The Forgotten Emancipator #5: A Positive Right to Free Labor

During the early Reconstruction Era, James Mitchell Ashley and his colleagues established a positive right to free labor with the Thirteenth Amendment and Reconstruction Era statutes, influenced by the antebellum labor and antislavery activists whose free labor vision I have described in earlier posts.  A positive right to free labor includes the right to work without undue coercion, for a living wage, and free of discrimination based on immutable characteristics. 

A positive right to free labor starts with the Thirteenth Amendment, which abolished not only slavery, but also involuntary servitude, and empowers Congress to legislate to eradicate slavery and the badges and incidents of slavery.  Amending the constitution to abolish slavery was a monumental event.  The Amendment also contained the first constitutional provision empowering Congress to define and protect individual rights.  Members of the Reconstruction Congress used that power to enforce their free labor vision and protect the rights of freed slaves.  

Immediately after the Thirteenth Amendment became law, Congress acted to enforce the Amendment with the 1866 Civil Rights Act.  The 1866 Act prohibits race discrimination in economic transactions and guarantees to all people the “full and equal benefit of the laws.”  The economic transactions which principally occupied the Reconstruction Congress were labor contracts.  The Civil Rights Act superseded southern Black laws, which forced former slaves to enter into long-term contracts with their former masters, essentially replacing chattel slavery with indentured servitude.  Thus, the primary goal of the 1866 Civil Rights Act was to protect the rights of freed slaves to engage in free labor.

With the 1867 Anti-Peonage Act, the Reconstruction Congress enforced the Thirteenth Amendment’s prohibition of involuntary servitude. The 1867 Anti-Peonage Act responded to reports of peonage in the New Mexico territory and was thus directed primarily at northern labor practices.  During debates over the Act, its supporters noted the exploitative nature of peonage, and the institution’s negative impact on the wages of free workers competing with peons.  The Anti-Peonage Act’s breadth is notable.  It outlawed peonage even if the employee “voluntarily” entered the peonage relationship. 

In 1868, Congress enacted a third measures protecting a positive right to free labor – the Eight Hour Act, which limited the hours of work for federal workers to eight hours a day.  The Act accomplished the primary goal of the nascent labor movement, who argued that being forced to work for 10 or more hours a day was tantamount to “wage slavery.” The Eight Hour Act was a limited measure, but it represented an attempt to limit the coercion of northern industrial workers and enhance their bargaining power.

All of these measures established a new paradigm of free labor to be the basis of workers’ and civil rights in this country.

I first published this blog entry on TheFacultyLounge.org on January 2, 2018.