     Id. at 715.

      [455].     See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

      [456].     But see id. (“The test of [freedom’s] substance is the right to differ as to things that touch the heart of the existing order.”).

      [457].     Foes of conscription have long emphasized its steamrolling of moral qualms. See, e.g., Brief of Petitioners at 99, Goldman v. United States, 245 U.S. 474 (1918) (arguing that conscription makes the government the “absolute controller of the body and the conscience of all its citizens”); Extension of the Draft and Related Authorities, Hearings Before the S. Comm. on Armed Servs., 86th Cong. 227 (1959) (statement of Judge Byron Haworth) (arguing that, in forcing individuals to engage in “organized killing,” conscription defeats the “draftee’s own survival as a responsible moral being”); Extension of the Universal Military Training and Service Act, Hearings Before the H. Comm. on Armed Servs., 90th Cong. 2303 (1967) (statement of the American Civil Liberties Union) (claiming that conscription “compels [the individual] to engage in activities which he may find repugnant and contrary to his individual beliefs”). Courts have routinely stated that there is no constitutional entitlement to immunity from conscription on religious or conscientious grounds. See Mark L. Rienzi, The Constitutional Right Not to Kill, 62 Emory L.J. 121, 136 n.61 (2012).

      [458].     See supra Part III.C.

      [459].     U.S. Const. art. I, § 8, cl. 12.

      [460].     See Cong. Globe, 37th Cong., 3d Sess. 976–77 (1863) (statement of Sen. Wilson) (interpreting the Armies Clause in light of “[t]he needs of the nation” and the inadequacy of volunteers); 91 Cong. Rec. A2610 (1945) (statement of Sen. Taft) (“It makes very little difference whether [peacetime conscription] actually violates the terms of the Constitution. It is against the fundamental policy of America and the American Nation.”).

      [461].     For further examples that were decided under less-patterned frameworks, see First State Bank of Sutherlin v. Kendall Lumber Corp., 213 P. 142, 146 (Ore. 1923) (upholding a state’s requirement that owners of timber lands arrange for a fire patrol on their properties); and Picou v. Gillum, 874 F.2d 1519, 1522 (11th Cir. 1989) (upholding a state’s requirement that motorcyclists wear protective headgear, given that “the costs of [any] injury may be borne by the public”).

      [462].     Breithaupt v. Abram, 352 U.S. 432, 435 (1957).

      [463].     Id. at 436.

      [464].     Id. at 439.

      [465].     Id.

      [466].     Id.; see also id. at 444 (Douglas, J., dissenting) (remarking that “there is compulsion here”).

      [467].     See Schmerber v. California, 384 U.S. 757, 771 (1966) (noting that blood draws “are a commonplace in these days of periodic physical examinations”); Mitchell v. Wisconsin, 588 U.S. 840, 851–52 (2019) (plurality opinion) (citing recent statistics in underscoring the vitality of the state’s interest in compulsory blood extraction for ostensibly intoxicated drivers).

      [468].     See United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976) (noting “the substantiality of the public interest” in reducing the inward “flow of illegal aliens”); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451 (1990) (“No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.”); Illinois v. Lidster, 540 U.S. 419, 427 (2004) (assessing as “grave” the public interest in “investigating a crime that had resulted in a human death”).

      [469].     See Martinez-Fuerte, 428 U.S. at 557 (finding that “the consequent intrusion on Fourth Amendment interests is quite limited”); Sitz, 496 U.S. at 451 (measuring as “slight” the “intrusion on motorists stopped briefly at sobriety checkpoints”); Lidster, 540 U.S. at 427 (“[T]he stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect.”).

      [470].     See Robert Post, Public Accommodations and the First Amendment: 303 Creative and “Pure Speech,” 2023 Sup. Ct. Rev. 251, 296, 300 (explaining that public-accommodations laws entail using legal “compulsion” to “enforce equality of treatment”).

      [471].     Senator Strom Thurmond, in particular, argued that the Thirteenth Amendment enshrined a “personal right” to “pick and choose one’s customers.” S. Rep. No. 88-872, at 52 (1964) (individual views of Senator Strom Thurmond); see also Alfred Avins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 Cornell L.Q. 228, 255 (1964) (“That antidiscrimination laws which compel one person to serve another are unconstitutional seems to be open to little doubt.”). For further perspective on this now-shocking Thirteenth Amendment claim, see generally Linda L. McClain, Involuntary Servitude, Public Accommodations Laws, and the Legacy of Heart of Atlanta Motel, Inc. v. United States, 71 Md. L. Rev. 83 (2011).

      [472].     See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 260–61 (1964) (denying “that the prohibition of racial discrimination in public accommodations interferes with personal liberty,” and rejecting a Thirteenth Amendment claim to that effect).

      [473].     See H. Rep. No. 88-914, at 18 (1963) (citing a “growing recognition on the part of all of our people of the incompatibility of such discrimination with our ideals and the principles to which this country is dedicated”); Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283, 1291 (1996) (detecting a “settled social consensus” that businesses open to the public may not exclude customers on account of race).

      [474].     See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 928 (1992) (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part), overruled by Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (observing that, “b[y] restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service”); Cynthia Boyer, Abortion Restrictions During a Pandemic at the Intersection of the 13th Amendment and Electoral Legislation, 19 U.N.H. L. Rev. 423, 443 (2021) (“[P]rohibiting abortion compels the pregnant woman to render service to the state.”); Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood 191 (2020) (claiming that abortion restrictions, among other policies, “regard[] pregnant women as objects of the state”).

      [475].     See Speaker Mike Johnson, Congressman Johnson on Overturning Roe v. Wade: “I Will Not Yield.,” YouTube, at 3:22 (May 11, 2022), https://www.youtube.com/watch?v=fdyifVvEO-w (statement of Rep. Mike Johnson) (in discussing the effects of Roe v. Wade: “You think about the implications of that on the economy. . . . If we had all of those able-bodied workers in the economy, we wouldn’t be going upside down and toppling over like this.”).

      [476].     See sources cited supra note 33; see also Julie C. Suk, A World Without Roe: The Constitutional Future of Unwanted Pregnancy, 64 Wm. & Mary L. Rev. 443, 461 (2022) (“In prohibiting abortion, the State coerces women’s sacrifices for the social and public good.”); id. at 461, 486 (recognizing that these laws pursue “collective benefits,” siphoning women’s time and energy to “empower the State to further its goals”); Melissa Murray, Address, Children of Men: The Roberts Court’s Jurisprudence of Masculinity, 60 Hous. L. Rev. 799, 833 (2023) (observing that, under Dobbs, “the pregnant body is . . . an object of public interest”); Sistersong Women of Color Reprod. Just. Collective v. Georgia, Civ. Action 2022CV367796, at *15 n.21 (Ga. Super. Ct. Sept. 30, 2024) (noting that abortion restrictions “compel a subset of our society to, against their will, labor for what the Legislature has decided is the betterment of society”). I thus part ways with Professor Koppelman, who has characterized abortion restrictions as compelling service merely to “private individuals.” Koppelman, supra note 34, at 519.

      [477].     See, e.g., United States v. Ballek, 170 F.3d 871, 874 (9th Cir. 1999) (explaining that child-support obligations “raise[] more than a private legal dispute,” but are instead “a matter of vital importance to the community”).

      [478].     See Hoyt v. Florida, 368 U.S. 57, 62 (1961) (allowing states to exempt women from compulsory jury service, given that “woman is still regarded as the center of home and family life”), overruled in effect by Taylor v. Louisiana, 419 U.S. 522, 537 (1975).

      [479].     For several examples, see Meghan M. Boone & Benjamin J. McMichael, Reproductive Objectification, 108 Minn. L. Rev. 2493, 2533–35 (2024).

      [480].     The canonical excavation of this nineteenth-century history is contained in Siegel, supra note 33, at 280–323.

      [481].     Dov Fox, Thirteenth Amendment Reflections on Abortion, Surrogacy, and Race Selection, 104 Cornell L. Rev. Online 114, 121 (2019); see also Barnett, supra note 21, at 608 (asserting that all existing duties are “necessary for the operation of government itself”); Koppelman, supra note 34, at 519 (creatively reading Butler’s civic-duty exception as applying to “only those ‘essential powers’ in the absence of which ‘liberty under the protection of effective government’ would face ‘destruction’” (quoting Butler v. Perry, 240 U.S. 328, 333 (1916))).

      [482].     Stanton v. Stanton, 421 U.S. 7, 14 (1975); see also Koppelman, supra note 34, at 522 (“The idea that childbearing is a woman’s civic duty is no longer persuasive in constitutional argument.”).

      [483].     Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 236–37 (2022).

      [484].     See source cited supra note 37; see also Dobbs, 597 U.S. at 250 (emphasizing that “by 1868 the vast majority of States criminalized abortion at all stages of pregnancy”). In fairness, I also believe that freedom from compulsion cannot be justified indefinitely on stare decisis grounds, as the Dobbs dissenters seemed to suggest. See Dobbs, 597 U.S. at 389 (Breyer, Sotomayor & Kagan, JJ., dissenting).

      [485].     See Rice, supra note 310, at 190 (“When such a societal consensus arises, the legal profession inevitably rethinks what the Constitution has to say about the offending practice.”).

      [486].     See State v. Roberson, 935 N.W.2d 813, 829 (Wis. 2019) (Bradley, J., concurring) (describing as “evil” and “deplorable” the 1927 Supreme Court decision that upheld a state’s compulsory-sterilization law).

      [487].     Courts routinely distinguish between decent and dishonorable traditions. See Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hous. L. Rev. 901, 912 (2023) (demonstrating that the Court’s conservatives often decide cases in ways “that accommodate change or that self-consciously break with the mores of the past”).

      [488].     See Indian Child Welfare Program, Hearings Before the Subcomm. on Indian Affs. of the S. Comm. on Interior and Insular Affs., 93d Cong. 3 (1974) (statement of William Byler) (“The wholesale removal of Indian children from their homes . . . is perhaps the most tragic aspect of Indian life today.”).

      [489].     See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 35 n.4 (1989).

      [490].     Margaret D. Jacobs, A Generation Removed: The Fostering and Adoption of Indigenous Children in the Postwar World 93 (2014).

      [491].     Holyfield, 490 U.S. at 33.

      [492].     See Maher v. Roe, 432 U.S. 464, 478 n.11 (1977) (explaining that the “rate of population growth” is a question “basic to the future of the State”).

      [493].     25 U.S.C. §§ 1901–63.

      [494].     Id. § 1901(2).

      [495].     Id. § 1902.

      [496].     See id. § 1901(4) (finding that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies”); Indian Child Welfare Program, Hearings Before the Subcomm. on Indian Affs. of the S. Comm. on Interior and Insular Affs., 93d Cong. 2 (1974) (statement of Sen. Abourezk) (arguing that these removals “str[uck] at the heart of Indian communities”).

      [497].     25 U.S.C. § 1901(3).

      [498].     Id. § 1902.

      [499].     The term “Indian child” is statutorily defined as any unmarried person under age eighteen, and who is either a tribal member or (a) eligible for tribal membership and (b) the biological child of a tribal member. Id. § 1903(4).

      [500].     Id. § 1915(a).

      [501].     For an insider’s perspective on this decade of litigation, see Kathryn Fort, The Road to Brackeen: Defending ICWA, 2013–2023, 72 Am. U. L. Rev. 1673 (2023). Although the Supreme Court recently affirmed Congress’s authority to enact ICWA, Haaland v. Brackeen, 599 U.S. 255, 296 (2023), the challengers’ equal-protection claim was dismissed only for lack of standing, id. The Court may well confront this issue again.

      [502].     See Individual Petitioners’ Brief, supra note 40, at 43 (accusing ICWA of “[d]isregarding the well-being and best interests of Indian children”); see also Brackeen, 599 U.S. at 373 (Alito, J., dissenting) (claiming that ICWA “sacrifice[s] the best interests of vulnerable children to promote the interests of tribes”).

      [503].     See sources cited supra note 40.

      [504].     25 U.S.C. § 1901(3).

      [505].     Id. § 1902.

      [506].     Extensive research has confirmed the success of ICWA’s approach. See generally Brief of Amici Curiae Casey Family Programs and Twenty-Six Other Child Welfare and Adoption Organizations in Support of Petitioners, Haaland v. Brackeen, 599 U.S. 255 (2023) (No. 21-376).

      [507].     25 U.S.C. § 1915(a).

      [508].     See 25 C.F.R. § 23.132(b) (clarifying that the party seeking to relax ICWA’s placement preferences “bear[s] the burden of proving by clear and convincing evidence that there is ‘good cause’ to depart” therefrom); id. § 23.132(c)(4) (listing, among other possible bases for “good cause,” “[t]he extraordinary physical, mental, or emotional needs of the Indian child”) (emphasis added).

      [509].     Stephens v. Bongart, 189 A. 131, 132 (N.J. Juv. & Dom. Rels. Ct. 1937); see also A Compulsory School Law, Somerset Herald, Jan. 21, 1891, at 1 (arguing that “[e]very child is, and should be, regarded as a component part of the State”); State v. Jackson, 53 A. 1021, 1022 (N.H. 1902) (declaring that “education of the citizen is essential to the stability of the state”); Malone v. Hayden, 197 A. 344, 352 (Pa. 1938) (deeming an educated citizenry “necessary for the sustenance and preservation of our modern state”).

      [510].     See supra note 142 and accompanying text; see also Fogg v. Bd. of Educ. of Union Sch. Dist. of Littleton, 82 A. 173, 174 (N.H. 1912) (“[T]he interest of the public in the intelligence of the people generally is paramount to the special interest or desire of a single individual.”).

      [511].     See sources cited supra notes 245–247, 350 & 353 and accompanying text.

      [512].     See, e.g., 55 Cong. Rec. 1500 (1917) (statement of Sen. Poindexter) (advocating an “obligation to serve” in order “that the nation may survive”); Selective Compulsory Military Training and Service, Hearings Before the H. Comm. on Military Affs., 76th Cong. 57 (1940) (statement of Rep. Faddis) (portraying conscription as a tool “to preserve the Nation”); 94 Cong. Rec. 8658 (1948) (statement of Rep. Poage) (deeming it Congress’s “unquestionable right . . . to call upon any citizen to make sacrifices to see that his country is perpetuated”).

      [513].     See, e.g., United States v. Macintosh, 283 U.S. 605, 625 (1931) (explaining that “we are a Nation with the duty to survive”); see also Paul J. Larkin, The Choice Between Persuading and Coercing Americans to Get Vaccinated Against COVID-19, 20 Geo. J.L. & Pol’y 351, 352 (2022) (“[T]he Supreme Court . . . made it quite clear that any society may ask its citizens to make sacrifices to ensure that the nation survives.”).

      [514].     Torres v. Tex. Dep’t of Pub. Safety, 597 U.S. 580, 596 (2022).

      [515].     See Individual Petitioners Brief, supra note 40, at 9 (claiming that “placement with the Brackeens would have kept A.L.M. with the only parents he knew”); id. at 10 (stating that “Child P. cried uncontrollably” after being removed from her foster home (internal quotation marks omitted)); Brackeen Transcript, supra note 40, at 5 (statement of Matthew McGill) (“Not even Y.R.J.’s deep attachment to the Brackeens after being part of their family for four years is sufficient.”).

      [516].     See, e.g., Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 814 (11th Cir. 2004) (recognizing that all foster relationships—even those yielding strong “emotional connections”—are entered into on the understanding that they “w[ill] not be immune from state oversight and w[ill] be permitted to continue only upon state approval”).

      [517].     Of course, ICWA generally prioritizes the preservation of existing family relationships. See 25 U.S.C. § 1915 (specifying “a member of the child’s extended family” as the statute’s first placement preference).

      [518].     See, e.g., Webster, supra note 10, at 642 (“There is no relation so tender or so sacred, that, by these accursed measures, you do not propose to violate it.”); 55 Cong. Rec. 1354 (1917) (statement of Sen. La Follette) (arguing that conscription would “violently lay hold of” America’s youth “against the will and wishes of their parents or family”); Alexander, supra note 349 (“It is time for parents to realize that their sons do not belong to the government to be used as pawns and serfs. They belong to the family unit and the State has no right . . . to disrupt that family unit.”).

      [519].     See Brief of Amicus Curiae Goldwater Institute et al. in Support of Petitioners at 18, Haaland v. Brackeen, 599 U.S. 255 (2023) (No. 21-376) (“ICWA overrides the choices of Native parents who seek to protect their children from harm.”); see also Brackeen, 599 U.S. at 372 (Alito, J., dissenting) (objecting that ICWA “subordinate[s] what . . . biological parents[] determine to be in the best interests of a child”).

      [520].     See Goldwater Brief, supra note 519, at 17–18.

      [521].     By surrendering their parental rights to the state, natural parents necessarily forgo the ability to direct their children’s destiny absent governmental regulation.

      [522].     See sources cited supra notes 139–140 and accompanying text.

      [523].     See Letter from Ohio, Romney S. Branch Intelligencer, Aug. 28, 1874, at 3 (claiming that compulsory education flows from “the right of the State for her self-protection”).

      [524].     See Brackeen Transcript, supra note 40, at 31 (statement of Kagan, J.) (“I can’t imagine . . . a statute that’s . . . more wrapped up in the continued flourishment of political communities.”).

      [525].     See Haaland v. Brackeen, 599 U.S. 255, 297 (Gorsuch, J., concurring) (explaining that the pre-ICWA status quo “presented an existential threat to the continued vitality of Tribes”); Indian Child Welfare Program, Hearings Before the Subcomm. on Indian Affs. of the S. Comm. on Interior and Insular Affs., 93d Cong. 2 (1974) (statement of Sen. Abourezk) (urging prompt action “to see to it that American Indian communities . . . are not destroyed”).

      [526].     See sources cited supra note 212 and accompanying text; see also Lindsay, supra note 211, at 142 (explaining that conscription was employed during World War I “with no pretense of necessity”).

      [527].     See Nixon, supra note 285, at 605 (deeming “huge ground armies operating in massive formations . . . a thing of the past”).