one

“ t h e r i g h t O f f r e e l a b O r ”

on SepTember 3, 1848, To mark The tenth anniversary of his escape from slavery, the abolitionist

leader Frederick Douglass addressed an open letter to his old

master, a man named Thomas Auld. “I have often thought I should like

to explain to you the grounds upon which I have justified myself in run-

ning away from you,” Douglass wrote. The morality was simple. “You are

a man, and so am I. . . . In leaving you, I took nothing but what belonged

to me, and in no way lessened your means for obtaining an honest living.”1

Born into slavery in Talbot County, Maryland, sometime in Feb-

ruary 1818, Frederick Douglass broke free from bondage at the age

of twenty, making his way north under a false identity to New York

City, where he stopped to get married, and then on to the whaling

port of New Bedford, Massachusetts, where he found a job loading

ships. Before long he was attending abolitionist meetings and had soon

established himself as a force to be reckoned with inside the growing

movement to abolish slavery. “Three out of the ten years since I left

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12 Ov e r rul e d

you, I spent as a common laborer,” Douglass wrote to Auld. “It was

there I earned my first free dollar. It was mine. I could spend it as I

pleased. . . . That was a precious dollar to me.”2

The story of his first paying job would appear frequently in Fred-

erick Douglass’s writings and speeches over the years, and with good

reason. At the center of his lifelong struggle for liberty and equal-

ity stood the principle of self-ownership, a concept that necessarily

included both the freedom to compete in the economic marketplace

and the right to enjoy the fruits of those labors. Slavery, as Douglass

understood all too well, obliterated such things, robbing its victims

not only of the products of their toil, but of their control over their

own bodies. Earning that “first free dollar” was therefore a milestone

in his life. As he described the event in My Bondage and My Freedom,

the second of his three autobiographies, “I was now my own master—

a tremendous fact.”3

That tremendous fact of self-ownership, and the shattering reper-

cussions that followed from it, would transform American law during

the course of the nineteenth century, first by undermining the legal

and moral foundations of the slave system, and then by inspiring a new

constitutional order to replace it. The centerpiece of that new order was

the Fourteenth Amendment to the U.S. Constitution. Drafted by the

Radical Republicans of the thirty-ninth Congress in 1866 and ratified

by the states in 1868, it declares: “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.” According to the author

of those words, antislavery Republican Congressman John Bingham

of Ohio, among the liberties now under protection from state abuse

was “the right to work in an honest calling and contribute by your toil

in some sort to the support of your fellowmen, and to be secure in the

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“ t h e r igh t Of f r e e l a bOr ” 13

enjoyment of the fruits of your toil.”4 In other words, Bingham had

sought to enshrine the free labor philosophy of Frederick Douglass

within the text of the Constitution. As a corollary, the federal courts

would now be empowered to protect such rights from the grasp of

predatory state officials.

Yet in 1873, just five years after the Fourteenth Amendment went

into effect, a bare majority of the U.S. Supreme Court voted to strip it

of that meaning in one of the most consequential rulings in American

history, a decision known as The Slaughter-House Cases. At issue was

an act of the Louisiana legislature granting a private corporation the

lucrative authority to operate an exclusive central slaughterhouse for

the city of New Orleans for a period of twenty-five years. Although

framed as a public health measure, the monopoly law had every ap-

pearance of corruption and special-interest favoritism, particularly

in the eyes of the hundreds of local butchers whose economic liveli-

hoods were suddenly at risk. It was “an odious and burdensome mo-

nopoly . . . against common right and the common interest,”5 argued

the lawyers for the Butchers Benevolent Association, the group whose

legal challenge helped spark the case. They had good reason to suspect

foul play. As the historian Charles Lofgren would later observe, “legis-

lative bribery had greased passage of the law, with its most immediate

beneficiaries—the seventeen participants in the corporation it estab-

lished—adroitly distributing shares of stock and cash.”6

The Supreme Court, however, adopted a posture of judicial def-

erence toward the state legislature and its corporate beneficiaries,

holding that the new Fourteenth Amendment offered virtually no

protection for individual rights against state authority. Government

officials remained free to control economic affairs as they saw fit. “The

power here exercised” by the state of Louisiana, observed the major-

ity opinion of Justice Samuel F. Miller, “has been, up to the present

period in the constitutional history of this country, always conceded to

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