A Founding Failure of Enforcement: Freedmen, Day Laborers, and the Perils of an Ineffectual State

City University of New York Law Review, Dec 2014

By Raja Raghunath, Published on 12/31/14

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A Founding Failure of Enforcement: Freedmen, Day Laborers, and the Perils of an Ineffectual State

A Founding Failure of Enforcement: Freedmen, Day Laborers, and the Perils of an Ineffectual State Raja Raghunath 0 1 0 University of Denver 1 The C UNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact , USA - Raja Raghunath † CONTENTS 48 50 50 53 59 As the descent from the heights of our most recent rights revolution continues apace, there is a cautionary lesson contained in the aftermath of the passage of the Thirteenth Amendment and the abolition of chattel slavery, 150 years ago this year. Reconstruction was the moment when the promise of universal liberty to work first became part of the American state’s covenant with its people. But this promise was quickly lost, and the rights that the federal government had extended to the freed slaves – the freedmen – were contested and eventually nullified by vehement opposition in the working fields and cities of the South. In this sense, workers’ rights were the original civil rights, and the Freedmen’s Bureau, the original federal labor rights agency, was a founding failure of enforcement. This article argues that enforcement efforts today must take from this history an increased focus on the labor standards of low† Assistant Profesor, University of Denver Sturm College of Law; J.D. University of Michigan Law School; B.A., Duke University. CUNY LAW REVIEW wage workers, in particular the unauthorized immigrants among them. The presence of a largely unauthorized workforce in a labor market, such as in day labor and domestic work, is a reliable sign that the most vulnerable workers may be found there. By focusing on these most vulnerable workers, government enforcement efforts can help overcome the collective action problem that is created by any system of minimum labor standards. The exploitation of vulnerable workers is the common behavior that has persisted through the centuries, and while some of its premises may have shifted, it remains the very wrong that our equal rights at work were originally designed to combat. INTRODUCTION The origins of the rights enjoyed by today’s workers lie nearly one hundred and fifty years ago, in Reconstruction, the war after the Civil War.1 The United States passed the first laws requiring the equal treatment of black Americans during Reconstruction, laying the groundwork for the universal rights guarantees of the twentieth century.2 But the federal government’s failure to enforce these laws helped to nullify the promise of equality that was made by the abolition of slavery, and usher in a long dark period for workers’ rights in the United States. Today, the descendants of these pioneering civil rights laws find their highest purpose when used to once again protect the workers most vulnerable to exploitation by modern economic actors: unauthorized immigrants, the laboring portion of the American shadow economy.3 This article argues that an important lesson of Reconstruction 1 See, e.g., Reconstruction: The Second Civil War, (PBS television broadcast 2004). 2 See KATE MASUR, AN EXAMPLE FOR ALL THE LAND: EMANCIPATION AND THE STRUGGLE OVER EQUALITY IN WASHINGTON, D.C. 6 (2010) (“Even before the war, theories of individual rights and contract were replacing local traditions that stressed standing and collectivity. The rise of the Republican vision of free labor ideology, the Union victory, and the raft of federal legislation and constitutional amendments that followed the war all magnified this trend. Indeed, it is a commonplace that postwar legal changes at the federal level laid the groundwork for the modern state and for a new vision of individual rights.”). 3 See MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA 2 (2004) (“Employed in western and southwestern agriculture during the middle decades of the twentieth century, today illegal immigrants work in every region of the United States, and not only as farmworkers. They also work in poultry factories, in the kitchens of restaurants, on urban and suburban construction crews, and in the homes of middle-class Americans. Marginalized by their position in the lower strata of the workforce and even more so by their exclusion from the polity, illegal aliens might be understood as a caste, unambiguously situated outside the boundaries of formal membership and social legitimacy.”). 2014] A FOUNDING FAILURE OF ENFORCEMENT 49 should be that, if the government is going to set a lower boundary of labor standards that apply to all, it has to be prepared to police that boundary, lest it become too porous and thereby allow too many to fall through into the world of unregulated employment below.4 The low-wage workforce of unauthorized immigrants is hugely consequential to American household prosperity and the nation’s macroeconomic strength.5 As the workplace rights of today, granted to us in prior generations, continue to wane, whether these rights can be asserted by t (...truncated)


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Raja Raghunath. A Founding Failure of Enforcement: Freedmen, Day Laborers, and the Perils of an Ineffectual State, City University of New York Law Review, 2014, Volume 18, Issue 1,