Zietlow on Slavery, Liberty and the Right to Contract

Rebecca E. Zietlow, University of Toledo College of Law, has posted Slavery, Liberty and the Right to Contract, which is forthcoming in the Nevada Law Journal 19 (2019): 447-478:

This article explores what the right to contract meant to slaves, free blacks and northern workers before and after the Civil War, to uncover the lost history of liberty of contract under the Thirteenth Amendment. By abolishing slavery and involuntary servitude, the Thirteenth Amendment transformed United States labor law and expanded rights for all workers. Until then, the slave had been at the center of United States labor law, and the paradigm of labor law was unfree labor. The Thirteenth Amendment and other Reconstruction measures established a new paradigm: the autonomous worker with liberty of contract.

Today, liberty of contract is most often invoked by conservatives and libertarians, who argue that the right to contract entails a right to be free of government intervention. Scholars trace the Lochner libertarian right to contract to free labor ideology of the antislavery movement and the Reconstruction Era. Until now, the dominant model of liberty of contract is the individualist right to be free of government interference, embraced by the Supreme Court in Lochner v. New York. This article shows that to the contrary, the Thirteen Amendment based right to contract invites government intervention to empower workers exercising that right. The Reconstruction Congress invoked the Thirteenth Amendment as it intervened in employment contracts to protect not only their rights, but the rights of northern workers. Paradoxically, the Reconstruction Congress enacted precisely the type of regulations that the Lochner Era Court struck down as violating liberty of contract,

---Dan Ernst