Colorblindness and Liberal Racial Paternalism in Bailey v. Alabama

Noah Zatz – 

Anyone familiar with Bailey v. Alabama understands that it was a case about racial domination in the Jim Crow South. Lonzo Bailey was a Black agricultural laborer who quit his job with a white farmer. For that, a white legal system convicted him of a crime. The prosecution was characteristic of an effort throughout the post-Civil War South to reestablish the brutal exploitation of Black labor in the aftermath of chattel slavery’s formal abolition. The Supreme Court Justices who sided with Bailey surely knew this, too.  And yet they went out of their way to deny it.

This willful, absurd denial makes Bailey an excellent vehicle for critical engagement with colorblindness rhetoric, including the limits of formally race-neutral legal doctrine as a means to address racial inequality. In particular, we can see in Bailey a particular and pernicious dynamic by which, constrained by colorblindness, liberal efforts to remedy racial injustice turn to a form of racial paternalism (terminology I adapt from a forthcoming essay by historian Nathan Connolly). Rather than treating state intervention as correcting the exploitation of systemic racial imbalances of power, racial paternalism treats legal protection as an exceptional intervention on behalf of the incompetent, often relying on the same racial stereotypes that underwrite the exploitative practice at issue.

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California Bans the Box, Twice

Noah Zatz – 

A core LPE theme is the construction of markets through political choices institutionalized in law. Those choices create an economy structured by whatever matters politically, including race. My Bailey series has been developing this theme in connection to the criminal regulation of work, in particular the use of criminal punishment to compel work. The more familiar racialized criminal justice/labor interaction concerns how the state marks individuals with criminal records, which employers then use to deny work.

Over at OnLabor, I’ve got two new posts up on some of the more technical aspects of using employment discrimination law to counter criminal records exclusions. The first one flags a familiar rules vs. standards problem in deciding when criminal record screening is permissible. The second one explores what kinds of evidence appropriately demonstrate the disparate racial impact of criminal record exclusions. In both cases, my jumping off point is innovative new regulations issued under California’s state employment discrimination law.

At some point I will share some thoughts on how these coercive and exclusionary dynamics work together.

Is “the Market” the Enemy?: Racial Exploitation in Bailey v. Alabama

Noah Zatz –

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“In our current moment, anticapitalism and struggles against state violence and incarceration tend to be separate movements.” So wrote renowned historian Robin D.G. Kelley recently in a new preface to his classic book Hammer and Hoe, which examines the largely Black Communists of early-mid 20th century Alabama. Kelley’s protagonists, in contrast, saw struggles against economic inequality and exploitation and also against specifically racialized state violence as “inextricably bound together.” This same milieu produced the groundbreaking 1911 case of Bailey v. Alabama. There, the Supreme Court struck down under the Thirteenth Amendment Alabama’s use of criminal law to hold Black workers in peonage.

This post extends my prior treatment of Bailey. My focus here is on Bailey as a case study in “racial capitalism”, and I want to challenge specifically the common conflation of all things “economic” with the outcomes of “markets,” even markets understood in Legal Realist fashion to be structured by laws of property and contract. Like Kelley, I do this with one eye on the contemporary, and in particular on the separation between critiques of “precarious work” in today’s labor markets and those aimed at our racialized carceral state.

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State Power and the Construction of Contractual Freedom: Labor and Coercion in Bailey v. Alabama

Noah Zatz – 

If forced to choose, I might pick Bailey v. Alabama as my favorite contract law case. That is, if it even counts as one. Which is pretty much my point. Decided in 1911, Bailey is a criminal case – Lonzo Bailey was convicted for fraud.  It is also a constitutional case – the Supreme Court struck down the conviction as violating the Thirteenth Amendment’s prohibition of involuntary servitude. A labor case, too – the criminal statute specifically targeted workers who took advances on wages and then later quit before paying the debt. And a race case, though the Court denied it – Alabama’s “false pretenses” statute was one cog in the wheel of Jim Crow neoslavery. But yes, also a contracts case (in a libertarian’s casebook, no less!) because the Court used the case to erect a boundary between criminal and civil consequences for breach of contract.

This overflowing of conventional doctrinal boundaries makes Bailey the perfect vehicle to deliver key insights of a Law & Political Economy approach. So much so that I will do it over multiple posts.

In this first installment, Bailey punctures the ubiquitous conceit that there is or could be an autonomous sphere of economic life – “the free market” – that stands apart from politics, from contests over whether and when to authorize the coercive exercise of governmental power. That contrast between economic freedom and political power is ubiquitous, as in the language contrasting “private” law with government “intervention” in the market (via “public” law). This conceit renders unremarkable what might seem contradictory: a ubiquitous politics that abhors government regulation (of “the economy”) yet thirsts for a state that is “tough on crime.” Continue reading

Thinking Intersectionally About Race and Class in the Trump Era

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Noah Zatz –

More than a year after the 2016 election, progressive analysis and strategy continue to be limited by the ping and pong of class-not-race and race-not-class accounts, and recriminations they provoke. Understanding what happened and charting a way forward require an alternative, a thoroughly intersectional analysis of race and class. On such a view, taking race seriously is necessary to understand how class works, not to diminish its importance.

“Intersectionality” risks depletion with its rise as a buzzword, but I mean to invoke specific insights animating the pathbreaking work of Kimberlé Crenshaw and other feminist scholars of color. In particular, they argued that understanding race and racial oppression requires an analysis of how race is gendered and gender is racialized. As Sarah Haley argues in a recent tour de force in this tradition, “gender is constructed by and through race.” So, too, we cannot understand and respond to the racism on display in the 2016 election and since without understanding its intersection with class, and how class is constructed by and through race.

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