The Thirteenth Amendment at the Intersection of Class and Gender: Robertson v. Baldwin's Exclusion of Infants, Lunatics, Women, and Seamen

• Publication year: 2016

SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 3, SPRING 2016

The Thirteenth Amendment at the Intersection of Class and Gender: Robertson v. Baldwin's Exclusion of Infants, Lunatics, Women, and Seamen

James Gray Pope(fn*)

The common law has recognized certain classes of persons who may be kept in pupilage, viz. infants, lunatics, married women . . . .(fn1)

- John Chipman Gray

Indeed, seamen are treated by congress, as well as by the parliament of Great Britain, as deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults, and as needing the protection of the law in the same sense in which minors and wards are entitled to the protection of their parents and guardians. "Quemadmodum pater in filios, magister in discipulos, dominus in servos vel familiares."(fn2)

- Justice Henry Billings Brown, writing for the Court in Robertson v. Baldwin

CONTENTS

INTRODUCTION.................................................................................... 902

I. THE THIRTEENTH AMENDMENT AND THE DOMESTIC LAW: EARLY TENSIONS .............................................................................................. 903

II. ROBERTSON V. BALDWIN................................................. 906

III. THE FATE OF INFANTS AND WOMEN AFTER ROBERTSON.............. 914

A. Children Enslaved by Their Parents ........................... 914

B. Women Reduced to Involuntary Servitude ...................... 920

CONCLUSION ......................................................................................... 925

INTRODUCTION

In Robertson v. Baldwin, the Supreme Court held that merchant seamen under contract could be legally compelled to work notwithstanding the Thirteenth Amendment's prohibition on slavery and involuntary servitude.(fn3) According to the Court, seamen were "deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults," and therefore could-along with children and wards-be deprived of liberty.(fn4) From a present-day perspective, the Court's casual deprecation of seamen's intelligence and character might seem anachronistic, even shocking. But the Court's most recent Thirteenth Amendment opinion, United States v. Kozminski (1988), approvingly mentioned not only Robertson's broad principle-"that the Thirteenth Amendment was not intended to apply to 'exceptional' cases well established in the common law at the time of the Thirteenth Amendment"-but also the specific examples of children, wards, and sailors.(fn5)

Robertson's domestic exclusion raises intertwined issues of class and gender. As a general rule, the Thirteenth Amendment limits inequalities of class, where class is conceived as "power relationships among groups involved in systems of production."(fn6) Regardless of contractual consent, workers may not be legally or physically compelled to work.(fn7) The Supreme Court has explained this principle in terms of class power, as necessary to prevent the "master" from dominating the "laborer": "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."(fn8) Robertson carves out a gendered exception to this protection, relegating seamen to what political theorist Carole Pateman has described as "the private sphere of natural subjection and womanly capacities."(fn9)

By contrast, it is an open question whether the Amendment reaches gender relations.(fn10) On that issue, Robertson has historically served to block jurisprudential development by preserving the domestic sphere as a zone where services can be coerced free from Thirteenth Amendment scrutiny. As Joyce McConnell has shown, Robertson's domestic exclusion has operated to deprive women, married or not, of protection against coercion by intimate partners.(fn11) When a woman enters into an intimate relationship with a man, then, she departs the public sphere of class relations and loses her Thirteenth Amendment protection against coercion of services.

Over the past few years, however, several courts have applied statutory bans on "involuntary servitude" and "forced labor" (a "species of involuntary servitude"(fn12)) to protect women and children in domestic settings.(fn13) These cases suggest that Robertson's categorical exclusion is ripe for reconsideration. Part I of this Article traces its roots to the common law of the household, the shared point of origin both of class and gender hierarchies. It suggests that the Thirteenth Amendment posed a potential challenge to traditional assumptions of natural hierarchy and benevolent paternalism in the domestic sphere. Part II reviews the Robertson decision, focusing especially on justifications for the exclusion. Part III discusses Thirteenth Amendment law and scholarship concerning the physical coercion of services from children and women in domestic settings.

I. THE THIRTEENTH AMENDMENT AND THE DOMESTIC LAW: EARLY TENSIONS

In colonial America, the household served as a crucible of class and gender hierarchies. Slaves, bound servants, apprentices, hired servants, wives, children, and wards all lived under the dominion and protection of the master of the house.(fn14) "[T]he household stands," observes legal historian Christopher Tomlins, "as the crucial and historically specifiable point of intersection in the genealogy of [three] strands of legal discourse: the law of service and of employment, the law of conjugal and familial relations, the law of slavery."(fn15) To Adam Smith, for example, the law of slavery nested in the broader category of master-servant law, which, in turn, fell under the heading "Domestic Law" along with the law of "Husband and Wife," "Parent and Child," and "Guardian and Ward."(fn16) As of the late nineteenth century, Anglo-American legal thinkers continued to treat "the interrelationship of these strands, spun together over the previous two centuries, as both obvious and natural, a timeless legal homology-'the domestic relations'-that boxed the compass of normative social life."(fn17) Even when faced with cases involving factory workers who could not plausibly be classified as part of their employer's household, nineteenth-century American courts chose to import the principles of domestic master-servant law, complete with their underlying assumptions of natural hierarchy and benevolent paternalism.(fn18)

The Thirteenth Amendment, with its broad prohibition of "slavery" and "involuntary servitude," threatened to disrupt the master's dominion not only over slaves, but also over children, wives, and apprentices. During congressional debates over the Amendment, Representative Chilton White of Ohio warned that all of these relations rested on the same constitutional foundation:The guarantee of the Constitution is for the enforcement of the local municipal laws by the concentration of the power of the whole people. The parent has the right to the service of his child; he has a property in the service of that child. A husband has a right of property in the service of his wife; he has the right to the management of his household affairs. The master has a right of property in the service of his apprentice. All these rights rest upon the same basis as a man's right of property in the service of slaves. The relation is clearly and distinctly defined by the law, and as clearly and distinctly recognized by the Constitution of the United States.(fn19)

If all of these relations rested on the same foundation, then the abolition of any one of them might entail the abolition or regulation of all. Opponents cited this danger in support of their contention that the Thirteenth Amendment so fundamentally altered the constitutional order that it could not be enacted under a mere power to "amend." If the federal government "by constitutional amendment, can regulate the relation of master and servant," warned one senator, "it certainly can, on the same principle, make regulations concerning the relation of parent and child, husband and wife, and guardian and ward."(fn20) After ratification, the same specter was deployed against the Civil Rights Act of 1866, enacted to enforce the Amendment. "I say that this bill," charged Senator Edward Cowan, "confers upon married women, upon minors, upon idiots, upon lunatics . . . the right to make and enforce contracts."(fn21) To Cowan and his allies, the Act exceeded the scope of the Amendment by regulating these and other domestic relations, for example, apprenticeships.(fn22) Proponents of the Amendment and of the Civil Rights Act responded by denying that either the Amendment or enforcement legislation would affect, in the words of historian Amy Dru Stanley, "any household relation but slavery."(fn23)

Nevertheless, the Amendment's ratification in December 1865 inevitably posed the question whether the enacted text, which contained no such limitation, covered domestic relations other than chattel slavery. African-Americans across the South wasted no time seeking relief for their children from involuntary apprenticeship, usually to their former masters.(fn24) Freedmen's Bureau officials and southern judges and juries struggled to distinguish between valid and invalid apprenticeships and, in 1867, Supreme Court Justice Salmon Chase, riding circuit, ruled that a black girl's...