Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"
Pope, James Gray, The Yale Law Journal
ARTICLE CONTENTS INTRODUCTION I. ORIGINS OF THE INALIENABLE RIGHT TO QUIT WORK A. The Right To Quit Under the Northwest Ordinance of 1787 B. The Right To Quit and the Peonage Act of 1867 C. The Right To Quit in the Supreme Court D. Conclusion: Interpretive Choice and Involuntary Servitude II. RACE AND INVOLUNTARY SERVITUDE A. Race and the Origins of the Thirteenth Amendment Right To Quit B. Should Racial Subordination Be an Element of Involuntary Servitude? C. The Role of Race in the Constitutional Law of Involuntary Servitude III. A STANDARD FOR ASSESSING LABOR RIGHTS CLAIMS UNDER THE THIRTEENTH AMENDMENT A. The Pollock Principle and the Constitutional Text B. The Pollock Principle and the Early History of the Thirteenth Amendment C. The Pollock Principle and the Case Law IV. A CLOSER LOOK AT THE POLLOCK PRINCIPLE A. The Role of the Pollock Principle in Negating Involuntary Servitude B. Workability of the Pollock Principle C. Prudential Concerns V. COERCION AND SERVITUDE IN THE JURISPRUDENCE OF INVOLUNTARY SERVITUDE A. Remain in Servitude or Escape into Self-Employment (The Right To Quit) B. Remain in Servitude or Forgo Gainful Labor (The Right To Change Employers) C. Remain in Servitude or Find Another Job (The Right To Set One's Wages) D. Beyond Market Rights VI. THE WORKERS' FREEDOM OF ASSOCIATION UNDER THE THIRTEENTH AMENDMENT A. The Supreme Court: A "Momentous" Question Unanswered B. Lower Courts: Limiting the Involuntary Servitude Clause to Market Rights C. The Freedom of Association and the Question of Power D. Pollock Applied to the Rights To Organize and Strike E. The Right To Strike and the Original Meaning of the Thirteenth Amendment F. Race and the Rights To Organize and Strike CONCLUSION
Mayor Barrows--Dear Sir:--At a meeting of the colored Washerwomen of this city, on the evening of the 18th of June, the subject of raising the wages was considered ...: Be it resolved.... That on and after the foregoing date, we join in charging a uniform rate for our labor ..., and any one belonging to the class of washerwomen, violating this, shall be liable to a fine regulated by the class. ... The prices charged are: $1.50 per day for washing $15.00 per month for family washing $10.00 per month for single individuals We ask you to consider the matter in our behalf, and should you deem it just and right, your sanction of the movement will be gratefully received. --Petition of the Colored Washerwomen Jackson, Mississippi, June 20, 1866 (1)
Six months before the washerwomen of Jackson enacted their rule and submitted their petition, Secretary of State William Seward certified the ratification of the Thirteenth Amendment to the United States Constitution. Section 1 of the Amendment provides: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." This text presents a unique interpretive problem. Nearly everyone--from the Congress that proposed it down to the courts of today--has agreed that it is a rights-granting provision. (2) Yet it mentions no right. Instead, it prohibits two conditions--slavery and involuntary servitude--without specifying what rights are necessary to negate those conditions. It is thus the one provision of the Constitution that clearly calls on courts and Congress to identify and enforce unenumerated rights. (3) One of those rights, the inalienable right to quit work, is so prominent in our constitutional consciousness that it tends to overshadow other possibilities. …