This week, I had the honor and pleasure of speaking at the Vermont Law School Celebration of Martin Luther King, Jr. Preparing my talk gave me the opportunity to think about the civil right’s movement’s advocacy for a positive right to free labor. As I have discussed in earlier posts, a positive right to free labor is the right to work free of undue coercion, for a fair wage, without discrimination based on immutable characteristics. In my book, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction, I argue that the Reconstruction Congress established a positive right to free labor with the Thirteenth Amendment and statutes enforcing that amendment. Today, I want to talk about the labor and civil rights movement’s efforts to promote a positive right to free labor in the Twentieth Century.
After Reconstruction, the southern United States descended into the Jim Crow system marked by racialized violence, the deprivation of civil and political rights, and the exploitation of black labor. The leading rights movement in the early Twentieth Century was the labor movement. Labor leaders asserted the right to organize, bargain collectively, and strike. They also fought for protective legislation such as minimum wage and maximum hours laws. Millions of workers engaged in strikes and demonstrations to advocate for these rights. During the 1930s, the New Deal Congress responded, enacting the National Labor Relations Act, which recognized a federal right to organize; the Fair Labor Standards Act, which established a minimum wage and maximum hours; and the Social Security Act, which established an economic safety net that included unemployment insurance for workers.
These New Deal measures enforced the two prongs for the positive right to free labor. Belonging to a union empowered workers to bargain for fair wages and improved conditions of work. To paraphrase Justice Robert Jackson in the case of Pollock v. Williams, belonging to a union gave workers “the power below to redress . . . a harsh overlordship or unwholesome conditions of work,” and combat coercive labor practices. Jackson’s Pollock opinion interpreted the Reconstruction Era Anti-Peonage Act and articulated a judicially enforceable standard to for determining when employment practices create an unduly coercive involuntary servitude. The FLSA raised the wages of workers who did not belong to unions, also enforcing the second prong of a positive right to free labor.
The third prong of a positive right to free labor, the right to work free of discrimination, was missing from New Deal measures. Moreover, domestic and agricultural workers, many of whom were southern blacks, were omitted from New Deal protections. This glaring omission was due to President Franklin Roosevelt’s reliance on segregationist Dixiecrats for his New Deal program. However, at the urging of labor leader and civil rights activist A. Philip Randolph, Roosevelt created a Civil Rights Section in the Department of Justice. As Risa Goluboff describes in her iconic book, The Lost Promise of Civil Rights, CRS lawyers sought to extend the New Deal promise of a positive right to free labor to black domestic and agricultural workers by enforcing the Anti-Peonage Act against exploitative employers.
Meanwhile, the labor movement helped to sow the seeds for Dr. King’s civil rights movement. Yes, some unions discriminated on the basis of race, trying to exclude blacks from good jobs. But others, such as the CIO in the 1930s, fought racism and sought to organize workers of color. Moreover, Black union activists such as A. Philip Randolph played a leading role in the northern civil rights movement. Randolph eventually became a mentor of Dr. King. Along with United Auto Workers President Walter Reuther, Randolph helped to organize the 1963 March for Jobs and Freedom, where King ascended to national prominence with his famous “I Have A Dream” speech. Responding to King’s advocacy, Congress enacted the 1964 Civil Rights Act, which prohibits race and gender discrimination in employment, enforcing the third prong of a positive right to free labor.
Dr. King is best known for his fight against segregation and for voting rights. Towards the end of his 1963 speech, King uttered the oft-quoted line, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” This beautiful line expresses an aspiration towards which our country is still striving. However, to focus too narrowly on this part of one of King’s speeches is to risk overlooking the truly radical nature of King’s advocacy for economic rights. Protections against race discrimination alone are not sufficient to redress the chronic poverty of people of color in our society, economic disparities which date back to slavery.
King well understood the link between racial discrimination and economic subordination. In his 1963 speech, King pointed out that blacks were not only “badly crippled by the manacle of segregation and chains of discrimination” but also living “on a lonely island of poverty in the midst of a vast ocean of material prosperity.” In the last years of his life, King turned his focus to the poverty in northern ghettos and supported the Poor People’s Movement. King ended his life in Memphis, where he marched with striking city sanitation workers. Speaking to those workers the night before he was assassinated, King declared, “in the human rights revolution, if something isn't done, and done in a hurry, to bring the colored peoples of the world out of their long years of poverty, their long years of hurt and neglect, the whole world is doomed.” We should all heed King's call.