Zietlow – Positive Right to Free Labor - DRAFT
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Zietlow – Positive Right to Free Labor - DRAFT A Positive Right to Free Labor Rebecca E. Zietlow1 This paper seeks to resurrect a lost thread in our civil rights tradition, the idea that workers have a positive right to free labor. A positive right to free labor includes the right to work for a living wage, free of undue coercion, and free from discrimination based on immutable characteristics. A positive right to free labor has its roots in the antislavery and labor movements of the early Nineteenth Century, and can be found in Reconstruction Era debates over ending slavery and establishing workers’ rights. The paper goes beyond conventional debates over the meaning of Reconstruction to illuminate an alternative vision of that era. Conventional debates over Reconstruction center on the meaning of racial equality (formal versus anti-subordination) and the extent to which the Fourteenth Amendment incorporated individual rights against the states. While these debates are important, they obscure the full scope of the rights talk during the Reconstruction Era. Slavery was not only a system of racial subordination but also a system of exploitation of labor. In the north, the nascent labor movement advocated for the rights of free workers and against what they called “wage slavery.” A positive right to free labor has its roots in the Thirteenth Amendment, which abolished slavery and involuntary servitude. The positive right to free labor developed in opposition to the institution of chattel slavery in the United States. Its roots are the antithesis of slavery, and it has developed over time as a result of political activism, congressional action, and court rulings. The first element of a positive right to free labor is the right to work for a living wage. Slaves were not compensated for their labor, enabling the slaveholder to profit from the suffering of the workers. During the antebellum era, northern labor activists also voiced their opposition to wage slavery – work under conditions and wages so unfavorable that it was tantamount to slavery. Workers advocated for higher wages, and some formed unions and engaged in strikes to achieve that goal. The second element of a positive right to free labor is the right to work free of undue coercion. The third element of a positive right to free labor is the freedom from discrimination on the basis of In the Twenty- First Century we have come to think of our Constitution as a negative constitution, protecting individuals from government intervention without recognizing any positive rights to government protection.2 In our civil rights law, the negative constitution manifests itself in the Equal Protection Clause of the Fourteenth Amendment, which prohibits government actors from discriminating on the basis of race, sex, and other immutable characteristics. As interpreted by the courts, the Equal Protection Clause guarantees only formal equality, prohibiting the government from 1 This is a very preliminary draft, not to be cited or reproduced. Eventually, much of this paper will become a chapter of my book, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction (forthcoming Cambridge University Press). 2 See, e.g., DeShaney. 1 Zietlow – Positive Right to Free Labor - DRAFT intentionally discriminating on the basis of those characteristics.3 The Equal Protection Clause does not require the government to intervene in our social and economic structure to insure a more substantive form of equality.4 If there are any positive constitutional rights for workers, then, they must be present elsewhere in the Constitution. I. The Historical Development of a Positive Right to Free Labor Prior to the Civil War, the labor and antislavery movements both used the image of slavery to support a positive theory of workers’ rights. Free Soil Free Labor activists insisted that slavery should be abolished because it was an oppressive system of labor which harmed all workers by depressing wages and conditions of labor. Other antislavery activists opposed the race discrimination that was also central to the institution of slavery. Members of these three groups sometimes overlapped, but often worked separately. My paper considers a theory of free labor based on all three strains of thought. As members of the Reconstruction Congress debated the extent of the rights of freed slaves, they also considered the impact of ending slavery on free workers, including white workers, and the extent to which those workers also had rights that would be protected by the federal government. My paper also looks to twentieth century sources to determine the components of a positive right to free labor. In the beginning of the Twentieth Century, leaders in the labor movement invoked the Reconstruction Era as they sought to expand protections for workers’ rights. In the 1940s, lawyers for the Civil Rights Section of the United States Department of Justice engaged in a litigation strategy to enforce the Thirteenth Amendment, the Anti-Peonage statute, and other Reconstruction Era civil rights laws.5 Their goal was to extend labor’s victories to all workers, including Black workers in the South. They advocated a theory of rights which would empower workers who toiled at the lowest level of the economic ladder, including agricultural and domestic workers. Their goal was to establish a positive right to free labor which encapsulated fundamental human rights, including the right to work for fair wages without undue exploitation by one’s employer, for workers who were primarily workers of color. Thus, they hoped to develop a model of civil rights which incorporated positive economic rights. These advocates won several important cases based on this model, establishing baseline protections for low wage workers against exploitative employers. 6 After the Supreme Court’s ruling in Brown v. Board of Education, advocates shifted their focus away from the Thirteenth Amendment. Their new model was based in the Equal Protection Clause, without any economic component. However, the positive right to free labor remained alive through the early 1960s. Title VII of the 1964 Civil Rights Act, the first major civil rights statute since Reconstruction, 3 This approach is most evident in court cases striking down race- based affirmative action measures. See, e.g., Parents Involved v. Seattle. 4 See, e.g., Washington v. Davis. 5 See Robert K. Carr, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD 1 (1947); Risa Goluboff, The Lost Promise of Civil Rights (2007). 6 See Goluboff, supra note ___ at 162. In addition, the most important anti-peonage case of that era, Pollock v. Williams, was not brought by the CRS. See Goluboff at 156. 2 Zietlow – Positive Right to Free Labor - DRAFT enforces the anti-discrimination component of that tradition. Through the early 1960s, Constitutional Law textbooks included a section on categories of rights such as “Free Labor” and “Substantive Rights: Freedom of the Person.”7 The casebooks have since been amended, but the precedents remain. The positive right to free labor remains part of our constitutional tradition, with exciting potential as a source of workers’ rights in the Twenty-First Century. I. Chattel Slavery and “Wage Slavery” in antebellum America In antebellum America, our national economy was dependent on a system of labor which was exploitative in the most extreme – the system of chattel slavery. The southern economy was primarily agricultural, and much of the work was done by the uncompensated labor of slaves. In the institution of chattel slavery, workers were treated as property and denied the most basic of human rights. Slaves worked without pay and under the complete control of their owners. Children were sold away from their mothers and slaves were prohibited from learning to read or write, and forming family attachments. Slaves were treated as commodities to make profits possible. In the north, workers were also primarily agricultural, but as it was the beginning of the industrial revolution, workers were increasingly urban and industrial. Some northern workers were employed in a system of debt peonage. Others worked as artisans or apprentices to artisans. Early industrial workers toiled for low wages and long hours under dangerous and difficult conditions. Some of those workers joined the early labor movement, advocating for improved conditions and wages.8 Some formed collective organizations to advocate for rights.9 Others championed the independent worker who would someday own his own business.10 Leaders in the labor movement invoked the imagery of slavery to advocate for the rights of free workers in the north. Pro-labor and anti-slavery sentiment converged in the anti-slavery movement. Anti-slavery activists in the Free Soil, Free Labor movement emphasized the impact of slavery on free workers. They argued that the institution of slavery had a negative impact on all workers by depressing wages of free workers and enabling employers to exploit those workers as well.11 Free Soilers saw poor southern white workers as potential allies.12 They presented themselves as champions of low wage white workers. For example, Kentucky Senator Cassius Clay argued that his program for ending slavery and fostering industrial development in the south was designed “to seek the highest welfare of the white.”13 7 See Goluboff, supra note ___ at 267 (citing, e.g., Miton R. Konvitz, ed., Bill of Rights Reader: Leading Constitutional Cases, 2nd Ed. (1960) xv-xvi (“Right to Free Labor”); Paul G. Kauper, Constitutional Law: Cases and Materials, 2nd Ed. (1960).) 8 See SEAN WILENTZ, CHANTS DEMOCRATIC: NEW YORK CITY & THE RISE OF THE AMERICAN WORKING CLASS, 1788-1850 (1984). 9 Id. at ___. 10 See Foner, Free Soil at ___. 11 Id. at 63. 12 Foner at 47 ((“Republicans blamed the lack of educational opportunities and the degradation of labor in slave society for the position of poor whites.”), 64.