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

Yale Law Journal

Volumn 119, Issue 7, 2010, Pages 1474-1567

  Pope, James Gray ^a  

^a Lewis and Clark Law School   (United States)

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EID: 77953092615     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (379)

1. 1 THE BLACK WORKER: A DOCUMENTARY HISTORY FROM COLONIAL TIMES TO THE PRESENT 345 (Philip S. Foner & Ronald L. Lewis eds., 1978).
2. See, e.g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 443-44 (1968); The Civil Rights Cases, 109 U.S. 3, 22 (1883); CONG. GLOBE, 38th Cong., 1st Sess. 2954 (1864) (statement of Rep. Kellogg) (finding in it "rights which are inalienable"); CONG. GLOBE, 38th Cong., 1st Sess. 2990 (1864) (statement of Rep. Ingersoll) (finding "certain inalienable rights" including the "right to till the soil, to earn his bread by the sweat of his brow, and enjoy the rewards of his own labor"); ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM: A LEGAL HISTORY 44-46 (2004); REBECCA E. ZIETLOW, ENFORCING EQUALITY: CONGRESS, THE CONSTITUTION, AND THE PROTECTION OF INDIVIDUAL RIGHTS 41-42 (2006); Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863, 893-99 (1986); Lea S. VanderVelde, The Labor Vision of the Thirteenth Amendment, 138 U. PA. L. REV. 437, 475-504 (1989).
3. Section 2 provides: "Congress shall have power to enforce this article by appropriate legislation." U.S. CONST. amend. XIII, § 2. The Amendment does not mention judicial enforcement, but section 1 outlaws slavery and involuntary servitude of its own force. Civil Rights Cases, 109 U.S. at 20, 23. By contrast, the Ninth Amendment-which makes clear the existence of unenumerated rights-says nothing about any federal government role in their identification or enforcement, arguably leaving those tasks to the states and the people of the United States. U.S. CONST. amend. IX.
4. See, e.g., WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT 135-41 (1991) (reviewing the rights to organize and strike); RISA L. GOLUBOFF, THE LOST PROMISE OF CIVIL RIGHTS 51, 69-70, 143, 155-57 (2007) (describing the rights to fair wages and to refrain from work); ROBERT J. STEINFELD, COERCION, CONTRACT, AND FREE LABOR IN THE NINETEENTH CENTURY 285-89 (2001) (describing how the Amendment guarantees the right to change employers); Lea S. VanderVelde, The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity, 101 YALE L.J. 775 (1992) (deriving the right to pursue a calling); VanderVelde, supra note 2, at 493-94 (discussing a right to set wages).
5. 322 U.S. 4 (1944).
6. Id. at 18.
7. Id.; Archibald Cox, Strikes, Picketing and the Constitution, 4 VAND. L. REV. 574, 576-77 (1951).
8. Tobias Barrington Wolff, The Thirteenth Amendment and Slavery in the Global Economy, 102 COLUM. L. REV. 973, 974 (2002).
9. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 69 (1872).
10. See, e.g., GERTRUDE EZORSKY, FREEDOM IN THE WORKPLACE? 5-14 (2007); STEINFELD, supra note 4, at 1-26.
11. See Victims of Trafficking and Violence Protection Act of 2000, 18 U.S.C. § 1589 (2000); United States v. Kozminski, 487 U.S. 931, 943-44 (1988) (holding that the "involuntary servitude" criminalized in federal statutes consisted only of physical and legal coercion); United States v. Bradley, 390 F.3d 145, 150-51 (1st Cir. 2004) (observing that the Act was "intended expressly to counter United States v. Kozminski" and upholding a jury instruction that defendants charged with violating it could be convicted based on nonphysical coercion), vacated and remanded on other grounds, 545 U.S. 1101 (2005)
12. GOLUBOFF, supra note 4, at 143-44.
13. See infra Section III.A.12. See infra Section VI.D.
14. Bailey v. Alabama, 219 U.S. 219, 245 (1911).
15. CONG. GLOBE, 39th Cong., 2d Sess. 240-41 (1867) (statement of Sen. Sumner).
16. Peonage Act of 1867, ch. 187, § 1, 14 Stat. 546 (emphasis added).
17. Bailey, 219 U.S. at 245.
18. MICHAEL VORENBERG, FINAL FREEDOM: THE CIVIL WAR, THE ABOLITION OF SLAVERY, AND THE THIRTEENTH AMENDMENT 56-57 (2001). The Ordinance provided: "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted." Northwest Ordinance of 1787, art. VI, Confederate Congress.
19. VORENBERG, supra note 20, at 56-57; Howard Devon Hamilton, The Legislative and Judicial History of the Thirteenth Amendment, 9 NAT'L B.J. 26, 30-31 (1951).
20. CONG. GLOBE, 38th Cong., 1st Sess. 1489 (1864) (statement of Sen. Howard)
21. Hamilton, supra note 21, at 50-51. The Constitution of 1818 incorporated the Ordinance's prohibition of slavery and involuntary servitude and in the next sentence authorized indentures. Id.
22. The quotation is from Justice Thomas's concurrence in Sarah, Alias Sarah Borders, a Woman of Color v. Borders, 5 Ill. (4 Scam.) 341, 347 (1843) (Thomas, J., concurring). The indenture in Sarah was for forty years. Strangely, none of the cases cited by historians for the existence of the "Illinois rule" are on point. This is because the Illinois Supreme Court held that when Congress accepted Illinois into the Union with its 1818 constitution approving involuntary indentured servitude, the Ordinance was no longer binding on Illinois. Phoebe, a Woman of Color v. Jay, 1 Ill. (Breese) 268, 272 (1828). In Phoebe, the court opined that an Illinois territorial statute had been void under the Ordinance because it authorized indentures that were not entered into voluntarily, but this was dictum because-according to the court-the 1818 constitution and its acceptance by Congress exempted Illinois from the Ordinance. Whatever the strength of the case law, however, it was widely known that indentured servitude thrived in Illinois despite the Northwest Ordinance both before and after 1818. Hamilton, supra note 21, at 49-51. On the "Illinois rule," see STEINFELD, supra note 4, at 259- 61. But see Nathan B. Oman, Specific Performance and the Thirteenth Amendment, 93 MINN. L. REV. 2020, 2047-48 (2009) (arguing that the Illinois and Indiana approaches to the interpretive issues regarding involuntary servitude were more similar than appears in Steinfeld's account).
23. U.S. CONST., art. I, § 2, cl. 3. At the time the Constitution was enacted, white, as well as black laborers could be "bound to Service for a Term of Years" by contract, for debt, or as punishment for crime. RICHARD B. MORRIS, GOVERNMENT AND LABOR IN EARLY AMERICA 29-32 (1946).
24. Hamilton, supra note 21, at 51-52.
25. 1 Blackf. 122, 125-26 (Ind. 1821).
26. Id. at 123-24.
27. Id. at 124-25.
28. Id. at 125. It has been argued that Mary Clark did not equate specific performance with involuntary servitude. Oman, supra note 24, at 2043-44. Because the actual issue in the case involved self-help enforcement, and not specific performance, the decision arguably contains no holding on the status of specific performance under the state constitution. However, the court's decisive reasoning on the two issues is virtually identical. On specific performance, the court cited the common law ban and then observed that "if the law were silent, the policy. would settle this question." 1 Blackf. at 124. The court stated the policy in terms that evoked constitutional concerns, as noted above. See supra text accompanying note 29. Indeed there was no reason for the court to digress on the issue of specific performance except to support its ultimate conclusion "that the appellant is in a state of involuntary servitude; and we are bound by the Constitution, the supreme law of the land, to discharge her therefrom." 1 Blackf. at 126. The possibility that the same considerations might not apply to relatively privileged workers is discussed infra text accompanying notes 191-198.
29. See STEINFELD, supra note 4, at 265.
30. H.R. REP. NO. 36-508, at 32-33 (1860); STEINFELD, supra note 4, at 266.
31. STEINFELD, supra note 4, at 264.
32. JAMES D. SCHMIDT, FREE TO WORK: LABOR LAW, EMANCIPATION, AND RECONSTRUCTION, 1815-1880, at 116 (1998).
33. th Cong., 2d Sess. 1-2 (1864) (reporting the respresentatives present at the House session that passed the amendment), with CONG. GLOBE, 39th Cong., 2d Sess. 1 (1866) (reporting the senators present at the Senate session that proposed and passed the Peonage Act of 1867), and id. at 1-2 (reporting the representatives present at the House session that passed the Act).
34. Peonage Act of 1867, ch. 187, § 1, 14 Stat. 546 (emphasis added).
35. CONG. GLOBE, 39th Cong., 2d Sess. 1571 (1867) (statement of Sen. Davis).
36. Id. at 1572 (statement of Sen. Doolittle).
37. Id. at 1571-72 (emphasis added).
38. Id. at 1572 (statement of Sen. Buckalew).
39. Id. at 1571 (statement of Sen. Wilson).
40. See STEINFELD, supra note 4, at 270-85.
41. 165 U.S. 275 (1897).
42. Id. at 280.
43. Id. at 281.
44. Id. at 282-83.
45. Id. at 300-01 (Harlan, J., dissenting).
46. See Hilo Sugar Co. v. Mioshi, 8 Haw. 201 (1891); STEINFELD, supra note 4, at 268-70 (citing State v. Williams, 10 S.E. 876 (S.C. 1889)); see also CHRISTOPHER G. TIEDEMAN, A TREATISE ON STATE AND FEDERAL CONTROL OF PERSONS AND PROPERTY IN THE UNITED STATES: CONSIDERED FROM BOTH A CIVIL AND CRIMINAL STANDPOINT 340-43 (2d ed. 1900) (asserting that the Thirteenth Amendment is not violated by the specific performance of term labor contracts or by the criminal punishment of laborers for violating such contracts, and providing examples of criminal statutes barring the breach of labor contracts in various southern states).
47. 197 U.S. 207, 215 (1905).
48. 219 U.S. 219 (1911).
49. Id. at 228 (quoting Bailey v. State, 49 So. 886, 886 (1909)
50. Id. at 244.
51. Id. at 241.
52. Id. at 245.
53. Id.; see also United States v. Reynolds, 235 U.S. 133, 142, 150 (1914) (striking down a state statute making it a crime to breach a criminal surety contract under which one person, usually a landowner, paid the fine of a convicted criminal, usually an agricultural laborer, in exchange for a term of labor).
54. Bailey, 219 U.S. at 247 (Holmes, J., dissenting).
55. Id. at 246.
56. Id. at 246-47.
57. See PETE DANIEL, THE SHADOW OF SLAVERY: PEONAGE IN THE SOUTH, 1901-1969, at 183-92 (1972); JACQUELINE JONES, THE DISPOSSESSED: AMERICA'S UNDERCLASSES FROM THE CIVIL WAR TO THE PRESENT 107 (1992); Michael J. Klarman, Race and the Court in the Progressive Era, 51 VAND. L. REV. 881, 926-28 (1998).
58. Pollock v. Williams, 322 U.S. 4, 25 (1944); Taylor v. Georgia, 315 U.S. 25, 29 (1942).
59. Pollock, 322 U.S. at 11-13.
60. Id. at 18.
61. Id. at 25.
62. Id. at 18.
63. See supra notes 42-47 and accompanying text.
64. See supra text accompanying notes 23-30.
65. CONG. GLOBE, 39th Cong., 2d Sess. 1571-72 (1867) (statement of Sen. Doolittle).
66. Bailey v. Alabama, 219 U.S. 219, 245 (1911).
67. CONG. GLOBE, 39th Cong., 2d Sess. 1572 (1867) (statement of Sen. Buckalew).
68. The Case of Mary Clark, a Woman of Color, 1 Blackf. 122, 124-25 (Ind. 1821).
69. Id.; cf. Peonage Cases, 136 F. 707, 708 (E.D. Ark. 1905) (stating that in passing the Peonage Act, Congress had recognized that voluntary peonage might be even more dangerous to a Republic than slavery, because "men of large wealth" might gain control over the votes of "thousands of people").
70. Bailey, 219 U.S. at 245.
71. Pollock v. Williams, 322 U.S. 4, 18 (1944).
72. See William M. Wiecek, Synoptic of United States Supreme Court Decisions Affecting the Rights of African-Americans, 1873-1940, 4 BARRY L. REV. 21, 30 (2003); infra notes 83-84 and accompanying text.
73. Initially, the Court limited the Amendment's racial equality thrust to cases of forced labor. Hodges v. United States, 203 U.S. 1, 16-17 (1906). Eventually, however, the Court overruled Hodges and recognized a broad power in Congress "rationally to determine what are the badges and the incidents of slavery." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968).
74. On these two thrusts, see VanderVelde, supra note 2, at 495.
75. See infra notes 86-89 and accompanying text.
76. Bailey v. Alabama, 219 U.S. 219, 241 (1911); see also Hodges v. United States, 203 U.S. 1, 17 (1906) ("Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon are as much within its compass as slavery or involuntary servitude of the African.").
77. 219 U.S. at 231.
78. 219 U.S. at 248 (Holmes, J., dissenting). On Holmes's view of the role of race in Bailey, see Aziz Z. Huq, Peonage and Contractual Liberty, 101 COLUM. L. REV. 351, 384-85 (2001); and Klarman, supra note 61, at 923-24.
79. See Huq, supra note 85, at 382-83; Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases, 82 COLUM. L. REV. 646, 702-03 (1982).
80. Huq, supra note 85, at 353, 386. On the Progressive Era Court's paternalistic treatment of groups it considered weak, as compared to industrial workers, see FORBATH, supra note 4, at 52-53; STEINFELD, supra note 4, at 278; and Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 L. & HIST. REV. 249, 255 (1987).
81. The Alabama law was race-neutral on its face, and it is unlikely that Bailey could have prevailed under Yick Wo v. Hopkins, which held that a facially neutral law could be overturned on racial grounds only by proving that it was administered with "an evil eye and an unequal hand." 118 U.S. 356, 373-74 (1886). Although white peonage was relatively rare, it was clear that the authorities-far from exempting whites as in Yick Wo-diligently assisted employers in keeping white, as well as black, workers bound to labor. DANIEL, supra note 61, at 82-109. Accordingly, Bailey's attorneys-backed by the United States-argued not that the facially neutral law was administered in a discriminatory manner, but that it was intended by the legislature "to give the large planters of the State absolute dominion over the negro laborer." Schmidt, supra note 86, at 681. Had the Court accepted this claim, Bailey would have transformed the law of racial discrimination. See Klarman, supra note 61, at 919-20 (noting that "the judicial battle against Jim Crow had little chance of success until courts became willing either to undertake motive inquiries or to shift the constitutional focus from purpose to effect").
82. Randall Kennedy, Race Relations Law and the Tradition of Celebration: The Case of Professor Schmidt, 86 COLUM. L. REV. 1622, 1647 (1986) (noting that Bailey "paid homage" to the Reconstruction-ending Hayes-Tilden Compromise, a major purpose of which was "to remove the race issue from the national political agenda and to remit southern blacks to the "care' of their former masters"); Klarman, supra note 61, at 925-27 (arguing that Bailey and Reynolds "represent minimalist interpretations of the Thirteenth Amendment-the very least the Court could do short of acquiescing in southern nullification of the amendment"); Wiecek, supra note 79, at 30 (suggesting that the Court kept up the "pretense" that race had nothing to do with the results in the peonage cases in order to avoid a confrontation with the southern system of white supremacy).
83. The race-neutrality of the doctrine has been repeatedly confirmed in the near-century since Bailey. In Pollock, three decades later, for example, the Court continued to eschew any reliance on race. Not only did Justice Jackson fail to mention the possibility of discrimination, but he also took pains to note that the U.S. Immigration Commission had found that peonage existed in all but two states, and that "probably. the most complete system of peonage in the entire country" affected not black workers in the South, but immigrant workers in the lumber camps of Maine. Pollock v. Williams, 322 U.S. 4, 8-19 (1944).
84. Baher Azmy, Unshackling the Thirteenth Amendment: Modern Slavery and a Reconstructed Civil Rights Agenda, 71 FORDHAM L. REV. 981, 1031 (2002).
85. S. DOC. NO. 61-747, at 443, 447 (1910) (describing peonage in Maine); STEINFELD, supra note 4, at 279 (detailing peonage in northern lumber and mining industries).
86. Wolff, supra note 8, at 1027 (describing the lumber workforce as "a racially defined, captive workforce, tied by economic vulnerability and physical coercion" to the industry).
87. CONG. GLOBE, 39th Cong., 1st Sess. 1118 (1866) (statement of Rep. Wilson); JACOBUS TENBROEK, EQUAL UNDER LAW 168 (1965); TSESIS, supra note 2, at 44; William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 27 (1999); Hamilton, supra note 21, at 34.
88. Kaczorowski, supra note 2, at 897 n.153 (presenting evidence from contemporary newspapers that the Civil Rights Act of 1866, enacted to enforce the Thirteenth Amendment, was understood to protect the fundamental rights of members of all races against suppression whether the suppression was based on race or not). Although Congress eventually proposed the Fourteenth Amendment as a way of ensuring that the Civil Rights Act would be upheld by the courts, the Act was passed under the authority of the Thirteenth Amendment, and repassed by an overwhelming majority after Andrew Johnson vetoed it on constitutional grounds and before the Fourteenth Amendment was enacted. ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 244, 250-51 (1988).
89. ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 40-69 (1970); VanderVelde, supra note 2, at 442-43, 445-48.
90. See, e.g., CONG. GLOBE, 38th Cong., 1st Sess. 2990 (1864) (statement of Rep. Ingersoll); id. at 2984 (statement of Rep. Kelley); id. at 2979 (statement of Rep. Farnsworth); id. at 2955 (statement of Rep. Kellogg); id. at 2615 (statement of Rep. Morris); id. at 1459-60 (statement of Sen. Henderson); id. at 1439 (statement of Sen. Harlan); id. at 1369 (statement of Sen. Clark); id. at 1313 (statement of Sen. Trumbull); id. at 1202-03 (statement of Sen. Wilson).
91. 76 CONG. GLOBE, 39th Cong., 2d Sess. 1571 (1867).
92. LERONE BENNETT, JR., THE SHAPING OF BLACK AMERICA 41 (1975); see also, 2 THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE: THE ORIGIN OF RACIAL OPPRESSION IN ANGLOAMERICA 124-47, 267-69 (1997) (documenting the harsh oppression of bond laborers both before and after the arrival of Africans).
93. EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA 326-27 (1975); see also 2 ALLEN, supra note 99, at 148-62, 210-15 (documenting solidarity among black and white bond laborers).
94. 2 ALLEN, supra note 99, at 240, 250-53; MORGAN, supra note 100, at 328.
95. See, e.g., MORRIS, supra note 25, at 482-99 (noting that in the southern colonies, masters were given greater latitude to punish workers, often escaping conviction even for murder, brutal torture, and rape).
96. VanderVelde, supra note 2, at 443-48.
97. GUNTHER PECK, REINVENTING FREE LABOR: PADRONES AND IMMIGRANT WORKERS IN THE NORTH AMERICAN WEST, 1880-1930, at 169 (2000).
98. DAVID R. ROEDIGER, WORKING TOWARD WHITENESS: HOW AMERICA'S IMMIGRANTS BECAME WHITE: THE STRANGE JOURNEY FROM ELLIS ISLAND TO THE SUBURBS 149-55 (2005).
99. PECK, supra note 104, at 166; see also ROEDIGER, supra note 105, at 37, 41, 43-44, 54, 66 (recounting the "interpellation of cultures of poverty with ideas about racial inheritance," including the origin of racist epithets like "guinea," "greaser," and "hunky" in economic as well as biological concepts); Tanya Katerí Hernández, The Construction of Race and Class Buffers in the Structure of Immigration Controls and Laws, 76 OR. L. REV. 731, 742-43 (1997) (observing that European immigrants were transformed into whites "for the purpose of having them function as a middle-tier buffer against a growing minority community of surplus labor").
100. Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 132 (1994) (observing that the "archaeology of race soon becomes the excavation of gender and sexual identity").
101. PECK, supra note 104, at 234-35. What appears to be a single racially defined group may turn out, upon closer examination, to be riddled with complex, race-based cleavages that raise serious problems for antidiscrimination law. Tanya Katerí Hernández, Latino Inter-Ethnic Employment Discrimination and the "Diversity" Defense, 42 HARV. C.R.-C.L. L. REV. 259 (2007).
102. ORLANDO PATTERSON, SLAVERY AND SOCIAL DEATH: A COMPARATIVE STUDY 7 (1982)
103. See A. Yasmine Rassam, Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade Under Customary International Law, 39 VA. J. INT'L L. 303, 317-20 (1999) (citing PATTERSON, supra note 109, at viii; and ERIC WILLIAMS, CAPITALISM & SLAVERY 4, 7, 29 (1994)
104. See Amy Kathryn Brown, Note, Baghdad Bound: Forced Labor of Third-Country Nationals in Iraq, 60 RUTGERS L. REV. 737, 741 n.23 (2008).
105. 535 U.S. 137, 142-43 (2002) (holding that when undocumented employees are discharged for exercising their statutory right to organize a labor union, they may not be awarded back pay as a remedy and that the employer need only post a notice promising not to repeat its violations); Maria L. Ontiveros, Immigrant Workers' Rights in a Post-Hoffman World-Organizing Around the Thirteenth Amendment, 18 GEO. IMMIGR. L.J. 651, 654 (2004).
106. Ontiveros, supra note 112, at 678-80; see also Ruben J. Garcia, Ghost Workers in an Interconnected World: Going Beyond the Dichotomies of Domestic Immigration and Labor Laws, 36 U. MICH. J.L. REFORM 737, 754-55 (2003) (contending that the denial of labor rights to immigrants in decisions like Hoffman effectively reduces them to a condition of involuntary servitude).
107. See, e.g., ALICE KESSLER-HARRIS, OUT TO WORK: A HISTORY OF WAGE-EARNING WOMEN IN THE UNITED STATES 142 (1982); VanderVelde, supra note 4, at 776-77. On the complexities of the interaction between gender and labor subjugation, see, for example, CAROLE PATEMAN, THE SEXUAL CONTRACT (1988); AMY DRU STANLEY, FROM BONDAGE TO CONTRACT: WAGE LABOR, MARRIAGE, AND THE MARKET IN THE AGE OF SLAVE EMANCIPATION (1998); Pamela D. Bridgewater, Reproductive Freedom as Civil Freedom: The Thirteenth Amendment's Role in the Struggle for Reproductive Rights, 3 J. GENDER RACE & JUST. 401 (2000); Pamela D. Bridgewater, Un/Re/Dis Covering Slave Breeding in Thirteenth Amendment Jurisprudence, 7 WASH. & LEE RACE & ETHNIC ANCESTRY L.J. 11 (2001); and Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U. L. REV. 480 (1990).
108. CONG. GLOBE, 39th Cong., 1st Sess. 343 (1866); VanderVelde, supra note 2, at 440.
109. Even outright slavery is so thoroughly disguised that the intensity of scrutiny is highly relevant. See, e.g., KEVIN BALES, DISPOSABLE PEOPLE: NEW SLAVERY IN THE GLOBAL ECONOMY 26-28, 62-63, 84-85, 106-07, 137-38, 169, 237-38 (rev. ed. 2004) (reporting that many enslaved people fail to protest or attempt escape because of social or religious norms, that slavery is hidden behind fictive contracts, and that the actual owners may be distanced from the slave by layers of subcontractors).
110. See supra note 4.
111. Pollock v. Williams, 322 U.S. 4, 18 (1944); Cox, supra note 7, at 576-77.
112. 219 U.S. 219, 241 (1911).
113. See supra notes 74-78 and accompanying text.
114. See infra Section VI.A.
115. Pollock, 322 U.S. at 18.
116. See infra p. 1505, tbl.1.
117. CONG. GLOBE, 38th Cong., 2d Sess. 190 (1864) (statement of Rep. Kasson).
118. As recounted above, in Part I, courts and legislatures agreed that the clause extended beyond chattel slavery to encompass, at a minimum, some forms of indentured servitude.
119. CONG. GLOBE, 38th Cong., 2d Sess. 177 (1864) (statement of Rep. Ward).
120. THE OXFORD AMERICAN WRITER'S THESAURUS 819 (2004); see also THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1650 (3d ed. 1992) (defining servitude as "[a] state of subjection to an owner or a master," "[l]ack of personal freedom, as to act as one chooses," and "[f]orced labor imposed as a punishment for crime"); MERRIAMWEBSTER ONLINE DICTIONARY, http://www.merriam-webster.com/dictionary/servitude (last visited March 2, 2008) (defining servitude as "a condition in which one lacks liberty especially to determine one's course of action or way of life").
121. On this view, see PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 4 (1991).
122. See FONER, supra note 96, at 33. At that time, most Americans worked on farms, and the average factory employed ten people. ROSS M. ROBERTSON, HISTORY OF THE AMERICAN ECONOMY 228 (1955); GEORGE ROGERS TAYLOR, THE RANSPORTATION REVOLUTION 1815-1860, at 247 (1951).
123. See, e.g., DANIEL T. RODGERS, THE WORK ETHIC IN INDUSTRIAL AMERICA 1850-1920, at 33-35 (1978); VanderVelde, supra note 2, at 471-74, 484.
124. For a discussion of this point, see infra Section V.D.
125. This change is also reflected in the abandonment of "master-servant" as the label for what we now call labor and employment law.
126. On the decline of self-employment, see infra Section V.A
127. Printz v. United States, 521 U.S. 898, 905 (1997) (quoting Bowsher v. Synar, 478 U.S. 714, 723-24 (1986)); see also Jones v. Alfred H. Mayer Co. 392 U.S. 409, 423-39 (1968) (drawing on the legislative history of the Civil Rights Act of 1866 as an aid to interpreting the Thirteenth Amendment).
128. CONG. GLOBE, 39th Cong., 2d Sess. 1572 (1867) (statement of Sen. Buckalew).
129. Id. at 1571 (statement of Sen. Wilson).
130. Pollock v. Williams, 322 U.S. 4, 18 (1944).
131. See VanderVelde, supra note 2, at 453-54, 475-76. For additional discussion of the Pollock principle's fit with the original meaning, see infra text accompanying notes 185-186.
132. STEINFELD, supra note 4, at 291-92.
133. CONG. GLOBE, 39th Cong., 1st Sess. 340 (1866) (statement of Sen. Wilson); VanderVelde, supra note 2, at 492-93.
134. VanderVelde, supra note 2, at 491, 493-94.
135. Oman, supra note 24, at 2071.
136. The Padrone statute was enacted to prevent the importation of Italian children for forced labor in the United States, but the terms of the prohibition were general and contained no reference to the particular context. See United States v. Kozminski, 487 U.S. 931, 947 (1988) (quoting the Congressional Record and the Padrone statute, Act of June 23, 1874, ch. 464. 18 Stat. 251). On the Peonage Act, see supra Section I.B.
137. VanderVelde, supra note 2, at 478 (quoting CONG. GLOBE, 39th Cong., 1st Sess. 1789 (1866)). Cowan's argument echoed those of moral abolitionists, who insisted that a laborer who "is under no physical coercion. thus escapes essential and perpetual degradation." NORTHERN LABOR AND ANTISLAVERY: A DOCUMENTARY HISTORY 131 (Philip S. Foner & Herbert Shapiro eds., 1994) (quoting an antislavery newspaper).
138. CONG. GLOBE, 39th Cong., 1st Sess. 342 (1866) (statement of Sen. Cowan).
139. VanderVelde, supra note 2, at 481-82 (quoting id. at 343).
140. Id. at 482-83. For additional discussion of this point, see infra text accompanying notes 185-186.
141. Shaw v. Fisher, 102 S.E. 325, 327 (S.C. 1920) (discussed infra text accompanying notes 231-232).
142. See supra text accompanying notes 63-69.
143. 487 U.S. 931 (1988).
144. Id. at 935-36.
145. Id. at 943-44. Bailey and Pollock were distinguished on that ground.
146. 487 U.S. at 944.
147. Id. at 952.
148. Id. at 940 (quoting 18 U.S.C. § 241).
149. Id. at 941.
150. Id. at 944. Some state courts have interpreted it to prohibit some economic coercion. See infra Section V.B.
151. 487 U.S. at 944 (emphasis added).
152. Id. at 944-45.
153. Id. at 945.
154. Id. at 948 (emphasis added).
155. Pollock was decided in 1944; the statute was reenacted in 1948.
156. 487 U.S. at 942-43.
157. Id. at 945.
158. Id. at 951-52. Thus, the Court rejected Justice Brennan's argument that the statute should be interpreted as banning all forms of coercion that effectively placed workers in "a slavelike condition of servitude," id. at 964 (Brennan, J., concurring), not on the merits of the standard (to the contrary, the Court agreed that "Congress intended to prohibit "slavelike' conditions of servitude," id. at 951 (majority opinion)), but because such a standard "would delegate to prosecutors and juries the task of determining what working conditions are so oppressive as to amount to involuntary servitude." Id. at 950.
159. Id. at 944; see also id. at 952 ("Absent change by Congress, we hold that, for purposes of criminal prosecution under § 241 or § 1584, the term "involuntary servitude' necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process." (emphasis added)).
160. See sources cited supra note 11; sources cited infra note 215.
161. Butler v. Perry, 240 U.S. 328, 332 (1916).
162. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 69, 72 (1872).
163. See, e.g., Herndon v. Chapel Hill-Carrboro City Bd. of Educ., 89 F.3d 174, 180-81 (4th Cir. 1996); United States v. Shackney, 333 F.2d 475, 486-87 (2d Cir. 1964) (Friendly, J.).
164. For more on this point, see infra text accompanying notes 361-362.
165. See sources cited supra note 11; sources cited infra note 215.
166. See District of Columbia v. Heller, 128 S. Ct. 2783, 2791-92 (2008).
167. Butler v. Perry, 240 U.S. 328, 332 (1916).
168. Id. at 333.
169. See Selective Draft Law Cases, 245 U.S. 366, 390 (1918) (distinguishing involuntary servitude from "the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people"); Bailey v. Alabama, 219 U.S. 219, 241 (1911) (referring to "that control by which the personal service of one man is disposed of or coerced for another's benefit" as "the essence of involuntary servitude"); Hodges v. United States, 203 U.S. 1, 19 (1906) (defining "servitude" as ""the state of voluntary or compulsory subjection to a master'") (quoting WEBSTER'S DICTIONARY (1901)); see also Koppelman, supra note 114, at 521 n.176 (noting the distinction between involuntary servitude and "honorable public duties"); supra p. 1505, tbl.1.
170. See, e.g., Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 460 (2d Cir. 1996) (upholding a community service requirement for high school graduation after determining that its purpose was "educational" and "not exploitative"); United States v. King, 840 F.2d 1276, 1281 (6th Cir. 1988) (upholding conviction of religious cult leaders for compelling children to work where "force was utilized by the defendants to compel extra services from the children that accrued to defendants' personal benefit"); Jobson v. Henne, 355 F.2d 129, 132 (2d Cir. 1966) (sending mental patient's claim of involuntary servitude to trial on the ground that a program of mandatory chores for mental patients might be "so ruthless in the amount of work demanded, and in the conditions under which the work must be performed, and thus so devoid of therapeutic purpose, that a court justifiably could [find] involuntary servitude"). For other examples, see Lauren Kares, Note, The Unlucky Thirteenth: A Constitutional Amendment in Search of a Doctrine, 80 CORNELL L. REV. 372, 395 (1995).
171. Lea VanderVelde, The Thirteenth Amendment of Our Aspirations, 38 U. TOL. L. REV. 855, 875-76 (2007).
172. Pollock v. Williams, 322 U.S. 4, 17 (1944); see also Bailey, 219 U.S. at 245 (noting the Amendment's purpose to "safeguard the freedom of labor upon which alone can enduring prosperity be based"). For similar statements by the Amendment's Framers, see infra note 185.
173. Pollock, 322 U.S. at 17-18.
174. Id. at 18.
175. Shaw v. Fisher, 102 S.E. 325, 326 (S.C. 1920); see infra text accompanying notes 231-232.
176. Id. at 326-27. The court drew on Bailey, quoting its admonition that the purpose of the Amendment was to "render impossible any state of bondage; to make labor free." Id. At 326 (quoting Bailey, 219 U.S. at 241).
177. th Cong., 1st Sess. 2985 (1864) (statement of Rep. Kelley) ("Let us establish freedom as a permanent institution, and make it universal."); id. at 2983 (statement of Rep. Mallory) (complaining that proponents of the Amendment seek to supplant slavery by the "system of free labor"); id. at 2944 (statement of Rep. Higby) (observing that passage of the Amendment represents the choice between slavery and "free institutions and free labor"); id. at 2615 (statement of Rep. Morris) (advocating passage of the Thirteenth Amendment on the ground that "this is not a mere struggle between the North and the South; it is a conflict between two systems; a controversy between right and wrong"); id. at 1440 (statement of Sen. Harlan) (advocating the Thirteenth Amendment on the ground that even slaveholders would benefit from "a change of their system of labor from compulsory to voluntary"); and id. at 1369 (statement of Sen. Clark) (asserting that the Amendment will "plant new institutions of freedom").
178. Peonage Act of 1867, ch. 187, § 1, 14 Stat. 546; Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27. On the scope of the Civil Rights Act and its grounding in the Thirteenth Amendment, see supra note 95 and accompanying text.
179. U.S. CONST. amend. XIII, § 1. The Amendment bans those conditions not solely out of concern for the individual victim, but also-as the Pollock Court, echoing the Framers, observed-for all other workers "with whom his labor comes in competition." Pollock, 322 U.S. at 18; see also VanderVelde, supra note 2, at 445-48 (documenting the Framers' concern with the impact of slavery and involuntary servitude on free laborers).
180. This was the situation in New Mexico during the lead-up to the Peonage Act of 1867. As related in Congress, New Mexican peons already had an enforceable legal right to depart their employers, but many lacked the desire to do so. See supra notes 39-40 and accompanying text.
181. Studies of power suggest that the experience of subjugation tends to spawn feelings of powerlessness and acceptance, which are fostered and reinforced by socialization. See MURRAY EDELMAN, THE SYMBOLIC USES OF POLITICS 181-82 (1964); JOHN GAVENTA, POWER AND POWERLESSNESS: QUIESCENCE AND REBELLION IN AN APPALACHIAN VALLEY 12-13 (1980); STEVEN LUKES, POWER: A RADICAL VIEW 119-20, 137-39 (2d ed. 2005).
182. See generally BALES, supra note 116, at 26-29, 237-38 (describing the difficulty of revealing and eliminating forms of slavery that are disguised by contract and distanced by layers of functionaries and subcontractors from the ultimate masters, most of whom are ""respectable' businesspeople").
183. Pollock v. Williams, 322 U.S. 4, 18 (1944).
184. Lumley v. Wagner, (1852) 42 Eng. Rep. 687, 693 (Ch.).
185. Shaw v. Fisher, 102 S.E. 325, 327 (S.C. 1920) (discussed infra text accompanying notes 231-232).
186. VanderVelde, supra note 4, at 841-42.
187. See Oman, supra note 24, at 2072 (proposing that the scope of the Thirteenth Amendment be limited to "extremely oppressive relationships").
188. Cf. Ford v. Jermon, 6 Phila. 6, 7 (Dist. Ct. 1865) (declining to issue negative injunction enforcing female performer's promise to sing, and querying: "Is it not obvious that a contract for personal services thus enforced would be but a mitigated form of slavery, in which the party would have lost the right to dispose of himself as a free agent, and be, for a greater or less length of time, subject to the control of another?"). The court's opinion did not mention the Thirteenth Amendment, but it echoed the free labor vision propounded by its Framers. VanderVelde, supra note 4, at 795-99; see also Gardella v. Chandler, 172 F.2d 402, 409-10 (2d Cir. 1949) (Frank, J.). Gardella involved the reserve clause inserted into professional baseball players' contracts, according to which the employing team retained the exclusive right to employ a player for a period of one year after his contract expired. New York Giants outfielder Danny Gardella violated the reserve clause by playing briefly in the Mexican League, for which he was barred from baseball for a period of years. His antitrust suit was dismissed by the District Court and reinstated by the Second Circuit Court of Appeals. Circuit Judge Jerome Frank, an influential legal realist scholar, explained his vote for reinstatement partly by citing the Thirteenth Amendment and opining that the reserve system "results in something resembling peonage of the baseball player." He added that "if the players be regarded as quasi-peons, it is of no moment that they are well paid; only the totalitarian-minded will believe that high pay excuses virtual slavery." Id. at 409, 410. Frank went on to warn, unfortunately without explanation, that he was "not to be understood as implying that [the player contracts] violate the Thirteenth Amendment or the statutes enacted pursuant thereto." Id. at 410. This comment might have indicated either an inclination to reject any possible Thirteenth Amendment claim, or simply an unwillingness to confront the issue where it was not essential to resolving Gardella's case. The reserve system was eventually abandoned after a lengthy struggle in which Curt Flood, an African-American center fielder who deeply resented being treated as exchangeable property, played a central role. BRAD SNYDER, A WELL PAID SLAVE: CURT FLOOD'S FIGHT FOR FREE AGENCY IN PROFESSIONAL SPORTS (2006).
189. It is estimated, for example, that under the reserve system the rate of exploitation of baseball players was more than three times the rate under free agency. STANLEY L. ENGERMAN, SLAVERY, EMANCIPATION & FREEDOM: COMPARATIVE PERSPECTIVES 19 n.35 (2007).
190. VanderVelde, supra note 4, at 819-21.
191. STEINFELD, supra note 4, at 291, 310.
192. See, e.g., Thompson v. Box, 112 So. 597, 599 (Miss. 1927); Shaw v. Fisher, 102 S.E. 325, 327 (S.C. 1920); STEINFELD, supra note 4, at 312; VanderVelde, supra note 2, at 492-93.
193. SCHMIDT, supra note 34, at 195-96; STEINFELD, supra note 4, at 312.
194. JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC: CRIPPLED WORKINGMEN, DESTITUTE WIDOWS, AND THE REMAKING OF AMERICAN LAW (2004).
195. PECK, supra note 104, at 23.
196. See id. at 49-51, 67-68, 230. Historians have noted a similar dynamic with regard to the Mann "White Slavery" Act, which was targeted at "foreigners," especially Jews. Jennifer M. Chacón, Misery and Myopia: Understanding the Failures of U.S. Efforts To Stop Human Trafficking, 74 FORDHAM L. REV. 2977, 3016 (2006).
197. Pollock v. Williams, 322 U.S. 4, 24 (1944); Bailey v. Alabama, 219 U.S. 219, 244-45 (1911).
198. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968).
199. United States v. Kozminski, 487 U.S. 931, 951 (1988).
200. See William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. DAVIS L. REV. 1311, 1339-55 (2007). Carter concludes, based on the legislative debates, that the Amendment was understood to create a "concurrent power of Congress, the judiciary, and the executive branch to enforce the freedmen's rights," and not to limit the judiciary's power to instances of literal slavery. Id. at 1345.
201. Health Servs. & Support-Facilities Subsector Bargaining Ass'n v. British Columbia, [2007] 2 S.C.R. 391, 414, 2007 SCC 27 (Can.).
202. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
203. Cf. George Rutherglen, The Thirteenth Amendment, the Power of Congress, and the Politics of Civil Rights (manuscript at 10), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1473160 (suggesting that the contrast between the pattern of judicial decisions under the self-enforcing provisions of the Thirteenth Amendment ("few and restrictive") and the Fourteenth Amendment ("many and expansive") reflects the absence of a state-action limitation in the former).
204. CHRISTOPHER L. TOMLINS, LAW, LABOR, AND IDEOLOGY IN THE EARLY AMERICAN REPUBLIC (1993).
205. Victims of Trafficking and Violence Protection Act of 2000, 114 Stat. 1486 (codified at 18 U.S.C. § 1589 (2000)); United States v. Calimlim, 538 F.3d 706, 711 (7th Cir. 2008) (upholding conviction for subjecting a domestic worker to forced labor based mainly on defendants' threats not to send money back to her home in the Philippines, and warnings as to "her precarious position under the immigration laws"); United States v. Bradley, 390 F.3d 145, 150-51 (1st Cir. 2004), vacated on other grounds, 545 U.S. 1101 (2005).
206. Cf. New York v. United States, 505 U.S. 144, 176 (1992) (explaining that a choice between two unconstitutional alternatives is "no choice at all"). The set of three alternatives was formulated to encompass the full range of possibilities without skipping over any point that requires justification. Starvation is not listed as a possible alternative, but it is considered along with the first and second listed alternatives. The notion that one individual cannot be subjected to involuntary servitude except by the wrongful action of another is addressed in the discussion of the third alternative.
207. Self-employment is nongenuine when a person is nominally self-employed, but in fact has little or no control over her labor. Examples include nominally "independent" cleaning contractors who labor under the direction of their "customers." See Marc Linder, Dependent and Independent Contractors in Recent U.S. Labor Law: An Ambiguous Dichotomy Rooted in Simulated Statutory Purposelessness, 21 COMP. LAB. L. & POL'Y J. 187 (1999).
208. 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 459 (Roy P. Basler ed., 1953).
209. See, e.g., FONER, supra note 96, at 33; RODGERS, supra note 130, at 33-35; VanderVelde, supra note 2, at 471-74.
210. As of 2003, the self-employed accounted for 11.1 percent of all employment. Steven Hipple, Self-Employment in the United States: An Update, MONTHLY LAB. REV., July 2004, at 14-15. This figure was obtained by adding unincorporated self-employment, id. at 14 tbl.1, to incorporated self-employment, id. at 15 tbl.2.
211. See G.A. Cohen, The Structure of Proletarian Unfreedom, 12 PHIL. & PUB. AFF. 3, 9-11, 32 (1983).
212. Hipple, supra note 220, at 14 & tbl.1, 15 & tbl.2.
213. William J. Dennis, Jr., More Than You Think: An Inclusive Estimate of Business Entries, 12 J. BUS. VENTURING 175, 188-89 (1997) (estimating, based on survey of 36,000 households, that about 4.9 million people were engaged in starting up a business in 1995); Paul Reynolds, The Truth About Start-Ups, 17 INC. 23, 24 (1995) (estimating that seven million Americans are engaged in starting up a business at any given time).
214. Brian Headd, Redefining Business Success: Distinguishing Between Closure and Failure, 21 SMALL BUS. ECON. 51, 56 (2003); see Amy E. Knaup, Survival and Longevity in the Business Employment Dynamics Data, MONTHLY LAB. REV., May 2005, at 50, 51. Not all terminated businesses close because of failure. In one survey, 29.1% of the owners of closed businesses reported that the "status" of their business at the time of closure was "successful" as opposed to "unsuccessful" (the only other choice). Headd, supra, at 56.
215. See U.S. DEP'T OF COMMERCE, U.S. CENSUS BUREAU, CHARACTERISTICS OF BUSINESSES: 2002, at 1 (2006), available at http://www.census.gov/prod/ec02/sb0200cscb.pdf (reporting that roughly 12% of 12,595,657 nonemployer businesses reported being created within the past year, as compared to 4.2% of 4,091,884 employer businesses, leading to the conclusion that 90% of start-ups were nonemployer businesses).
216. Headd, supra note 224, at 60 n.9.
217. Id. at 55. Even if a worker succeeds in remaining self-employed, she has a one-sixth chance of earning less than the minimum wage. John F. Pinfold, The Expectations of New Business Founders: The New Zealand Case, J. SMALL BUS. MGMT., July 2001, at 279, 279 (citing a finding of the U.S. Small Business Administration).
218. See infra text accompanying notes 251-257.
219. The contrary position would require an affirmative guarantee of sustenance regardless of labor output, never a widely held view in the United States except for enslaved individuals and those unable to work. "The true incentives to labor in the free States," observed one reconstruction official, "are hunger and cold." SCHMIDT, supra note 34, at 138.
220. Cf. Moss v. Superior Court, 950 P.2d 59, 67 (Cal. 1998) (finding no involuntary servitude where a parent was convicted of criminal contempt for violating a court order commanding him to obtain employment in order to pay child support, reasoning that he remained "free to elect the type of employment and the employer").
221. Shaw v. Fisher, 102 S.E. 325, 327 (1920); see also Thompson v. Box, 112 So. 597, 599-600 (Miss. 1927) (observing that a statute prohibiting a person from knowingly employing a laborer who had breached his contract would violate the Thirteenth Amendment because the laborer would, as a practical matter, be forced to "stay or starve," and construing the statute not to require such a result so as to avoid the constitutional violation); STEINFELD, supra note 4, at 287-88.
222. Pollock v. Williams, 322 U.S. 4, 18 (1944). The right to change employers was also mentioned in the Thirty-Ninth Congress. CONG. GLOBE, 39th Cong., 1st Sess. 1160 (1866) (statement of Sen. Windom) ("Do you call that man free who cannot choose his own employer. ?"); id. at 111 (1865) (statement of Sen. Wilson) (discussing a freedman's right to "work when and for whom he pleases").
223. See supra note 35.
224. SCHMIDT, supra note 34, at 99.
225. See VanderVelde, supra note 2, at 491 & nn.237-40 (quoting and paraphrasing the senators).
226. See id. at 453-54, 475-76, 482-83.
227. See supra notes 180, 185 and accompanying text.
228. See, e.g., RODGERS, supra note 130, at 6-7, 10-14; VanderVelde, supra note 2, at 447-48, 461-62, 464. Central to the critique of slavery was its tendency to foster worship of leisure and contempt for honest work among free laborers as well as slaves. FONER, supra note 96, at 46-47, 58-59.
229. CONG. GLOBE, 38th Cong., 1st Sess. 2990 (1864) (statement of Rep. Ingersoll) (emphasis removed).
230. Robert C. Bird, Employment as a Relational Contract, 8 U. PA. J. LAB. & EMP. L. 149, 162-63 (2005) (citing studies on the psychological, physical, and behavioral effects of unemployment); see also Forbath, supra note 94, at 16 (observing that "all the empirical literature suggests that the most salient border between minimum respect and degradation in today's class structure falls along the line between" the employed (and their spouses) and the unemployed).
231. See Richard A. Epstein, In Defense of the Contract at Will, 51 U. CHI. L. REV. 947, 962-77 (1984) (analogizing the employment contract to a partnership agreement). This view is reflected in the growing tendency of employers to label their employees "associates."
232. See, e.g., H.W. Gossard Co. v. Crosby, 109 N.W. 483, 490 (Iowa 1906).
233. Caivano v. Brill Contracting Corp., 11 N.Y.S.2d 498, 502 (Mun. Ct. 1939) (holding that an employment contract obligating a plumber to make kick-back payments to the employer had been entered into under economic duress and was therefore void).
234. VanderVelde, supra note 2, at 493-94. On the combinations of planters to fix the wages of freed people, see 1 THE BLACK WORKER, supra note 1, at 341-42, 345-46.
235. CONG. GLOBE, 39th Cong., 1st Sess. 1160 (1866) (statement of Sen. Windom); see also id. At 589 (statement of Rep. Donnelly) (charging that under the planters' measures, the freedman "shall work at a rate of wages to be fixed by a county judge or a Legislature made up of white masters, or by combinations of white masters, and not in any case by himself")
236. See supra Sections I.B.-C.
237. CONG. GLOBE, 38th Cong., 1st Sess. 2990 (1864) (statement of Rep. Ingersoll); see also id. At 1313 (statement of Sen. Trumbull) (asserting "the right of every man to eat the bread his own hands had earned"); CONG. GLOBE, 39th Cong., 1st Sess. 588 (1866) (statement of Rep. Donelly) ("[S]lavery is not confined to any precise condition. A man may be a slave. when deprived of a portion of the wages of his labor as fully as if deprived of all."). Some slaves were permitted to hire themselves out to labor for others, retaining a portion of the proceeds for themselves and transmitting the remainder to their owners. STERLING D. SPERO & ABRAM L. HARRIS, THE BLACK WORKER: THE NEGRO AND THE LABOR MOVEMENT 6 (1968).
238. See STANLEY, supra note 114, at 153-57; VanderVelde, supra note 2, at 473-74, 499-500. During the 1940s, the U.S. Department of Labor explored the possibility that the Thirteenth Amendment mandated minimum standards of compensation and working conditions. GOLUBOFF, supra note 4, at 143.
239. Fair Labor Standards Act of 1938, 29 U.S.C. § 202(a) (2006); see also infra text accompanying notes 324-332 (summarizing the economic literature on imbalances of bargaining power in the employment relation). The FLSA was enacted under authority of the Commerce Clause, not the Thirteenth Amendment. Although early versions of the legislation focused on implementing the living wage, a concept compatible with Bailey and Pollock, the final version sought primarily to "redress substandard wages as a means to remedy the underconsumption which President Franklin D. Roosevelt and his allies believed sparked and prolonged the Depression." Seth D. Harris, Conceptions of Fairness and the Fair Labor Standards Act, 18 HOFSTRA LAB. & EMP. L.J. 19, 21 (2000); see also id. at 139-41 (recounting defeat of living-wage concept).
240. See infra Section VI.D.
241. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 262 (1974).
242. Id. at 263-64.
243. Servitude is defined in relational terms. See, e.g., Hodges v. United States, 203 U.S. 1, 17 (1906) (defining servitude as ""the state of voluntary or compulsory subjection to a master'" (quoting WEBSTER'S DICTIONARY (1901))); NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 1207 (1865) (defining servitude as "[t]he state of voluntary or involuntary subjection to a master"); JOSEPH E. WORCESTER, A DICTIONARY OF THE ENGLISH LANGUAGE 1314 (1860) (defining servitude as "[t]he state or condition of a servant, or more commonly of a slave; slavery; bondage").
244. For an increasingly common analogy that imagines the capitalist employee as having the dignity and freedom of a partner, see supra note 241.
245. Cohen, supra note 221, at 4.
246. See supra text accompanying notes 71-78.
247. GOLUBOFF, supra note 4, at 143.
248. ERIC ARNESEN, BROTHERHOODS OF COLOR: BLACK RAILROAD WORKERS AND THE STRUGGLE FOR EQUALITY 90 (2001); A. Saggitarius, Not Servitude but Service, 8 MESSENGER 324 (1926), reprinted in THE BLACK EXPERIENCE IN AMERICA: NEGRO PERIODICALS IN THE UNITED STATES, 1840-1960: MESSENGER: VOLUME 8, 1926, at 324 (1969).
249. Pollock v. Williams, 322 U.S. 4, 18 (1944); Bailey v. Alabama, 219 U.S. 219, 241 (1911); FORBATH, supra note 4, at 135-41; James Gray Pope, Labor's Constitution of Freedom, 106 YALE L.J. 941 (1997); James Gray Pope, The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957, 102 COLUM. L. REV. 1 (2002) [hereinafter Pope, The Thirteenth Amendment].
250. Hearings Before the S. Comm. on Labor & Public Welfare on S. 55 & S.J. Res. 22, 80th Cong. 1150 (1947) (memorandum of Lee Pressman, General Counsel, Congress of Industrial Organizations).
251. AFL EXECUTIVE COUNCIL, TEXT OF THE ANTI-INJUNCTION BILL APPROVED BY THE EXECUTIVE COUNCIL OF THE AMERICAN FEDERATION OF LABOR 1 (1931).
252. HUMAN RIGHTS WATCH, UNFAIR ADVANTAGE: WORKERS' FREEDOM OF ASSOCIATION IN THE UNITED STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS 18, 31, 171-90, 212 (2000).
253. In Emporium Capwell Co. v. Western Addition Community Organization, for example, the Supreme Court held that a group of black workers who picketed their employer to protest race discrimination were outside the protection of section 7 because their picketing had not been authorized by their white-led union. Writing for the majority, Justice Thurgood Marshall famously observed that section 7 rights "are protected not for their own sake but as an instrument of the national labor policy of minimizing industrial strife "by encouraging the practice and procedure of collective bargaining.'" 420 U.S. 50, 62 (1975) (quoting 29 U.S.C. § 151).
254. NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956); NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 257-58 (1939); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 235-36 (1938); NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46 (1938); see James Gray Pope, How American Workers Lost the Right To Strike, and Other Tales, 103 MICH. L. REV. 518, 520-39, 542-44 (2004) (discussing the influence of NLRA's Commerce Clause foundation on the results in Fansteel, Mackay, Consolidated Edison, and Babcock & Wilcox).
255. Cox, supra note 7, at 576-77.
256. Charles Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 522, 540 (1923).
257. Id. at 534.
258. Id. at 541; cf. Selective Draft Law Cases, 245 U.S. 366, 390 (1918) (upholding the military draft against a Thirteenth Amendment challenge on the ground that the "supreme and noble duty of contributing to the defense of the rights and honor of the nation" could not be equated with involuntary servitude).
259. Felix Frankfurter, Exit the Kansas Court, in FELIX FRANKFURTER ON THE SUPREME COURT: EXTRAJUDICIAL ESSAYS ON THE COURT AND THE CONSTITUTION 140, 141 (Philip B. Kurland ed., 1970) (reprinting Frankfurter's unsigned editorial from the New Republic, June 27, 1923).
260. Wolff Packing, 262 U.S. at 542.
261. Id. at 540.
262. See, e.g., Coppage v. Kansas, 236 U.S. 1, 17 (1915) (striking down a ban on yellow dog contracts, reasoning that "it is from the nature of things impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights"); Lochner v. New York, 198 U.S. 45, 57 (1905) (invalidating a maximum hours law for bakers and asserting that "[t]here is no reasonable ground" for interfering with bakers' right of free contract because there "is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades" or that bakers are "wards of the State").
263. Wolff Packing's holdings on price-fixing and wage-fixing were later overruled during the retreat from Lochner-era substantive due process, but not the holding on the right to strike. See Lincoln Fed. Labor Union v. Nw. Iron & Metal Co., 335 U.S. 525, 536 & n.6 (1949).
264. 272 U.S. 306, 311 (1926). In Dorchy, Justice Brandeis framed the issue narrowly as whether a state could prohibit a strike called to collect a former employee's two-year old wage claim, and concluded that "[t]o collect a stale claim due to a fellow member of the union who was formerly employed in the business is not a permissible purpose" for a strike. Id. at 309, 311. The Thirteenth Amendment was missing both from the Court's opinion and from Dorchy's brief. Id. at 306; Brief of Plaintiff in Error at 8-13, Dorchy, 272 U.S. 306 (No. 119).
265. Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring).
266. AFL v. Am. Sash & Door Co., 335 U.S. 538, 559 (1949) (Rutledge, J., joined by Murphy, J., concurring in Lincoln Fed. Labor Union No. 19129 v. Nw. Iron & Metal Co., 335 U.S. 525 (1949)); Pope, The Thirteenth Amendment, supra note 260, at 104 nn.536-37, 112.
267. 336 U.S. 245, 247 n.1 (1949), overruled on other grounds, Lodge 76, Int'l Ass'n of Machinists & Aerospace Workers v. WERC, 427 U.S. 132 (1976). The Wisconsin State Employment Relations Board issued an order incorporating this language. Id. at 250.
268. Id. at 251.
269. Id.
270. Id. at 250, 251.
271. Alfred Avins, Freedom of Choice in Personal Service Occupations: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 CORNELL L. Q. 228, 244 (1964); Seth Kupferberg, Political Strikes, Labor Law, and Democratic Rights, 71 VA. L. REV. 685, 734 (1985).
272. United Brotherhood of Carpenters & Joiners v. NLRB, 341 U.S. 707 (1951); NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345-46 (1938); Postal Clerks v. Blount, 325 F. Supp. 879 (D.D.C.), aff'd, 404 U.S. 802 (1971).
273. Lyng v. Int'l Union of Automobile Workers, 485 U.S. 360, 368 (1988) (reasoning that "the strikers' right of association does not require the Government to furnish funds to maximize the exercise of that right").
274. See United States v. Petrillo, 68 F. Supp. 845, 849-50 (N.D. Ill. 1946), rev'd, 332 U.S. 1 (1947) (citing the Thirteenth Amendment to justify overturning provision of the Federal Communications Act that banned strikes in the radio industry); Henderson v. Coleman, 7 So. 2d 117, 121 (Fla. 1942) (construing an injunction not to compel union workers to unload nonunion trucks on the ground that a contrary reading would impose involuntary servitude within the meaning of the Involuntary Servitude Clause of the Florida state constitution); Kemp v. Division No. 241, Amalgamated Ass'n of Street & Elec. Ry. Employees of Am., 99 N.E. 389, 392 (Ill. 1912) (overturning an injunction against strike called to protest employment of nonunion members, reasoning in part that "the right of every workman to refuse to work with any co-employee who is for any reason objectionable to him, provided his refusal does not violate his contract with his employer" is "[i]ncident" to the Thirteenth Amendment right to be free from involuntary servitude); State ex rel. Dairyland Power Coop. v. Wis. Employment Relations Bd., 21 L.R.R.M. (BNA) 2508, 2510 (Wis. Cir. Ct. 1948) (holding that a statute prohibiting strikes by employees of public utilities violated the Thirteenth Amendment).
275. See New Orleans S.S. Ass'n v. General Longshore Workers, ILA Local Union No. 1418, 626 F.2d 455, 463 (5th Cir. 1980), aff'd sub nom. Jacksonville Bulk Terminals, Inc. v. Int'l Longshoremen's Ass'n, 457 U.S. 702 (1982); Itasca Lodge 2029 v. Ry. Express Agency, Inc., 391 F.2d 657, 663 (8th Cir. 1968); Fr. Packing Co. v. Dailey, 166 F.2d 751, 753-54 (3d Cir. 1948); Dayton Co. v. Carpet, Linoleum & Resilient Floor Decorators' Union, 39 N.W.2d 183, 197 (Minn. 1949), app. dismissed, 339 U.S. 906 (1950); State v. Local No. 8-6, Oil, Chem. & Atomic Workers Int'l Union, 317 S.W.2d 309, 325 (Mo. 1958). The Dayton Court explained that the appeal was "dismissed for the reason that the judgment of the court below is based upon a non-federal ground adequate to support it." 339 U.S. at 906.
276. See United States v. Martinez, 686 F.2d 334, 345-46 (5th Cir. 1982); Fr. Packing Co., 166 F.2d at 753-54.
277. th Cir. 1950) (reasoning that the "order of the Labor Board directs the respondent union and its business agent, and not the union members themselves" to cease from striking or inducing others to strike), aff'd on other grounds, 341 U.S. 707 (1951); NLRB v. National Maritime Union, 175 F.2d 686, 692 (2d Cir. 1949) (reasoning that "the Board's order does not expressly forbid employees to leave their jobs, individually or in concert" and that it "is directed only against the Union and its agents").
278. The one exception was the concurring opinion of California Chief Justice Rose Bird in County Sanitation District No. 2 v. Los Angeles County Employees Association, Local 660, 699 P.2d 835 (Cal. 1985). The court overturned California's common law ban on public employee strikes, partly to avoid constitutional questions. Id. at 854. Judge Bird elaborated extensively on the constitutional point, relying partly on Bailey and Pollock in concluding that the strike ban violated the California Constitution. Id. at 858-59 (Bird, C.J., concurring).
279. United States v. Petrillo, 68 F. Supp. 845, 849 (N.D. Ill. 1946) (quoting Bailey v. Alabama, 219 U.S. 219, 241 (1911)), rev'd on other grounds, 332 U.S. 1 (1947).
280. NLRB v. National Maritime Union, 175 F.2d 686, 692 (2d Cir. 1949).
281. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 865 (1992).
282. District of Columbia v. Heller, 128 S. Ct. 2783, 2812-16 (2008).
283. On this distinction, see RICHARD FREEMAN & JAMES L. MEDOFF, WHAT DO UNIONS DO? 6-11 (1984); and ALBERT O. HIRSCHMAN, EXIT, VOICE AND LOYALTY (1970).
284. Pollock v. Williams, 322 U.S. 4, 18 (1944); see generally supra Section V.D. (considering when nonmarket rights are constitutionally necessary and what those rights might be).
285. See supra Section VI.B.
286. EDWARD S. CORWIN, TOTAL WAR AND THE CONSTITUTION 91 (1947) (quoting EDMUND BURKE, REFLECTIONS ON THE EVOLUTION IN FRANCE 7 (J.G.A. Pocock ed., Penguin 2004) (1790)
287. See, e.g., ROBERT FRANKLIN HOXIE, TRADE UNIONISM IN THE UNITED STATES 23, 30 (1922) (observing that American law is so permeated with individualism that unionism "conflicts with the legal theory upon which our social and industrial system is based and with the established law and order"); CHRISTOPHER L. TOMLINS, THE STATE AND THE UNIONS: LABOR RELATIONS, LAW, AND THE ORGANIZED LABOR MOVEMENT IN AMERICA, 1880-1960, at xiii (1985) (suggesting that collective labor action has never achieved more than "contingent legitimacy" in the United States).
288. The first mentions of a constitutional freedom of association came in the 1950s, in cases involving investigations of communism. See, e.g., Sweezy v. New Hampshire, 354 U.S. 234, 245, 250 (1957); Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J., concurring). Earlier cases had dealt with facts that we now recognize as involving the issue, but the concept was lacking.
289. Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 296 (1981).
290. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-15 (1982).
291. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61 (1958); SHELDON LEADER, FREEDOM OF ASSOCIATION: A STUDY IN LABOR LAW AND POLITICAL THEORY 22-23 (1992)
292. See supra text accompanying notes 260-261.
293. Norris-LaGuardia Act, 29 U.S.C. § 102 (2006); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937); Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 209 (1921) (Taft, C.J.). This is the standard way of getting to the freedom of association in American constitutional law.
294. Lyng v. Int'l Union, 485 U.S. 360, 368 (1988) (upholding denial of food stamps to families of strikers on the ground that "the strikers' right of association does not require the Government to furnish funds to maximize the exercise of that right").
295. Michael C. Harper, The Consumer's Emerging Right To Boycott: NAACP v. Claiborne Hardware and Its Implications for American Labor Law, 93 YALE L.J. 409, 426-29 (1984).
296. See, e.g., John T. Addison & Clive R. Belfield, Union Voice, in WHAT DO UNIONS DO?: A TWENTY-YEAR PERSPECTIVE 238, 238-74 (James T. Bennett & Bruce E. Kaufman eds., 2007); Barry T. Hirsch, What Do Unions Do for Economic Performance?, in WHAT DO UNIONS DO?, supra, at 193, 193-237.
297. See, e.g., JOHN KENNETH GALBRAITH, AMERICAN CAPITALISM: THE CONCEPT OF COUNTERVAILING POWER 115-57 (1952) (setting out the theory of countervailing power); Henry C. Simons, Some Reflections on Syndicalism, 52 J. POL. ECON. 1, 23 (1944) (discussing special interest groups).
298. See, e.g., NELSON LICHTENSTEIN, STATE OF THE UNION: A CENTURY OF AMERICAN LABOR 6-7, 105-08 (2002).
299. See Robert Whaples, Where Is There Consensus Among American Economic Historians? The Results of a Survey on Forty Propositions, 55 J. ECON. HIST. 139, 141 (1995).
300. Cox, supra note 7, at 577.
301. Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 209 (1921) (Taft, C.J.); see also NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937) (paraphrasing this language).
302. Charles Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 522, 540 (1923); see supra notes 271-272 and accompanying text.
303. Norris-LaGuardia Act, 29 U.S.C. § 102 (2006).
304. National Labor Relations Act, 29 U.S.C. § 151.
305. 75 CONG. REC. 4502 (1932). During the Congressional hearings, Norris had defended labor's view that injunctions prohibiting workers from combining to quit work violated the Thirteenth Amendment. See Limiting Scope of Injunctions in Labor Disputes: Hearings Before the Subcomm. of the S. Comm. on the Judiciary, 70th Cong. 672 (1928).
306. 78 CONG. REC. 3679 (1934) (statement of Sen. Wagner), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT, 1935, at 20 (1985).
307. On the Norris-LaGuardia Act, see 75 CONG. REC. 5493 (1932) (statement of Rep. Garber) (contending that the continued use of yellow dog contracts "will finally destroy the labor organizations, the independence of the worker, and create a general labor condition of involuntary servitude"); id. at 5489 (statement of Rep. Celler) (asserting that if a worker "must accept the company union or "yellow-dog' contract, he is being forced into "involuntary servitude'"); id. at 5487 (statement of Rep. Sparks) (charging that yellow dog contracts "seek the enslavement of the laborer by rendering him helpless to protect his own interests"); id. at 5481 (statement of Rep. Oliver) ("This bill says that a federal court shall not. bring down into slavery those who are attempting to negotiate for what they believe to be the necessities of their lives and the happiness of their children."); id. at 5467 (statement of Rep. Nelson) (charging that labor injunctions "have become intolerable and un-American, in many cases reducing the workers to a state of economic slavery"); and id. At 5464 (1932) (statement of Rep. O'Connor) (arguing that under yellow dog contracts, "the worker practically enters into "involuntary servitude'"). For similar quotations from the debates over the National Labor Relations Act, see ZIETLOW, supra note 2, at 75; and Pope, The Thirteenth Amendment, supra note 260, at 48-49 nn.227-28.
308. The last time the government conducted a serious inquiry into industrial relations policy, even the employer representatives who testified endorsed the basic principle that workers should enjoy ""full freedom of association, self-organization, and designation of representatives of their own choosing.'" U.S. DEP'T OF LABOR & U.S. DEP'T OF COMMERCE, FACT FINDING REPORT: COMMISSION ON THE FUTURE OF WORKER-MANAGEMENT RELATIONS 63 (1994) (quoting the National Labor Relations Act, 29 U.S.C. § 151 (2000)
309. See HUMAN RIGHTS WATCH, UNFAIR ADVANTAGE: WORKERS' FREEDOM OF ASSOCIATION IN THE UNITED STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS 13-14 (2000); TONIA NOVITZ, INTERNATIONAL AND EUROPEAN PROTECTION OF THE RIGHT TO STRIKE: A COMPARATIVE STUDY OF STANDARDS SET BY THE INTERNATIONAL LABOUR ORGANIZATION,THE COUNCIL OF EUROPE AND THE EUROPEAN UNION (2003).
310. Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia [2007] 2 S.C.R. 391, 440 (Can.), (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937)), available at http://scc.lexum.umontreal.ca/en/2007/2007scc27/2007scc27.html.
311. For more on the philosophical and economic justifications for these rights, see, for example, RICHARD B. FREEMAN & JAMES L. MEDOFF, WHAT DO UNIONS DO? (1984); JOSIAH BARTLETT LAMBERT, "IF THE WORKERS TOOK A NOTION": THE RIGHT TO STRIKE AND AMERICAN POLITICAL DEVELOPMENT (2005); SHELDON LEADER, FREEDOM OF ASSOCIATION: A STUDY IN LABOR LAW AND POLITICAL THEORY (1992); WILLIAM M. REDDY, MONEY AND LIBERTY IN MODERN EUROPE: A CRITIQUE OF HISTORICAL UNDERSTANDING 64-73 (1987); and WORKERS' RIGHTS AS HUMAN RIGHTS (James A. Gross ed., 2003). For a critical intellectual history of the issue written from a viewpoint sympathetic to libertarianism, see HOWARD DICKMAN, INDUSTRIAL DEMOCRACY IN AMERICA: IDEOLOGICAL ORIGINS OF NATIONAL LABOR RELATIONS POLICY (1987).
312. See, e.g., Richard A. Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation, 92 YALE L.J. 1357, 1370-72, 1382 (1983). On the Thirteenth Amendment's goal of ensuring that the laborer would receive the full value of her labor, see supra note 247.
313. KARL POLANYI, THE GREAT TRANSFORMATION 72-73 (1957); Bruce E. Kaufman, Labor Law and Employment Regulation: Neoclassical and Institutional Perspectives, in LABOR AND EMPLOYMENT LAW AND ECONOMICS 3, 27 (Kenneth G. Dau-Schmidt, Seth D. Harris & Orly Lobel eds., 2009). This principle is embodied in international law, as the first of four "fundamental principles on which the [International Labour] Organization is based," and in U.S. law as one of several statutory provisions exempting labor from the antitrust statutes. Declaration Concerning the Aims and Purposes of the International Labour Organisation, Constitution of the International Labour Organization, annex, art. 1, § (a) (declaring that "labour is not a commodity"); Clayton Act, ch. 323, § 6, 38 Stat. 730, 731 (1914) (codified as amended at 15 U.S.C. § 17 (2006)) ("The labor of a human being is not a commodity or article of commerce.").
314. CLAUS OFFE, DISORGANIZED CAPITALISM: CONTEMPORARY TRANSFORMATIONS OF WORK AND POLITICS 16 (1985); Alan Hyde, What Is Labour Law?, in BOUNDARIES AND FRONTIERS OF LABOUR LAW: GOALS AND MEANS IN THE REGULATION OF WORK 37, 54-55 (Guy Davidov & Brian Langille eds., 2006). Even if parents wanted to act strategically, they would face huge information costs attempting to predict the supply and demand for labor eighteen or sixteen or even twelve years in the future.
315. OFFE, supra note 325, at 17, 20; Kaufman, supra note 324, at 38-39; Kenneth G. Dau-Schmidt & Arthur R. Traynor, Regulating Unions and Collective Bargaining, in LABOR AND EMPLOYMENT LAW AND ECONOMICS, supra note 323, at 96, 107. The requirements of subsistence hinge on the conditions in a particular society. In the United States today, for example, motorized transportation (whether public or private) to and from food stores, health care providers, and work is a necessity for most people.
316. REDDY, supra note 321 at 64-73; Kaufman, supra note 323, at 30-34; see also Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 209 (1921) (observing that because the individual employee was "dependent ordinarily on his daily wage for the maintenance of himself and family," he was "unable to leave the employ and to resist arbitrary and unfair treatment"); ADAM SMITH, THE WEALTH OF NATIONS 58 (Everyman's Library 1910) (1776) (suggesting that in disputes with labor, "the masters can hold out much longer" because they "could generally live a year or two upon the stocks which they have already acquired" while "[m]any workmen could not subsist a week, few could subsist a month, and scarce any a year without employment").
317. OFFE, supra note 325, at 19. It has been suggested that, because of these constraints on labor mobility, employers may gain monopsonistic market power (monopsony being the equivalent of monopoly, but on the purchasing side) even when they are not alone in the relevant labor market. Dau-Schmidt & Traynor, supra note 326, at 108 (citing ALAN MANNING, MONOPSONY IN MOTION: IMPERFECT COMPETITION IN LABOR MARKETS (2003)).
318. Kaufman, supra note 324, at 34; Curtis Taylor, The Long Side of the Market and the Short End of the Stick: Bargaining Power and Price Formation in Buyers', Sellers', and Balanced Markets, 110 Q.J. ECON. 837 (1995); see also Hyde, supra note 325, at 55 ("The inability of sellers to restrict supply necessarily drives prices down and prevents labour markets from clearing; there will always be unemployed people.").
319. Hyde, supra note 325, at 57.
320. SMITH, supra note 327, at 58.
321. More fundamentally, recent scholarship suggests that neoclassical economics is incapable of comprehending the labor market because its root assumption of a smoothly functioning market characterized by zero (or close to zero) transaction costs is belied by the very existence of the employment relation-a command-based and nontransactional system of labor extraction that would never have arisen in the absence of serious market malfunctions. Kaufman, supra note 324, at 28-29. Kaufman relies partly on Ronald Coase's conclusion that, ""[i]n the absence of transaction cost, there is no economic basis for the existence of the firm.'" Id. at 28; see also Bruce Kaufman, The Non-Existence of the Labor Demand/Supply Diagram, and Other Theorems of Institutional Economics, 29 J. LAB. RES. 285 (2008) (contending that employment relations come into existence only as responses to market failure).
322. ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 144-49 (1990); RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 7-8 (1996). On this view, for example, courts should ask not whether the Framers of the Fourteenth Amendment intended to abolish segregation in education given the facts of their time, but whether the principle embodied in the Fourteenth Amendment, as understood at that time, is violated by segregation given the facts of our time.
323. CONG. GLOBE, 39th Cong., 1st Sess. 91 (1865). This list was drawn from the proclamation of the Czar of Russia emancipating the serfs, see Czar Alexander II, Edict of Emancipation (1861).
324. See, e.g., Roe v. Wade, 410 U.S. 113, 174-75 (1973) (Rehnquist, J., dissenting); RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977).
325. 45 Mass. (4 Met.) 111 (1842); Walter Nelles, Commonwealth v. Hunt, 32 COLUM. L. REV. 1128 (1932).
326. See VICTORIA C. HATTAM, LABOR VISIONS AND STATE POWER: THE ORIGINS OF BUSINESS UNIONISM IN THE UNITED STATES 67-68 (1993); CHRISTOPHER L. TOMLINS, THE STATE AND THE UNIONS: LABOR RELATIONS, LAW, AND THE ORGANIZED LABOR MOVEMENT IN AMERICA, 1880-1960, at 44 (1985); Henry E. Hoagland, Humanitarianism (1840-1860), in 1 JOHN R. COMMONS ET AL., HISTORY OF LABOUR IN THE UNITED STATES 487, 611-13 (1918).
327. DAVID MONTGOMERY, BEYOND EQUALITY: LABOR AND THE RADICAL REPUBLICANS 1862-1872, at 98-101 (1967); GRACE PALLADINO, ANOTHER CIVIL WAR: LABOR, CAPITAL, AND THE STATE IN THE ANTHRACITE REGIONS OF PENNSYLVANIA 1840-68, at 169-70 (1990).
328. If wartime practice were the standard for protecting rights in peacetime, few rights would be secure. See generally PETER IRONS, JUSTICE AT WAR: THE STORY OF THE JAPANESE AMERICAN INTERNMENT CASES (1983) (recounting the systematic violation of the constitutional rights of Japanese Americans during World War II); GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM (2004) (describing the abrogation of free speech protections in wartime due to understandable but unwarranted fears).
329. G.S. BORITT, LINCOLN AND THE ECONOMICS OF THE AMERICAN DREAM 220 (1978).
330. ALAN DAWLEY, CLASS AND COMMUNITY: THE INDUSTRIAL REVOLUTION IN LYNN 82 (1976).
331. James L. Huston, Facing an Angry Labor: The American Public Interprets the Shoemakers' Strike of 1860, 28 CIV. WAR HIST. 197, 205-06 (1982).
332. Id. at 202 (reporting the results of a study of contemporary newspaper reports and commentary on the strike).
333. Id. at 204.
334. 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN, supra note 218, at 24.
335. BERNARD MANDEL, LABOR: FREE AND SLAVE 159 (1955).
336. STANLEY, supra note 114, at 19-20.
337. 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN, supra note 218, at 24-25.
338. Id. at 24.
339. 2 THE COLLECTED WORKS OF ABRAHAM LINCOLN, supra note 218, at 364; 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN, supra note 218, at 459.
340. BORITT, supra note 340, at 183; DAWLEY, supra note 341, at 82-88; 1 PHILIP S. FONER, HISTORY OF THE LABOR MOVEMENT IN THE UNITED STATES 331-33, 354-55 (1947).
341. BORITT, supra note 340, at 185.
342. STANLEY, supra note 114, at 82 (quoting Godkin); GEORGE A. STEVENS, NEW YORK TYPOGRAPHICAL UNION NO. 6: STUDY OF A MODERN TRADE UNION AND ITS PREDECESSORS 243-44 (1913) (quoting Greeley).
343. VORENBERG, supra note 20, at 132-33. To the extent that there was substantive discussion, it was concerned mostly with race and not with the scope of labor rights. Id. at 189-91, 219-20; TSESIS, supra note 2, at 46, 121.
344. SCHMIDT, supra note 34, at 115.
345. See HATTAM, supra note 337, at 69-70; TOMLINS, supra note 336, at 46-52. Hattam's listing of cases in Pennsylvania and New York shows three ending in conviction between the years of 1865 and 1870. HATTAM, supra note 336, at 217-18.
346. During this period, employers resorted not to antistrike laws, but to lynchings and armed attacks by white militias, deputies, and vigilantes. See, e.g., MICHAEL W. FITZGERALD, THE UNION LEAGUE MOVEMENT IN THE DEEP SOUTH: POLITICS AND AGRICULTURAL CHANGE DURING RECONSTRUCTION 84 (1989) (observing that Klan violence "demolished the [Alabama] League as a centralized political entity during early 1868"); see also infra notes 368-370 and accompanying text (recounting black labor organizing and violent white retaliation during Reconstruction).
347. Even the "Black Laws" passed during the Civil War stopped short of criminalizing the concerted refusal to work itself. MONTGOMERY, supra note 338, at 98-99.
348. This was their general approach to the threats that did come under discussion. See VanderVelde, supra note 2, at 453-95.
349. David A. Strauss, Common Law, Common Ground, and Jefferson's Principle, 112 YALE L.J. 1717, 1753 (2003).
350. Strauss says that this "would be inconsistent with the original understanding of the amendment, but consistent with its language." Id. at 1753-54. In line with the terminology used here, however, it is inconsistent only with the way in which the Framers would have applied the amendment to the facts of their time.
351. PHILIP S. FONER, ORGANIZED LABOR AND THE BLACK WORKER 1619-1973, at 76, 109 (1974); see W.E.B. DUBOIS, THE NEGRO ARTISAN: REPORT OF A SOCIAL STUDY MADE UNDER THE DIRECTION OF ATLANTA UNIVERSITY 153-76 (1902); PAUL D. MORENO, BLACK AMERICANS AND ORGANIZED LABOR: A NEW HISTORY 93-102 (2006); ROBERT H. ZIEGER, FOR JOBS AND FREEDOM: RACE AND LABOR IN AMERICA SINCE 1865, at 60-67, 76-81 (2007).
352. 1 THE BLACK WORKER, supra note 1, at 5-6; HYMAN WEINTRAUB, ANDREW FURUSETH: EMANCIPATOR OF THE SEAMEN 112-13 (1959).
353. The Right To Strike and the Right To Work, THE FREEMAN (Indianapolis), July 21, 1894, reprinted in 1 THE BLACK WORKER, supra note 1, at 81.
354. FONER, supra note 363, at 79.
355. See DAVID E. BERNSTEIN, ONLY ONE PLACE OF REDRESS: AFRICAN AMERICANS, LABOR REGULATIONS, AND THE COURTS FROM RECONSTRUCTION TO THE NEW DEAL 7, 53 (2001) (arguing that "in the context of a racist American polity between Reconstruction and the New Deal," legal protection for strikes and organizing facilitated the efforts of white unions to exclude black workers from jobs); MORENO, supra note 363, at 4-5 (contending that "unions have usually acted as "white job trusts'. because unions are, first off all, job trusts").
356. HEATHER COX RICHARDSON, THE DEATH OF RECONSTRUCTION: RACE, LABOR, AND POLITICS IN THE POST-CIVIL WAR NORTH, 1865-1901, at 55-56, 265 n.30 (2001); FITZGERALD, supra note 358, at 6, 165-69; ERIC FONER, NOTHING BUT FREEDOM: EMANCIPATION AND ITS LEGACY 91-106 (1983).
357. See, e.g., FONER, supra note 95, at 425-44.
358. FONER, supra note 363, at 39.
359. Id. at 58-62; MELTON ALONZA MCLAURIN, THE KNIGHTS OF LABOR IN THE SOUTH 45-51 (1978); Rebecca J. Scott, Fault Lines, Color Lines, and Party Lines: Race, Labor, and Collective Action in Louisiana and Cuba, 1862-1912, in BEYOND SLAVERY: EXPLORATIONS OF RACE, LABOR, AND CITIZENSHIP IN POSTEMANCIPATION SOCIETIES 61 (Frederick Cooper, Thomas C. Holt & Rebecca J. Scott eds., 2000).
360. See FONER, supra note 360, at 118-19, 146-47, 192-93, 207-08 (recounting the demise of integrated unions of sharecroppers and lumber workers after violence and threats of violence including the massacre of one hundred Arkansas sharecroppers in 1919).
361. See ERIC ARNESEN, WATERFRONT WORKERS OF NEW ORLEANS: RACE, CLASS, AND POLITICS, 1863-1923, at ix (1991).
362. CORWIN, supra note 297.
363. See BETH TOMPKINS BATES, PULLMAN PORTERS AND THE RISE OF PROTEST POLITICS IN BLACK AMERICA, 1925-1945, at 11-12 (2001).
364. Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(c) (2006).
365. See, e.g., Marion Crain, Colorblind Unionism, 49 UCLA L. REV. 1313 (2002); Elizabeth M. Iglesias, Structures of Subordination: Women of Color at the Intersection of Title VII and the NLRA. Not!, 28 HARV. C.R.-C.L. L. Rev. 395 (1993).
366. See supra Part I.
367. As noted above, this idea was proposed by former Solicitor General and Harvard Law Professor Archibald Cox more than half a century ago. Cox, supra note 7, at 576-77.
368. Pollock v. Williams, 322 U.S. 4, 18 (1944).
369. See supra Part III.
370. See supra Section IV.B.
371. See supra Part II.
372. See supra Section V.A.
373. See Pollock, 322 U.S. at 18; supra Sections V.B.-C.
374. See supra Section V.D.
375. See supra Sections VI.A.-B.
376. See supra Section VI.C.
377. See supra Section VI.D.
378. See supra Section VI.E.
379. See supra Section VI.F.