Federal Protection, Paternalism, and the Virtually Forgotten Prohibition of Voluntary Peonage

 
By: Aviam Soifer

 

The Peonage Abolition Act of 1867 abolished voluntary as well as involuntary servitude. Congress did this in sweeping terms, based on the Enforcement Clause of the Thirteenth Amendment, but Congress explicitly extended protections beyond those proclaimed in Section 1 of that Amendment. The historical context makes it clear that the men of the Thirty-Ninth Congress believed Congress had broad power to protect free labor on a national basis. The breadth of these new protections would, if necessary, prevail over either states’ rights or private contractual claims. The statute’s virtually unchanged current codification in 42 U.S.C. § 1994 is generally overlooked, yet it could provide civil remedies for a broad field of coercive employment situations. Resuscitating the 1867 Act might avoid some of the difficulties encountered in recent federal prosecutions for human trafficking, for example, as well as in civil efforts to protect vulnerable workers.

 

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