In a class I am taking that focuses on constitutional law, we have spent the first two weeks focusing on state action and consequentially the Fourteenth Amendment, from the initial limitations prescribed by the Civil Rights Cases in 1883 to the synthesis of the Edmonson-Lugar rule, which defines when private conduct constitutes state action (in the Edmonson case, this involved a private corporation being sued for personal injury damages using peremptory challenges to get ride of two Black people from the jury. Because the jury is a state function, and peremptory challenges have no use outside of the courtroom, and finally because being discriminated against by a jury after being discriminated against by the corporation would be an aggravation of the injury facilitated by the state, it constitutes state action. If you could not tell from this complicated process (and particularly the Shelley v. Kraemer factor in the rule is something that confuses even learned legal scholars), placing private action in the public sphere of deserving protection from discrimination is arduous and limited. We actually worked through a number of state action cases, including Edmonson, before we got to the Civil Rights Cases. And the professor had us do a rather illuminating exercise, where we hypothetically went back in time and could write the majority opinion ourselves based on our own interpretations. When I did this, I certainly had a more open interpretation of the 14th amendment is necessarily limited by its language:
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.
Michael Parenti has a fascinating lecture on the real history of fascism, and one of the many assertions he makes about the misconceptions of fascism is that it was intentionally spurred by the actions and investment of global capitalists, from German captains of industry to infamously IBM, Coca-Cola, and Henry Ford. And then Parenti compares many of the tactics to those used by Ronald Reagan. But he makes sure to state that he is not asserting that Reagan was a fascist. After all, rather than pushing for a state cult like the Third Reich, Reagan appointed as many people into positions of power as he could that did not believe in the functions of government they were supervising. From the perspective of the United States entrance into World War II, it was a competition to see which form of capitalism would win: one with a state to strong-arm the working class vs. one with a state that passively allows private actors to strong-arm the working class. The 14th Amendment is a great example of this capitalist state theory, and it should be noted that the decision to weaken the 14th Amendment was made by the moderate section of abolitionists. Conversely, the radical abolitionists like Frederick Douglass, Thaddeus Stevens, and Wendell Phillips were all outraged by the limitations of these amendments. And Representative John A. Bingham, author of the amendment, would garishly reveal his political allegiances when he was implicated in the Credit Mobilier scandal.
As a Trotskyist, I believe in a transitional programme, including with the way I study (and hopefully one day practice) the law. Of course it is vital for us to be autonomous from the capitalist system in order to present a true, rather than assimilatory, alternative, but I want to learn how to use the capitalist law in ways that can build working class consciousness and movement. Needless to say, the limitations of the Fourteenth Amendment were rather disheartening. But that is only one portion of the Civil Rights Cases: they also made a case for the Thirteenth Amendment not offering protection to the legislation either. The Thirteenth Amendment, while including that unfortunate provision on carceral slavery, is far more powerful in that it does not require state action: it prohibits slavery for all parties. Unquestionably this Amendment was the greatest legal victory by the abolitionist movement. But in the Civil Rights Cases, the majority opinion makes the case that the discrimination against free Black peoples before the abolition of slavery demonstrates that anti-Black discrimination is not a “badge or incidence” of slavery. With the current historical record, and of course not viewing it through a lens of perpetuating white supremacy, we know this to be an utter falsehood, as the state-instituted forms of anti-Black discrimination dealing with public accommodations specifically arose in order to dehumanize Black people and thus make them ideal subjects for chattel slavery. And the Black Codes in particular still influence modern anti-Black discrimination today.
Seeing how completely the Civil Rights Cases Thirteenth Amendment arguments could be dismantled, I wondered why we see so little modern day uses of the Thirteenth Amendment. When I asked my professor about this, one part of her answer was to look at the peonage cases. While there are plenty of cases that exemplify the grotesque labor conditions of the South for Black workers, I am going to focus on the case of Pollock v. Williams because of the then Attorney General’s interpretation of it having major implications for the development of capitalism following the loss of the chattel slavery labor source. Florida had a state statute, making it a crime to leave a job without repaying an advance made by the employer to the worker. We continue to see this method of peonage used today in both legal (i.e. crowdworking per its initial labor investment in marketing oneself and bidding for jobs) and black market contexts (i.e. human trafficking in which the laborer is “indebted” to the person who provided them transportation to the country they work in). The Supreme Court struck down Florida’s statute, saying that the purpose of the Thirteenth Amendment went beyond the restrictive context of disallowing slavery; the Court stated that the Thirteenth Amendment was meant to “maintain a system of completely free and voluntary labor throughout the United States.” Attorney General Biddle took this opinion a step forward: as Risa L. Goluboff writes, Biddle believed the Thirteenth Amendment “meant the creation and protection of a unitary, national labor market.” Herein we see the capitalist motivation for Attorney General Biddle to go after peonage laws: like fascism on a macro-scale, peonage laws were meant to entrust the state with steering the labor market in ways that privileged corporations. Biddle foresaw that this methodology would create economic crisis as chattel slavery had done before it. His motivation was largely what David Harvey describes as capitalism’s tendency to move around, rather than solve, its economic crises. As Marxists we of course know that no matter how unitary or nationally-cohesive, capitalism will always bring itself to crisis again.
Nevertheless, the struggle against peonage laws (and it should be noted there were huge community forces behind this resistance as well) fits into a transitional programme regardless of the capitalists. As noted by Jennifer Roesch, “a discussion of the relationship between racism and capitalism has never been more relevant [than today].” Because of how pervasively anti-Black racism under-girds United States capitalism, it is necessary to prioritize targeting those racist structures even if it fails to create an alternative to capitalism in the short-term. For this reason, I think the next big 13th Amendment cases lie in going after these “crowdworking” companies. “Crowdworking” is the neoliberal globalization of the peonage system, only disguising the “advance” as a payment through labor rather than a payment through currency. It conforms with Biddle’s idea of a unitary, though international rather than national, labor market. Thus it is clearly an action to build further consciousness, rather than repeating the actions and frameworks of Biddle. Certainly it is a more complicated issue than this simple brief outline, but I sincerely hope that with the success of the Black Lives Matter movement will come a renewed interest in dismantling the racist exploitation in capitalist labor markets using the Thirteenth Amendment.
Habeas Quaestus 