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One

The Right of
Free Labor

n September 3, 1848, to mark the


tenth anniversary of his escape from slavery, the abolitionist
leader Frederick Douglass addressed an open letter to his old

master, a man named Thomas Auld. I have often thought I should like
to explain to you the grounds upon which I have justified myself in running away from you, Douglass wrote. The morality was simple. You are
a man, and so am I.... In leaving you, I took nothing but what belonged
to me, and in no way lessened your means for obtaining an honest living.1

Born into slavery in Talbot County, Maryland, sometime in February 1818, Frederick Douglass broke free from bondage at the age
of twenty, making his way north under a false identity to New York
City, where he stopped to get married, and then on to the whaling
port of New Bedford, Massachusetts, where he found a job loading
ships. Before long he was attending abolitionist meetings and had soon
established himself as a force to be reckoned with inside the growing
movement to abolish slavery. Three out of the ten years since I left

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12 Ov e r ru l e d

you, I spent as a common laborer, Douglass wrote to Auld. It was


there I earned my first free dollar. It was mine. I could spend it as I
pleased.... That was a precious dollar to me.2
The story of his first paying job would appear frequently in Frederick Douglasss writings and speeches over the years, and with good
reason. At the center of his lifelong struggle for liberty and equality stood the principle of self-ownership, a concept that necessarily
included both the freedom to compete in the economic marketplace
and the right to enjoy the fruits of those labors. Slavery, as Douglass
understood all too well, obliterated such things, robbing its victims
not only of the products of their toil, but of their control over their
own bodies. Earning that first free dollar was therefore a milestone
in his life. As he described the event in My Bondage and My Freedom,
the second of his three autobiographies, I was now my own master
a tremendous fact.3
That tremendous fact of self-ownership, and the shattering repercussions that followed from it, would transform American law during
the course of the nineteenth century, first by undermining the legal
and moral foundations of the slave system, and then by inspiring a new
constitutional order to replace it. The centerpiece of that new order was
the Fourteenth Amendment to the U.S. Constitution. Drafted by the
Radical Republicans of the thirty-ninth Congress in 1866 and ratified
by the states in 1868, it declares: No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws. According to the author
of those words, antislavery Republican Congressman John Bingham
of Ohio, among the liberties now under protection from state abuse
was the right to work in an honest calling and contribute by your toil
in some sort to the support of your fellowmen, and to be secure in the

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T he R igh t of Fr e e L a bor

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enjoyment of the fruits of your toil.4 In other words, Bingham had


sought to enshrine the free labor philosophy of Frederick Douglass
within the text of the Constitution. As a corollary, the federal courts
would now be empowered to protect such rights from the grasp of
predatory state officials.
Yet in 1873, just five years after the Fourteenth Amendment went
into effect, a bare majority of the U.S. Supreme Court voted to strip it
of that meaning in one of the most consequential rulings in American
history, a decision known as The Slaughter-House Cases. At issue was
an act of the Louisiana legislature granting a private corporation the
lucrative authority to operate an exclusive central slaughterhouse for
the city of New Orleans for a period of twenty-five years. Although
framed as a public health measure, the monopoly law had every appearance of corruption and special-interest favoritism, particularly
in the eyes of the hundreds of local butchers whose economic livelihoods were suddenly at risk. It was an odious and burdensome monopoly... against common right and the common interest,5 argued
the lawyers for the Butchers Benevolent Association, the group whose
legal challenge helped spark the case. They had good reason to suspect
foul play. As the historian Charles Lofgren would later observe, legislative bribery had greased passage of the law, with its most immediate
beneficiariesthe seventeen participants in the corporation it establishedadroitly distributing shares of stock and cash.6
The Supreme Court, however, adopted a posture of judicial deference toward the state legislature and its corporate beneficiaries,
holding that the new Fourteenth Amendment offered virtually no
protection for individual rights against state authority. Government
officials remained free to control economic affairs as they saw fit. The
power here exercised by the state of Louisiana, observed the majority opinion of Justice Samuel F. Miller, has been, up to the present
period in the constitutional history of this country, always conceded to

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