1985 Wis. L. Rev. 767 (1985)
The Ambiguities of Free Labor: Labor and the Law in the Gilded Age

handle is hein.journals/wlr1985 and id is 781 raw text is: ARTICLES
THE AMBIGUITIES OF FREE LABOR: LABOR AND THE
LAW IN THE GILDED AGE
William E. Forbath*
In this Article, Professor William E. Forbath takes the Slaughter-House
Cases as a point of departure for considering the state and federal courts' and
the labor movement's competing interpretations of the republican conception of
free labor during the decades following the Civil War. While received accounts
of this period treat the triumph of corporate capitalism by the end of the centu-
ry as economically and technologically inevitable, Professor Forbath argues that
many possible industrial futures vied with one another and the outcome was a
contingent one. One central aspect of these battles lay in the struggle waged in
the courts and political culture over the meaning of the republican legacy. The
courts found freedom of contract, shared by workers and industrialists, as a
constitutional bar to legislation they deemed paternalistic. Organized labor,
however, repudiated liberty of contract as wage slavery and forged an al-
ternative republican constitutionalism and an alternative vision of industrial
cooperation. Professor Forbath thus recovers a democratic and communitarian
vision of the Constitution which was as rooted in tradition as was the liberal
orthodoxy that prevailed.
TABLE OF CONTENTS
I.       INTRODUCTION: THE GUILDED AGE'S INDUSTRIAL
CONFLICTS AND THE INEVITABLE PATH TO THE PRESENT                   768
II.      LIBERTY OF CONTRACT AND THE AMBIGUITIES OF
FREE LABOR: A READING OF FIELD'S SLAUGHTER-
HousE OPINION AND ITS PROGENY                                      772
A.       The North's 'Free Labor Ideology: A
Background to Field's Opinion and His Concept
of the Right of Free Labor                               773
B.       Field's Cite to Adam     Smith: A   Second Concept
of Free Labor. . . and the Civil War
Construed As A      Bourgeois Revolution                   779
C.       Abolitionism    and the Moral Validation of
Liberty of Contract                                        782
D.       Class Conflict, the Unraveling of 'Free Labor
Ideology and the Rise of a New        Liberalism         786
E.       Slaughter-House's Progeny                                  795
III.     THE REPUBLICAN CONSTITUTION AND THE MEANING OF
FREE LABOR IN WORKING CLASS CULTURE                              800
A.       The Social Origins of Working Class
*Acting Professor of Law, UCLA School of Law. For their warm encouragement,
strong criticisms, and invaluable teaching and conversation, the author thanks Judy Coffin,
William Alford, Craig Becker, Mitchell Bernard, Robert Cover, David Brion Davis, Owen
Fiss, Eric Foner, Pauline Forbath, Theodore Forbath, Tom Forbath, Duncan Kennedy, Da-
vid Montgomery, William Nelson, David Scobey, Steven Shiffrin, and Amy Stanley.

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