Posted by Randy Barnett:
The so-called "Lochner Court" and the Thirteenth Amendment:
http://volokh.com/archives/archive_2009_01_11-2009_01_17.shtml#1232174439
In his post yesterday on the new Thirteenth Amendment case Matter of
Vinluan v. Doyle, Eugene noted that the decision rested on on "several
Supreme Court cases from the first half of the 1900s, such as Pollock
v. Williams (1944)." More significant for me is that it cited and
quoted from Bailey v. Alabama (1911), a decision by the so-called
Lochner Court reviving the Thirteenth Amendment. Since this was the
Court that presided during the Progressive Era, I think we should call
this the "Progressive Era Court," in the same way we refer to the "New
Deal Court."
That Bailey was decided by the same Court as decided Lochner is
significant in several respects. First, and most obviously, it belies
the notion that the Court in this era was particularly insensitive to
the weak. While the Civil Rights Revolution and the Second
Reconstruction came decades later, when compared with the
Reconstruction Era Court that gutted the Thirteenth and Fourteenth
Amendments, culminating with Plessy v. Ferguson, in Bailey, the
Progressive Era Court was ahead of its time.
The second reason why Bailey is significant is that it departed
markedly from the method adopted in Plessy in which the public
interest rationale for a state law was presumed. Indeed, the Plessy
Court never even articulated the public interest the segregation
statute was supposed to accomplish; and it examined the statute
separating the races without any consideration of the context in which
it was enacted to subordinate blacks to whites. In contrast, the Court
in both Lochner and Bailey took a more "realistic" approach by
considering the rationales and operations of these statutes in
context, revealing a potentially illicit purpose. Here is the language
quoted from Bailey in Vinluan
Compelling the performance of labor through legal coercion was at
issue in three cases decided by the United States Supreme Court in
the first half of the last century, Pollock v. Williams (322 US 4),
Taylor v. Georgia (315 US 25), and Bailey v. Alabama (219 US 219).
In all three cases, the Supreme Court struck down state laws which
criminalized the failure to perform a contract for labor or
services for which an advance had been received. The challenged
statutes all made a worker's mere failure to perform services for
which money had been obtained prima facie evidence of an intent to
defraud. In the first of the three cases addressing this issue,
Bailey v Alabama, the Supreme Court explained that while the
ostensible purpose of the statute under review was to punish fraud,
"its natural and inevitable effect is to expose to conviction for a
crime those who simply fail or refuse to perform contracts for
personal service in liquidation of a debt." Continuing its
analysis, the Bailey Court stated that "[w]hat the state may not do
directly it may not do indirectly. If it cannot punish the servant
as a criminal for the mere failure or refusal to serve without
paying his debt, it is not permitted to accomplish the same result
by creating a statutory presumption which, upon proof of no other
fact, exposes him to conviction and punishment. Without imputing
any actual motive to oppress, we must consider the natural
operation of the statute here in question . . . and it is apparent
that it furnishes a convenient instrument for the coercion"
forbidden by the Thirteenth Amendment (id. at 244).
Oh, and there is one more reason why Bailey is significant: The great
Justice Oliver Wendell Holmes Jr., hero to so many Progressives back
then and today still revered by progressives and judicial
conservatives alike; whose dissent in Lochner and other Progressive
Era cases earned him the title of "The Great Dissenter"; well, that
Justice also dissented in Bailey v. Alabama, in favor of upholding
states' rights:
Breach of a legal contract without excuse is wrong conduct, even if
the contract is for labor, and if a state adds to civil liability a
criminal liability to fine, it simply intensifies the legal motive
for doing right; it does not make the laborer a slave. But if a
fine may be imposed, imprisonment may be imposed in case of a
failure to pay it. Nor does it matter if labor is added to the
imprisonment. Imprisonment with hard labor is not stricken from the
statute books. On the contrary, involuntary servitude as a
punishment for crime is excepted from the prohibition of the
Thirteenth Amendment in so many words. Also, the power of the
states to make breach of contract a crime is not done away with by
the abolition of slavery. But if breach of contract may be made a
crime at all, it may be made a crime with all the consequences
usually attached to crime. There is produced a sort of illusion if
a contract to labor ends in compulsory labor in a prison. But
compulsory work for no private master in a jail is not peonage. If
work in a jail is not condemned in itself, without regard to what
the conduct is it punishes, it may be made a consequence of any
conduct that the state has power to punish at all. I do not blink
the fact that the liability to imprisonment may work as a motive
when a fine without it would not, and that it may induce the
laborer to keep on when he would like to leave. But it does not
strike me as an objection to a law that it is effective. If the
contract is one that ought not to be made, prohibit it. But if it
is a perfectly fair and proper contract, I can see no reason why
the state should not throw its weight on the side of performance.
If someone took an advance payment for a long term contract for labor
and breached, the statute in Bailey presumed an intention to defraud
at the time the payment was received, thereby supplying the requisite
mens rea for criminal punishment. This was one of the many inventive
ways that Southern whites reimposed the incidents, if not the badges,
of slavery on blacks after the Reconstruction Era Supreme Court
defeated Congressional Republicans' efforts to secure civil rights,
and ruthless Southern terrorism undermined the political resolve of
the North to protect the rights of either the freedman or white
Southern Republicans.
Unlike the majority, Holmes thought this statutory scheme was just
fine:
But the import of the statute is supposed to be changed by the
provision that a refusal to perform, coupled with a failure to
return the money advanced, shall be prima facie evidence of
fraudulent intent. I agree that if the statute created a conclusive
presumption, it might be held to make a disguised change in the
substantive law. But it only makes the conduct prima facie evidence
-- a very different matter. Is it not evidence that a man had a
fraudulent intent if he receives an advance upon a contract over
night and leaves in the morning? I should have thought that it very
plainly was. Of course, the statute is in general terms, and
applies to a departure at any time without excuse or repayment, but
that does no harm except on a tacit assumption that this law is not
administered as it would be in New York, and that juries will act
with prejudice against the laboring man. For prima facie evidence
is only evidence, and as such may be held by the jury insufficient
to make out guilt. This was decided by the Supreme Court of Alabama
in this case, and we should be bound by their construction of the
statute even if we thought it wrong. But I venture to add that I
think it entirely right. This being so, I take it that a fair jury
would acquit, if the only evidence were a departure after eleven
months' work, and if it received no color from some special well
known course of events. But the matter well may be left to a jury,
because their experience as men of the world may teach them that,
in certain conditions, it is so common for laborers to remain
during a part of the season, receiving advances, and then to depart
at the period of need, in the hope of greater wages at a
neighboring plantation, that, when a laborer follows that course,
there is a fair inference of fact that he intended it from the
beginning. The Alabama statute, as construed by the state court and
as we must take it, merely says, as a court might say, that the
prosecution may go to the jury. This means, and means only, that
the court cannot say, from its knowledge of the ordinary course of
events, that the jury could not be justified by its knowledge in
drawing the inference from the facts proved. In my opinion, the
statute embodies little if anything more than what I should have
told the jury was the law without it. The right of the state to
regulate laws of evidence is admitted, and the statute does not go
much beyond the common law. [citations omitted]
Who did Holmes think sat on juries in Alabama? All in a day's work for
the Great Dissenter.
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