I. Introduction: Judging Convict Made Goods in the Lochner Era

On April 26, 1898, Samuel Hawkins enjoyed another day in court. The entrepreneur came before New York's highest bench, the Court of Appeals, to establish that his arrest and indictment by state authorities rested on an unconstitutional law. The court, echoing the lower courts, agreed with Hawkins and struck down the statute (People v. Hawkins, 157 N.Y. 1, 17–18 [1898]). Barely two years had passed since Hawkins had convinced two New York benches to overturn a similar law as an “invalid exercise of legislative power” (People v. Hawkins, 32 N.Y.S. 524 [1895]). Winning constitutional litigation was familiar business to Hawkins. He made courts speak on his behalf.

What led this figure to repeated statutory violation and courtroom triumph? Hawkins dealt in scrubbing brushes. Although no “differen[t] in the quality … compared with one of the same grade or character” from other manufacturers, his wares lacked a “brand, label or mark” that meant the difference between easy sales and unsold goods (Hawkins, 157 N.Y. at 7; New York Times 1894). Each brush omitted the words “Convict made” and a place of penal production. Hawkins claimed a right to conceal that his “ordinary merchantable scrub brush[es]” came from convict hands (People v. Hawkins, 20 A.D. 494, 500 [1897]).

Twice, in 1894 and 1896, New York arrested Hawkins for knowingly selling an unlabeled scrub brush produced by convicts (Hawkins, 157 N.Y. at 4). He was the figure behind which an industry guarded their interests. Frederic Mills, head of prisons sales for New York's penal system, funded the litigation while surreptitiously running several private firms employing convict labor. “It cost us personally $2,800,” Mills noted, recalling their reliance on sympathetic courts: “We were wise in choosing Broome County, for we had a friendly judge, but when it got to the Court of Appeals Judge O'Brien surely showed genius” (Leavitt Reference Leavitt1913, 649–56; The Survey 1913, 537). In offering bare brushes, Hawkins's capitalist civil disobedience introduced the politics and practices of for-profit prison labor to Lochner-era constitutionalism. His challenge marked the first legal counterstrike against labeling laws nationwide, regulatory action reflecting workers’ protests against the infiltration of cheap convict goods. Hawkins protested that this exercise of police powers constituted class legislation, encroached on commerce, and enabled boycotts (The Sun 1898, 6; The Commoner 1905, 4).Footnote ¹ He deliberately placed “the convict labor problem” before New York's Court of Appeals, the very exemplar of Lochner-era legal formalism, liberty of contract jurisprudence, and free labor ideology (Wright Reference Witt1887, 3).Footnote ²

This article reassesses Lochner-era judging through convict-goods cases such as Hawkins, which frame a unique window into period judicial consciousness. Judges’ consistent invalidation of labeling laws exposes limits to the explanatory depth of the prevailing, arguably “standard account” of Lochner jurisprudence resting on principles of state neutrality, opposition to class legislation, and overarching free labor ideology (Siegel Reference Siegel2002, 631). In these cases, courts evaluated disclosure regulations that, through the mechanism of consumer choice, aimed to remediate markets for goods and labor distorted by the state-created privileges and subsidies of prison contracts. Such cases posed the unusual situation in which judges’ broad constitutional vision aligned with democratic labor laws. That judges merely registered an injury to private property suggests the mediating power of class values to direct recognition and adjudication of cases. Invalidation did not result from either judges’ conscious abandonment of principles or choice from among multiple legitimate doctrinal paths; rather, decisions emerged under the influence of deeply-felt class subjectivities—subjectivities expressed not simply by doctrines of economic liberty but through an a priori conceptual lens bending understandings of “neutrality” and “class legislation.” In convict-goods cases, that lens refracted facts to permit perception of state harm and state help in ways that betrayed their constitutional vision.

This article suggests scholars should adopt a warier approach to judicial sincerity and neutrality in Lochner-era constitutionalism, one that recognizes the potential gulf between following principles and simply believing so. A large body of literature has established that Lochner-era jurisprudence arose from free labor ideology and a corollary antipathy for monopoly, state privilege, and intervention for one class over another (Benedict Reference Benedict1985; Forbath Reference Forbath1985; Fiss Reference Fiss1993). This work has successfully recast judges as semiautonomous officials committed to following a coherent vision of law rather than pursuing naked politics from the bench. Most scholars acknowledged how the content of that law could structure economic, social, and political life to empower or disempower certain class interests; but an important subsequent strand of scholarship has moved further toward an “internal” legal history focused on doctrine from which broader class politics fades away. This work tends to rely on free labor ideology as a covering account of “external” influence, does not investigate judicial class bias, and emphasizes that courts upheld many regulations (Gillman Reference Gillman1993; Cushman Reference Cushman1998; White 2000; Phillips Reference Phillips2001; Bernstein Reference Bernstein2011). It also has adapted scholars’ identification of ambiguity in the meaning of free labor ideology as between elite and working classes (Forbath Reference Forbath1985) into an immanent ambiguity within elite judges’ own free labor ideology (Cushman Reference Cushman, Hulsebosch and Bernstein2013).Footnote ³ Together, while deeply exploring doctrinal connections, pathways, and rationales, the approach taken by this subsequent strand of scholarship can operate to fit decisions into a nearly nonfalsifiable range of possibilities permitted by judges’ principles. Such an explanatory framework presents an epistemic obstacle to conversation with robust work in the legal academy demonstrating pro-corporate or anti-worker judicial intentions and systematic racial and class biases expressed through law (Huq Reference Huq2001; Karlan Reference Karlan2005; Mahoney Reference Mahoney2009). Meanwhile, older insights on a politicized bar and bench are treated as disproven (Cushman Reference Cushman2014).Footnote ⁴ The legal history of a canonical moment in US constitutionalism has consequently fractured, with a key body of scholarship detaching from a wider historiography centering pervasive class conflict and demonstrating implicit skepticism of doctrinal explanations (Schneirov Reference Schneirov1998; Sanders Reference Sanders1999; Bensel Reference Bensel2000; Currarino Reference Currarino2010).

Through convict-goods cases, this article joins postrevisionist efforts to bring the Gilded Age's visceral class politics into the revisionist framework (Kens Reference Kens1997; Cachán Reference Cachán2002). It locates class influence in the conceptual lens judges employed when viewing cases. The article proceeds in Section II by introducing for-profit prison production and elaborates on free labor constitutionalism. Section III analyzes New York judges’ rejection of laws remediating free labor bargaining from government subsidy. Invoking the dormant Commerce Clause and substantive due process, courts struck down these regulations as infringing on ordinary private property. Then Section IV explores regional continuities of judicial treatment. Extending decision analysis and biography from Section III, it gives an account of how judicial elites, by severing penal property from its production, could not cognize of convict competition as a legitimate public problem. Finally, Section V proposes an explanation for such indifference: judges’ class subjectivity structured their legal analysis to reproduce those judges’ alienation from lower-class Americans. Convicts were excommunicants from judges’ moral order; and US workingmen, en masse, could seem to be less independent individuals than collective beggars for state help, courting dependency and enforcing demands against businessmen with class boycotts. In convict-goods cases, these associational specters transformed how judges perceived legal merits under their own ideology.Footnote ⁵

II. Penal Labor and Free Labor Ideology in the Courts

Across the North and Midwest during the Gilded Age, criminal punishment often meant laboring for businesses from behind penitentiary walls (Gildemeister Reference Gildemeister1987; Phelps Reference Phelps1992; McLennan Reference McLennan2008). Between 1873 and 1886, the number of convicts serving private enterprise may have grown from 6,544 to 45,277 (McLennan Reference McLennan2008, 106).Footnote ⁶ Government contracts treated convicts as assets, not bargaining parties; to the benefit of privileged companies, they were not marked to market wages. Prisons inmates offered especially cheap and compliant manpower for production in this putatively free labor, dominating particular industries, diminishing jobs, depressing wages, and defeating strikes (Phelps Reference Phelps1992; McLennan Reference McLennan2008, 109–12). Enterprises profited from selling unmarked wares at market rates. “New York ships its convict-made goods to Missouri and Illinois, those States return the compliment,” a businessman observed. “I often see them exposed to view, the clothes as tailor-made, the shoes as hand-sewed, [] the public little thinking that the tailors and the hand-sewers are often life-termers in State penitentiaries” (The World 1896, 2). While consumers could not distinguish goods, workers felt the effects and vigorously protested “unfair competition.”Footnote ⁷ Persistent organized opposition achieved political inroads by the 1890s, spurring labeling regulations and restrictions (McKelvey Reference McKelvey1934, 257–58; Greenburg Reference Greenburg1985, 154–59). Laws sought to mitigate state intervention against workers while effectively affirming their wage dependency in a nominally free labor market (New York Times 1894; Forbath Reference Forbath1991). It was these mitigating laws that appalled penal entrepreneurs like Hawkins. However, they knew to call upon judges to put a constitutional stop to the regulations (Novak Reference Novak2010).

The protean creature of free labor ideology, rooted in antebellum economic folkways and antislavery ideation, became the prevailing postbellum outlook outside the South (Foner Reference Foner1970; Rodgers Reference Rodgers1978). A strand penetrated the judiciary and bourgeois consciousness, taking a constitutional form that shed republican traditions. As William Forbath identified, “judges undertook to defend ‘free labor’ and ‘the independence of the workingman’ by striking down state economic regulations, maximum hour laws and other labor legislation” (Forbath Reference Forbath1985, 768; Horwitz Reference Horwitz1992). The Fourteenth Amendment came to ensure an economic life “without other restraint than such as equally affects all persons,” which Justice Stephen Field designated “the right of free labor” (Slaughter-House Cases, 83 U.S. 36, 98, 110 [1873]). Due process guarded a right to dispose of property and self without state intrusion beyond a small universe of reasonable police powers for public purposes (Nelson Reference Nelson1988, 174–75). Workers and capital stood as formal equals, protected from the other's use of the state. This sanctification of employment bargaining prompted courts to jettison a “presumption of constitutionality” for direct interventions in market relations concerning “ordinary” workers and goods (McCurdy Reference McCurdy and Scheiber1998, 167; Sawyer Reference Sawyer2013 ). Labor, the abstraction, was protected from labor, the workingman.

Lochner v. New York crystallized these ideological and jurisprudential commitments. Deprecating hours regulations, Justice Rufus Peckham, formerly of the New York Court of Appeals, declared “the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with without violating the Federal Constitution” (Lochner v. New York, 198 U.S. 45, 64 [1904]). He layered an individual's liberty to contract away time and body atop a framework protecting property from non-neutral legislation. Committed opposition to class legislation lay bared, as judicial vigilance insulated the space where individuals bargained over ordinary employment (Lindsay Reference Lindsay2010, 55, 77). This was judicial free labor ideology in action.

Scholars have long recognized this jurisprudence was not monolithic (Batlan Reference Batlan2002; Cushman Reference Cushman2005; Katz Reference Katz2013). Courts upheld police powers to protect workers deemed vulnerable by youth, gender, and industry; hour caps, worker compensation, and payment rules withstood review. However, many antilabor decisions affected untold workers and deterred reform (Ingram Reference Ingram2003). The mixed record of Lochner-era courts suggests complexity in the interface between ideology, constitutional law, and perceptions embedded in time, place, and class. In convict-goods cases, contracts between prisons and business posed a severe, redistributive intrusion in labor markets. Labeling laws approached property whose value and existence depended on state privilege with a light, indirect touch. Yet the former drew approval and the latter condemnation from elite judges. This pattern lies at the heart of Lochner-era judging. It begs for deeper inquiry into the judiciary's failure to realize the limited promise of its principles.

III. From Hawkins to Raynes: An Illigitimate Constant of Regulation

As he courted judicial review, Samuel Hawkins fit the bill of a free labor protagonist, a rising businessman. He had devised a “more durable brush … [with] a great saving in the time required in the manufacture” (Hawkins Reference Hawkins1883). Securing convict labor was an extension of his “go ahead” entrepreneurialism (Sandage Reference Sandage2005). To Hawkins and prison manufacturers, it was natural to resort to a sympathetic judiciary: men who understood the Constitution as upholding property rights and themselves as upholders of the Constitution.Footnote ⁸ Hawkins's courtroom visits elicited judges’ applied, contextual understandings of class legislation and neutrality. As they voided labeling laws, their free labor ideology proved to vulnerable to distortion by seepages from their social, cultural, and political lives. The judges may well have believed in consistency between their legal values and decision making; but their constitutional vision and doctrinal framework were not equivocal on principles or ambiguous in application to the labeling laws. Subjective beliefs and misperceptions cannot make them such.

In 1894, Hawkins was indicted under the labeling law's first iteration. Judge Walter Smith presided. A Princeton-educated son of a state justice, Smith worked as an attorney in Hawkins's hometown of Elmira before his appointment by Governor David Hill, Elmira's ex-mayor (Alden and Williams Reference Alden and Melvin Williams1925). In Hawkins, Smith saw a beleaguered businessman and rescued him. Mandatory disclosure “would bring the dealer who should traffic in them into obloquy with all the laboring classes …. [It would] operate as a practical exclusion of such goods from the market,” depriving “property without process of law,” he wrote (Hawkins, 31 N.Y.S. 115 [1894]). Smith then turned from these due process gestures predicated on visions of worker boycotts to a seemingly gaping fault with the law: it applied only to out-of-state goods. Under the dormant Commerce Clause doctrine, courts maintained that, absent enabling federal legislation, states could not place burdens on the transport or sale of out-of-state goods that did not equally affect domestic commerce. This discrimination was nearly illusory, however, as New York had adopted a constitutional amendment that would soon come into effect banning domestic for-profit penal labor. Nevertheless, the state summarily lost on appeal before Justice Celora Martin. Although a commerce holding, the due process language in Smith's opinion telegraphed that acts empowering working-class boycotts inflamed the sensibilities of judicial elites.

In 1896, New York passed a new labeling law, this time with no distinction between in-state and out-of-state goods, and Hawkins was indicted again for selling brushes without the telltale labels (Utica Semi-Weekly Herald Reference Twiss1896, 6; Hawkins, 157 N.Y. at 6). At the trial court, Justice George Lyon, ex-chair of the Broome County Republican Committee and Justice Martin's former partner, invalidated the statute (New York Times 1891, 1895b). On appeal, Justice John Putnam, a Hill appointee of illustrious lineage, upheld the lower court in a ruling that drastically reduced state police powers in the shadow of the dormant Commerce Clause (The Albany Law Journal 1899, 354–55). Labeling differed from clearly unconstitutional total bans on imports or sales that states had attempted against products such as alcohol, even when those states uniformly banned domestic sales; the labeling law's nondiscriminatory, nonprotectionist notice provision resembled the kind of regulatory power arguably left to states (Leisy v. Hardin, 135 U.S. 100 [1890]; Cushman Reference Cushman2000). Invoking the dormant Commerce Clause helped the court to bring an implicitly intensified scrutiny to the regulation, walling off from consideration the state intervention inherent in convict goods. Asking whether imported brushes were ordinary commerce insulated from state interference by federal silence, Putnam found himself “unable to believe” a brush “not claimed to have been an inferior or deceptive article, was not an article of commerce” because prisoners made it (Hawkins, 20 A.D. at 499). By placing convict goods into a box marked commerce and asserting they were not “clearly injurious to the lives, health or welfare of the People,” Hawkins's wares remained beyond the state's reach to require disclosure (500). As the state urged that fraud, deception, and public welfare justified labeling, Putnam made this judgment about convict goods and police powers: dormant Commerce Clause precedents did not direct him to do so. He decided the brushes were property Hawkins could “possess and dispose of without any restrictions” (500). Although their existence depended on the privilege of accessing state coercion to undercut free labor, Putnam took for granted that they were goods like any other.

At the Court of Appeals, New York faced attorney Frederick Collin. The Yale-educated Collin, mayor of Hawkins's town, would join the high court in 1910 (Yale University Reference Wright1941). His victory over free labor in 1898 was resounding. Justice Denis O'Brien announced that “the broader scope of the present law removes no objection. … [I]t multiplies and intensifies them” (Hawkins, 157 N.Y.S. at 6). O'Brien saw a due process violation of Hawkins's right to profit from his penal property. Striking the regulation, he warned that “[a]ll laws which impair or trammel these rights, or impose arbitrary conditions upon his right to earn a living in the pursuit of a lawful business are infringements upon his fundamental rights of liberty” (7–8). Thus O'Brien situated the case in a broader judicial stand against legislative encroachments. New York's Democratic State Committee praised O'Brien as a “safe, conservative, and upright judge, [] fearless in the discharge of his duties” for this consistent service of policing constitutional guarantees on contract and property rights (Brooklyn Daily Eagle 1903, 5).Footnote ⁹

Hawkins was a special case. It did not pit republican free labor ideology against free labor constitutionalism. It presented the scenario of a labor law embodying the court's principles. The factory-prison system comprised a kind of class legislation and artificial monopoly, which labeling adjusted through consumer choice. Convict goods, as objects born of state power, warped free labor competition. Hawkins thus staged a conflict between abstract jurisprudence and class biases. It tested free labor principles against judicial reactions to workers gaining state help and market power. Would judges distinguish the labeling law from class legislation against capital?

The state tried. It deployed conventions of wage labor and conservative values:

These arguments invoked the police power catchall of “welfare” for worker households, grasped at Jacksonian traditions, and accepted contractual organization of life. Yet the court identified the arguments as damning, quoting them as evidence of invalidity.

O'Brien denied the state had grounds to touch convict goods. After narrowly listing the bases of police power—“public order,” “public health,” “unwholesome or adulterated food,” “fire,” and “perhaps other subjects relating to the safety and welfare of society”—he concluded labeling rested on none, and therefore flouted due process. The opinion paradoxically balanced the integrity of free labor on convict goods’ inviolability: “If the wages of labor in a few factories producing goods such as are also made in prisons may be regulated by the police power, there is no reason why that power may not be used to regulate the rewards of labor in any other field of human exertion.” O'Brien pushed further: “Why not give the workman who has a large family to support some advantage over the one who has no family at all?” “Why not give to the old and feeble a helping hand by legislation against the competition of the young and the strong?” With these horrors in mind, the court performed the categorical drama of Lochner reasoning: “If the statute now under consideration is a valid exercise of the police power,” the court could not “give any reason why the legislature may not interfere in all the cases” (7–10).

Concurring with O'Brien were Justices John Gray, Irving Vann, and Celora Martin, elevated since voiding Hawkins's first indictment. Scion of a wealthy commodities dealer, Gray was educated in Paris, Berlin, and at Harvard Law School, becoming known for his “lucrative” practice and “mastery of complicated cases of corporate law” (New York Times 1888, 1896). Vann graduated from Yale and became a leader in Syracuse civic life, serving as mayor (New York Times 1895). Martin, socially prominent and affiliated with “Boss” Thomas Platt, was another successful upstate lawyer (New York Times 1895). Both Democrat and Republican parties endorsed these judges (New York Times 1895 1895 1895). New York's bourgeoisie deliberately insulated the judiciary from mass politics (New York Times 1902). As Justice Martin bluntly explained, “[i]f candidates for the bench are to be chosen by politicians simply for their vote-getting qualities, then the views of such candidates regarding the rights of capital and labor must be taken into account, with the power of election in the hands of labor” (American Law Review 1905, 598–99). For this judiciary, nonpartisan commitment to legal principles and skepticism of democracy were two sides of one coin.

These judges naturalized penal production in their vision of US political economy. Labeling “manifestly discriminates against the sale of goods made in a prison in the state of Ohio by a certain class of workmen, and in favor of … free labor,” they agreed (Hawkins, 157 N.Y.S. at 15–17). Penitentiary-kept bodies, traded by government and firms, were simply “workingmen” in Hawkins, a class within the working class. The concurrences can be read to confine the Hawkins holding to a Commerce Clause analysis, but even that resolution required casting labeling as an infringement on ordinary commercial goods while denying the public welfare basis of the regulation—a position rhetorically and conceptually shading into due process values on the sanctity of property (Harvard Law Review 1931). Practically, Hawkins was a due process dec, ision. It was O'Brien's lengthy opinion on due process grounds that echoed in citations, that financial backers like Frederic Mills so valued, and that informed public understanding nationally on the limited possibility of reform. New Yorkers would soon find that O'Brien's opinion indeed stood for an insurmountable due process barrier to disclosure in the subsequent convict-goods case of Phillips v. Raynes (136 A.D. 417 [1910]).

The court accepted penal capitalism as an organic element of the national labor market, not a government subsidy at workers’ expense. It was the modern businessman's choice to go about “employing convict labor and introducing other innovations,” as one New York judge phrased it (Hallock v. Streeter, 102 F. 193 [1900]). The elision of convict and free labor competition was unabashed. States “have natural advantages for the production of certain goods by reason of location, climate or the rate of wages,” reasoned the Hawkins court, and a citizen “who happens to buy goods made in a prison in Ohio has the right to put them upon the market here on their own merits” (157 N.Y.S. at 17). By this logic, New York could never have labeled the production of slaves, another class of workers under a constitutionally protected labor and property regime. The Thirteenth Amendment hardly rationalized the court's stance: it made servitude a condition solely of punitive state power with no implied sanction of private commodification immune from regulation. The inaccessibility of this connection between slave and penal competition attests to the distance judges traveled from the roots of free labor ideology and even their own free labor constitutionalism. Confronting a labeling mandate that empowered working-class consumers, the Hawkins judges’ attention to state neutrality went dormant.

The motive force behind this position surfaced in O'Brien's closing words. The regulation, he lamented, “belongs to a class of laws which have become quite common in recent years, all resting largely upon the notion that the important problems involved in the social or industrial life of the people may be solved by legislation.” But he vowed resistance: “so long as legislative power is circumscribed by the restrictions of a written Constitution, a statute like this cannot be sustained by the courts” (17). These remarks glow with the subjective, contextual way that judges saw Hawkins. They bundled labeling into ongoing class conflicts experienced daily as propertied, educated, bourgeois, politically empowered men, individuals who belonged to an interested class. Informed by professional lives, cultural fare, and social environs, judges perceived another attack on competition and property. In their narrative, an entrepreneur faced collusion of labor and state. Staring past the official power and privilege that placed cheap convict goods in Hawkins's hands, the court saw workers asking government to boost wages and promote boycotts. The judges felt themselves neutral arbiters standing athwart class legislation, but neutrality could only extend as far as consciousness of state intervention permitted. As the court voided the law, its approach to disciplining labor, typically advanced through free labor ideology, overstepped the ideology itself.

Dissents laid out alternatives. Justice Edward Bartlett acknowledged penal competition as a public problem addressed by “the deliberate policy of this state that free labor shall be protected from disastrous competition with the convict system.” He contended that precedent, particularly food labeling cases, permitted New York to “protect its citizen from fraud or deception when any such goods are offered for sale, by advising him of the fact that they are convict-made.” Dairy industries had secured laws requiring labeling or coloring of oleomargarine, which courts upheld despite no public health basis (People v. Arensberg, 105 N. Y. 123 [1887]; Plumley v. Massachusetts, 155 U.S. 461 [1894]). Discounting the majority's language of fear and limitless intervention, he thought the law without “grave consequences” (Hawkins, 157 N.Y.S. at 19–23). Fellow dissenter Alton Parker agreed, resolving “[i]n view of the public policy declared by the people of this State through their Constitution, I am of the opinion that this statute is well within the police power” (29). This policy was New Yorkers’ constitutionalized disdain for penal labor, barring an inmate from activity “whereby his work, or the product or profit of his work, shall be farmed out, contracted, given or sold to any person, firm, association or corporation.” The dissenter thought citizens who had made this choice were “entitled to such legislation as will permit them to know the truth in regard to articles offered them for sale.” O'Brien denied the amendment meant what it said. “What is it that this language forbids? Not dealing in tangible things … but the farming out, contracting, giving away or selling of convict labor.” To this dubious reading, he appended another: assuming the amendment did ban selling convict goods, “it would … furnish an additional reason for its condemnation … [because] then clearly the legislature has no power to enact laws regulating and permitting such sales” (12–13, 29). In other words, had New York banned selling goods from its prisons, it therefore could not require out-of-state labeling.

A disconnect from “the people” who would support such an amendment lay behind this construction. “It would be difficult to give any satisfactory reason, legal, moral or economic, why a person who happens to be confined in a prison should not be permitted or compelled to earn his living and pay his way,” the court mused (10–11). This reflection on profitable prison labor stimulated no recognition of injury to free labor, but rather signaled a greater disconnect. While the dissenters endorsed democratic values, O'Brien's opinion breathed with mistrust of popular forces wielding public power. He saw workingmen, acting together as menacing bloc voters or consumers, as agents of constitutional danger. Justice Martin candidly put it, “when the inevitable final clash between capital and labor comes the safety of our institutions can only be conserved by an independent judiciary” (American Law Review 1905, 598–99). This alienation from democracy and actual labor impeded the court from seeing the law's consonance with its jurisprudential values.

Who were the dissenters, the judges who saw things differently? Justice Bartlett ascended from relative anonymity. A failed cross-party deal allowed this Republican who “always stood up for the principles of his party” to enter the judiciary instead of next-in-line figures. He attended Union College, avidly engaged in civic affairs, and purged corruption associated with Boss Tweed (New York Times 1893, 1910). Alton Parker was a leading Democrat, defeating Williams Jennings Bryan in 1904 to become presidential nominee. During the campaign, a congressman raised Hawkins “to place Judge Parker's record on the labor question before the House in a favorable light and to show him as much the friend of the workingman as a certain other New York candidate” (The Sun 1904). After losing to Theodore Roosevelt, he represented Samuel Gompers and the AFL (Information Annual 1916, 108). Albert Haight, who concurred with Bartlett, came from the most modest background. Born in 1843 and raised on a rural farm, Haight was a devoted Republican since the party cohered. Once elected as an Erie County judge at thirty, he held judicial office until death (New York Times 1894).

Do these glimmers of biography guarantee votes? Certainly not. The judges were more similarly situated than not. Yet variations in ideological intensity, economic background, and political activity appear dimly legible. The dissents came from a progressive idealist, popular politician, and Old Republican without a corporate past. For all the judges, class was a lived experience. It was identity and practice, recognized by oneself and others. Some judges were born elites, while some arrived. Class membership did not ensure a particular consciousness, but it could steer judges’ thinking down certain worn channels.Footnote ¹⁰ Subjectivities formed in life endured when they donned robes and believed themselves to do law.

During the same moment that Hawkins wended through the courts, an appellate bench confronted the impact on existing contracts of New York's constitutional ban on for-profit penal labor. In Bronk v. Barckley, Edgar Bronk challenged Albany Penitentiary's refusal to supply 125 convicts (13 A.D. 72 [1897]). His contract with the institution included a three-year renewal option on satisfactory performance, and Bronk demanded this next term of subsidized labor. Here, the court invoked the Contracts Clause against New York's police power. In a 4–1 decision, it granted specific performance.Footnote ¹¹ The prison and Bronk-Buffington Shirt Co. had a “valid and binding” agreement (73). Justice Putnam, soon to rule for Hawkins, claimed it “difficult to see why the [constitutional] section in question does not violate” the Contracts Clause. Subordinating public control of penal policy to the contract made by a single prison board, he perceived no state power or policy that could justify impairment.Footnote ¹² He glossed the amendment as “a mere change … in the manner of employing convicts,” dismissively noting that while “[t]o a certain extent the constitutional enactment in question affects the public interests, [] the same could be said of almost every law.” Justice Landon wrote a concurrence to warn that the court was “careful to detect violations of constitutional safeguards masquerading in the garb of police powers.” Landon deemed the amendment “no denial of the necessity, humanity, or propriety of compelling or employing such labor” (73–79, 83–84).

Alton Parker, on the eve of joining the Court of Appeals, provided the lone dissent. He offered a simple alternative. The contract lay between a business and prison board, and the superintendent had authority to “render inoperative any time contract that the penitentiary could make” (89). Further, Parker argued that precedent established that “prison management” could not be bargained away (91). But where Parker saw public will as a source of authority, the majority saw class constitutionalism.

More than a decade after Bronk and Hawkins, the judiciary eviscerated the next legislative attempt to end New York's status as a “dumping ground” for convict goods, as the New York Times designated the situation (New York Times 1909). Phillips v. Raynes concerned a law requiring purchase and display of a license for vending penal goods (1910).Footnote ¹³ In this “test case,” an agent entered Louis Phillips's Park Avenue store and bought shirts sewn in an Illinois prison (New York Times 1909; Record on Appeal, Deposition of Charles Whelan 1910, 7). Failing to own or display a license, Phillips was arrested. When trial judge John Brady ruled for Phillips, he penned a single line: “I am of the opinion that the reasons assigned by O'Brien, J., in People v. Hawkins … apply with equal force and correctness to the case at bar” (Opinion of Brady, Justice 1910, 17). O'Brien's Hawkins opinion was constitutional bedrock, good for voiding laws touching penal production, however lightly. Raynes was no mere recapitulation of Hawkins. It was New York's strongest possible legal case.

The license law unambiguously rested on precedents relieving any dormant Commerce Clause woes. It targeted “general merchandise of the state.” This meant goods removed from “original packaging” and thus no longer interstate commerce: domestication made them subject to normal police powers (Brief for Appellants 1910, 13; In re Rahrer, 140 U. S. 545 [1891]).Footnote ¹⁴ Attorney General Edward O'Malley explained that “there is a clear distinction between requiring the property itself to be marked and requiring the dealer in that property to take out a license” (New York Tribune 1909, 5). As the license raised revenue, the state also rested the law on its tax power. If Hawkins was not a substantive due process precedent, then the state faced a promising legal window.

The court denied the window was anything but a wall. Judge John Clarke complained that labeling had the untenable aim of “prevent[ing] the buying and selling of such goods,” and the new law “for the same purpose brands the dealer” (Raynes, 136 A.D. at 421). He explained that even if the statute did not violate the dormant Commerce Clause doctrine, “we are forced to the conclusion that it is an unconstitutional exercise of legislative power” (422). Mandating disclosure was never within New York's police power. The tax argument fell, too, under the force of due process. “It is not now true that the power of taxation is without constitutional restraint,” intoned Clarke, before reciting the text of the Fourteenth Amendment. New York argued that its law did not single out any article or industry. “[C]lassification by origin, applied to a vast variety of goods, seems to be more unreasonable,” Clarke responded (425).

The Court of Appeals affirmed on the authority of Hawkins, implicitly on due process grounds. The judges’ constitutional vision obscured the connection between convict-goods disclosure and principles of state neutrality and free labor. They could not share the state's position that disclosure benefited “the entire community by protecting both the manufacturing industries and the wage earners” (Brief for Appellants 1910, 27). They rejected lawmakers’ negotiation of “conflicting purposes—to earn revenue to support penal institutions by labor of convicts, and to prevent such labor from competing injuriously with free workmen and free industries.” The analogy that penal goods were “virtually a product of slave labor,” an invocation of free labor ideology's founding, gained no traction (9–10).

The state's claims could not dislodge preexisting ideas and associations that structured judges’ thinking. In Raynes, the government defended licensing in terms it hoped would sound with judges’ ideological commitments: prison wares “ought to be sold upon their own merits or demerits and the citizens of this State are certainly entitled to know when they are buying such goods” (27). But the words did not resonate. The reasoning and rhetoric of the Raynes and Hawkins courts reflected a bourgeois subjectivity that filtered neutral state free labor jurisprudence through class sensibilities. This process was the subtle instantiation of what Christopher Tomlins terms the “consistent hostility of American legal culture to virtually any form of labor organization” (Tomlins Reference Tiedeman1985). Through a class-tinted lens, licensing and labeling law looked like class legislation.

IV. Undisclosed Convict Goods Across America

New York was the leading edge of constitutional conflict over convict goods. Labeling laws were “forced upon the statute books of over a dozen states,” reported Julian Leavitt, but they became “dead letters, having been declared unconstitutional by the New York Court for Appeals in the famous Hawkins decision that has served as precedent for other state court decisions” (Leavitt Reference Leavitt1913). Labeling litigation arose in Massachusetts, Indiana, and Ohio, while elsewhere the decisions sapped energies for legislation. The Hawkins and Raynes precedents circulated, largely becoming the law of the land; they entered law reporters and other published statements of current legal development, and courts and legislative debates recognized their persuasive authority and influence (Schwartz Reference Schwartz1925). The Codes of California, for instance, noticed Hawkins and concluded the “constitutionality of [California's nondiscriminatory limitation on convict-goods sales is] doubted, in light of decisions on similar statutes in other states” (Kerr Reference Kerr1921). In 1911, the US Circuit Court for Western Oklahoma permanently enjoined enforcement of a new labeling law at the behest of the Hoge-Montgomery Company, which had contracts for over 650 convicts to make shoes in the Frankfort, Kentucky penitentiary (Kentucky Board of Prison Commissioners 1907, 6–10; Oklahoma Department of Labor 1912, 62–63). In 1922, Samuel Gompers lamented before the US House that states still “have no right under existing law to pass an act that would bar the products of prison labor of any other State.” Of states’ efforts to deter convict goods, Chairman John Nolan simply noted they “have been declared unconstitutional,” and another congressman agreed that “[i]n reality, they have not any law now” (House of Representatives 1922, 4, 60). Hawkins and Raynes illustrate how it did not take a Supreme Court decision to impede legislation across the country.

As Hawkins headed toward its finale, the litigious brushmaker had already helped cast a national judicial die. Judge H. C. Fox struck down Indiana's labeling law on July 20, 1897 in State v. William H. Porter. “It interferes with the right of contract, with interstate commerce, and is class legislation,” ran The Indianapolis Journal, noting the “outcome is not a matter of surprise in the light of decisions rendered by other courts on the same or similar laws” (Indianapolis Journal 1897, 4). Porter worked as a traveling salesman for the Frankfort Chair Company, known to produce all its goods at the Frankfort penitentiary (Monroe Breeze 1897, 2). Although the Indiana statute discriminated against out-of-state penal goods in a fashion similar to the first Hawkins case, Judge Fox took the opportunity to communicate his vision of shrinking police powers, wholesome convict goods, and the sanctity of property rights. Observing that precedent “runs far in the direction of utter annihilation of state power in matters bearing upon commerce between the States,” he prescribed a model of consumer activity excluding moral sentiment and class solidarity. “[I]t makes no difference to a purchaser or consumer by whom an article of merchandise is made,” Fox stated, curiously negating how the harmful operation of the labeling law would presumably unfold. That Frankfort Chair relied on the privilege of prisoners did not “impart[] any taint or infirmity to the product” or distinguish its output from any other furniture-maker's products (Indianapolis Journal 1897, 4). The chairs were simply “the subjects of contract and ownership.” Following his New York brethren, Judge Fox omitted the coercion and subsidy behind carceral-capitalist production that kept costs low for companies like Frankfort Chair. When furniture production commenced at Frankfort, Kentucky in 1893, officials whipped sixty-eight to one-hundred inmates per month. In 1895, twenty-four penal laborers perished—all African American (Kentucky Corrections Cabinet 1988). A consumer “does not concern himself as to who the maker was,” Fox opined, advancing a normative order as description: to deviate from his model of consumption was to cease being a proper market actor, to become suspect of class motives, and to lose one's claim to sway policy (Indianapolis Journal 1897, 4).

In 1912, Massachusetts's nondiscriminatory labeling regime met a preemptive demise before the Supreme Judicial Council. Under the state's provision for advisory opinions, the council reviewed House Bill 833, requiring convict goods to be “branded, labeled or marked.” This was Hawkins redux, and the elite bench similarly saw an anticompetitive labor law trammeling interstate commerce. Whomever “purchases prison-made goods in other States has a right as complete and extensive to sell them upon their own merits as he has to sell private-made goods of like nature,” they declared. “Differences in grade of workmanship, if there are any, would be as apparent without branding,” the court reasoned (In re Opinion of the Justice, 211 Mass. 605 [1912]). As in Porter, a selective idea of “merits” ignored state responsibility for cheap production. The anticipated impact of labeling reflected consumers’ disagreement with the judges’ conception of “nature.” The court rejected the bill with a pro forma Commerce Clause analysis, also citing the due process case of Raynes. The judges’ conception of convict goods erased the basis for Massachusetts to regulate their disclosure in the marketplace.

The high courts of Massachusetts and New York harbored the Gilded Age judicial elite. Biographies, like assumptions, corresponded. Chief Justice Arthur Prentice Rugg passed through Amherst College and Boston University Law School, served as trustee of both, and sat on the council of the American Law Institute. An acknowledged “conservative,” he eulogized his friend Calvin Coolidge before Congress (Memorial 1939; National Cyclopædia of American Biography 1920, 243). James Madison Morton, a graduate of Brown University and Harvard Law School, was former Chief Justice Marcus Morton's son and grandson of former Governor Marcus Morton (Memorial 1924). John Wilkes Hammond graduated from Tufts College, trained at Harvard Law School, represented Cambridge in the State House of Representatives, and cemented his status at organizations such as the American Academy of Arts and Sciences (Cambridge Chronicle 1922, 9; Memorial 1923). Descended from generations of state senators, merchants, and elite attorneys, William Caleb Loring attended Harvard College and Law School before becoming Assistant Attorney General, partner at Ropes, Gray and Loring, and counsel for New York and New England Railroad (Memorial 1931). Henry King Braley, more modestly, was son of a whaling captain, but he developed a successful practice and was mayor of Fall River before becoming a “formal,” “martinet” justice (Memorial 1931). Henry Sheldon, son of the president of Colby College, graduated from Harvard and served as president of the Massachusetts Bar Association; he became a justice because his classmate Governor Greenhalge secured political approval (Memorial 1927). Charles DeCourcy attended Georgetown, Boston University Law School, partnered with US Representative John Tarbox, became a federal assistant district attorney and bank director, and entered prestigious civic networks before joining the bench (Memorial 1925).

For all the causal indeterminacy of biography, skimming these surfaces reveals something of the human font of judgments, something not to be neglected in reading texts a century removed from authorship. Continuities of privilege and institutional affiliations bound a judicial community's thinking on matters such as “unfair competition.” They oversaw a Massachusetts of industrial unrest: for instance, the massive Industrial Workers of the World organized Bread and Roses strike that shut down textile milling in Lawrence came months before the opinion on House Bill 833. Judges lived amid intense class anxieties and conflict; embedded among bourgeois elites, their experiences shaped their contours of recognition for state neutrality and class legislation, obscuring convict competition's breach of principles while casting owners of convict goods as victims of persecution. Naming backgrounds and badges of class helps make visible this difference between intended neutrality and the neutrality judges mustered from the confines of experience and milieu.

During the 1890s, Ohio's legislature and courts faced a conceptual divide similar to that exposed in Hawkins. The state variously enacted a labeling law, licensing regulations, and numerical caps on convicts competing with free labor. Each failed to survive encounters with conservative legal culture and hostile judges. In 1893, Ohio imposed a labeling requirement on all convict goods, revising an unenforced 1888 law applying only to out-of-state penal products offered in Ohio (Springfield Daily Republic 1888; Ohio Bureau of Labor Statistics 1902, 456). Initially, auditors found the amended statute was no idle letter. Prison deficits were attributed “to the fact that many contractors have withdrawn from the prison because of the fact that the law requiring convict-made goods to be labeled has made such goods undesirable, the laboring world having practically boycotted such goods” (News-Herald 1895, 6). The New York Times carried the story, decrying idleness caused by “warfare waged against convict-made goods by labor organizations” (New York Times 1894).

Ohio penal manufacturers soon struck back. A coalition employed Colonel James T. Holmes, a leading corporate attorney and recent president of the state bar association, to circulate two opinions interpreting the law into a nullity (Neff Reference Neff1921, 156–57). Exploiting poor drafting, he argued, in contradiction to the state attorney general, that the legislation merely mandated labeling of Ohio-made penal goods that were first exported elsewhere and then imported back into Ohio—a practically fictive category. Holmes concluded that to require companies to “brand Ohio convict-made goods sold within or going out the state the first time will be destructing of the state's interests in the labor which it conducts in these institutions and increase the burden of taxation as well as many other evils easily pointed out” (Ohio Bureau of Labor Statistics 1902, 458–63). He presented preservation of convicts’ labor value in state hands as a persuasive policy rationale and embodiment of legislative intent. Investigating labeling practices in 1901, Ohio Bureau of Labor Statistics agent Evan Davis found that all private firms using Ohio's penal infrastructure refused to mark their goods, admitted that “no attention whatever has been paid to” the law, and expressly referred him to Holmes's opinion as legal grounds (456). Ohio authorities, Davis surmised, had acquiesced to this opinion and state of affairs. Here new Ohio Attorney General J. M. Sheets stepped in. After suggesting that an Ohio court had accepted Holmes's narrow interpretation, he opined that, regardless, the whole labeling law violated the dormant Commerce Clause doctrine under “principles … [that] so clearly cover the case under consideration that I do not deem a more extended discussion necessary … and you have no duties to perform with reference to undertaking to enforce it” (457–58). Sheets, once a student of eminent judicial conservative Thomas Cooley at University of Michigan Law School, telegraphed his assumptions through nonanalysis (Scobey and McElroy Reference Scobey and McElroy1903, 510–11). Like the Hawkins judges, Sheets perceived convict goods as ordinary property, guaranteed unimpeded interstate movement by the Constitution and insulated from even nondiscriminatory police powers. Prior Ohio Attorney General John Richards—who was then advancing antitrust cases as US Solicitor General and whom Theodore Roosevelt would soon appoint to the Court of Appeals for the Sixth Circuit—had raised no such constitutional defect when he opined that the law covered all convict manufactures in Ohio (The Green Bag 1909, 165). But again like Hawkins, what seemed obvious and natural to some legal minds was not perceived by others.

While Ohio's labeling law became a dead letter, its licensing statute for convict-goods vendors failed in court. To promote disclosure at the point of sale, the state required vendors to buy and display a license, as well as report annual sales. (In re Yanders, 2 Ohio Dec. at 75). Litigation concerned Frank Yanders, an employee in Standard Brush Company's Cleveland penal factory. His 1895 arrest came for offering convict-made brushes from New York without the requisite license (In re Yanders, 2 Ohio Dec. 75 [1895]). As Hawkins shielded Ohio products, Yanders reciprocated for the Empire State. Each jurisdiction poured cheap goods into the other's commercial backyards until New York's ban. In-state restrictions merely cleared the field for imports. Self-reform rendered individual states “more completely the prey of the competitive convict labor of other states,” Ohio's labor commission lamented, urging that “[t]here can be no reason, constitutional or economic, why the markets of one state, should be swamped” by convict goods degrading its citizens’ health, safety, or general welfare (Ohio Bureau of Labor Statistics 1902, 494). A 1913 exposé observed that New York workers remained “helpless victims of the convict competition of Maryland, Kentucky, Connecticut, Rhode Island and other states, which smuggle in, it has been estimated, over $10,000,000 of goods every year” (Leavitt Reference Leavitt1913, 10).

In Yanders's habeas proceeding, “conservative Democrat” Judge Conway Noble, a third-generation judge and son of President Fillmore's surveyor-general, invalidated the law, which addressed only imports, for burdening foreign goods. (Western History Illustrated Reference Welke1887 165–68). On appeal, the Ohio Supreme Court rejected the state's argument that prison wares were anything but harmless articles of commerce. Justice Jacob Burkett warned the state had no authority to “protect its own citizens, laborers and markets against an invasion of convict-made goods” (Arnold v. Yanders, 56 Ohio St. 417, 419 [1887]). This railroad lawyer, bank director, and presidential elector signaled that Ohio could do little against the flow of those goods even if the law applied domestically, heralding the futility of a Hawkins-style law (Smith Reference Smith1898, 159; Gilkey and Taylor Reference Gilkey and Taylor1901, 460). Ohio's police power shrank as the court maximized the space for production and labor—any labor.

At the same time Ohio passed the law triggering Yanders, it also acted to restrict domestic convict competition through numerical limits. As of May 1, 1894, “the total number of prisoners and inmates employed” could not exceed 10 percent of the population of workers in industries with “more than fifty free laborers” (Fitzpatrick v. Bromwell Brush and Wire Goods, 7 Ohio Dec. 216, 217 [1898]) But wardens did the contracting, not the legislature. A gap opened between law and practice. Patrick Fitzpatrick brought a taxpayer suit in 1898 to enjoin the city of Cincinnati and Bromwell Brush & Wire Goods Co. from contracting for “two hundred able-bodied persons … increase[able] to the number of three hundred and fifty.” Judge John Murphy acknowledged the plaintiff's facts. Official statistics showed that “not more than nineteen could be employed in that industry under the terms of the proposed contract” (216–19). Bromwell Brush, according to industry journals, “practically control[ed] the American market in bristles and Tampico” using prisoners (Bricklayer, Mason and Plasterer Reference Bricklayer1911, 138). But Murphy felt constrained by institutional norms and obligated to assume that prison officials would “perform their duty as honestly as faithfully and as in accordance with law as I am supposed to discharge mine.” He let a few words of dissatisfaction slip through, however. On “the question between free labor and convict labor,” he confessed that “I have an opinion, and a decided one, which I hold by reason of having given some attention and some study to the subject; but that is a sociological and not a legal question” (Bromwell Brush, 7 Ohio Dec. at 219). That is, Murphy endorsed the power of legislative reform, not judicial policy making. Who was this judge who would volunteer such sympathies? An immigrant and devoted Republican since the days of Lincoln, Murphy had been an actual free laborer. After wartime service, he “began an apprenticeship as machinist at the Niles Works, in which employ he continued some four years and a half” (Nelson and Runk Reference Nelson and Runk1894, 592–93). Never pursuing a remunerative legal practice, he moved from manual work to clerk's deputy, prosecuting attorney, and police court judge before joining the Hamilton County Court of Common Pleas.

Two years after Bromwell Brush, investigators tallied 1,314 inmates working for companies in excess of statutory caps, confirming organized labor's persistent allegations (Ohio Bureau of Labor Statistics 1902, 453). At the same time, one agent counted “nearly three-quarters of a million dollars invested by the state and utilized for manufacturing purposes,” including nearly $500,000 in structures occupied by private firms but excluding public employees aiding operations (467). Already undercut by nonenforcement, the statute received its judicial death in 1907. When administrators finally complied with the law to reduce Baldwin Forging & Tool Co.'s convict workforce, the convict labor caps came under direct constitutional attack. Judge Thomas Bigger found the regulation “fails to provide for the equal protection of the law to all free laborers of the state.” How so? It denied equality to workers “engaged in some mechanical occupation which only employs fifty men” or fewer (Baldwin Forging & Tool Co. v. Griffith, 18 Ohio Dec. 261, 263–65 [1907]). Baldwin represented the rediscovery of a commitment to perfect labor market equality in time to reinforce penal competition. That for-profit convict labor was predicated on governmental intrusion never troubled the court. Bigger graduated as class president from University of Wooster, had a profitable law partnership, and, while a judge, remained “interested in a capitalistic way in the Iron Structure Company of Columbus,” continuing as a company director. (Smith Reference Smith1898, 68; Pugh Reference Pugh1919, 539–44).

Meanwhile, Ohioans had not heard the last of Frank Yanders. A Standard Brush convict, Charles Gigante, attempted escape in 1902 from the factory-prison enclosing him, shooting an inspector. Yanders “made a rush” for Gigante and “threw him hard against the corner of a large bench” (Stark County Democrat 1902, 5). The flash of violence momentarily disrupted the normalization of for-profit penal labor. The inspector's death, Yanders's peril, and Gigante's caged desperation refuted a world where convicts were just another “class of workingman.” Despite making ordinary goods, convicts were involuntary bodies. They labored not for accumulation or consumption but because sovereign power made them cut handles and insert bristles. Yanders's livelihood inserted him into a space where civilians and convicts, free and unfree labor, worked against one other while working together. Yanders was a brushmaker. Yet by the operation of profit motives, penal justifications, and judicial sanction, it fell to him to police those society branded as criminals.

It was not until the Great Depression that Congress enabled states to regulate convict goods. The Hawes-Cooper Act, effective in 1934, gave authority regardless of packaging (45 Stat. 1084 [1929]).Footnote ¹⁵ This legislation meant the constitutionality of regulations would not face the higher doctrinal barriers that courts applied in assessing police power regulations implicating interstate commerce; instead, constitutionality would hinge on the core police power question of whether judges would recognize labeling convict goods as a valid object of legislation. The logic of Hawkins and Raynes argued against it. They stood for the proposition that on substantive due process grounds, convict-goods disclosure laws were an invalid exercise of state police powers.Footnote ¹⁶ Raynes, in particular, had effectively answered the question in the negative, as New York's regulation of unpackaged convict goods in the general merchandise of the state raised no interstate commerce problems. When constitutional challenges followed the new federal legislation, however, the Lochner era was unwinding (Grant Reference Grant1938; Cushman Reference Cushman1998). In a shift of tone and personnel from Yanders, Ohio's Court of Appeals remarked in 1935 that the state could “prevent the products of prisoners from other states from entering the open markets of Ohio and wielding their evil influence” (Whitfield v. Ohio, 196 N.E. 164 [1935]). In 1934, the Supreme Court dismissed Alabama's suit against laws rendering its penal mills “valueless” (Alabama v. Arizona, 291 U.S. 286 [1934]). Then it upheld the federal divestment legislation (Whitfield v. Ohio, 297 U.S. 431 [1936]).Footnote ¹⁷ In 1937, the Court found Congress “as free as the states to recognize the fundamental interests of free labor” (Kentucky Whip & Collar Co. v. Illinois Cent. R.R., 299 U.S. 334, 352 [1937]).

V. The Hidden Work of Class Concepts

Gilded Age judges demonstrated a striking inability to perceive tension between convict commodities and free labor principles. State attorneys duly presented the adverse effects of carceral capitalism on free labor employment and firms lacking government contracts. Yet judges’ opinions were untroubled, their sure language registering no difficulty reconciling free labor constitutional commitments with state-subsidized coerced labor. For-profit penal regimes looked natural to these judges, while the premises of state arguments and dissents did not. An adequate explanation for this phenomenon cannot be assembled from the doctrinal bones of case law; a fuller account must delve into judges’ tacit values and normative visions that only partially overlapped with free labor ideology. Seeping into the courtroom, such forces made available to judicial cognition an exclusionary framework around lower-class Americans. In the abstract, free labor jurisprudence ensured neutrality and a private sphere of labor relations. But judges colored this universe with emphasis on the centrality of productivity, a moral scrutiny of the working class, and an empathetic view of capitalists. Such norms refracted general legal principles: hard cases became easy when values relieved theoretical tension.

Take no less a figure than Justice Stephen Field, apostle of free labor jurisprudence. From a prominent family, he accumulated wealth, influence, and connections, bringing to law a faith in individual ability and capitalist progress (Kens Reference Kens1997). Field “imbibed a powerful dose of laissez-faire” and believed “that businesses and individual workers should be allowed to reach their own economic bargains, without government interference” (Cachán Reference Cachán2002, 568). Yet when prison-labor contracts came before him as a California justice, he saw “nothing novel,” ruling that “labor and the proceeds of it belong to the State, and may be disposed of in such way as the Legislature, in its discretion, may determine” (California v. McCauley, 15 Cal. 429 [1860]; People ex rel. McCauley v. Brooks, 16 Cal. 11 [1860]). Perceived class truths and assumptions deflected Field's principles toward a position that injured free labor.

The legal “borders of belonging,” a line marking the fullest measure of equality and citizenship, retracted under pressure of such influences (Welke Reference Walker2010). Convict-goods litigation drew out this jurisprudential other-ing. Prisoners were overt exiles. As inmates, they doubly offended by breaking laws and becoming wards of the state. This dependent status violated bourgeois judicial sensibilities that expected common men to work for their living. Thus when New York convict Warren Lewis was mutilated by a cracked smelting ladle he was compelled to operate even after notifying his overseer, the Court of Appeals emphasized Lewis had “to labor as a means of reformation, and to endure imprisonment as a punishment and for the protection of the community,” such that the “injury … must be attributed to the cause which placed him in confinement” (Lewis v. New York, 96 N.Y. 71, 75 [1884]). Similarly, considering a Massachusetts convict's industrial accident, the Supreme Council determined it “inconsistent with the purpose for which prisons are established, and with the discipline which must be maintained over prisoners, that the officers should be responsible to the prisoners” for negligence (O'Hare v. Jones, 161 Mass. 391 [1894]). In Indiana, at the same moment as Porter, judges paroled convicts who accepted jobs, allowing employers to “get them very cheap,” “often for their board and clothes” (Jaspar Weekly Courier 1897, 1). Convicts’ dependency preempted judicial concern over government interference with the free contractual sphere of manual laborers. Judges ruled against free laborers and for convict labor as a matter of values and policy.

Bourgeois legal culture exposed this deep root of antipathy for lower-class Americans’ dependency in its reaction to the proliferation of urban unemployment and begging during the Gilded Age (Fox Reference Fox1999; Welke Reference Walker2010, 33). Idleness justified the exercise of punitive and disciplinary state power. Harvard Law School's Joel Bishop proclaimed that there is “nothing which a government has more clearly the right to do than to compel the lazy to work; and there is nothing more absolutely beyond its jurisdiction than to fix the price of labor” (Bishop Reference Bishop1882, 284). Treatise author Christopher Tiedeman argued that burdening the public with pauperism was a crime necessitating compensatory work (Tiedeman 1886, 118).Footnote ¹⁸ As bourgeois voices demanded action, municipalities expanded law enforcement and imposed servitude, such that criminalized paupers became convict laborers (Ringenbach Reference Ringenbach1973, 11-13; Katz Reference Katz1983, 180; Monkkonen Reference Monkkonen1984; Adler Reference Adler1994). The conversion of poor into imprisoned laborers embodied class values demanding the laboring class to labor (Rodgers Reference Rodgers1978, 223; Phelps Reference Phelps1992). This moral and legal alienation may have drawn further associational strength from cultural and racial attributions. The mass arrival of southern and eastern Europeans aroused fears of immigrants swelling the “criminal class,” becoming public dependents and fomenting labor strife (Jacobson Reference Jacobson1998). Voices of bourgeois authority reacted with calls for enlarged state action and discrimination (Walker 1896; Bingham Reference Bingham1908, 383–94; Bureau of Immigration 1913, 6–15).

The public power directed against lower-class unemployment, begging, and dependency affords elucidative context to judicial perceptions of workers. On one hand, the image of an individual workingman sweating for his livelihood presented the beggar's antipode. Yet wage laborers might band together and seek laws at the expense of capital. They might go state-begging for favorable laws, an associational specter suggesting class legislation, collectivism, and dependency on government. As New York's Commercial and Financial Chronicle argued, it was wrong “when any class” pleads for help and “worse when the State takes the application as a matter of course, considers, and accedes to it” (Commercial and Financial Chronicle 1887, 227–28). Legal elites were concerned with porous moral lines, not unstable circumstances. In his 1894 presidential address to the American Bar Association, Thomas M. Cooley alerted his contemporaries to a “new phase in our national life” represented by Jacob Coxey's mass march for unemployment aid. “When industrial armies dissolve into roving vagabonds and beggars the absurdity of their claims and pretenses makes them the subject of contempt and ridicule,” he noted, but insisted that “mischievous doctrines have taken root” requiring lawyers to “give active and effectual aid to established institutions whenever revolutionary doctrines are brought forward or when the fundamental rights … are invaded” (American Bar Association 1894, 217). As O'Brien emphasized in Hawkins, courts watched for signs of such incursions. His rhetorical question—“Why not give to the old and feeble a helping hand by legislation against the competition of the young and the strong?”—expressed a categorical hostility toward what he perceived as an increasingly common “class of laws” responding to demands for aid and redistribution—a begging no more legitimate than panhandling (Hawkins, 157 N.Y.S at 9–10).

By viewing workers in this estranged fashion, courts performed a profound act of other-ing. They distanced the US workingman. They saw him as requiring protection from his own desires for state help to get more for less work.Footnote ¹⁹ Judges regarded this lower-class workingman with a foot on each side of the line of legal belonging—sometimes normative, sometimes deviant. They located where he stood as case, context, and class values directed (Montgomery Reference Montgomery1995).

In contrast, the capitalist or entrepreneurial litigant possessed a reassuring familiarity for elite judges (Siegel Reference Siegel1991; Ernst Reference Ernst1995). His identity resonated; he spoke their language. Businessmen resembled former clients, friends, or fellow club members. A scene at the Waldorf-Astoria circa 1909 illustrated this world of class belonging. “NEW YORK LAWYERS DINE OUR JUDGES—Every Court in the City Represented at Great Gathering at the Waldorf … Judge Gray Says ‘Incalculable Harm’ Has Been Done by ‘Unjust Attacks from a High Source,” the New York Times headlined. Members of the Raynes court were “the guests of honor” at this event, as speeches defended the judiciary and sorbets arrived “in boxes that represented the pocket Code of Civil Procedure.” Justice Gray extolled the sponsoring group as a “militant body for the maintenance of professional honor” (New York Times 1909). The judges and attorneys in attendance were precisely the men who had “joined the social and cultural world of the city's bourgeoisie,” while fretting over labor power and excessive democracy (Beckert Reference Beckert2001, 311–12). With self-conscious pedigrees or narratives of self-made manhood, legal elites sat atop the crowd of white-collar men who drew prestige from mental labor—aloof from the lower class (Augst Reference Augst2003). The limited capacity of their “dominant American ideology” to grasp industrial realities fostered “an ambivalent attitude about the working man himself,” as David Montgomery wrote (Montgomery Reference Montgomery1967, 31). From their vantage, independent business initiative naturally received constitutional shelter from workers’ worst instincts. These assumptions and associations informed subjectivities mediating facts and law. Judges inhabited and constructed a constitutional political economy with capitalists as proper participants and workers as their unequal equals.

VI. Conclusion: Judging Labor

“Class and its contours are revealed most dynamically in moments and arenas of contact across class lines,” writes David Huyssen (Huyssen Reference Huyssen2014, 7). Convict-goods litigation presented a collision, arraying prisoners, labor interests, and entrepreneurs before elite judges. These cases made judicial class subjectivity legible, but similar sentiments and associations could influence broader decision making within the bounds of Lochner-era constitutionalism. Behind the myriad choices shaping judicial determinations, the question lurks of how unconscious structures and information informed impressions of fact and application of law. Sensitivity to the interaction between case particularities and judicial subjectivities can offer fuller, historically grounded accounts for the decisional paths courts followed.

Gilded Age constitutional jurisprudence turned free labor ideology into law, but abstract principles did not always align with assumptions drawn from daily life. Class values branding workingmen as suspect members of the body politic seeped into courtrooms. In contemplating convict goods, judges’ moral outlooks restructured the legal landscape, transforming remediation of penal subsidies into an attack on property and competition itself. General principles may not decide cases, but judicial commitments to a neutral state and free labor counseled sympathy for regulatory rationales. They sparked none. Only by naturalizing convict competition and erasing state privilege from consideration could judges convert coerced wares into ordinary private property and disclosure regulations into unconstitutional acts. Protection of property as the product of one's effort was a key free labor value; however, the salience of that category became possible only after such naturalization and erasure. The ideological heritage of free labor and the jurisprudential promise of a neutral state supported mitigating penal subsidy, but judges imposed a baseline that excluded workers’ experience.Footnote ²⁰ At the intersection of general principles and a class-slanted vision of labor, courts were ready to protect workers from state help—but not from state harm.