Slavery, Liberty, and the Right to Contract

19 N EV . L.J. 447, Z IETLOW

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There is evidence to support that the view of scholars who argue that the formal right to contract, adopted by the Supreme Court in Lochner v. New York and other cases, has its roots in the Reconstruction Era. 201 It is indisputable that freedom of contract is a necessary precondition of free labor, and central to the Reconstruction effort. As we have seen, the moral abolitionist strand of the an tislavery movement advanced a formalist model of liberty of contract. 202 That model influenced federal officials working in the Freedmen’s Bureaus to estab lish a system of free labor for the newly freed slaves. 203 Moreover, it is also true that some Freedmen’s Bureau officials fetishized contract over the substan tive protections that freed slaves needed. 204 However, the vast majority of the Reconstruction Congress did not share the formal view of liberty of contract that the moral abolitionists advocated for. They understood that individual liberty of contract alone was insufficient to en sure that freed slaves would enjoy the fundamental rights of free persons. The leaders of the Reconstruction Congress wanted more than merely abolishing slavery and establishing a formal right to contract. Merely liberating slaves was not sufficient to improve their status because they were vulnerable to their for mer masters. 205 Moreover, leaders of that Congress — including James Ashley, George Julian, and Henry Wilson — had long linked the plight of slaves to that of northern workers, viewing the end of slavery as just one step in the fight for workers’ rights. 206 Despite the fact that landmark Reconstruction measures were precisely the type of regulations that the Supreme Court struck down as violating the liberty of contract during the Lochner Era, Reconstruction Era de bates over those measures are remarkably bereft of any mention of liberty of contract. With few exceptions, members of the Reconstruction did not view freedom of contract as an end in itself; they saw freedom of contract as a means towards their goal of establishing equal citizenship and fundamental rights for freed slaves and empowering all. Until now, scholars have largely assumed, to the extent that there is a Re construction based liberty of contract, that liberty of contract limits government regulation of contracts. Articulating this view, Randy Barnett argues that the liberty of contract adopted by the Supreme Court in Lochner v. New York was based in abolitionist principles of free labor. 207 “The right to one’s labor was 201 See David N Mayer, The Myth of “Laissez -Faire Const itutionalism”: Liberty of Contract During the Lochner Era , 36 H ASTINGS C ONST . L.Q. 217, 222 – 23 (2009). 202 See supra notes 54 – 60 and accompanying text. 203 See D ONALD G. N IEMAN , T O S ET THE L AW IN M OTION : T HE F REEDMEN ’ S B UREAU AND THE L EGAL R IGHTS OF B LACKS 1865-1868 156 (1979). 204 Id. at 158. 205 See id. at 157. 206 See Z IETLOW , supra note 18, at 6, 65; VanderVelde, supra note 67, at 438. 207 B ARNETT , supra note 8, at 214. A. The Historical Case for Lochnerian Liberty of Contract