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.

I first published this blog entry on TheFacultyLounge.org on January 26, 2018.