Originalism and a Road Draft
One tradition of the common law was that all able-bodied men could be compelled to provide labor to fix roads and bridges. In 1916, a Louisiana statute codifying this authority was challenged as unconstitutional under the Thirteenth and Fourteenth Amendments. The Court, in an opinion by Justice McReynolds, rejected these claims (Butler v. Perry). The 13th Amendment, the Court said: “[I]ntroduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc.” Because drafting men for road work was a long established practice prior to Reconstruction, there was no constitutional problem. Likewise, the Fourteenth Amendment did not bar the practice, since “to require work on the public roads has never been regarded as a deprivation of either liberty or property.”
I’m wondering whether an originalist would have to say that a state statute drafting people into road work today (or executing an existing statute that authorized such a draft) would be constitutional. It is fair to say that this is one of those situations that would probably never happen even if authorized, but then again how is that different from the broccoli hypothetical under the Commerce Clause?