James Gray Pope, Rutgers Law School, has posted Economic Class and the Original Meanings of the U.S. Thirteenth and Fourteenth Amendments:
This article suggests that present-day judicial interpretations of the U.S. Thirteenth and Fourteenth Amendments depart sharply from their original meanings on questions of class power. I propose that the concept of "slavery to society," hitherto largely ignored, lay at the heart of the framers' thinking about class and race. By late 1865, leading Republicans held that the Thirteenth Amendment directly banned not only chattel slavery and physically or legally coerced labor (its full scope according to contemporaneous Democrats and most present-day courts), but also slavery to society. Unlike chattel slavery, which could be eliminated by conferring the freedom of contract, slavery to society operated through the formal freedom of contract, tilting the background rules and customs governing market relations to enable a ruling caste or class to dominate and exploit a subordinate caste or class. With this in mind, the Republicans condemned both race-specific and facially race-neutral labor laws that, while respecting the formal freedom of contract, enabled capitalists to inflict on laborers a form of slavery or involuntary servitude. Concerning the Fourteenth Amendment, I propose that the Republicans' support for maximum hours laws during the two years between that Amendment's proposal and ratification indicates that a vast chasm separated their concept of labor freedom from the laissez-faire version enforced by American courts during the so-called Lochner Era.
--Dan Ernst
