A Positive Right to Free Labor

This Article seeks to resurrect a lost thread in our civil rights tradition: the idea that workers have a positive right to free labor. A positive right to free labor includes the right to work for a living wage free of undue coercion and free from discrimination based on immutable characteristics. Not merely the negative guarantee against the state's infringement on individual equality and liberty, a positive right to free labor is immediately enforceable against state and private parties. A positive right to free labor is rooted in the Thirteenth Amendment of the Constitution, which prohibits slavery and involuntary servitude and provides a substantive guarantee of equality and liberty to all people. It is enforced primarily not by courts but by political actors. This Article explores the roots of the Thirteenth Amendment and the confluence of antislavery and pro-workers' rights activism in antebellum America to understand the meaning of that Amendment's abolition of slavery and involuntary servitude. The nineteenth century was a transformative century in both the conditions and the law of labor, and the shift from a paradigm of unfree to free labor was central to the Reconstruction Era effort. As part of that effort, the Thirteenth Amendment played a pivotal role in transforming the law of labor. A positive right to free labor was revived during the New Deal Era, when the definition of civil rights in our country was in flux. A positive right to free labor starts with this transformative promise of the Thirteenth Amendment and seeks to envision what our civil rights law would be like if workers were its primary subject