INTRODUCTION I. STRENGTHS AND LIMITATIONS OF THE PROHIBITION APPROACH II. STRENGTHS AND LIMITATIONS OF THE FREE LABOR APPROACH III. A FREE LABOR APPROACH TO IMMIGRATION AND CROSS-BORDER TRAFFICKING IV. A FREE LABOR APPROACH TO SEX TRAFFICKING CONCLUSION INTRODUCTION
In theory, an unwanted thing or condition can be eradicated by the negative means of attacking it directly or the positive means of nurturing a nemesis, or a combination of the two. In the field of pest control, for example, a given pest can be attacked directly with pesticides, or a nemesis species can be introduced into the environment. In the latter case, the nemesis species does the work of extermination either by attacking the pest or by outcompeting it for food and other resources. (1) In the field of antislavery, both approaches may be found in the law developed under the Thirteenth Amendment to the United States Constitution. (2) On the one hand, various statutes take the negative approach of prohibiting slavery and involuntary servitude directly. (3) This method may be stated as granting a right--namely, the "right to be free from involuntary servitude" (4)--but the focus remains on the condition to be negated, "involuntary servitude." Because this method centers on the direct prohibition of slavery and involuntary servitude, I call it the "prohibition approach."
The United States Supreme Court has read the Thirteenth Amendment to mandate a positive strategy as well. Pollock v. Williams, (5) decided in 1944, crowned a series of rulings in which the Court struck down various southern state laws that established debt peonage under the guise of punishing workers for fraudulent borrowing. Pollock had accepted a loan of five dollars in exchange for his promise to repay the money through labor. (6) When he quit work before completing repayment, he was convicted of "[o]btaining property by fraudulent promise to perform labor or service." (7) The Court's opinion, penned by Justice Robert Jackson, set forth a free labor interpretation of the Amendment. Jackson observed that the Amendment aimed not only at ending slavery, but also at "maintain[ing] a system of completely free and voluntary labor throughout the United States." (8) He then explained why the state could not criminalize the quitting of work without violating the Amendment and the Peonage Act passed under its authority:
[I]n general the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers. 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. Resulting depression of working conditions and living standards affects not only the laborer under the system, but every other with whom his labor comes in competition. (9) On this view, the free labor system operates as a nemesis to slavery and involuntary servitude. By exercising their Thirteenth Amendment right to change employers, workers exert the "power below" necessary to give employers the "incentive above" to avoid slavery and servitude. The right at issue is formulated positively as "the right to change employers," not negatively, as "the right to be free from involuntary servitude." On the logic of this approach, the Amendment protects not only rights that, by their absence, define the conditions of slavery and involuntary servitude, but also all rights necessary to provide workers with the "power below" and employers the "incentive above" to prevent those conditions. (10) A worker may be free to quit, for example, but if she does not also enjoy the right to change employers, then she cannot be considered free. (11) Because this approach centers on nurturing the free labor system as a nemesis to slavery and involuntary servitude, I call it the "free labor approach."
These two methods can be seen in discussions of human trafficking, defined broadly to be roughly equivalent to "the new slavery." (12) Currently, negative approaches predominate. The United Nations Protocol, for example, calls on member states to criminalize "trafficking in persons" and to provide protection and assistance to victims of that practice. (13) Similarly, the TVPA prohibits various forms of trafficking, strengthens previously enacted statutes criminalizing peonage, slavery, and involuntary servitude, provides protections for victims of "severe forms of trafficking," and contains provisions designed to encourage other nations to prohibit and punish severe forms of trafficking. (14)
Some analysts, however, have proposed adding a positive component to the negative attack. Kevin Bales, who generally stresses the distinctive evil of slavery, nevertheless joins with Ron Soodalter in proposing that the protections of the National Labor Relations Act (NLRA) (which guarantees the rights to organize and engage in concerted activities) be extended to all American agricultural and domestic workers on the ground that "otherwise, as recent history has shown, they will continue to be more susceptible to enslavement than other workers in America." (15) Jennifer Chacon goes further, suggesting that "[m]any instances of trafficking could be effectively addressed through three simple steps," the first of which is to "allow all workers to seek remedies under Commerce Clause-based and Thirteenth Amendment-based laws." (16)
The purpose of this Article is to focus attention on the potential role of the free labor approach in the struggle against human trafficking. It attempts to draw out the systemic logic of proposals that, like Chacon's and Bales and Soodalter's, supplement the prohibition of slavery with support for selected labor rights. Part I discusses some strengths and limitations of the prohibition approach. Part II sets forth corresponding limitations and strengths of the free labor approach. Part III applies the free labor approach to the problem of immigration as it relates to slavery. Part IV explores the problem of sex trafficking from a free labor perspective.
STRENGTHS AND LIMITATIONS OF THE PROHIBITION APPROACH
Bales and Soodalter define slavery as consisting of three elements: (1) "the complete control of one person by another, through the use of violence--both physical and psychological"; (2) "hard labor for little or no pay"; and (3) "economic exploitation--making a profit for the slaveholder." (17) It is the first of these elements that separates slavery from other forms of labor exploitation: "All three.., are vital to the definition, but the most crucial is violent control and the resultant loss of free will. When we aren't sure if someone is, in fact, a slave, we can ask one basic question: 'Can this person walk away?" (18) The U.S. and international legal definitions of trafficking are more complex, but they incorporate this emphasis on loss of free will. (19)
This definition is well suited to separate out a set of practices for moral condemnation and prohibition. In the global economy, hundreds of millions of workers engage in hard labor for little or no pay and are objects of economic exploitation, thus meeting the second and third criteria of Bales and Soodalter's definition. But there is no consensus that economic exploitation is a moral wrong (as opposed to a fact of life in a world economy characterized by scarcity) or that employers (as opposed to structural forces beyond their control) are to blame. By contrast, almost everyone agrees both that labor coerced by physical or psychological violence is a moral evil and that the people who deploy the violence or knowingly assist in or benefit from the violence are morally blameworthy.
With this definition of slavery and trafficking, the prohibition approach has a number of important political advantages. Its three-step sequence--(1) define the unwanted activity, (2) punish the perpetrators, and (3) assist the victims--is easily understood. The sharp line between trafficking (or slavery) and other, less egregious forms of labor exploitation, like failure to pay wages or violations of health and safety regulations, fits the moral fervor of the antitrafficking campaign. Trafficking is an unambiguous moral evil, traffickers are "bad people" who deserve severe punishment, and trafficking victims clearly merit our sympathy. The moral depravity of the perpetrators and the heart-wrenching misery of the victims make it possible for activists to shock and shame politicians, media figures, and ordinary people into action. Not only does the focus on "trafficking" or "slavery" facilitate the mobilization of supporters, but it also tends to neutralize or isolate potential opposition. It carves out a marginal form of labor exploitation that is not vital to the power or prosperity of any important economic or political elite. Trafficking is already illegal (at least on paper) in every country of the world. It has no public defenders. In sharp contrast to nineteenth-century chattel slavery, it does not predominate in a single important legal industry or nation. (20)
However, the same features of the prohibition approach that make it so attractive also limit its effectiveness in at least three ways. First, the search for morally blameworthy perpetrators does not necessarily lead to the heart of the new slavery. The moral clarity of the "slavery" definition in the realm of theory is not matched by legal or economic clarity on the ground. Unlike nineteenth-century chattel slavery, the new slavery is not a distinct system of labor exploitation. Rather, it consists in the addition of physical or psychological violence to an underlying capitalist labor market. As Bales and Soodalter point out, it is "capitalism at its worst." (21) The new slavery typically exists alongside other practices of labor exploitation that do not involve violence sufficiently immediate or intense to amount to slavery. Slave and nonslave...