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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 tradition, the idea that workers have a positive right to free labor. A positive right to free labor includes the right to for a living , free of undue coercion, and free from 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 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 “.” 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 . 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 for a . Slaves were not compensated for their labor, enabling the slaveholder to from the suffering of the workers. During the antebellum era, northern labor activists also voiced their opposition to wage slavery – work under conditions and 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 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 Press). 2 See, e.g., DeShaney.

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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 , 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 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 , 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 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.

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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 “: 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 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 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 , 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 under dangerous and difficult conditions. Some of those workers joined the early labor movement, advocating for improved conditions and wages.8 Some formed to for rights.9 Others championed the independent worker who would someday own his own .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 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 , 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. In a letter for his son, Montgomery, Frank Blair said that he wanted the “slave question” to be considered, not as a sectional battle, but as a war of class.” 13 Id. at 63.

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There was often a strong undercurrent of racial prejudice to their arguments, and they sometimes used racist language. Some Free Soilers attempted “to turn anti-Negro sentiments to anti-slavery use.’14 They pointed out that even free Blacks could be more easily exploited and forced to accept lower wages. For this reason, northern states such as Illinois and Oregon adopted measures to prohibit free Blacks from entering the state. However, other Free Soilers disagreed, and fought for equal right for free blacks.15 They argued that when employers discriminated against free Blacks, they also exploited them economically, with its attendant impact on the wages of white workers. Thus, all workers had a stake in eliminating race discrimination.16

Within the anti-slavery movement, activists differed in how they defined free labor. Many had middle class aspirations, with the goal of self-. Some argued that workers were not truly free if they were employed by another person. To these northern activists, the term “labor” meant “the producing classes” – , planters, , mechanics and small businessmen.17 In the skilled trades, workers served as apprentices to artisans. Labor activists developed the concept of “wage slavery,” arguing that “a man who remained all his life dependent on wages for his livelihood appeared almost as unfree as a southern slave.”18 To them, working for wages could be tantamount to slavery. Those “Republicans saw no conflict between personal acquisitiveness and social .”19

Others had more radical aspirations. Those Republicans came from a political tradition that saw a permanent conflict between capital and labor. These were the radical Republicans who had been Jacksonian Democrats. They argued that the exploitation of workers anywhere contributed to the exploitation of all workers. They advocated for a positive right to free labor for all, from chattel slaves to industrial workers.20

In the south, proponents of slavery sought to exploit the labor movement’s critique of wage slavery. They seized on the labor movement’s rhetoric that a northern working man was no better than a slave. For example, in his book, The Sociology of the South, George Fitzhugh claimed that in a free society labor and capital are always antagonistic, and workers are always vulnerable.21 Fitzhugh criticized the and materialism of northern society. He sought to exploit class divisions in the north, arguing that northern laborers were no better off than slaves.22 Thus, the labor movement’s image of wage slavery was also potent tool for the southern defenders of chattel slavery.

Thus, for the northern activists “slavery” had differing meanings, depending on their reform agenda. For abolitionists, “slavery” meant the brutal institution of chattel slavery practiced in southern states. For northern labor activists, slavery had a broader meaning, including working for low wages under

14 Id. at 60. 15 See Foner, supra note ___ at ___. 16 See Rebecca E. Zietlow, James Ashley’s Thirteenth Amendment, 112 Colum. L. Rev. 1697 (2012). 17 ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 15 (1995). 18 Id. At 17. 19 Id. at 68. 20 Id. at 18. 21 See Foner at 66. 22 Id. at 66.

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unduly exploitative conditions. Some went so far as to say that “wage slavery” extended to any worker who was beholden to another for his . However, there was also a significant overlap between the labor and anti-slavery movements, in which activists sought to combat all undue exploitation of workers. Some of these radical Republicans, including Henry Wilson and James Ashley, played a leading role in amending the United States constitution to end both slavery and involuntary servitude with the Thirteenth Amendment.23

II. The Thirteenth Amendment

The Thirteenth Amendment abolished chattel slavery in the United States. This was a truly transformative measure. By declaring that slavery could no longer exist, the Thirteenth Amendment represented a massive seizure of private “property” without compensation, and mandated the transformation of the of all of the southern and border states. But the Thirteenth Amendment’s reach extended beyond the institution of chattel slavery. The Amendment abolished not only slavery, but also involuntary servitude, promising a broader spectrum of workers’ rights. Understood properly, the Amendment represents a positive statement of rights that are enforceable against both state and private actors - the rights of a free person, including a positive right to free labor.

During debates over the Thirteenth Amendment, members of the 38th Congress made it clear that they believed that the Amendment represented a broad promise of the rights of the free person, including the rights to and equality for all Americans. For example, Isaac Arnold claimed that the Amendment foretold a “new nation” with liberty and as a cornerstone.24 Godlove Orth said that he believed that the Amendment stood “on as broad a base as the Declaration of Independence.”25 Another supporters claimed that the Amendment was “designed . . . to accomplish . . .the abolition of slavery in the United States and the political and social elevation of Negroes to all the rights of white men.”26 As the debate progressed, supporters of the Thirteenth Amendment revealed a growing sense of egalitarianism.27 The spirit of egalitarianism pervaded the Congress which acted to enforce the Amendment with civil rights laws and laws directed at protecting workers from undue coercion. The Amendment, and the statutes enforcing that Amendment, established the basic principles of a positive right to free labor.

Immediately after the Thirteenth Amendment became law, members of the 39th Congress acted to enforce its provisions. First, Congress sought to abolish race discrimination in all economic transactions with the 1866 Civil Rights Act. The Act prohibited race discrimination in property transactions and guaranteed to all people the right to sue, be parties, and give evidence, and to the “full and equal benefit of all laws and proceedings for the and property as is enjoyed by white

23 See Lea Van Der Velde/ 24 Cong. Globe, 38th Cong., 1st Sess. 2977, 2989 (1864). 25 Cong. Globe, 38th Cong., 2d Sess. 141-144 (1865). 26 Cong. Globe, 38th Cong. 1st Sess. 2987. 27 See Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 131 (2001).

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citizens.”28 Thus, the 1866 Act broadly prohibited race discrimination against the newly freed slaves as they exercised their basic civil rights. Congress acted to make those rights enforceable against both state and private actors with the 1871 Enforcement Act, which imposes civil and criminal penalties on state and private actors for conspiracies to prevent a person from exercising “any right or privilege of a citizen of the United States.”29 Thus, the members of the Reconstruction Congress believed that the Thirteenth Amendment empowered them to enact broad measures prohibiting race discrimination and providing potent remedies when those rights were violated. Although the 1866 Act does not explicitly apply to race discrimination in employment, it does prohibit race discrimination in any , including contracts for employment.30 If enforced, the Act thus would have prevented freed slaves from being subjected to the race based exploitation that formed the foundation of the chattel slavery from which they had just been freed.

Second, the Reconstruction Congress enacted legislation to protect the rights of workers throughout the nation. That Congress explicitly addressed the rights of workers in a series of statutes prohibiting slavery, involuntary servitude, and peonage.31 These statutes revealed a vision of free labor that extended well beyond merely abolishing chattel slavery. Notably, the 1867 Anti-Peonage Act prohibited all servitude, both involuntary and voluntary.32 This Act was targeted primarily not at the former slave states, but at peonage in the territory of New . Introduced by Senator Charles Sumner, the Act responded to reports that the U.S. Army was directly aiding a system of peonage that exploited Mexicans and Indians in the New Mexican territory.33 Congress “easily adopted” the peonage Abolition Act of 1867 “and made it clear that the Act’s coverage stretched well beyond protecting former black slaves.”34 The Act’s language swept broadly, banning “the voluntary or involuntary service or labor of any persons as , in liquidation of any debt or in obligation, or otherwise.”35 Thus, the members of the 39th Congress, many of whom had voted to approve the Thirteenth Amendment, believed that the Amendment gave them the power to prevent exploitative employment practices beyond the institution of chattel slavery, even when workers made the initial choice of employment under those conditions.36

The undue coercion prong of the positive right to free labor is also evident in two statutes which Congress enacted in 1874, in the twilight of the Reconstruction Era. The first law conveyed authority on the United States military power to “reclaim from peonage” women and children being held in that

28 Civil Rights Act of 1866, ch. 31, 14 Stat. 27, 27 (codified as amended at 42 U.,S.C. §§1981-1983). 29 1871 Enforcement Act, 17 Stat. 13, 13-15, codified at 42 U.S.C. §1985(3). 30 See ______. 31 See Slave Kidnapping Statute, ch. 86, 14 Stat. 50 (1866) (codified as amended at 18 U.S.C. §443 (2006); Anti- Peonage Act, ch. 187, 14 Stat. 546 (1867) (codified as amended at 18 U.S.C. §1581 and 42 U.S.C. §1994 (2006); Joint Resolution to Aid in Relieving from Peonage Women and Children of the Navajo Nations, H.R. Con. Res. 83, 40th Cong. 1868); An Act to Protect Persons of Foreign Birth Against Forcible Constraint or Involuntary Servitude, ch. 464, 18 Stat. 251 (1874) (codified as amended at 18 U.S.C. §1584). 32 See Aviam Soifer, Federal Protection, Paternalism, and the Virtually Forgotten Prohibition of Voluntary Peonage, 112 Colum. L. Rev. 1607 (2012). 33 Id. at 1616. 34 Id. 35 Peonage Abolition Act, ch. 187, 14 Stat. 546, 546 (1867) (codified at 42 U.S.C. §1994). See Soifer, supra note ___ at 1617. 36 See Soifer.

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condition “in the territory adjacent to their homes” and on the Navajo reservation.37 The second, known as the Padrone Act, prohibited the exploitative practice of bringing children from Italy to large American cities, isolating them, and paying them meager wages for exploitative work.38 The Act clearly extended its protection far beyond African American freed slaves, to the immigrants who were then flocking to the country to serve as industrial workers. These statutes established a baseline of rights for all workers. The meaning of this baseline depends on the meaning of involuntary servitude..

III. The Meaning of Involuntary Servitude

Why does the Thirteenth Amendment abolish involuntary servitude as well as slavery? Clearly, the Reconstruction Congress did not want the former slave owners to replace slavery with a slightly milder form of slavery. The prohibition of even “voluntary” peonage in the 1867 Act indicates that the Reconstruction Era Congress wanted to protect workers from exploitative practices even if the worker chose to accept the exploitative job.39 This paternalistic attitude reflects the broader free labor ideology of many in that Congress, who wanted to legislate to improve the conditions of work in general. For example, some also argued in favor of legislation limiting maximum work hours and establishing an eight work day.40 Clearly these members of Congress were concerned about more than merely abolishing chattel slavery. The question is, how far does their Thirteenth Amendment’s abolition of involuntary servitude go to establish positive rights for workers?

James Gray Pope has argued that the 1867 Anti-Peonage Act is evidence that “what mattered was not whether the chose servitude, but whether the resulting condition was degrading to workers and employers.”41 Pope claims that “The existence of freedom was to be tested not by individual worker , but by whether freedom was operating to produce fair conditions.”42 There is ample evidence to support this broad view of the right to free labor. Speaking in favor of the Act, Senator Buckalew argued that Congress should outlaw voluntary peonage because the terms of debt service was “always exceedingly unfavorable to” the laborer. Senator Henry Wilson agreed, and pointed out that works in the part of where there was no peonage were paid higher wages than those in areas where peonage was predominant.43 These critiques of the New Mexico peonage system echoed the Free Labor critique of slavery’s negative impact on workers as a whole. They also revealed that Congress’ willingness to address the conditions of labor when they were “exceedingly unfavorable.”

37Joint Resolution to Aid in Relieving from Peonage Women and Children of the Navajo Nations, H.R. Con. Res. 83, 40th Cong. 1868) 38 An Act to Protect Persons of Foreign Birth Against Forcible Constraint or Involuntary Servitude, ch. 464, 18 Stat. 251 (1874) (codified as amended at 18 U.S.C. §1584). See Rebecca E. Zietlow, Free At Last! Anti-Subordination and the Thirteenth Amendment, 90 B.U. L. Rev. 255, 291 (2010). 39 See Soifer, supra (describing Congress’ paternalistic attitude towards freed slaves. In essence, Congress chose a freedom of labor over freedom of . See James Gray Pope, Contract, Race, And Freedom of Labor in the Constitutional Law of “involuntary Servitude,” 119 Yale L. J. 1474, 1482 (2010).

40 See David Montgomery, Beyond Equality: Labor and the Radical Republicans 1862-1872 at 234 (1967). 41 Pope, Contract at 1486. 42 Id. 43 See Cong. Globe, 39th Cong., 2d Sess. 1571-72.

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Notably, these members of the Reconstruction Congress were concerned about the wages that all workers were earning – not only those who were in peonage. They discussed the rights of freed people to change employers and their own wages, and denounced the new southern practices of subjugating workers to replace slavery.44 For example, Representative Ingersoll argued that workers had a rights to “enjoy the rewards of his own labor,”45 and Senator Henry Wilson claimed that a workers had the right to “name the wages for which he will work.”46 Their vision of a positive right to free labor encompassed a decent wage.47

What is also notable is the concern that the members of the Reconstruction Congress expressed about the impact of an individual decision on the collective rights of workers as a whole. As Pope points out, “the condition of involuntary servitude harmed not only the laborers themselves, but also society as a whole. On this view, the point of the prohibition was not to endow individuals with inalienable rights, but to prevent a relation of domination and subjugation that would conflict with the health of the Republic.”48 Similarly, Avi Soifer has argued that members of the Reconstruction Congress believed that the government had an affirmative duty to protect the newly freed slaves, including protecting their right to be free of unduly exploitative employment practices.49

In the 1944 case of Pollock v. Williams, interpreting the Anti-Peonage Act, Justice Robert Jackson articulated a test for determining whether an employment practice violated the prohibition against involuntary servitude.50 According to Justice Jackson, “when the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.” 51 This standard is a promise of to workers to combat exploitative practices of employers.52 It is consistent with the meaning of the Thirteenth Amendment, and the Free Labor vision which animated the Reconstruction Era supporters of that Amendment.

IV. A Positive Right to Free Labor in the New Deal Era

In the late Nineteenth Century, the promise of Reconstruction waned and dominated the southern states. Tragically, the convict leasing system evolved into inhuman employment practices akin to chattel slavery.53 In the north, African Americans suffered from race discrimination which

44 See Pope, Contract, supra note ___ at 1507. 45 Cong. Globe, 38th Cong. 1st Sess. 2990 (1864). 46 Cong. Globe 39th Cong., 1st Sess. 1160 (1866). 47 See Pope, Contract, supra note ___ at 1536 (“a might be not only permissible, but required under the Amendment.”) 48 Pope, Contract at 1492. 49 See Soifer, supra note ___ at 1612. 50 Pollock v. Williams, 322 U.S. 4 (1944). 51 Id. at 18. 52 See Pope, Contract, supra note ___ at 1502 (arguing that Pollock sets the correct standard for evaluating claims under the Involuntary Servitude Clause); Archibold Cox, Strikes, and the Constitution, 4 Vand. L. Rev. 574, 576-77 (1951) (same). 53 See Douglas A. Blackmon, Slavery By Another Name: The Re-enslavement of Black Americans from the Civil War to World War II (2008).

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excluded them from many employment opportunities.54 The predominant rights movement of the era was the labor movement, which advocated the right to organize into a union, engage in , and the right to strike. The labor movement successfully lobbied for protections for workers to increase their wages and improve their conditions of work. However, those New Deal protections did not remedy the race discrimination which existed throughout the country but was endemic in the Jim Crow south. Under President Franklin Roosevelt, the Depart of Justice engaged in a litigation campaign to address the racial and economic exploitation of Black workers in the South. Through statutes and court victories advocates for a positive right to free labor sought to enforce its promise.

A. The Labor Movement’s “Constitution of Freedom”

In the late Nineteenth and early Twentieth Century, prominent leaders of the labor movement developed a theory of constitutional rights for working people based in the First and Thirteenth Amendments. They claimed that their right to organize was protected by the First Amendment. They also argued that working without the right to organize and bargain collectively was tantamount to slavery, in violation of the Thirteenth Amendment.55 Those leaders invoked the radical wing of the antebellum free labor movement, and its theory of wage slavery. Many of the workers who embraced the Thirteenth Amendment were former slaves, or sons of former slaves, who worked as mine workers in West Virginia.56 But white labor leaders, including AFL leader Samuel Gompers, also embraced the promise of freedom in the Amendment.57 They argued that the Amendment protected the freedom of workers to control their own lives.58 That freedom, they claimed, included the collective rights needed to increase worker’s bargaining power with employers to improve wages and conditions of work.

Eventually the labor movement convinced members of the New Deal Congress that the right to organize and bargain collectively was a fundamental right, meriting federal protection.59 During debates over the National Labor Relations Act, supporters of the bill invoked the Reconstruction Era and labor’s theory of constitutional rights.60 That Congress also enacted the Fair Labor Standards Act, which established a federal minimum wage and regulated the hours of workers. The National Labor Relations Act and the Fair Labor Standards Act greatly expanded the rights of workers consistently with the positive rights to free labor. However, those New Deal measures contained exceptions for agricultural

54 See Risa Goluboff, The Lost Promise of Civil Rights (2007); Martha Biondi, TO STAND AND FIGHT: THE STRUGGLE FOR CIVIL RIGHTS IN POSTWAR NEW YORK CITY (Cambridge: Harvard University Press 2003).

55 See James Gray Pope, Labor’s Constitution of Freedom, 106 Yale L. J. 941 (1997).

56 Id. at 981. 57 Id. at 962. 58 Id. at 962. 59 See Rebecca E. Zietlow, Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights 63 (2006). 60 Id. at 75. For example, the Act’s sponsor, Robert Wagner, called the right to organize “a veritable charter of freedom” and argued that without the right to bargain collectively, “there would be slavery by contract.” Hearings Before the Senate Committee on Education and Labor, April 2, 1945, cited in Zietlow, supra note ___ at 75.

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and domestic workers, precisely the workers whose most closely resembled that of the former slaves, and (not coincidentally) who were most likely to be workers of color. Those exemptions were necessary to win the votes of segregationist Democrats whom Roosevelt relied upon for support.61 Those Southern Democrats understood that the federal laws would undermine the Jim Crow system, a system that relied to a large degree on the exploitation of Black farm workers.62 Thus, the political success of the positive right to free labor was limited in the New Deal Congress.

B. The Civil Rights Section

Outside of Congress, however, both political actors and courts made significant contributions to achieving racial equality for workers in the New Deal Era. Unions were far from immune from race discrimination, but organized labor also played a crucial role in the civil rights movement. In the 1930s, CIO organizers advocated for racial equality.63 African Americans who became involved in the labor movement also expanded their scope to include the right to racial equality.64 One of the most prominent early civil rights leaders was A. Phillip Randolph of the Brotherhood of Sleeping Car Porters.65 In 1941, Randolph convinced President Roosevelt to turn his attention to issues of racial equality by threatening to organize a civil rights march on Washington. In response, Roosevelt created the first Fair Employment Practices Commission.66 While the FEPC investigated complaints of race discrimination in the north, another branch of the Roosevelt Department of Justice, the Civil Rights Section, was more closely focused on racial subordination in the southern states.67 Both agencies sought to implement a positive right to free labor.

As we saw above, in Pollock, Justice Jackson articulated a broad view of the positive right to free labor. Not coincidentally, Jackson had served as Attorney General under President Franklin Roosevelt at the time that the Civil Rights Section at the Department of Justice was just beginning its litigation campaign to expand the rights protected by the Thirteenth Amendment and the Anti-Peonage Act.68 Those Justice Department lawyers sought to fill in the gaps left by the New Deal measures protecting workers, and establish a positive right to free labor as a matter of federal civil rights law. Following Jackson, Attorney General Francis Biddle and his staff “took the old, abolitionist, free labor ideology, transformed it from the Lochner era for service in the post new Deal era, and tried to make is constitutionally foundational.”69 The CRS campaign established precedents for protecting the rights of workers against exploitative practices that coincided with racial subordination. Through the 1960s, their contribution to the positive right to free labor remained part of the cannon of our civil rights law.

61 See Zietlow, supra at 94-95. 62 Id. 63 See Biondi, supra at 22. 64 See Biondi, supra note ___ at 17. 65 Id. at 4. 66 Id. at 4. 67 See Goluboff, supra note ___ at 6. 68 See Robert K. Carr, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD 1 (1947); Risa Goluboff, The Lost Promise of Civil Rights (2007). The CRS section was inaugurated under Jackson’s predecessor as Attorney General, Frank Murphy. See id. 69 Goluboff, supra note ___ at 159.

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The Civil Rights Section sought to integrate with the right to racial justice by enforcing the anti-peonage statute against employers who were mistreating farmworkers and domestic workers in the south.70 The CRS made the Thirteenth Amendment’s prohibition against involuntary servitude central to their practice, and “used the Thirteenth Amendment to extend to some of the most destitute of black workers affirmative New Deal protections for personal security, labor rights, and rights to minimal economic security.”71 At a time when the definition of civil rights was in flux, the CRS fought both economic and racial exploitation.72 President Roosevelt had made economic security a priority of his administration. In 1938, then acting as Solicitor General, Robert Jackson explained that “the liberal movement of the present is concerning itself more with economic rights and privileges than with political rights and privileges.”73 In Pollock, then Justice Jackson articulated a legal standard to enable this transformation of law.

The CRS advocated three expansive interpretations of the Thirteenth Amendment which would enable African Americans to benefit from the concept of positive rights. First, the “New Deal security” of Franklin Roosevelt would include safety and security of the person. Second, they sought to extend the free labor protections of the New Deal to and domestic workers. Finally, they hoped to expand the New Deal rights to economic security to agricultural and domestic workers.74 Thus, these New Deal Era advocates sought to build on the free labor tradition of the Reconstruction Era to finally bring about a positive right to free labor. They succeeded in some of their prosecutions for the shocking conditions in which Black agricultural workers were working in the south. They also convinced Congress to amend the Anti-Peonage statute to expand its coverage and update its terminology.75 They argued that the statute would clarify that the Thirteenth Amendment serves “as a basis for a positive, comprehensive federal program – a program defining fundamental civil rights protected by federal machinery against both state and private encroachment.”76

The CRS’s success did have an impact on U.S. civil rights law. Through the mid 1960s, constitutional law textbooks included a section on the positive right to free labor.77 After the early 1950s, however, the CRS stopped focusing on the rights of workers and instead shifted its focus to enforcing the Equal Protection clause against state mandated racial discrimination.78 Over time, the positive right to free labor was removed from the cannon of civil rights law, replaced by cases and statutes protecting social equality without economic rights.79

V. The 1964 Civil Rights Act

70 Goluboff, supra at 10. 71 Id. at 11. 72 Id. at 17. 73 Goluboff at 27. 74 Goluboff at 172. 75 See Anti-Peonage Act, 62 Stat. 772, 772 (codified as amended at 18 U.S.C. §1581 (2006) and 42 U.S.C. §1994 (2006); Goluboff, supra note ___ at 150. 76 Carr, supra note ___ at 36. 77 Goluboff at ____. 78 Id. at 258. 79 See Goluboff, supra note ___ at 269.

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Zietlow – Positive Right to Free Labor - DRAFT

This summer, we will celebrate the 50th anniversary of the passage of the 1964 Civil Rights Act, one of the most effective civil rights statutes in our nation’s history.80 The statute outlaws race discrimination in places of public accommodation81 and by recipients of federal funds,82 and includes penalties for discrimination in employment on the basis of race, ethnicity, , national origin and .83 The statute is celebrated for ending racial segregation and establishing racial equality in the . What is less widely noted is the role that the labor movement played in achieving the statute’s success. The movement behind the Act, and the Act’s provisions, reflect the positive right to free labor championed by rights activists since the Reconstruction Era.

The Civil Rights Act came about due to the activism of the civil rights movement, working with their allies in organized labor. It is indelibly linked in the public mind to the 1963 March on Washington for Jobs and Freedom, and Martin Luther King’s “I Have A Dream” speech. In his speech, King evoked not just the image of racial equality, but also of liberty. He speech celebrated the 100th anniversary of the end of slavery with the Emancipation Proclamation. The final stanza of his speech, “Free at Last” is consistent with this theme. The march was dedicated not only to ending segregation in public places, but also to empowering workers by protecting them against race discrimination. This was a joint goal of the civil rights and labor movements. The march was originally the idea of none other than lifetime labor activist A. Phillip Randolph, who had dedicated his life to achieving a positive right to free labor since the New Deal Era. 84 UAW President Walter Reuther had played a central role in organizing the 1963 march, and his staff worked the congressional hallways lobbying for the bill.85 The march demanded racial equality for workers, calling on Congress to finally implement the third prong of the positive right to free labor.

The 1964 Civil Rights Act was rooted in Congress’ power to regulate interstate commerce, and to enforce the Fourteenth Amendment.86 Like the 1866 Civil Rights Act, the statute prohibited race discrimination in economic transactions. Given that precedent, it seems clear that Congress could have relied on the Thirteenth Amendment enforcement power when enacting the 1964 Act. The Thirteenth Amendment would have been particularly appropriate given the fact that the statute addressed private discrimination. The state action bar to the Fourteenth Amendment was a major concern in congressional debates, and the reason why Congress chose to rely on the commerce power.87 Nonetheless, members of Congress did not rely on their power to enforce the Thirteenth Amendment. Instead, they invoked the notion of equal citizenship, protected by the Fourteenth Amendment.88 That members of Congress failed to invoke the Thirteenth Amendment in the debates over the 1964 Act

80 , Pub. L. 88-352, July 2, 1964, 78 Stat. 241, codified at 42 U.S.C. § 2000 et seq. (1994).

81 Title II. 82 Title VI. 83 Title VII. 84 See William P. Jones, The March on Washington: Jobs, Freedom, and the Forgotten History of Civil Rights (2013). 85 Robert D. Loevy, To End All Segregation: The Politics of the Passage of the Civil Rights Act of 1964, at 53 (Lanham: University Press of America 1990). 86 See Zietlow, Enforcing Equality at 112-114. 87 See id. At 113. 88 Id. at 112.

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Zietlow – Positive Right to Free Labor - DRAFT

illustrates the extent to which the Thirteenth Amendment based New Deal advocacy had faded from the public consciousness by the mid-1960s. Nonetheless, it is undeniable that the statute does implement a crucial element of the positive right to free labor, the freedom from race discrimination in employment.

VI. Conclusion

Since the 1960s, a positive right to free labor has faded from our civil rights cannon. It has been replaced by court enforcement of the Equal Protection Clause, with all its attendant limitations. The Supreme Court has held that the Equal Protection Clause does not protect economic rights. Instead, it only addresses intentional discrimination on the basis of immutable characteristics, including race and gender. At the same time, labor rights have taken a beating. The Court has narrowed the protections of the National Labor Relations Act, significantly reducing its effectiveness. Union density in the United States has declined to an all-time low. Wages have stagnated, and the gap between rich and poor has increased dramatically in the past forty years. Recently, public attention has shifted to the plight of the low wage workers. Now is thus a great time to revive the positive right to free labor. The precedents for that theory remain in our law, both statutes and court rulings. Those precedents can only be enforced by a coordinated effort of litigation and political activism.

What is the state’s role in providing a positive right to free labor? Certainly the state plays a role in preventing discrimination on the basis of immutable characteristics, which is a role that it has undertaken in statutes such as the 1866 and 1964 Civil Rights Acts. The state also has a duty to intervene when employers unduly exploit their employees, as evidenced by the anti-peonage acts. As to economic rights, a positive right to free labor is best understood not as a positive economic entitlement from the government. Instead, the state has an obligation to provide measures to workers which enable them to advocate for their own liberty and equality rights. The National Labor Relations Act attempts to do this by protecting the rights to organize and bargain collectively. Together, these statutes protect a positive right to free labor. However, these have been under-enforced and watered down by the courts. Reviving these measures requires a comprehensive theory rooted in constitutional law.

As we begin to consider what a positive right to free labor would mean in the Twenty-First Century, the Thirteenth Amendment is a great place to start. The Amendment provides a positive guarantee of rights which are enforceable against state actors and private individuals. A positive right to free labor is based in both liberty and equality. It includes those rights which are necessary to empower workers to advocate for better wages and conditions. Considering the scope and content of a positive right to free labor is a worthy goal for Twenty-First Century advocates of workers’ rights.

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