Nov. 23, 2010
Slavery might seem to be the logical stopping point of the conservative legal movement to revive policies long discredited as fundamentally unjust. But don’t be so sure. San Diego Law Professor Larry Alexander has just written a defense of voluntary enslavement, explaining that the virtues of freedom of contract logically extend to contracts for servitude.
I’m thankful that Jim Pope recently published a rich and powerful analysis of involuntary servitude in Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude,” 119 Yale L.J. 1474 (2010). Pope argues that the central concern of the Thirteenth Amendment is resisting “servitude” – not simply requiring that work be “voluntary” in some sense. Exploring the evolution of the ban on voluntary contracts for servitude, Pope contrasts the “freedom of contract” theory used to defend peonage with the “freedom of labor” theory that defended a right to quit work voluntarily entered. From the vantage point of freedom of labor, the question was not whether an individual worker had consented to service, but whether that service itself operated as a relationship of freedom rather than servitude. Providing a standard for distinguishing free labor from servitude, Justice Robert Jackson rejected a peonage law on the ground that it failed to give workers the “power below to redress… [and the] incentive above to relieve a harsh overlordship or unwholesome conditions of work.” Pollock v. Williams, 322 U.S. 4 (1944).
Alexander, in contrast, argues that voluntary servitude advances freedom because restrictions on individual consent are fundamentally “paternalistic,” denying destitute individuals one opportunity that in theory could improve their well-being. His argument turns on an abstract example of beneficial voluntary enslavement divorced from all contextual detail other than the evocative assumptions that the prospective slave is a “poor man in a third world country” with a daughter in need of expensive medical treatment and the prospective master is a “rich Western” man who has lost his wife (implicitly putting him in need of a replacement servant). Using the formalist pareto criteria, Alexander concludes both would in theory be better off by a long-term contract for personal service enforceable through force. In this view, the moral problem with the U.S. system of racialized chattel slavery appears to be that African Americans entered this relationship involuntarily rather than through contract.
This conflation of “freedom” with a formal contract sets up the “paternalism” morass in which the moral arguments against servitude seem to deny legitimate power to workers. Alexander challenges the moral validity of liberal arguments that (poor, racialized) workers may not know what is best for themselves over the long run, or that they may regret their choices when conditions change. But Pope’s analysis instead turns the tables to suggest the paternalism of an analysis that limits a worker’s freedom to isolated acts of acceptance or rejection of employment contracts rather than to the ongoing relationship and activity of work.
Below a superficial claim to freedom of contract, Alexander’s argument actually is founded on attention to the functional fairness of the master-servant relationship. But his attention to incentives legitimates only the master’s freedom. As a formal matter, aspiring masters could be perfectly “free” to enter into contracts for long term service without also having a legal right to state enforcement of the duty to specific performance when workers break those contracts. But Alexander explains that without such admittedly coercive state intervention, the master’s apparent control over slaves is insufficient in to protect the master’s practical power to gain from the contract. Destitute slaves would retain the power to to break long-term contracts free from monetary liability due to their very state of destitution, putting masters at risk of loss to any up-front “investments” in their servants. In contrast, when at the end Alexander acknowledges the non-paternalist concern that voluntary slavery can lead to the “moral degradation” of work, he quickly dismisses the “voluntary” slave’s risk that the master will retain the practical power to break the contract with, for instance, abusive demands or by denying promised support. He insists that courts could simply exempt contracts proven abusive or fraudulent from the duty of specific enforcement, without considering how those very conditions of destitution and abuse in practice tend to function to stand in the way of both successful quitting and successful legal proof of justified breach of contract. Pope’s analysis corrects this equation of “freedom” with a one-sided protection of masters’ functional power to break contracts. He explains how the prohibition on involuntary servitude should be interpreted to give both employers and workers the functional freedom to reap the gains of the work relationship, going beyond the right to quit to rights to strike and to organize.