Slavery, Liberty, and the Right to Contract

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

4/25/2019 8:51 PM

THE RIGHT TO CONTRACT

Winter 2018]

453

Slave” Clause of Article IV obligated the return of indentured servants, as well as slaves, if they fled to other states. 43 Moreover, by the mid-Nineteenth Century, industrialization began to trans form the lives of U.S. workers. Industrial workers were less autonomous and had a more distant relationship with their employers. Increasingly, industrial workers realized that they would never be able to attain the ideal of self ownership and economic independence. 44 “Free labor” came to mean the free dom from “wage slavery,” free of undue exploitation and more control over one’s working life. 45 In the name of free labor, northern labor activists called for the government to regulate their employment contracts and limit their hours of work. 46 Freedom of contract was thus mostly an illusion to millions of Unit ed States workers. All of these workers wanted liberty, but they also sought government regulation to make that liberty effective. Freedom of contract in the employment relationship was a central compo nent of the transition from the feudal-like system of slavery and indentured ser vitude in the Nineteenth Century. 47 According to historian Robert Steinfeld, “[t]he p roperty that masters had enjoyed for centuries in the labor of their serv ants now began to be reimagined as the product of a voluntary transaction struck between two separate and autonomous individuals.” 48 Historian Amy Dru Stanley agreed: “In the age of sl ave emancipation contract became a domi nant metaphor for social relations and the very symbol of freedom.” 49 Under the theory of freedom of contract, the employee himself was no longer a com modity but his labor was a commodity, to be sold it on equal terms with its buyer, his employer. 50 The right to contract was premised on self-ownership. 51 A worker who enjoyed liberty of contract was entitled to the fruits of his own ONST . art. IV, § 2, cl. 3 ( “No P erson held to Service or Labour in one State, un der the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Servic e or Labour may be due.” ); H OANG G IA P HAN , B ONDS OF C ITIZENSHIP : L AW AND THE L ABORS OF E MANCIPATION 12 (2013); S TEINFELD , supra note 4, at 28. 44 See T OMLINS , supra note 41, at 308. 45 For example, the National Labor Union in 1867 called for working men to protect them selves against the interests of capital by cooperating with one another. M ONTGOMERY , supra note 29, at 49. 46 See M ONTGOMERY , supra note 13, at 186. 47 See K ERSCH , supra note 11, at 137 (arguing that imagining the worker as a “free -standing, autonomous individual . . . from the shackles of feudalism” was “the fruit of a radically re formist emancipatory political project.”). 48 S TEINFELD , supra note 4, at 80. 49 See S TANLEY , supra note 15, at x. 50 See S TEINFELD , supra note 4, at 80. 51 Forbath, supra note 12, at 783; see also S TEINFELD , supra note 4, at 3. A. The Right to Contract in Antebellum America 43 See U.S. C