A specter is haunting Europe,” Karl Marx and Frederick Engels wrote in 1848, as the first sentence of The Communist Manifesto. The specter they had in mind eventually became a political movement that came to dominate nearly half the world in the twentieth century. Behind this movement, however, lay an even more powerful idea that Marx had inspired—a Marxist conception of reality. The marketplace of economic relationships is not what it seems to be. Workers enter into seemingly voluntary contracts with employers, but underlying this system of apparent cooperation is a vast system of exploitation. Those who hold capital reap profits off the backs of those whom they hire as their laborers. This generates a dynamic of history that should, according to the theory, eventually produce a revolution by the exploited class of laborers. This theory failed to recognize the just contribution of capital in generating the opportunity to work, and the political incarnation of Marxism turned out to be historically more transient than expected. Nonetheless, the insight remains with us that relationships of employment—indeed all forms of relationship—require more than nominal consent to be legitimate. Behind the appearance of voluntary interaction there lurks the ever-present possibility of unjust exploitation.
The Marxist challenge was but the beginning of a continuing critique of the idea of freedom, so revered at the close of the eighteenth century. Behind the nominal appearance of freedom lies a structure of influence, a set of conditions that influences people to make the choices they do. Sometimes these influences are morally desirable. Peer group and family pressure can lead people to finish their university degree or to stay in difficult marriages or to remain loyal when tempted to act in self-interest. Looking back, individuals who make these choices under social influence are often grateful for the external inducement to do the right thing. Yet, economic and social conditions can also lead people to enter into socially and economically oppressive relationships, abusive marriages, and postures of dependence on drugs and alcohol. They can be induced to undress and prostrate themselves on stages in front of booths with one-way windows. The fact that people are influenced by others or their economic and emotional needs is, in itself, morally neutral, but the results can vary widely.
The Paradox of Freedom
This is the paradox of freedom in modern times. We still believe that freedom is the great contribution of American democracy to the culture of the West. “Freedom” was our rallying cry in the decades-long battle against the political enemy that Ronald Reagan labeled the “evil empire.” Although Martin Luther King, Jr. dreamed of a society committed to the proposition that would realize the American vision of equality under law, the word that would sound from the mountaintops would not be “equality” but “freedom.” “Let freedom ring,” King reminds us in the memorable refrain of his dream. In his choice of words, King harks back to Lincoln, who recognized our commitment to the proposition that all men are created equal but hoped that the emancipation would generate “a new birth of freedom.”
We may be willing to die in the name of freedom, but we can no longer pretend that we live in the uncomplicated moral world of the eighteenth century. In a post-Marxist world, we know that freedom requires more than the experience of choosing. We cannot escape our recognition that nominal freedom leads, sometimes, to exploitation and oppression.
The late eighteenth century was indeed a marvelously simplistic time. Adam Smith could write, in the same year as the Declaration of Independence, of the wonders of a free market, based on the voluntary cooperation of producers and consumers, and its invisible hand that would produce the maximum possible welfare for humankind.1 Immanuel Kant could glorify freedom in his theory of law, published in 1795, a theory based on the absolute right to enter into any contract that one chooses to make.2 And, of course, the great monuments to the eighteenth-century understanding of freedom are the Constitution and the Bill of Rights. These documents are revered because they are designed to protect the individual sphere of freedom from a presumptively aggressive and overreaching central government. The basic freedoms protected in the first Ten Amendments, ratified in 1791, include freedom of speech and the press, freedom of religion, the right to bear arms, the right to privacy against state intrusion in one’s home and papers, and a plethora of rights designed to protect suspects of crime against the federal government’s power to investigate and prosecute. All of these freedoms or rights are understood to be a matter of opposition of the individual against the government. They imagine a dyadic conception of government—the individual pitted against the state.
The significant feature of our basic freedoms—apart from the franchise and those that arise in the criminal process—is that we can imagine enjoying all of them in a state of nature. We do not need government in order to exercise our freedom of speech or religion, to bear arms or to be free of state intrusion in our homes. As these rights are formulated, government acquires the image of the interloper, the enemy, the potential violator of our freedom to do as we please.
And who do we fear will invade and intrude upon our island of freedom? At the time of the revolution, the fear was directed toward King George III and his colonial governors. In the newly established Republic, the fear was redirected toward the federal government. This dyadic opposition between individual and state underlies most constitutional thinking to this day. The fear of the federal government has grown into distrust toward all government. According to the official doctrine, the Bill of Rights only applies to limit “state action” encroaching upon individual liberty. As Akhil Amar recently formulated the idea, officials of the state are likely to act for their own benefit rather than the benefit of its citizens.3 Therefore, we must be eternally watchful against overreaching by the state. The purpose of the Constitution is to arm us with the legal means to check the tendency of the state—federal government and indeed all forms of government—to limit our natural freedom.
But there is another model of thinking that recognizes the paradox of freedom. If freedom can generate exploitation, then the task of the state should be to intervene to protect the individual against the exploitation by other private individuals. The paradigm of the exploitative, oppressive relationship in the American experience is, of course, slavery, and therefore in 1865, as the first task of the new constitutional order, we banned the very possibility of private relationships of slavery, established either by force or by consensual agreement between master and slave. The Thirteenth Amendment charges the federal government with the responsibility to make sure that neither “slavery” nor “involuntary servitude” shall come to exist in the United States. The amendment does not say that the state may not create relationships of subordination or slavery. It says simply that these private relationships, however they might come about, “shall not exist.” The important point about this formulation is not merely that it dispenses with the requirement of “state action.” It does that and more.
The Thirteenth Amendment betokens an entirely new way of thinking about government—not as an ever-threatening enemy, but as a necessary partner in the building of a society free of interpersonal exploitation. The focus of the Thirteenth Amendment is not on the potential evils of government but on the wrongs committed by private parties. Unjust private relationships do not cease existing just because one declares them not to exist. They can arise spontaneously, and in a state of nature some people would inevitably come to dominate others. The passive voice of “Neither slavery nor involuntary servitude shall exist” means that the government must be ever watchful, lest relationships of exploitation come into being.
The new function of government departs radically from the dyadic structure—the individual pitted against the state—underlying the Bill of Rights. The relationship of government to private individuals becomes triadic or three-cornered. The relationship arises between two private parties: slave owner and slave, dominator and subordinate, aggressor and victim. The third pole is the government, which must intervene to insure that the incipient relationship of “involuntary servitude” shall not exist.
A triadic relationship between two people and the government represents an entirely new kind of constitutional order. A dyadic focus takes the government to be the enemy. The triadic orientation accepts the government as a partner in conquering evil. The dyadic picture assumes that the desired form of liberty exists in a state of nature and it treats the transition to government as a threat to liberty. The triadic conception recognizes the evil of domination inherent in a state of nature and treats government not only as necessary to rid us of that evil but as a welcome partner in the effort to build a civilized society.
This difference in the attitude toward government parallels a different understanding of freedom and how it comes into being. The freedom celebrated by the Bill of Rights resembles an island of solitude, a retreat from society. Its ideal is the individual in the state of nature, intimated by Henry David Thoreau’s retreat to Walden Pond.4 The individual stands alone, fearful that a far-off agent called government will aggress against him and limit his freedom. But the liberty that comes to the fore in the intended postbellum constitutional order and under the Secret Constitution requires the intervention of government. Liberty is born in the state’s assertion of responsibility to oversee and prevent relationships of oppression. The relationship between rights and freedom is thus turned on its head. Those who identify with the Bill of Rights and the mentality of 1791 think of both rights and freedom as islands of autonomy protected by the walls of the law against the threat of government. The view that comes to the fore in the Secret Constitution recognizes that freedom as well as rights depend on the proper interaction with government. Government is not the enemy of freedom but rather the mechanism by which freedom is secured in a society that tends toward domination and oppression.
The assertion of a triadic conception of government brought us into line with the middle European conception of freedom as the privilege that arises from living in a matrix of protective state regulations. It is not nature but the law that makes us free. Freedom is realized not by the state’s absence but from the construction of a network of laws that liberate the individual from the oppression that would otherwise occur. Compulsory temperance and drug laws generate freedom for those who are able to stay clean. Prohibitions against sexual self-degradation and peep shows strengthen the inner freedom of our human selves.
This is the European conception of constitutional freedom. When the German Basic Law of 1949 declares human dignity to be the foundational value of the constitution, the implications run through all relationships that may come into being. This “third-party effect” means that private individuals are bound to respect the human dignity in each other, precisely as they are bound not to subject each other to relationships of involuntary servitude or, during Prohibition, not to sell each other alcoholic beverages. Today, men and women must avoid sexual harassment on the job, even though in this case the “third-party” effect arises not directly from the Constitution but from federal legislation.
An activist tripartite conception of government requires funding. Fighting a major military campaign to suppress the Southern insurrection required a stronger financial base than the government had needed up to that time. The war drove up spending from the customary 2 percent of the gross national product to 15 percent. (By comparison, in the early 1990s, government spending represented 20 percent of the GNP.)5 With no place left to turn, a Republican Congress approved the first income tax in 1862. By 1865, the income tax generated over 20 percent of federal revenue, the balance coming from tariffs and reintroduced excise taxes.
The Civil War income tax lapsed in 1872, and when the direct tax against income returned to the national agenda in the 1890s, the times were different. The disputes took on the tones of class struggle. This time, it was the Democrats who favored the tax as a measure of social justice. Many of the wealthy who were affected by the modest 2 percent tax denounced the measure as socialist. Almost immediately after the tax’s introduction, a challenge under the original Constitution made its way to the Supreme Court, where five of the nine justices were convinced that any form of income tax violated the prohibition against direct taxes not in proportion to the census.6 Progressive politics as well as the government’s demand for revenue generated a coalition that supported a constitutional amendment to reverse the decision of the Supreme Court. By 1913, the Sixteenth Amendment found the necessary three-fourths vote for ratification, and the income tax became a basic tool of modern state finance.
The origin of the income tax in the Civil War has largely symbolic meaning. It testifies to the government’s beginning to conceive of itself as an aggressive agent charged not only with winning a total war against states in insurrection but also with taking charge of the postbellum constitutional order that would be based on different premises from the social order of freedom and fear of government.
In the second founding of the United States, thirty-seven states constituted themselves as a single nation “conceived in liberty and dedicated to the proposition that all men are created equal.” The government would assume the task of supervising relationships in the commercial and private spheres to assay whether they were impermissible relationships of domination—relationships morally equivalent to “involuntary servitude.” The government was newly envisioned as a triadic structure powered by an activist, well-financed government. Unfortunately, the Supreme Court did not clearly get the message.
Two Conceptions
of Government
The tension between two conceptions of government—bipartite and tripartite—came to a head in a classic decision of the Supreme Court in 1905. The State of New York had enacted legislation designed to protect workers in the bakery trade. Among other provisions, the legislation limited the permissible hours of work to ten per day and sixty per week. The legislation was based rather clearly on the assumption that employees are at a serious bargaining disadvantage and cannot protect their interests adequately simply by negotiating the number of hours they want to work. The state was reaching out to the worker, motivated by compassion for those who lacked the bargaining leverage to limit their hours of employment.
The defendant, Lochner, was prosecuted under a provision of the statute that made it a misdemeanor to employ someone in excess of the limit. The Supreme Court concluded by a large majority that the statute violated the liberty of the employer and presumably of the employees as well—although the latter were not complaining about being prohibited from working too many hours.7 A majority of five on the Court read the notion of liberty in the due process clause (“no person shall be deprived of life, liberty, or property without due process of law”) as including freedom of contract. The dyadic structure prevailed. A similar analysis in the Peep Show case would have led to the conclusion that the women and their employers had the right to contract any form of self-exhibition they thought desirable. Any other result supposedly implies paternalism. Autonomy (if not dignity) requires freedom of contract as a basic right.
The alternative view of the case, winning support from four justices, including Oliver Wendell Holmes, Jr. and John Marshall Harlan, was that limiting hours of employment was a legitimate way for the state to exercise its responsibility to protect the health of those who chose to work as bakers. The dissent, written by Justice Harlan, explicitly addressed the problem of unequal bargaining power between owners and bakers:
It may be that the statute had its origin, in part, in the belief that employers and employees in such establishments were not upon an equal footing, and that the necessities of the latter often compelled them to submit to such exactions as unduly taxed their strength.8
Justice Holmes had the same point in mind when he wrote, apodictically, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”9 In other words, the principles of the free market economy need not be entrenched as a dimension of constitutionally protected liberty.
Lochner ranks among the more widely scorned decisions of the Supreme Court. The general complaint is that the Court ignored the interest of the state in furthering the health and welfare of its citizens. To put this objection in other terms, the opinion ignored the ascendancy of the tripartite conception of government. The issue remains with us—if only in a slightly different guise. Since the late 1930s, the principle of freedom of contract has given way to the propriety of the state and federal measures to protect working people on the job. Yet, the question of liberty and its potential abuse in an oppressive relationship remains a flash point of debate. Although the concept is not mentioned in the Constitution, the freedom to say “yes” or “no” to particular commercial relationships has become an essential dimension of personhood. It is as much a part of the basic liberty protected under the due process clause as the right to be free from unjustified physical restraint.
Freedom of contract enables individuals to express their personhood, but it also facilitates relationships of oppression, including “slavery and involuntary servitude.” After all, it is possible to choose to enter into a contract of slavery. The book of Exodus permits the purchase of a Hebrew slave, but after six years of service “he shall go out free, for nothing.”10 Yet, there are people, the Bible recognizes, who prefer the condition of servitude:
And if the servant shall plainly say, I love my master . . . I will not go out free, then his master shall bring him . . . to the door or to the door post, and his master shall bore his ear through with an awl and he shall serve him Forever.11
In this example, the servant chooses the condition of servitude. We know from the fate of many long-term prisoners that after a certain period they choose a life of dependence, free of the responsibility of caring for themselves. It is not impossible that someone might actually prefer the secure life of the slave to the anxious life of the free person who must care for himself.
There are two distinct grounds on which the law might sensibly prohibit the possibility recognized in Exodus. First, the claim might be that freedom and its blessings represent a great gift that no individual “made in God’s image” should be able to forfeit as though it were a disposable piece of property. Alternatively, the argument might be that in principle people have the right to choose to forego their freedom, but that in reality these choices are always influenced by personal necessities that becloud the choice actually made. This is especially true under market conditions, where the need for sustenance can drive people into relationships that they would not choose in and of themselves. It is clear that even the choice of the Hebrew slave discussed in Exodus can never be shown to be completely free. The legal arrangements also stipulate in the same passage that if during his period of servitude the slave acquired a wife or children, then he must leave them behind when he leaves his master’s service. Some purchased servants might decide to opt for permanent servitude simply because they cannot bear to live without their wives and family. The full text in the quoted passage reads: “I love my master, my wife, and my children, I will not go out free.”12 The cruelty of subjecting him to the choice between freedom and leaving his family obviously means that his choice is not free in any meaningful sense.
Under modern capitalism there are many conditions that render choices less than fully free. Material necessity is the most obvious. But, as we have learned from the history of alcohol and cigarette consumption, advertising and peer group influence can lead people to develop habits that they later regret. The same is true of heroin consumption, which may readily develop into a condition of dependency in which the addict may enjoy the illusion of freely choosing not a hole bored in his ear but rather numerous telltale holes bored in his veins.
The question of exploitation and manipulation of consent has shifted from the economic to the sexual arena. That is why the peep show case so beautifully captures our concerns about equality and human dignity. The right to enter the romantic and sexual relationship of one’s choosing is surely an important dimension of freedom. It includes the right to marry the person of one’s choice, to choose and act upon a sexual orientation, gay or straight, to enjoy (within appropriate limits) reproductive freedom, and to say “no” to sex if one is so inclined.
The law of rape has become a major battleground of American law. The central question has become whether nominal consent to sexual relations constitutes actual consent, deep agreement in the heart. As in the economic context, power tends toward exploitation. The problem is particularly acute when the party seeking sexual favors—usually a man—is in a position of authority over his desired partner. The most hotly debated cases are spun from skepticism about whether nominal consent actually generates the kind of voluntary relationship that should be regarded as an expression of freedom rather than of exploitation. The same is true of regulation of sexual harassment on the job. If the boss promises advancement or threatens disadvantaged treatment on the job, the appearance of complete and voluntary participation is readily undermined. So far, in the name of equality, we are willing to tolerate rather intrusive regulation of dating practices in corporate or university settings, but one can sense a coming backlash favoring the principle that students old enough to vote should be old enough to make a responsible decision about their sexual lives.13 Making it a crime or private action for damages for coworkers or costudents to have sexual relations would surely violate the right to sexual autonomy now recognized as an aspect of liberty protected by the due process clause.14
The problem of exploitation in apparently voluntary sexual relations has long been with us. In the late nineteenth century, the problem was whether the Mormon practice of polygamy should be regarded as protected as liberty and the free expression of religious conviction. Those who defended the institution, as provided in the accepted Mormon religious doctrines of the time, cited its social benefit of caring for all the women and children in a society in which the available men had fallen victim to the hardships of settlement and warfare. The critics, by contrast, claimed that the choice of the women in these cases is not really free and voluntary. John Stuart Mill, a great advocate of liberty, sided with the critics of polygamy.15 Western governments have had no qualms about prohibiting the practice, sometimes for parochial religious reasons, sometimes out of solicitude for women who are subjected to an institution that arguably diminishes their status. The Mormons sued, thinking they had the kind of argument that eventually prevailed in the Lochner case. In 1878, the Supreme Court upheld the conventional view that the prohibition represents permissible intervention by the state to protect the weak against entering into exploitative relationships.16 Many voices today argue that this decision was wrong. The freedom to choose any form of domestic arrangement one wants should prevail against the state’s concern to protect people against their own potentially bad choices.
The same problem recurs in the current debate over physician-assisted suicide. The argument for freedom and autonomy holds that individuals should be able to choose when and how to end their lives. If they need the assistance of a physician to be able to die with dignity, they should have that right. The contrary view stresses the dangers of manipulated consent. Once the possibility of voluntary euthanasia is recognized, the danger presents itself that terminal patients will encounter social and economic pressure to consent to an early and painless death. Again, the problem is whether choices are as free as they seem on the surface, or whether they represent the subtle pressures that lead us to think that the government should intervene to protect people from manipulation and exploitation.
The anchor for this new conception of government—a government that intervenes in private choices in order to protect individuals from exploitation—lies in the Thirteenth Amendment. Yet, it seems very ambitious to derive all of this from a black-letter prohibition against private arrangements of “slavery and involuntary servitude.” The fact is that we are not entirely sure how far we should extend the prohibition against unjust relationships of domination. At the time the amendment was enacted, it was fairly clear that the drafters and the public had a broad construction in mind, for the Thirteenth Amendment became the constitutional foundation in 1866 for the first Civil Rights Act—indeed, the Act that is still used today to prosecute those who, like the police who beat up Rodney King, engage in racially motivated deprivations of civil rights.17 Because the deprivations of civil rights were understood to be an instantiation of relationships of unjust domination, it is clear that the framers envisioned a new constitutional order much broader than merely business as usual, just without slavery.
Academic writers have found the Thirteenth Amendment a rich source for constitutional speculation. Some have claimed that the amendment goes so far as to require the government to be watchful and intervene against child abuse.18 Others have argued that the amendment offers convincing grounds for recognizing abortion rights. Requiring a mother to carry a child to term arguably amounts to an oppressive form of involuntary servitude.19 A third voice holds, much in line with the argument of this book, that the potential ambit of “involuntary servitude” includes all forms of employment and labor that are unjust and oppressive.20 These are imaginative readings, and others are possible.21
Some restraint is necessary. We have to be mindful of the prospect that the values of the Secret Constitution might play themselves out more effectively as the informal restraints of civil society rather than as binding rules of law. As we have seen, our impulse to promote religion, love for the nation, and “politically correct” speech seems to yield greater results when the state holds back and limits itself to a gentle nudge in the right direction. But, more significantly, we have to recognize that we are locked in ongoing contradiction between the values of our first and our second constitutions.
The first Constitution commits itself to freedom and the second builds both on a preference for equality and the recognition that freedom is often an illusion. The lovers of freedom want the government to keep its hands off, lest Big Brother’s intermeddling do more harm than good. The skeptics of the Secret Constitution place their trust not in the natural mechanisms of social interaction but in the judgment of a vigilant hierarchy.
The first Constitution plays on the theme of distrust in government. We must secure our freedoms against potentially abusive officials seeking “rents” by pursuing their own bureaucratic interests.22 The second constitution presupposes trust in an aggressive government, a watchdog of transactions that might slide into the forbidden territory of “involuntary servitude.” In this regard, public opinion seems to be at odds with the de facto tolerance of Americans for governmental action that is becoming ever more intrusive. The public supposedly suffers from declining trust in government.23 Yet, in fact, the average person tolerates actions by government that can make sense only on the assumption that those potentially affected by governmental abuse see Washington officials as their allies in a common struggle. A good example is the census and the popular reaction. The census form for the year 2000, like several before it, poses probing questions about racial and ethnic identity. The government wants to know how many blacks and other minorities live in particular sections of the country. The questionnaire imposes a detailed grid of racial variations on people who might otherwise simply have thought of themselves as Americans or perhaps as “minorities.” This information becomes relevant, it is said, to Justice Department officials monitoring the distribution of voting power in congressional districts.24
Americans would not cooperate in answering these questions if they did not trust the government not to misuse the collected information. There was a time when the government sought indirectly to find out how many Jews still spoke Yiddish at home. One can be sure that the purposes of early twentieth-century officials, ever concerned about swelling immigration patterns, were not benign. And yet, today the common assumption is that our officials may be trusted with a precise racial and ethnic map of the American nation. Popular attitudes even go beyond tolerance for the intrusion into our personal identities. Many people of multiracial backgrounds prefer to identify themselves as “black,” on the theory that it enhances the interests of the African- American population to appear as numerous as possible.25 For the government to serve as the vanguard of a new constitutional order, the people must trust officials in Washington with additional powers and run the risk of governmental abuse.
This trust makes sense—despite the surveys in which people report distrust—on the assumption that the nation chooses to cooperate in the ascendancy of the government as the watchdog of equality and popular democracy. The breach of equal treatment need not be feared, and information on the distribution of potential voting blocks serves the cause of securing fair representation of all major groups in American society.
Yet, the very effort to secure this fair representation of all voting groups threatens both the sense of common nationhood in the United States and calls into question the integrity of individual decision making in democratic elections. Encouraging people to identify themselves as hyphenated Americans encourages multicultural consciousness and generates a growing sense of puzzlement about what it means to say that all Americans are of a single nation. Also, the assumption that black candidates can be elected only by black voters places us on a path that we cannot pursue to a logical conclusion. It would hardly be consistent with the premises of popular democracy to consider—even as a thought-experiment—voting districts that consisted primarily of women or gays. The notion that particular groups are entitled to congressional representation merely as groups eventually runs squarely into the principle that in a democratic system individuals vote not as representatives of groups but solely as individuals. They have no duty to a hyphenated consciousness.
Yet, a trusted government can do much to remedy past discrimination and eliminate the badges of slavery. A new conception of government might yet emerge to realize the ambitions of Gettysburg, to ensure equality of all those “created equal” as it simultaneously promotes a “new birth of freedom.” It is as though nothing has been resolved. When the pursuit of equality begins to encroach upon our basic freedoms we are unsure where to turn.
