The Faculty Lounge

John Marshall Law is No More

The University of Illinois - Chicago announced yesterday that it is dropping the "John Marshall" part of its UIC-John Marshall Law School name.  (UIC's law school is unrelated to Atlanta's John Marshall Law School.)  A task force had been reviewing the issue of whether, given Marshall's involvement with slavery, his name should remain on the law school.  UIC's presser stated:

The task force report noted, “that despite Chief Justice Marshall’s legacy as one of the nation’s most significant U.S. Supreme Court justices, the newly discovered research regarding his role as a slave trader, slave owner of hundreds of slaves, pro-slavery jurisprudence, and racist views render him a highly inappropriate namesake for the Law School.”

UIC merged with the private John Marshall Law School in 2019.  The school will now simply be known as the University of Illinois - Chicago School of Law.

 

CFP: Thirteenth Amendment and Racial Justice Conference

Chicago-Kent College of Law at Illinois Institute of Technology is hosting the Thirteenth Amendment and Racial Justice Conference on November 9–10, 2019. The conference focuses on the ways that the Thirteenth Amendment can be used in legislation and litigation, or in the context of social movements, to promote racial justice in the United States. 

The conference organizing committee invites Thirteenth Amendment scholars from all disciplines—including law, politics, and history, as well as practitioners and activists in the field of racial justice—to submit papers that interrogate the relationship of race and other markers of identity such as class, gender, sexual orientation, disability, religion, and immigration status; to forms of subordination both past and present; and strategies for challenging them. The committee is interested in international perspectives and invite scholars from beyond the United States to participate.

This conference will be the third event of the Thirteenth Amendment Project, an interdisciplinary association of scholars of labor, class, race, caste, and poverty at law schools and universities throughout the United States and the wider world. For more information about the Thirteenth Amendment Project, please visit its website at scholars.law.unlv.edu/amend13/.

The committee is seeking publication opportunities in a variety of outlets for papers presented at the conference. It extends a special invitation to scholars new to the field (including junior faculty and senior scholars) to submit proposals for works in progress. Senior scholars who have written extensively in this field will provide feedback and detailed commentary for planned publication.

To submit a paper for consideration, please email an abstract of no more than 300 words by May 15, 2019, to [email protected]. The conference organizing committee will notify applicants of its decisions by June 30, 2019. A preliminary program will be posted by September 15, 2019. 

Editorial note: This conference is time to fit with the annual Constitutional Law Colloquium at Loyola Chicago Law School. The colloquium at Loyola Chicago ends on Saturday at lunchtime; this conference begins at Chicago-Kent on Saturday afternoon.

The Stennis Flag

In 1894 Mississippi adopted its current state flag, which prominently incorporates the Confederate battle flag saltire. Thus far every effort to remove the Confederate emblem from the state flag has failed. In 2001, for example, 65% of Mississippi voters chose to keep the current flag in a statewide referendum.

But change may be afoot. According to a Washington Post article yesterday, a new flag is gaining traction in Mississippi. Known as the “Stennis Flag,” it consists of a large blue star on a white background, surrounded by 19 smaller stars, and bordered by two large red bars. 

As explained by Laurin Stennis, the flag’s designer, the Stennis Flag incorporates four distinct symbols:

The 1968 Fair Housing Act

Earlier this month marked the 50^thanniversary of the passage of the 1968 Fair Housing Act. On March 1, 1968, the Kerner Commission issued its report to Congress on race relations in the United States, warning that “America is dividing into two societies, black and white, separate and unequal.”  According to the Kerner Commission, one of the chief manifestations of this inequality was residential segregation, which relegated Blacks to crowded urban ghettoes. Congress responded to the Kerner Commission report with the 1968 Act, an attempt to reduce residential segregation and provide access to economic opportunities for people of color.  Despite the urgency of the report, the Act stalled in Congress until the assassination of Martin Luther King, Jr. sparked nationwide riots in inner cities. The Fair Housing Act is far-reaching.  Among other provisions, it requires the federal government to engage in affirmative action to integrate federally owned and subsidized housing.  Unfortunately, the Act’s anniversary passed with little fanfare.

Two provisions of the 1968 Fair Housing Act were based on Congress’ power to enforce the 13^thAmendment.  The first, the “Anti-Blockbusting Provision,” prohibits realtors from using race-based rumors to scare people into selling their homes at a reduced rate.  The second, the 1968 Hate Crimes Act, makes it a crime for a person to interfere in certain “federally protected activities,” including economic activities, on the basis of their race.  According to New York Senator Charles Goodell, “the 13th amendment to the Constitution forever barred slavery and involuntary servitude in the United States.  It was viewed by those who had approved it as abolishing not just enforced service of one person for another but as a guarantee to all citizens, of the outlawing of all the badges and incidents of slavery.  One hundred and three years after its adoption the Congress has yet to remove all the disabilities of that servitude.”  Like the 1866 Civil Rights Act before it, the 1968 Fair Housing Act addressed the badges and incidents of slavery.

Given the significance of the Fair Housing Act, it’s surprising how little acclaim the Act received on its April 11 anniversary.  On the other hand, the 1968 Fair Housing Act was controversial when it was enacted, and its wide-reaching mandate is largely unenforced.  According to one of the act’s sponsors, Walter Mondale, “The public servants tasked with implementing it have often forgotten — or refused to pursue — its ultimate goal of building an integrated society.”  Mondale points out that federal officials balked at enforcing the Act’s integration mandate until the Obama administration.  Now, the current Secretary of Housing and Urban Development, Ben Carson, referred to those Obama era regulations as “mandated social engineering.” 

Rather than celebrate the Act’s anniversary, Secretary Carson seems intent on undermining it.  For example, Secretary Carson recently removed anti-discrimination language from HUD’s mission statement.  As advocates for civil rights struggle to maintain hard won gains from the past 50 years, comprehensive measures like he 1968 Fair Housing Act seem sadly anachronistic.  However, 50 years after the Kerner commission report, little has improved.  Blacks experience unemployment at twice the rate as whites, and according to a recent study, our cities and schools are re-segregating.  Try as we might to ignore and deny it, people of color in our country are still suffering from the badges and incidents of slavery.

How do you enforce an unenforceable contract for freedom? (Part 2)

In a prior post, I related the facts of the freedom petition of Beverly Dowling. Briefly stated, Dowling had struck an oral agreement with his mistress, Sophia Bland, to purchase his freedom for $200, paid within six months of the date of the agreement. It took Dowling nearly two years to collect all of the money. During that time, Bland appointed an agent to do what he think proper with Dowling, and the agent reported him as a runaway and inquired as to what price he could get for Dowling. Dowling subsequently traveled to New York on a steamboat as a waiter, and returned with the last of the $200 purchase price, but was arrested and then sold to Austin Woolfolk. Dowling petitioned the Baltimore City Court. (For a more complete set of facts, see the original post.

The judges of the Baltimore City Court instructed the jury that if they found that Sophia Bland had indeed made an agreement that it could be taken as evidence that she had given her implied consent to Beverly Dowling to travel across state lines. If she gave this consent, and if he had then traveled to New York and become free by New York’s laws, then Sophia Bland could not reclaim Dowling as a slave without violating Maryland’s law forbidding the importation of slaves into the state. The jury found for Dowling.

On appeal, Bland’s attorneys argued that 1) slaves were not competent to make contracts, and especially not with their owners; 2) the court should not allow the oral agreement to be proof of the owner’s consent for Dowling to leave the state. Several reasons were summarized in the record for this second argument, namely that the presumption of law should be against consent when the act resulted in a forfeiture of property and that the law did not presume that slaves who went about the state at their liberty had authority from their masters. In short, Bland’s attorneys said that the court erred in leaving the matter to the jury at all.

Justice Stephenson Archer of the Maryland Court of Appeals delivered the opinion of the court upholding the Baltimore City Court’s instructions. He agreed with Bland’s attorneys on their first point, holding that slaves could not make contracts (he also spent a good deal of time knocking down Dowling’s attorneys arguments to the contrary). But he disagreed as to the second point, holding that it was proper for the judges to leave the jury to discover whether the agreement was ample evidence of the transfer of discretion from the owner to the slave, which therefore meant Bland’s consent could be implied.

This second holding could have gone either way. In fact, Bland’s arguments appear to be more in line with Maryland law than not. It was well established that manumissions must be in a formal legal document (deed or will) and strictly meeting all the forms of law (two witnesses, properly recorded, etc.). Slaves also needed written authorization to carry out certain acts on their own, including travel within the state and to sell certain items. Would it not have made more sense for court to have held that permission to leave the state must be written?

Perhaps more to the point, what juridical justification could there be for the very idea of a general transfer of discretion? Since there was no real analogue in slave law for such a principle (at least, not one in which I am aware), it had to be borrowed from elsewhere—most likely from the law governing principal and agent. As the principal, Bland was bound by what her agent did, and her agent (Dowling) was empowered to act as he saw best fit in order to carry out her wishes (that is, to raise the money). But to make this argument is to treat the slave as analogous to a person and governed by the laws governing persons.

Historians are somewhat divided on the subject of whether slaves actually had rights at law. Andrew Fede has been a leading voice denying that the American law of slavery extended any rights, formal or informal, in theory or practice, to slaves. Martha Jones, Anne Twitty, and others have argued that slaves did have rights that the white man was bound to respect, and that courts had to take these rights seriously. Bland v. Dowling might speak to this disagreement. On the one hand, the court had made an unenforceable contract enforceable. That was certainly the result of the case, as Dowling went free and disappeared from Baltimore and the grasp of Sophia Bland. But on the other, the Maryland Court of Appeals had made the entire case hinge on the mistress’s agency and the accident of having taken a steamboat to New York City.

It is tempting to conclude, as several famous historians have, that American slave law was by nature unstable. That it could not handle the contradictions of treating people simultaneously as people and property. For these historians, Bland v. Dowling might be just more grist for the mill. I’m not so sure. I think it more likely that the judges of the Maryland Court of Appeals just wanted to hold Sophia Bland to her word. And through the law, they found a way.

(I would like to thank Andrew Fede for some critical comments he gave me after my initial post, including some very helpful factual information that my research had not yet turned up.)

Fugitive Slaves as Constitutional Actors

When constitutional law professors talk about constitutional law, they most often refer to court cases, especially the United States Supreme Court’s interpretation of the Constitution.  However, I am more interested in popular constitutionalism, constitutional interpretation outside of the courts.  Political advocates engage in popular constitutionalism when they invoke the constitution to support their claims.   Sometimes political activists expressly invoke constitutional language and make arguments that sound in law.  Other times, they invoke more general constitutional values in their political rhetoric.  Perhaps the most eloquent form of popular constitutionalism occurs when people with little or no legal knowledge demand rights that sound in constitutional law.  Fugitive slaves were one such group of constitutional actors. 

Prior to the Civil War, some antislavery argued that slavery was unconstitutional.  For example, they claimed that slavery violated the right to liberty under the Fifth Amendment Due Process Clause and natural rights which, they claimed, were protected by the Preamble to the Constitution.  Some antislavery constitutionalists made arguments before courts, which were ultimately unsuccessful.  However, most antislavery constitutionalists made their arguments in the political context.  They formed antislavery parties, including the Liberty and Free Soil, Free Labor parties.  Many of these popular constitutionalists were founders of the Republican Party. 

A second group of antislavery activists participated in the underground railroad, which helped fugitive slaves to escape.  For example, in 1858 leaders of the town of Oberlin, Ohio, acted together to rescue an alleged fugitive slave who had been kidnapped.  Several of them were tried in federal court for violating the 1850 Fugitive Slave Act, and two were ultimately convicted.  These activists knew that federal law prohibited them from assisting fugitive slaves, but they claimed that they followed a higher law under which slavery was illegal. They did not expressly invoke the constitution, but they asserted their right to resist federal law.

The fugitive slaves themselves were a third group, at the heart of this resistance.  Fugitive slaves asserted their own rights claims by attempting to escape slavery.  Fugitive slaves defied all odds, and certain punishment, if not death, if they were captured.  Their goal was to escape to northern states and into Canada, where they could live a free life.  Some fugitives sued in courts for their freedom, and surprisingly, some won.  But most fugitive slaves had to hide from slave catchers, under constant threat of capture (as were free blacks).  With their actions, fugitive slaves served as a catalyst for constitutional change.

Fugitive slaves brought about a constitutional crisis.  Tensions mounted between people in northern states such as Ohio, who wanted to protect fugitive slaves, and southern slave owners, who believed that they had a right to have their slaves returned to them.  Southern slave owners had the law on their side.  Federal Fugitive Slave Acts enforced their right to retrieve their slaves.  In the Dred Scott decision, the United States Supreme Court agreed that slaveholders had a constitutional right to own slaves, rejecting Scott’s claim that he could free himself by fleeing to a free state or territory. 

Nonetheless, fugitive slaves and northern antislavery activists persisted, and continued to argue against the legality of slavery.  Ultimately, these tensions led to the Civil War which created the conditions that enabled the end of slavery.  During the war, slaves fled across northern battle lines, demanding freedom, and some Union soldiers blocked the slavecatchers who pursued them.  Congress authorized military officials to “confiscate” the fugitives and set them free, a significant step in the campaign to end slavery.  After the war, Republican members of the Reconstruction Congress abolished slavery and enshrined the activists’ rights claims into law with the 13^th, 14^th and 15^th Amendments and legislation enforcing those amendments.

We are approaching the end of Black History month, in which we celebrate the contributions that African Americans have made throughout our history.  We should not forget fugitive slaves, who helped to bring about the end of slavery and the expansion of individual rights in this country.

How do you enforce an unenforceable contract for freedom?

In 1835, the Baltimore City Court heard the freedom petition of Beverly Dowling. The basis of his case was a parol contract he had made with his mistress, Sophia Bland. By statute, Maryland slaves could only be manumitted by deed or will, and even then only under specific circumstances. Beverly Dowling could claim neither a deed of manumission nor any under a will. Nonetheless, he prevailed in the case.

The record of the Baltimore City Court (housed at the Maryland Archives) holds some very interesting facts. On August 7, 1833, Beverly Dowling and Sophia Bland made an agreement: his freedom for a payment of $200. Dowling promised $100 up front and $100 over six months. On August 17, 1833 he made a payment of $100. It would take him another fourteen months to make an additional payment of $23. We know the precise timing of the payments because Beverly Dowling deposited them in the Bank of the Chesapeake where he received the antebellum equivalent of a bank check and a receipt from the bank’s cashier before paying Sophia Bland’s agent.

A lot happened in the fourteen months between Beverly Dowling’s first payment of $100 and second payment of $23. Sophia Bland’s agent wrote several letters to her complaining about the arrangement. (The letters did not make the appellate record because the court refused to admit them into evidence.) On June 7, 1834, Sophia empowered another agent of hers “to act as he thought proper” regarding the management of her Baltimore slaves. About a week later, this second agent instructed the Baltimore constable to arrest Beverly Dowling and “inquire what price could be had for him.”

All of this happened without Beverly Dowling’s knowledge. It was not until he made his second payment of $23, on October 25, 1834, that James Law told Dowling that “his mistress was not satisfied with his conduct, and would not ratify the contract she had made to set him free,” presumably because he was so tardy with his payment. This was news to Dowling, who offered to pay interest on the overdue amount.

Dowling was clearly spooked. The trial record suggests that he took extra precautions making his next payment of $50, on June 1, 1835 (nearly nineteen months after his first payment). At trial, the cashier of the Bank of the Chesapeake testified that this was the “first time” that he had heard about the contract, and that he had heard about it from Sophia Bland herself. Given that he had been receiving the payments all along, it seems reasonable that Dowling himself made certain to have the cashier note the precise reason for his payments to his mistress. Then Dowling, sometime between June and October of 1835, worked as a waiter on a steamboat from Baltimore to New York City in order to earn the remainder of the money to buy his freedom.

In October of 1835—just over two years after he had entered into a contract to purchase his freedom—he made his last payment of $27 to the bank. But Sophia Bland’s agent refused the check and Dowling was arrested on the streets of Baltimore as a runaway. While in jail, Bland sold Dowling to Austin Woolfolk of Baltimore. And then Dowling filed his petition.

The judges of the Baltimore City Court did not instruct the jury that the contract was enforceable. Rather, they instructed the jury that, if they found from the facts that Sophia Bland had indeed made the contract that it could be taken as evidence that she had given an implied consent to her slave to travel. If she gave this consent, and if he had then traveled to New York and become free by New York’s laws, then Sophia Bland could not reclaim Dowling as a slave without violating Maryland’s law forbidding the importation of slaves into the state. The jury found for Dowling.

There are several remarkable aspects about this case. Beverly Dowling may not have had a written contract, but he had a trail of evidence, including receipts for his payments to Sophia Bland. Her lawyers took this seriously, going to great lengths to prove that, even if such a contract had existed, it was Dowling who had breached its terms. Her consent to leave the state could not inferred and, in any case, her lawyers argued that the facts proved she had withdrawn her consent well before Dowling’s travel to New York. The judges refused to admit pivotal evidence in this regard (rejecting James O. Law’s letters as hearsay) and refused to instruct the jury in her favor.

Why would they do so? Sophia Bland was a rich woman, a resident of Annapolis and the sister of Theodorick Bland, the High Chancellor of Maryland. If there was local animus in Baltimore against the Bland family, I have found no evidence of it. There was no case law in Maryland holding that slaveholders who consented to their slaves’ travel to a free jurisdiction lost their property interest. The most plausible conclusion, at this stage of my research, is that the judges invented a technicality to allow the jury space to reach the conclusion that the spirit of the contract ought to be honored.

Bland’s lawyers, of course, had good reason to believe they would prevail on appeal. I will touch on this in another post. But in the mean time, the judges and jury of the Baltimore City Court had indicated that African-Americans did indeed have rights that the white man was bound to respect.

(One note—I have not mentioned in this blog post my considerable debts to the scholarship of Al Brophy, Martha Jones, Kelly Kennington, Loren Schweninger, Rebecca Scott, Anne Twitty, and Lea VanderVelde, all of whom have written extensively on such freedom petitions, and anyone familiar with their scholarship will see some parallels between this case and the evidence that they analyzed.)

Liberty of Contract in the "Gig" Economy

In the nineteenth century, the Thirteenth Amendment transformed the law of work in the United States, replacing unfree labor with liberty of contract.  But what did liberty of contract mean?  Did it mean a formal right to contract without any government assistance to exercise that right?  If so, did it prohibit government intervention affecting that right?  In our new gig economy, a fifth of workers are independent contractors and lack legal protections designed for employees.  Arguably, these workers enjoy maximum liberty of contract.  However, this liberty of contract comes at a cost to workers.  In this Op ed, Mark Schmitt details the perils of what he calls the “scam” economy, “where risk is shifted onto individuals and families.”  At this time of maximum liberty of contract, average Americans are increasingly vulnerable.

State intervention and regulation is necessary to protect consumers and address the power imbalance in employment relationships.  During the early twentieth Century, advocates for labor argued that their right to contract included the right to organize into unions, and the right to government intervention such as minimum wage and maximum hours laws.  During the New Deal, Congress adopted labor’s vision of a collective right to contract with federal measures protecting the right to organize, establishing a federal minimum wage, and regulating the hours and conditions of work.  In the 1960s and 1970s, Congress enacted measures prohibiting employment discrimination on the basis of race, gender, age or disability.  All of these measures enforce a different form of liberty of contract; a substantive right to a free contract, protecting workers exercising their right to contract and sell their labor.

In recent years, however, the structure of work has been changing from the traditional employment relationship to the gig economy of short-term contracts for work.  From Uber drivers to web designers, workers are no longer considered to be employees in long term relationships with their employers.  The recent tax bill provides incentives for more workers to act as independent contractors, because “pass through” business income is taxed at a lower rate than wages.  Gig workers have the flexibility to choose their work, when they can find it.

However, the gig economy workers must shoulder all the risk that is inherent in their “liberty” of contract.  Gig economy workers lack job security and must constantly search for new work.  Most gig economy workers do not receive health insurance, pensions, or other benefits from their employers.  New Deal protections for workers and most anti-discrimination laws do not cover independent contractors.

Meanwhile, de-regulation and lack of oversight undermine protections for all US workers.  Ironically, employers increasingly subject low-wage workers to practices reminiscent of indentured servitude, including on-demand schedules and covenants not to compete.  In today’s economy, liberty of contract largely benefits only employers and purchasers of work for hire.  Workers gain little from liberty of contract in the twenty-first century.

Teaching About Slavery in Schools

A new report issued by the Southern Poverty Law Center shows that our nation’s schools are failing at teaching the history of slavery in the United States to our children.   According to the report, “Schools are not adequately teaching the history of American slavery.  Educators are not sufficiently prepared to teach it.  Textbooks do not have enough material about it.”  Too often, slavery is romanticized and its cruelty underplayed.  Students do not learn about the centrality of slavery to our nation’s economy and overall history.  As a result, only 8 percent of 12^th graders surveyed identified slavery as the cause of the Civil War.   

As a scholar of the Reconstruction Era with a daughter currently taking AP U.S. History, this issue is especially interesting to me.  Unfortunately, I am not at all surprised.  Over the course of our history, the history of slavery and the Reconstruction Era has been heavily contested and politicized.  During the early Twentieth Century, the dominant school of history, known as the Dunning school, framed Reconstruction as northern domination and exploitation of the south.  In popular culture, the movie “Gone with the Wind” reflected this view.  Starting in the 1960s, and inspired by the Civil Rights movement, historians such as Eric Foner and Michael Les Benedict shifted the dominant narrative and showed that Reconstruction was a time when the federal government established fundamental rights for freed slaves and all people in the United States.   However, the new report shows that this historical consensus is not being adequately taught to our children.

It is not surprising that the dispute over the history of this era in the academy spilled over to our country’s elementary and secondary schools.  Michael Kent Curtis details this history in this marvelous essay.  In the early and mid-Twentieth Century, school children in northern states learned about the “War Between the States” and those in southern states studied the “War of Northern Aggression.”  Recent debates over the statues of confederate war heroes revealed the extent to which southern states romanticized the “lost cause” of the southern rebels.  Teaching about the brutal reality of slavery undermined this narrative, as did the indisputable fact that the confederacy was founded to protect slavery (made clear in the Confederate Constitution).  In the north, downplaying slavery implicitly justified the federal government’s failure to intervene in the Jim Crow south, and ignoring racism and segregation in the north.

Unfortunately our nation’s schools have not made much progress in the teaching of the complex and difficult subject of slavery and race in our nation’s history.  The continued failure to adequately teach about slavery is both disappointing and consequential.  The history of slavery still profoundly affects our country.  We can see echoes of slavery in the vestiges of Jim Crow, the mass incarceration of African Americans, the effective use of racism as a political rallying cry.  Misunderstanding our history also affects our law, reflected in the Supreme Court’s race blind approach to the Equal Protection Clause and restriction of voting rights laws.  The history of slavery is profoundly important, and it always will be in our racially troubled nation.

Conference: The Thirteenth Amendment and Economic Justice

 

I am delighted to announce that the program has been posted for a conference on The Thirteenth Amendment and Economic Justice, which will take place on Saturday March 3 at the UNLV William S. Boyd School of Law.    The conference will be the inaugural event of the Thirteenth Amendment Project, an interdisciplinary association of scholars of labor, class, race, caste and poverty at law schools and universities in the United States and the wider world.  

Panelists at the conference include Mary Ann Case, William Forbath, Aviam Soifer, Fred Smith, James Gray Pope, Noah Katz, Lea Vandervelde, William Carter, Ahmed White, Courtney Lollar, Mehmet Konar-Steenberg, Andrea Freeman, David Orentlicher, Kathleen Kim, Camille Walsh, Richard Blum, Ruben Garcia, Maria Ontiveros, Charlotte Garden and myself.   They will discuss topics including economic theory, the carceral state, health, education, environment & welfare, and using the Thirteenth Amendment in court.

This is sure to be great event.  For more information, and to register for the conference, see here  or email [email protected].

 

 

 

 

The Thirteenth Amendment and Freedom of Contract

 

When the Thirteenth Amendment abolished slavery and involuntary servitude, it altered the fundamental principles underlying our country’s labor and employment law.  Prior to the Thirteenth Amendment, the paradigm of labor and employment law was unfree labor.  The Thirteenth Amendment replaced that paradigm of unfree labor with one of freedom of contract. 

The most obvious example of unfree labor in the antebellum United States was the institution slavery.  Slaves were under the complete control of the “masters” who exploited their labor.  Under the laws of slave states, slaves were treated as property and denied the most basic of human rights.  But slaves were not the only unfree workers in antebellum America.  Thousands of immigrants came to the United States as indentured servants, bound to their employers for terms of years and subject to criminal sanctions if they left those employers.  Other workers served as apprentices who were also bound to their masters for a term of years.  Early industrial workers were often required to sign year-long contracts, bound to their employers regardless of the wages and conditions of work.  These workers were unable to leave exploitative employers and thus lacked any means to improve their wages and conditions of work.

During the antebellum era, many anti-slavery activists argued that slavery violated fundamental human rights.  Above all, slaves were denied the right to free contracts.  They could not enter into contracts with employers, were prohibited from engaging in most commercial transactions (especially real estate transactions), and were often denied the right to enter into marriage contracts.  Anti-slavery activists generally agreed that freed slaves should enjoy the right to contract.  For many, the right to contract was a central feature of their antislavery ideology.  The Thirteenth Amendment also extended the right to free contracts to northern workers by abolishing “involuntary servitude” as well as slavery. 

But what did the right to contract mean?  Did it mean a formal right to contract without government assistance?  Or did the right to contract include the right to government intervention to equalize bargaining power and protect against exploitation?

Some members of the Reconstruction Congress believed that the formal right to contract was sufficient absent government support.   Many Freedman’s Bureau officials agreed, allowing former slaves to enter into contracts with their former masters without sufficient oversight of exploitative contracts.

However, a majority of the Reconstruction Congress chose the latter approach.  Immediately after the Thirteenth Amendment became law, members of the Reconstruction Congress began to enact legislation enforcing the right to free contracts.  Their primary focus was employment contracts.  The 1866 Civil Rights Act, which prohibited race discrimination in contracts, was targeted at southern Black laws that attempted to impose involuntary servitude on newly freed slaves.  The 1867 Anti-Peonage Act prohibited workers from either voluntarily or involuntarily entering into contracts which amounted to indentured servitude.  The 1868 Eight Hours Act limited the hours of work of federal employees.  All of the laws enhanced the power of workers to enter into fair and free contracts.

The debate over the meaning of freedom of contract continued into the Twentieth Century.  More on that later.

 

Martin Luther King, Jr. and A Positive Right to Free Labor

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.

Brophy Named Frederick Douglas Book Prize Finalist

My friend and co-blogger Al Brophy got some good news this week.  He has been named a finalist for the Frederick Douglas Book Prize awarded by the Gilder Lehrman Institute of American History and the Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition at the Yale University MacMillan Center.  The prize goes to the best book on slavery, resistance, and/or abolition published in the preceding year.  

Many readers are familiar with Al's contribution, University, Court, and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of Civil War (Oxford University Press).  The other two finalists are Rashauna Johnson for Slavery’s Metropolis: Unfree Labor in New Orleans during the Age of Revolutions (Cambridge University Press); and Manisha Sinha for The Slave’s Cause: A History of Abolition (Yale University Press).   Johnson is a history professor at Dartmouth; Sinha is a history professor at UConn.

More details here.

Review of The Other Slavery: The Uncovered Story of Indian Enslavement in America

I had the honor of being able to review The Other Slavery: The Uncovered Story of Indian Enslavement in America, written by UC Davis historian, Andrés Reséndez, for JOTWELL: Equality this past April.  The book provides an encyclopedic account of Indian slavery--including the modified forms of it that were used to get around anti-slavery laws—in the Spanish New World from Columbus up to the twentieth century.  I highly recommend this book, which is an impressive feat of legal history.  It is not an easy read by any means, either emotionally or stylistically (due to its density), but it is well worth it. 

The Requerimiento, the document early Spanish invaders recited to the indigenous peoples in Spanish upon coming into the vicinity of their settlements, itself threatens enslavement if the listener does not immediately accept the Pope and the Spanish monarchs.  However, despite teaching the document and its use in my Federal Indian Law courses,  I was still ignorant of the scope of enslavement of indigenous peoples in the New World until reading this book.  I had gained some additional exposure to the issues when researching my legal history law review article on perceptions of tribal savagery and the resulting legal restrictions on tribal self-defense, “Hostile Indian Tribes . . . Outlaws, Wolves… Bears…Grizzlies and Things Like That?” How the Second Amendment and Supreme Court Precedent Target Tribal Self-Defense.  There I had come across references to Native slavery, including an 1827 Virginia case that quoted a 1711 Virginia law under which captured Indians, if deemed to be at war with the colony, were to be taken to the West Indies and sold as slaves.  Gregory v. Baugh, 25 Va. 611, 633-34 (1827).  Despite the direct references to slavery in the Requerimiento and in cases like the aforementioned Gregory v. Baugh, I was in denial about the scope of the practice of Native enslavement until reading The Other Slavery.  Since I researched Hostile Indian Tribes in 2010, there has been other important work on Native enslavement, but the temporal breadth combined with the geographic scope of The Other Slavery make it unique.  Unless you’re already an expert on these issues, I can guarantee you that you’ll never look at Columbus the same way again.     

University, Court, and Slave

I'm delighted to say that University, Court, and Slave, which has been in the works for years and years, is now available.  If you're willing to read it on kindle, it's actually reasonably priced. Amazon has it for under $15.  And OUP is offering the book at a 30% discount (so for about $28 plus shipping) -- if you use the code on this flyer. 

I want to provide an overview now and I'll be talking about various pieces in future posts.  The book is about proslavery thought in the South from Nat Turner's rebellion in 1831 to the opening of Civil War.  It opens with the Nat Turner rebellion -- but my primary focus in the first chapter is on a William and Mary professor, Thomas Dew, who wrote an important and widely read proslavery pamphlet in the wake of the rebellion.  My primary focus in the first part of the book is proslavery thought in southern universities.  I follow the evolution of ideas from Dew's pamphlet in 1831 down to secession, at schools around the south from UVA, Washington College, VMI, Hampden-Sydney, and Randolph Macon in Virginia, down to UGA, Alabama, and Ole Miss -- with cameo appearances from a number of other southern schools.  I also discuss the antislavery thought that appears in schools, especially at UVA and Washington College.  I have a couple of faculty who're particularly important -- in addition to Thomas Dew, my major subjects include Henry Ruffner of Washington College (an anti-slavery advocate), Albert Taylor Bledsoe, a professor at UVA, and James Holcombe, a law professor at UVa.  The proslavery faculty increasingly focus on the role of hierarchy and slavery in history, and the economic importance of slavery.

The second part shifts to the ideas of proslavery thought in more public settings -- like Congress.  I focus in particular on the debates around the Fugitive Slave Act of 1850. (The anti-slavery response to the Act has been well-covered, but I'm more interested in how proslavery ideas, history, political theory, and economics, were mobilized to support the Act.)  The middle part also focuses on how the anti-slavery writers understood and responded to the historical and empirical arguments about slavery.

The final part turns to proslavery ideas and actions in the judiciary and among lawyers.  While I suspect that the first part will get the most attention, this is my favorite part of the book because it traces how ideas were put to use by actors at the center of southern power.  Part three looks at several key judges -- Thomas Ruffin of North Carolina and Joseph Lumpkin of Georgia -- as well as some less-well-known judges and lawyers, to see how they used proslavery arguments as part of their decisions on issues from criminal law to torts, to emancipation and trusts.  I also discuss judges like John Archibald Campbell, who wrote several articles on the legal history of slavery, John Catron, who issued an anti-slavery decision when he was a judge in Tennessee (shocking, I know), and Ebenezer Starnes who wrote an epistolary novel about a slave-owner who brought a slave to England.  The slave couldn't wait to get back to slavery in Georgia.  It was a terrible piece of literature, but is illuminating of Starnes' world-view.  (I discuss a number of the sources here.)

My favorite chapter centers around Thomas Cobb, a lawyer from Athens, Georgia, who wrote the most comprehensive proslavery treatise of the pre-Civil War era.  He synthesized decades of work on history, "science," economics, and law to create a zealously proslavery argument.  Cobb was not some closeted academic; he was an activist scholar.  Following Lincoln's election, he traveled to the Georgia capital to make a speech in favor of secession -- and then he took to the battlefield to defend the Confederacy.  Cobb died at Fredericksburg in December 1862.  The upshot of the final section is to illustrate how ideas of slavery, property, and political theory appeared in legal arguments -- from treatises to opinions to legislative debates -- and how those arguments help illuminate the minds of southerners as they moved towards secession.

I hope this will intervene in a series of debates.  The first is growing literature on slavery and universities.  There's been some fabulous work on this -- some of it goes back decades, such as Drew Faust's A Sacred Circle: The Dilemma of the Intellectual in the Old South -- but  a lot of it is recent, such as Craig Wilder's Ebony and Ivy.  Wilder's focus is on northern schools, where proslavery ideas--particularly "science"--and funding from slavery are even more surprising than in southern schools.  And then there's Michael O'Brien's expansive Conjectures of Order, which is more intellectual history that sweeps across the old south, though it deals with university faculty.  Building on that outstanding work, I have been able to delve the proslavery political theory, history, and legal ideas of southern faculty more deeply than have other scholars.  I hope that this will help show the detail of those ideas and how they shift over time -- often, I think, in response to anti-slavery advocacy -- and to show how much the academy was linked to ideas in circulation elsewhere in the south.  There were complex and important -- as well as extremely disturbing -- ideas on those campuses.

Second, I hope this will help expand our sense of the sophistication of pre-Civil War jurisprudence.  Where so many people treat American jurisprudence as though it began in 1870, the judges and lawyers here reveal that there were extensive historical and empirical arguments, as well as political theory, decades before that.  And it may very well be that the post-war historical and empirical jurisprudence owes its origins to those hotly contested debates over slavery.  Third, I hope this will add detail to how ideas circulate between popular culture and legal thought.  The proslavery ideas built up over time in terms of depth and sophistication in and out of the judiciary.  Judges drew on common tropes and added to them.  This reflects the close connections between judges and their culture.

Finally, I hope this causes us to realize how close arguments about property rights lie to the center of debates over secession.

You can read some of it on books.google now.  And I hope if this interests you that you'll recommend it to your school's library.  I look forward to talking about more specifics -- such as the content and reach of Thomas Dew's thoughts, proslavery ideas in graduation addresses, the increasing belief that slavery was consistent with natural law in the 1850s, the role of Frederick A.P. Barnard in slavery at the University of Alabama and Ole Miss, Thomas Cobb's proslavery legal treatise and role in secession, lesser-known jurists and their prolsavery writings, and finally property and constitutional thought in secession debates.

Affleck's Ancestor and the Trust for Slavery

It's not often that people are interested in the history of trusts.  But this week is different.  Brandy Zadrozny over at the Daily Beast broke the news that Ben Affleck's ancestor who's at the center of the PBS-Gates-Affleck story held about twenty-three people in trust for the grandsons of his mother-in-law.  That is, Affleck's great-great-great grandfather, Benjamin L. Cole, served as executor of the estate of his mother-in-law, who owned about 23 people at the time of her death -- and that Cole served as trustee of a trust set up to provide for her three grandsons (which I'm figuring this correctly were Cole's nephews by marriage).  Cribbing now a little from Zadrozny's article: 

The legal difference between owner and executor is clear. An executor is someone who is appointed by a will to dispose of the deceased’s estate, as William Wiecek, professor of public law and legislation emeritus at Syracuse University College of Law [and I want to add one of the greatest legal historians in operation today], explained in an email to The Daily Beast. “You won’t own the property; you will distribute it to those who do.”

A trustee—as Cole was for Norton’s grandchildren—has “the control power, but not ownership,” Wiecek said. “Your legal duty would be to administer the property according to my directions, and distribute the income or profits to the beneficiary.”

The article also quotes another historian of nineteenth-century American law (wink) to the effect that the Daily Beast's finding "shows how deeply the institution of slavery penetrated American finance [and] how deeply the United States law is implicated in the sins of slavery.”  I figure I need to enjoy this while it lasts because its not likely to happen again anytime soon.  Then again, we live in a world that worships wealth and is increasingly interested in slavery, so perhaps we'll have more people talking about trusts and the role they served in facilitating management of enslaved humans.

Breitbart's been following up on Zadrozny's story, too.

If you're interested in more on testamentary trusts to manage enslaved people, I have a couple of papers on this -- both with former students.  One is on Greene County, Alabama; the other is on Rockbridge County, Virginia.  And coming soon are papers on slaves and trusts in Petersburg, Virginina, Wilcox County, Alabama and Montgomery, Alabama....

The Ideological Origins of Secession

I'm working away on a paper on what I like to refer to as the ideological origins of secession -- the constellation of ideas about the centrality of slavery to Southern life and how slavery was threatened by Lincoln's election -- and events in the North more generally.  It's the bookend of University, Court, and Slave, which tries to tie together the ideas and economic and demographic reality of slavery that gripped the south in the decades leading into war with their role in the coming of war.  I'm very much looking forward to talking with my friends at the University of Florida about this on March 21.  I guess I might have called it the constitutional origins of secession but I didn't want to seem to be legitimizing the southern constitutional arguments or making it seem as though I thought that secession was constitutional.  So instead I'm cribbing the title of one of my favorite works of history -- Bernard Bailyn's Ideological Origins of the American Revolution.

Little bit of background here -- there's a really important question about just what would have happened to slavery had war not intervened -- would slavery, as many in the south after the war said, have ended pretty quickly?  In some ways this lets the south off the moral hook rather easily -- as in it suggests that slavery was on the way out (both economically and morally) and it calls into question the need for the enormous sacrifices of war.

....Or would slavery have continued for decades, just as Jim Crow did.  Part of this question turns on how people think about the economics of slavery; it used to be assumed that slavery was inefficient.  This is partly due to the pre-war southern argument that slavery was hindering the growth of industry in the south (this was employed by anti-slavery southerners and also by some proslavery southerners who wanted to make it appear that they were making sacrifices for the benefit of their enslaved property).  But more recent investigations -- for instance Gavin Wright's Political Economy of the Cotton South -- points to a rather different picture -- one of a healthy institution of extracting labor at a relatively low cost.  I'm on the side of this would have continued for a long while -- though I suppose that eventually the North would have stopped it.

For this purpose, though, I want to go back to the time in the fall of 1860 when white southerners were thinking that their way of life was imminently threatened.   What interests me about this is that Southerners spoke often in terms of a series of ideas -- the centrality of slavery to southern life; the constitution's protection of slavery; and the North's violation of the South's constitutional rights.  A couple weeks back I wrote about why historians haven't focused so much on the constitutional rhetotic.  But whatever the reasons for overlooking the constitutional arguments, I think there are some important reasons to spend some time with it now -- for the constitutional arguments help us understand what Southerners were thinking and they point out some of the ways that the Supreme Court and public constitutional arguments added to the South's claims.