-- Posted by Neil H. Buchanan
[Update: In the post below, I discussed the film "12 Years a Slave" at some
length. I did not know as I wrote that post, of course, that the Best
Picture Oscar would be awarded to that movie several nights later.
Indeed, I had forgotten all about the Oscars. In any event, even though
the award was not necessary to validate what is one of the most
important films of recent years, it was a well deserved recognition of a
My new Verdict column, published yesterday, is mostly devoted to an extension of my analysis of the "baseline problem" (which I also discussed in a Dorf on Law post two weeks ago). On Monday, I will publish a post that summarizes that column, and that further develops the core of my argument.
Today, however, I want to take a bit of a detour. In yesterday's column, as I will explain below, I struggled with how to use the example of slavery to further my argument. Based on my difficulty in using that example, I have been thinking about the great potency of references to slavery in modern policy discourse, and why that power is problematic, in ways that merit further scrutiny.
We can, I think, stipulate that there are situations in which the slavery example is directly implicated. If, for example, one were to note that United States history includes prominent examples of shameful policies, it would be strange indeed if slavery did not lead the list -- and it would be outright suspicious if it were omitted from the list entirely. Along with internment of Japanese-American citizens during WWII, and other race-related policies and legal decisions (Jim Crow, Plessy), we would add to the list the disenfranchisement of women for over a century of our history, the continuing failure to address gender-, class-, and race-related economic and social inequality, and we might add Lochner as well as the anti-labor policies of the early industrial era. But slavery is clearly the leading example of national shame, and talking about it in that context would be essential.
The next category might be thought of as conversations in which slavery is one of many pertinent, illustrative examples, but not a necessary one. For example, earlier this week, in a post about the right's "religious freedom" political strategy, Professor Dorf wrote: "By seeking religious exceptions from laws governing society very
broadly, social conservatives are over-playing their hand. Past
experience here is a useful guide. Slaveowners often made biblical
arguments to justify slavery; yet nobody thought that once slavery was
outlawed, there should be exceptions for people who held slaves as a
matter of religious obligation."
That is a powerful example, and it explicates Professor Dorf's point well. One could imagine him choosing a different example (although I cannot think of any), but mentioning slavery there was anything but a reach. Even so, we are already treading into territory where one starts to become a bit nervous, because once slavery is part of an analogy -- X is "like slavery" in one way or another -- then we must take great care to be sure that slavery is not somehow trivialized. Again, I think Professor Dorf's use of the analogy easily passes this test. He uses a powerful example, but not in a way that uses the uniqueness of slavery to exaggerate the power of his actual point. One could, however, imagine another author being less careful.
In fact, I might be an example of that less-careful kind of author. In my Verdict column today, I describe the difficulty that I have faced in trying to explain how the notion of economic efficiency is contingent on the laws under which economic activity is carried out. I have, at various times, made the point that abolishing slavery would be inefficient (under the standard economic analysis), in a world where slavery is legal, while enacting a slavery regime would be inefficient, in a world where slavery was not currently legal.
Although that example is correct and directly pertinent, it is only one of an uncountable number of examples that could be mustered to make the same point. I have deliberately used the slavery example to convince people that the stakes in economic efficiency analysis are anything but boring or sterile, but rather that human freedom itself can be implicated by the analysis. Unfortunately, the impact of that example is possibly too great. As I noted in my column, one smart and well-meaning person has told me that his reaction to my example was: "All right, so slavery is always a special case. What else ya got?"
As frustrating as that reaction was, I do understand it. Seen in all of its horrors, slavery is uniquely awful. During my Tax Policy Seminar last semester, the discussion at one point slipped into some casual (but not ill-spirited) opining about how some policy or another was "like slavery" in some meaningful way. Finally, one student said, "We need to remember that nothing is like slavery." He reminded his fellow students (and me) that slavery was far more than forced labor without pay, extending to grotesque violence and the complete dehumanization of the people who were enslaved.
Early in each semester, I discuss in my basic tax law course the "tax protester" arguments against the legality of the federal income tax (and, for that matter, all taxes). The low/high point of that discussion each term is when I note the protesters' claim that the federal income tax violates the 13th Amendment's abolition of slavery and involuntary servitude. Part of that argument (if one can call it an argument) is surely based on the idea promulgated by a prominent right-wing anti-tax group, which annually announces the day on which people are "free" from taxes. The idea is that, if taxes were to add up to, say, 25% of one's gross annual income, then somehow one spends the first three months of the year "working for Uncle Sam," and then after March 31, one is "free" to work for one's own benefit.
Although the think-tank that promotes that nonsense does not go so far as to join the tax protesters in their misapprehension of the 13th Amendment, the idea of being free to work for oneself, versus being in the servitude of others, is clearly what animates that annual public relations stunt. This argument, moreover, has what would generally count as an impressive academic pedigree. The conservative philosopher Robert Nozick described income taxes as being "on a par with forced labor," because it forces a "person to work n hours for another’s purpose."
When I discuss that argument in class each semester, I generally roll my eyes (because, among other things, most of the students are already laughing in disbelief, even as I describe the protesters' offensive analogy to the 13th Amendment), and then I try to say something substantive by pointing out that no one is forced to work for the government. That is, if one does not want to pay taxes, one is "free" not to earn an income. Admittedly, that might sound flippant. Am I really saying that the choice is to work for the government or to live in a hut? That is hardly better than forced labor!
The deeper point, however, is that if one does choose to work for an income, one is still not being forced to work for the government rather than oneself. There is no time during which one is not working for oneself -- "First, I work 3 minutes for you, then I work 9 minutes for me." The existence of taxes simply changes the terms of the labor exchange, where one ends up not earning as much as one might have thought from looking at the top-line number on the labor contract. Each minute that one works, one is working for oneself, to receive a wage that is not as high as the gross wage would make it seem. One can argue at length about whether taxes are too high or low, but they are certainly not involuntary servitude.
Again, however, this argument concedes far too much. This semester, when we reached that point on the syllabus, I had just seen "12 Years a Slave," a brilliant film that depicted the horrors of slavery in ways that I had never before seen. That film emphatically makes the point that my student made last Fall: Nothing is like slavery. In last month's Harper's, J. Hoberman offers a moving review essay discussing "12 Years a Slave" (here, unfortunately behind a paywall), which emphatically made that point as well. The essay's title, "Here There Is No Why," hauntingly captures the completeness of slavery's dehumanization. There are no rules, and there need be no explanations. Things happen, because other people make them happen -- and those people are able to make them happen with the imprimatur of a state that treats slaves as non-people.
About ten years ago, there was a brief flurry of activity among tax policy scholars regarding "endowment taxation." The idea was that there might be efficiency-based reasons (which end up being too ridiculous to summarize here) to tax people not on their income, but on their potential income. Under such a system, a person who could be working as a Wall Street lawyer, earning $2 million per year, would be taxed on that amount, even if she had decided to quit her job and live on the beach. This became known among tax scholars as "enslaving the beachcomber."
One can understand the greater allure of the slavery analogy here. Unlike Nozick's argument about income taxes, which ultimately relies on a false segregation of working time into "free time" and "forced time," an endowment tax could essentially prevent a person from quitting a high-paying job (unless she had savings from which she could pay her taxes). The former lawyer might be "forced" by such a tax system to return to lawyering, which would be an impingement on her liberty.
But come on! She would not be forced to work for a particular law firm, or in a particular city. In fact, she would not necessarily even have to practice law, if there were non-law jobs that she would prefer that would pay enough to cover her taxes. She would remain free to marry whom she wished (SSM issues very much acknowledged here), to live where she wished (within the constraints that all of us face, given economic realities in our lives), to travel on vacations, and so on. She would not be whipped, raped, or separated from her children.
These powerful images are important to bear in mind, no matter how uncomfortable they are, because it is essential to remember what it means to casually call something "like slavery." Something called "Godwin's Law" holds that "[a]s an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1." The idea is that, no matter the subject of discussion, at some point someone will become angry or desperate enough to claim that the other side is "a bunch of Nazis," or something similar.
Slavery, too, holds the power to distort rational discussion. My example, showing how slavery can be efficient or inefficient, depending upon one's viewpoint, does not deny the awful reality of slavery. If anything, I could argue that as people think more about slavery's horrors, the idea that it can be called economically efficient only strengthens my point. But I get it. For good reasons, people respond to the use of slavery as an example with trepidation. There are too many idiots out there saying too many stupid things about slavery to imagine that this topic can be analogized casually. It is not off the table, but especially now that millions of people have been educated about what pre-Civil War slavery in the United States actually meant, using slavery as an example must be done with the greatest of care.