Contract, race, and freedom of labor in the constitutional law of 'involuntary servitude'.

Author:Pope, James Gray

ARTICLE CONTENTS INTRODUCTION I. ORIGINS OF THE INALIENABLE RIGHT TO QUIT WORK A. The Right To Quit Under the Northwest Ordinance of 1787 B. The Right To Quit and the Peonage Act of 1867 C. The Right To Quit in the Supreme Court D. Conclusion: Interpretive Choice and Involuntary Servitude II. RACE AND INVOLUNTARY SERVITUDE A. Race and the Origins of the Thirteenth Amendment Right To Quit B. Should Racial Subordination Be an Element of Involuntary Servitude? C. The Role of Race in the Constitutional Law of Involuntary Servitude III. A STANDARD FOR ASSESSING LABOR RIGHTS CLAIMS UNDER THE THIRTEENTH AMENDMENT A. The Pollock Principle and the Constitutional Text B. The Pollock Principle and the Early History of the Thirteenth Amendment C. The Pollock Principle and the Case Law IV. A CLOSER LOOK AT THE POLLOCK PRINCIPLE A. The Role of the Pollock Principle in Negating Involuntary Servitude B. Workability of the Pollock Principle C. Prudential Concerns V. COERCION AND SERVITUDE IN THE JURISPRUDENCE OF INVOLUNTARY SERVITUDE A. Remain in Servitude or Escape into Self-Employment (The Right To Quit) B. Remain in Servitude or Forgo Gainful Labor (The Right To Change Employers) C. Remain in Servitude or Find Another Job (The Right To Set One's Wages) D. Beyond Market Rights VI. THE WORKERS' FREEDOM OF ASSOCIATION UNDER THE THIRTEENTH AMENDMENT A. The Supreme Court: A "Momentous" Question Unanswered B. Lower Courts: Limiting the Involuntary Servitude Clause to Market Rights C. The Freedom of Association and the Question of Power D. Pollock Applied to the Rights To Organize and Strike E. The Right To Strike and the Original Meaning of the Thirteenth Amendment F. Race and the Rights To Organize and Strike CONCLUSION INTRODUCTION

Mayor Barrows--Dear Sir:--At a meeting of the colored Washerwomen of this city, on the evening of the 18th of June, the subject of raising the wages was considered ...: Be it resolved.... That on and after the foregoing date, we join in charging a uniform rate for our labor ..., and any one belonging to the class of washerwomen, violating this, shall be liable to a fine regulated by the class. ... The prices charged are: $1.50 per day for washing $15.00 per month for family washing $10.00 per month for single individuals We ask you to consider the matter in our behalf, and should you deem it just and right, your sanction of the movement will be gratefully received. --Petition of the Colored Washerwomen Jackson, Mississippi, June 20, 1866 (1) Six months before the washerwomen of Jackson enacted their rule and submitted their petition, Secretary of State William Seward certified the ratification of the Thirteenth Amendment to the United States Constitution. Section 1 of the Amendment provides: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." This text presents a unique interpretive problem. Nearly everyone--from the Congress that proposed it down to the courts of today--has agreed that it is a rights-granting provision. (2) Yet it mentions no right. Instead, it prohibits two conditions--slavery and involuntary servitude--without specifying what rights are necessary to negate those conditions. It is thus the one provision of the Constitution that clearly calls on courts and Congress to identify and enforce unenumerated rights. (3) One of those rights, the inalienable right to quit work, is so prominent in our constitutional consciousness that it tends to overshadow other possibilities. But workers have, with varying degrees of success, claimed a number of Thirteenth Amendment labor rights, including the right to change employers, the right to set wages (as opposed, for example, to wage setting by the state or an employer cartel), the right to refrain from working altogether (in challenges to vagrancy laws), the right to practice one's chosen trade (most prominently in cases involving entertainers and professional athletes), the right to receive fair wages, and the rights to organize and strike for higher wages and better conditions, as in the petition of the colored washerwomen reprinted above. (4)

The question then arises: what principle or principles can guide a conscientious constitutionalist in determining whether a particular labor right is implied by the ban on involuntary servitude? About a half century ago, Harvard Law Professor and later Solicitor General Archibald Cox suggested that a standard could be found in Justice Robert Jackson's opinion for the Supreme Court in Pollock v. Williams. (5) In Pollock, the Court struck down a Florida peonage law and set forth its most extensive justification for protecting the inalienable right to quit work under the Thirteenth Amendment. "[I]n general the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers," explained Justice Jackson's opinion for a seven-member majority. "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." (6) From this language, Cox concluded that the standard for determining whether a given labor right is protected by the Thirteenth Amendment hinges on whether the right is necessary to provide workers with the "power below" and employers the "incentive above" to prevent "a harsh overlordship or unwholesome conditions of work." (7)

The courts have not embraced Cox's proposal. Nor have they adopted any other standard for assessing labor rights claims under the Thirteenth Amendment. The result is an area of law lacking consistent rationales for past decisions or guideposts for the future. It is no exaggeration to say that Thirteenth Amendment doctrine is "severely underdeveloped" and remains to be "meaningfully translated into the present industrial context." (8)

This Article reconsiders the text, history, and doctrine of the Thirteenth Amendment with regard to the question of labor rights. It rejects the view, expressed by the Supreme Court in 1872, that the words of the Amendment "seem hardly to admit of construction, so vigorous is their expression." (9) The question of what constitutes "involuntary" or coerced action has long been a subject of intense and inconclusive debate. (10) Demonstrating the lack of consensus, Congress recently went beyond the Supreme Court's definition, criminalizing the extraction of labor by threats of "serious harm," physical or nonphysical, to the victim or to other persons. (11) Looking further back in time, the leading sponsors of foundational labor rights statutes like the Norris-LaGuardia Anti-Injunction Act and the Wagner National Labor Relations Act believed that economic coercion could bring about a condition of involuntary servitude, and the statutes they promoted reflected that philosophy. (12) Consistent with their view, the Department of Justice maintained during the 1940s that the grossly substandard pay and conditions of African-American agricultural laborers constituted evidence of involuntary servitude in violation of the Thirteenth Amendment. (13) The term "servitude" has received less attention, but, as discussed below, it too can be read in various ways, ranging from a synonym for slavery to employment in general. (14) Then there is the question of how the two words relate to one another. If servitude carries a connotation of coercion (as it does in present-day dictionaries), then what does the term "involuntary" add? Conversely, if servitude means employment in general (as it did to some people in the 186os), then could it be said that most Americans have no practical alternative but to enter into servitude?

This Article proposes that the Pollock standard should be adopted by courts, legislators, and other interpreters of the Constitution. Part I examines the origins of the standard in judicial opinions and congressional enactments applying the ban on involuntary servitude. It challenges the notion, widespread in our constitutional culture, that the inalienable right to quit arose straightforwardly and obviously from the text and history of the Amendment. To the contrary, that right prevailed only after a series of interpretive struggles extending back more than two centuries to the time when the phrase "involuntary servitude" first appeared in the Northwest Ordinance. The outcome was in no sense foreordained; in fact, it was a very near thing. At each stage, the proponents of the right to quit made the same, crucial interpretive choices--choices that were eventually refined and summarized in Pollock.

Part II inquires into the role of race in Thirteenth Amendment labor rights claims. The petition of the self-described "Colored Washerwomen" of Jackson, reprinted above, raises concerns both of race and of labor rights. Likewise, the Supreme Court cases that established the individual right to quit work all involved black laborers. Although the Court proceeded as if the peonage laws challenged in those cases had nothing whatever to do with race, everyone involved was fully aware that they were enforced primarily against African-Americans. From this, one might surmise that those decisions should be viewed as race cases that would have come out differently had the laborers involved been white. However, Part II suggests that the Pollock Court did not err in holding that a Thirteenth Amendment labor rights violation can be established without proof of a racial element. It proposes that race should play a role in the analysis, but not as an element of the violation. Further, although a full treatment of the relation between sex and labor rights is beyond the scope of this Article, Part II does suggest that sex might--at a minimum--play a similar role to race in the analysis.

Part III presents the case for adopting the...

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