Wednesday, May 20, 2009

VanderVelde on The Labor Vision of the 13th Amendment

The Labor Vision of the Thirteenth Amendment has just been posted on SSRN by Lea S. Vandervelde, University of Iowa College of Law. It appeared in the University of Pennsylvania Law Review (1989). Here's the abstract:
The conventional understanding of the Thirteenth amendment is that it abolished the particular antebellum southern institution that subjugated black persons as slaves. Yet, the congressional debates reveal a much more expansive vision of labor reform. This theme has largely been lost in modern interpretation. Historical events rarely result from a single cause, and a single idea rarely drives legislative action. Nonetheless, beside the more religious abolitionist arguments, one finds numerous speakers who focused on labor conditions. Consequently, this Article aims to recapture the strong pro-labor theme that runs consistently through the debates.
As a whole, the Reconstruction debates reflect a desire to improve all workers' status by recognizing the dignity of labor, guaranteeing workers a wide range of opportunities for advancement, and raising the floor of legal rights accorded all working men. The pattern of discourse in the debates reveal a structure formed by three types of statements. The first addresses the historical need to rid employment relations of the master's patriarchal dominion over all laborers in his household and to accord the employee a realm of family and personal privacy free from employer control. The second describes the core concept of autonomy for laborers in their social and economic relations with employers. The final group targets certain specific labor practices as inconsistent with the spirit of labor autonomy. This three part configuration is useful in exploring the amendment's reach in restructuring baseline rights in the modem employment relation. The Reconstruction debates constitute an important resource because they record the original attempt to mandate constitutionally a minimum level of worker protection.
The debates follow an interesting dialectical pattern. In order to respond to the criticisms of slavery's advocates, the Radical Republicans had to create both a positive vision as well as the negative condemnation of slavery. The free labor ideal provided its affirmative side. The free labor ideal grew out of the Republican Party's origins in the Free Soil, Free Labor Movement as well as the self-interest of the northern white working class. Together, they present a powerful argument for constitutionally grounding the protection of working people from overreaching subjugation and abuses at the hands of employers.
The evidence suggests that the thirteenth amendment was animated by a conception of labor reform broader than the elimination of racial servitude which was its catalyst. From this perspective, race slavery was objectionable not only for its pernicious racism, but also as the most obvious and brutal violation of the free labor principle. Senator Henry Wilson’s remarks typify this perspective when he explained the party’s motivation as concern for the condition of the "worst off working man," rather than merely his formal legal reclassification.
This free labor vision has potentially far-reaching implications for constitutional interpretation of the thirteenth amendment and for many aspects of the modern employment relation.

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