Slavery, Liberty, and the Right to Contract

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

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Until now, the 1868 Eight Hour Act was virtually ignored by constitutional scholars. The Act was limited in scope, it was never fully enforced, and the Su preme Court eventually struck it down as violating the right to contract. 311 But the congressional debate over this Act shines an important light on the debate over the meaning of the right to contract in the Reconstruction Era. Just under forty years later, the United States Supreme Court struck down a similar law as violating the right to contract in Lochner v. New York . 312 Yet the congressional debates over the 1868 Eight Hour Act revealed that a majority of the members of the Reconstruction Congress rejected the reasoning of the Lochner Court and voted in favor of a law that directly regulated employment contracts to protect the rights of workers. The meaning of liberty of contracts has been central to debates over work ers’ rights throughout the history of our country. Even though the Reconstruc tion Era right to contract allows for government intervention to empower work ers exercising that right, the Lochnerian individualist right to contract is frequently invoked to oppose those measures. Yet the lost history of the Thir teenth Amendment and the right to contract reveals that the Reconstruction Era right to contract is much broader, and more robust, than that adopted by the Court in Lochner . Fugitive slaves, freed slaves, and northern workers, all sought more control over their working lives to enable them to exercise auton omy and the full rights of citizenship. The Reconstruction Congress responded to their pleas, enforcing the right to contract as a means to achieve free labor and effective freedom. C ONCLUSION

after all, are the men upon whom every society that is well ordered has to rel y.” C ONG . G LOBE , 40th Cong., 1st Sess. 412 (1867). 311 See Z IETLOW , supra note 18, at 151. 312 Lochner , 198 U.S. at 53.