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Colorblindness and Liberal Racial Paternalism in Bailey v. Alabama


Noah Zatz (@NoahZatz) is Professor of Law at UCLA School of Law.

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.

As discussed in previous posts here and here, the question at the heart of Bailey was whether the Thirteenth Amendment prohibited criminal prosecution based upon the bare fact of quitting employment. Under the law in question, a worker committed a crime by leaving employment before paying off a debt owed to his employer. The criminal penalty bolstered a debt peonage system: Laborers would receive an advance on their wages and then, throughout a fixed term of employment, incur regular deductions from subsequent wage payments until the debt was repaid.

The Court begins its opinion with an ostentatious denial that race has any relevance to the case:

We at once dismiss from consideration the fact that the plaintiff in error is a black man. . . . The statute, on its face, makes no racial discrimination, and the record fails to show its existence in fact.  No question of a sectional character is presented, and we may view the legislation in the same manner as if it had been enacted in New York or in Idaho.

The Court labors to disconnect its analysis from the case’s social and institutional context. This is another aspect of the opinion’s unsatisfying formalism discussed in the first post in this series. In particular, it renders opaque two key points that are essential to the Court’s conclusion that the Alabama law condemned workers like Bailey to involuntary servitude.

The first point concerns the present involuntariness principle: Thirteenth Amendment “involuntariness” can arise from compulsion to continue working, regardless of any prior voluntary commitment by the worker to perform such work. That is why Bailey’s contractual promise to work did not defeat his Thirteenth Amendment claim.

The second point concerns the insufficient alternative principle: work is rendered involuntary where nonwork is met with coercion—here, criminal prosecution—even if that coercion could, in principle, also be avoided by choosing some meaningless or inappropriate alternative to work. In the peonage cases, that alternative to work or punishment was paying off the debt.

It is Bailey’s Jim Crow context that make these principles compelling as applied. Black workers’ entry into such contracts was functionally involuntary under conditions of economic dispossession and racial terror. And those same conditions rendered far-fetched the prospect of accumulating savings with which to buy one’s freedom from peonage. Indeed, among the oddities of Bailey is its failure to explain why the payment option provided no constitutional “choice” to the worker who, formally, could avoid both work and punishment by paying the debt. Implicitly, the Court treats failure to pay as itself involuntary. The reason was obvious, and yet to state the obvious would have contradicted the denial that race mattered.

Instead of acknowledging structural inequality, the Bailey Court turned instead to a patronizing account of the Black worker’s failings. The Alabama scheme, it explained, was “[a]n instrument of compulsion peculiarly effective as against the poor and the ignorant, its most likely victims.” Although the reference to poverty obliquely shores up the opinion for the reasons just given, the suggestion of ignorance does just the opposite: the whole point of the Court’s coercion analysis is to present the worker as having lacked a meaningful choice, such that a perfectly rational, well-informed person would have been backed into a corner. And yet here, the suggestion becomes that a better informed chooser might have escaped the dilemma. Rather than serving as a bulwark against exploitative abuse of power by the white-dominated legislature, criminal legal system, and landowning class, the Court engages in a rescue fantasy directed at pathetic Black people.

The Court followed a similar formula in Bailey’s successor case of United States v. Reynolds. There, the statute (Alabama again, what a coincidence!) at issue again criminalized failure to complete a labor contract in payment of a debt. Here, the debt originated as criminal fines and fees but then was transferred to a private employer. The employer acted as a “criminal surety” who paid the defendant’s fines and fees in exchange for his agreement to work off the debt. Alabama made failure to work (or pay) off the debt an independent criminal offense. This system worked because a defendant who could not pay the criminal fines & fees would be sentenced to “hard labor” in Alabama’s brutal convict leasing and chain gang systems, where the annual death rate has been put at 20-45%.

The Reynolds opinion completely elided Alabama’s racial extortion racket run through its criminal legal system. That system routinely used pretextual arrests for petty crimes as the means to channel coerced Black labor into the state’s public works, resource extraction, and agricultural interests. Instead, Reynolds went to pains to treat the surety contract as entirely independent of the criminal process. Again, as Dennis Childs has observed, this led to portraying the Black worker as a fool for choosing the surety contract. On the face of it, the Reynolds contract looked like a bad deal because it required a longer period of work than the hard labor sentence that would have been imposed for not paying the criminal fines and fees. As Justice Holmes’ concurrence put it, the problem thus became the need to protect “impulsive people with little intelligence or foresight.” But the choice was perfectly rational once one considers the realities of the convict lease.

Bailey and Reynolds, to be sure, struck valuable blows against Jim Crow institutions, though even these went largely unenforced. In Bailey, the Alabama Supreme Court had invoked the formal race neutrality of the false pretenses statute to insulate it from challenge. The U.S. Supreme Court, in contrast, struck it down. Nonetheless, the linkage between colorblindness and racial paternalism captures the severe limits on the extent to which the Court’s liberal defense of individual freedom operated to challenge rather than accommodate the era’s species of racial capitalism. Connolly’s forthcoming essay “The Strange Career of American Liberalism” argues that this linkage systematically characterized twentieth century liberalism, and that indeed some of its characteristically liberal features drew directly from Jim Crow ideology itself.

The specific irony of the liberal racial paternalism in Bailey and Reynolds is how it reproduced some of the rationales for the very institutions of forced labor those decisions nominally struck down. The futility of imposing money damages on workers already deep in debt was a prime rationale for physical coercion, one that shrouded its origin in structural subordination through substitution of a personal libel: such fickle, irresponsible, irrational workers could not be entrusted to the play of monetary incentives at the heart of market mechanisms.

In this fashion, these protective and coercive moments appear as two faces of a single coin of racial paternalism. One can glimpse similar dualities today. They are especially clear in the political consensus around welfare work requirements that has been characterized as a regime of “neoliberal paternalism” (or touted as exemplifying a broader “new paternalism”). There, conservative-liberal differences in emphasis on “sanctions” versus “incentives,” or on the first versus second words in “tough love,” obscure a shared diagnosis of participants’ failed work discipline. A similar duality shapes newer paternalist projects around work by noncustodial parents, criminal justice debtors, and formerly incarcerated people, about which I have written elsewhere and will have more to say here in the future.