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


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

“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.

The basic point about Bailey is that the labor relationship between worker and employer was thoroughly shaped by Bailey’s vulnerability to criminal prosecution for quitting work. That, in turn was thoroughly shaped by the racial relationship among Bailey, a Black agricultural laborer, the white farmer who employed him, and the state and local political institutions committed to upholding white supremacy. The law was specifically, though not explicitly, targeted at Black workers. Vulnerability to arrest, prosecution, and conviction was shaped by Bailey’s blackness and the complaining farmer’s whiteness. So, too, with the murderous harshness of the potential sentence to “hard labor” in Alabama’s convict leasing system that operated under the principle of “One Dies, Get Another.”

This racial structure governed the labor relationship as thoroughly as the formal terms of the bargain struck between them. Furthermore, those terms were shaped by the backdrop of racially targeted limits on labor mobility (discussed previously) and of racialized systems of land tenure and debt (both discussed in Kelley’s book). These produced exclusion from capital ownership and the economic need not just for subsistence wages but for the wage advances that indebted Bailey to his employer. That debt triggered application of the “false pretenses” statute that made Bailey criminally liable for quitting without having repaid through labor.

The economic exploitation at issue in Bailey cannot be described well without understanding it as a racial relationship. In particular, it cannot be understood by reference solely to the terms often used to describe and critique labor exploitation in capitalist labor markets, terms that focus only on institutions of property and contract and the power relations between those who own productive capital and those who can only sell their labor power to capital.

In one sense, the incompleteness of a colorblind property/markets account resonates with the old “substantivist” tradition in economic sociology & anthropology often associated with Karl Polanyi. Substantivists focus on the diverse social means for structuring the production, distribution, and consumption of valuable resources, of which conventional markets are just one. “Formalists,” by contrast, reduce the world of economic life to markets and, vice versa, exclude from the “economic” practices structured by nonmarket dynamics. A critical tradition in feminist theory takes up the substantivist mantle to recognize the economic value of feminized work performed in intimate and family settings, and the point can be extended to work performed in institutions—schools, prisons, hospitals, and more—generally understood to be structured substantially by nonmarket considerations.

Bailey, however, is not readily characterized as anything like nonmarket work. Rather it is structured by the property relations between landless Black workers and white landowners and by bargains struck over work and pay. Those relations, however, are rooted in and preserved by race, as well as being regulated by the racialized operation of criminal law conventionally located outside of markets. It is this admixture that suggests the virtues of the “racial capitalism” moniker.

Bailey might be reconciled with more familiar accounts of exploitation by rendering peonage exceptional, or vestigial of nonmarket or pre-capitalist economies. In this vein, by virtue of being deemed “forced labor,” peonage is set apart from, in the words of Dario Melossi, an important theorist of prison labor, “the much more malleable and flexible instrument of a free labor market,” and such forced labor therefore is “disappearing from the general picture of capitalist development except for particular times and periods.” This claim is refuted historically by Cedric Robinson’s Black Marxism, which traces—from the makings of the English working class through the Atlantic slave trade and European imperialism—the persistent, constitutive, and intertwined roles of racial hierarchy and labor coercion in capitalist economies. And it is rendered dubious theoretically by, among other things, the difficulty of specifying the forced/free distinction, as noted previously.

Another way to see race woven into the fabric of markets, not rending them apart, is through accounts of the human beings who are market actors. As Bernard Harcourt explains the ideology, “[i]n the ordered sphere of markets, there is little need for government intervention to adjust the rational calculation of individuals.” The racial (and gendered) content of this conception lies in the question of whose conduct is deemed to reflect the appropriate rational calculation. Early twentieth century peonage laws and their kin were justified by, as South Carolina once argued, the fact that “[t]he great body of such laborers . . . are negroes” who, “[b]eing without any financial responsibility,” could not be relied upon to respond to the economic incentives of money damages. Likewise, Mississippi acted in part to impose “more stable labor conditions” on the chaos produced by the “fickle laborers in our cotton country.”

Rather than being archaic, such sentiments are central to influential arguments offered for avowedly “paternalist” social policy approaches like those of Lawrence Mead, intellectual architect of welfare reform structured by work requirements and an advocate today of using child support enforcement and criminal justice supervision to threaten un(der)employed people with incarceration. Such coercive approaches are necessary, Mead argues, because “nonworking men are expressing desires but violating their own interests and values,” with the result that “[l]ow-income men, particularly blacks, have become less reliable employees.” Such arguments are not external to markets or addressed to nonmarket behavior but rather concern how markets are to be constructed through the appropriate calibration of influences on behavior.

In contexts such as this, treating “the market” as the source of economic exploitation and inequality risks not only missing the point, but mystifying it. Precisely because markets and their construction through regulation are dependent upon this huge range of contextual factors and judgments, which in our society will often be thoroughly racialized, attacking the idealized workings of a “pure” market as the root problem likely distracts from the specific dynamics at issue while giving undue credence to market ideology itself. In particular it risks treating racism as external to, even a distraction from, questions of economic justice. Bailey teaches us otherwise.