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
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Raja Raghunath †
CONTENTS
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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
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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)