Lochner Boo Boo: Free Self-Exploitation?
posted by Frank Pasquale
American legal history has featured many battles over “freedom of contract,” often interpreted as the “right” of workers to sell their labor at any price, under any terms. Given the recent resurgence of extreme freedom of contract views, I thought this reflection on the reality TV show “Here Comes Honey Boo Boo” might interest readers:
Americans, it turns out, can’t get enough of Honey Boo Boo, mom June, and the rest of the clan . . . some of whom come with nicknames that seem straight out of a quaint novel about those colorful southerners, like Sugar Bear. That Here Comes Honey Boo Boo trafficked in and showcased the grossest of gross stereotypes about lower middle class southern white folk was deemed inconsequential. The family, led by matriarch June, was in on the joke. How could the family be exploited if they actively wanted to be exploited?
Well, something called dwarf tossing was once legal too. . . . [P]eople defended it in the usual ways. The little people are okay with it. They have a hard time getting jobs, so why not stuff them in padded suits and toss them at padded walls? It’s funny and no one is getting hurt. It’s a paying gig, right? Well, after a few years of this, most of us agreed that dwarf tossing was not so humorous, and states like New York and Florida moved to ban the popular nightclub stunt attraction.
Although the symbolic violence done to identity here is not as objectionable as real violence, it is deeply troubling and (to use an old-fashioned word) dishonorable. A libertarian may instead focus on “the lack of coercion and the pleasures of participation” in reality TV, as Mark Andrejevic observes. But Andrejevic also notes that our discomfort with exploitation has deeper roots, and broader moral bases, than utilitarian or libertarian systems focused on pleasure and coercion:
The fact of exploitation need not prevent workers from taking pleasure in their craft or in the success of a collaborative effort well done. Nor is it the case that accounts of exploitation necessarily denigrate the activities or the meanings they may have for those who participate in them rather than the social relations that underwrite expropriation and alienation. The point of a critique of exploitation is neither to disparage the pleasures of workers nor the value of the tasks being undertaken.
Instead, the critique of exploitation is just an effort to push back on the “naturalness” of the choices offered to marginalized groups. As Helaine Olen observes, “Here Comes Honey Boo Boo is an unintentional reality show documentary demonstrating what happens when the jobs go away, and there is little way to make an honest living.” The rumored $4,000-per-episode payments are far better than the minimum wage jobs common on the “wrong side of the tracks.” But why are the alternatives so poor? If the owners of capital were barely getting by, we could better accept a world where decently-paying work is disappearing. But study after study demonstrate that is not the case. The “tough choices” are made, not found; they’re the result of decades of policy.
Fighting against that policy can seem as hopeless a task as, say, becoming a celebrity. But at least in the latter case, “the experience” seems more fun, as Andrejevic noted in his 2004 book on reality TV:
Not everyone in a reality game show is able to win the grand prize-and for those who don’t, there is no guarantee that they will be able to work their way into the fringes of the entertainment industry through advertising or cameo appearances. For example, for those in the Big Brother house who don’t make it, the payment will be much less than the minimum wage: about $2 per hour for their time spent in the house.
But there is, at least according to the houseguests [in Big Brother], the possibility of having had an experience that was, as several of them put it over the course of the series, “priceless.” . . . Underlying this euphoric rhetoric of experience is the equation of surveillance with self-fulfillment: that being watched all the time serves to intensify one’s experiences, and thereby to facilitate self-growth and self-knowledge.
I’ve watched neither Big Brother nor Here Comes Honey Boo Boo, so I can’t judge whether the “self-fulfillment via surveillance” narrative works in either context. But I do think it’s time for a sober second look at the vogue of outsider-as-entertainment. However morally complex the marketization of human lives may be, some “free exchanges” are far less free than they appear on their face.
September 27, 2012 at 11:03 am
Posted in: Constitutional Law, Consumer Protection Law, Contract Law & Beyond
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Responses (23)
Shag from Brookline - September 27, 2012 at 11:36 am
It’s been about 30 minutes since this posting and no response yet from DB, the Keeper of Lochner.
Orin Kerr - September 27, 2012 at 11:50 am
Maybe I’m missing something, but I thought freedom of contract is about what the state should allow, not what people should ideally personally find appealing. Perhaps people should be watching C-SPAN 3 or the opera instead of Here Comes Honey BooBoo, but I guess I’m glad that the state doesn’t make the latter illegal. Or that it hasn’t yet, anyway.
Shag from Brookline - September 27, 2012 at 3:34 pm
Is Orin’s view libertarian enough?
Frank Pasquale - September 27, 2012 at 6:57 pm
Orin, I’ll have to look at the dwarf tossing statutes. I imagine they must be directed at the conduct (the dwarf toss), not the communication or viewing of it. Especially after the “crush video” case, I’d think the latter would be protected.
Of course, it’s much easier to identify a dwarf (or ban person-tossing) than, say, an exploitative show that potentially harms its child star. There is a range of opinion on what potentially constitutes forbidden child labor, child abuse, etc:
http://www-bcf.usc.edu/~idjlaw/PDF/18-2/18-2%20Cianci.pdf
http://www.usatoday.com/news/opinion/forum/2010-06-26-levey25_ST_N.htm
http://www.thedailybeast.com/newsweek/2009/10/21/what-makes-a-bad-parent.html
http://today.msnbc.msn.com/id/36510868/ns/today-entertainment/t/no-legal-action-jon-kate-child-labor-probe/#.UGTZhCqF_vg
Shag from Brookline - September 28, 2012 at 8:30 am
What if a state fails to address an immoral (to many) freedom of contract issue, e.g., chattel slavery? I wonder if there were any persuasive libertarian abolitionists back then? (Lysander Spooner may come to mind, but he firmly believed that slavery was unconstitutional.)
jh - September 29, 2012 at 1:08 pm
In what way is chattel slavery a freedom of contract issue? I’m not aware of anyone who argued that slaves consented to be treated as such.
Spooner believed that slavery was unconstitutional because it was a violation of natural rights and that no provision of the Constitution explicitly authorized the practice. Of course, he also believed the Constitution itself was a violation of natural rights.
Shag from Brookline - September 29, 2012 at 2:34 pm
jh may recall Justice Taney’s decision in Dred Scott about the status of slaves as property and having virtually no rights. Slaves were not people and their consent was not required for freedom of contract between the buyer and seller of such property, at least in the slave states and of course in non-slave states to the extent the Constitution’s fugitive non-person (aka slave) provision provided protection to the slaveowner. Lysander Spooner wrote two extensive papers taking the position that slavery was unconstitutional and jh’s two short sentences fail to do them justice. Wendell Phillips challenged Spooner’s position in great detail.
jh - September 29, 2012 at 4:50 pm
While I appreciate your permission, I do in fact recall Justice Taney’s decision in Dred Scott. That’s the one where the court held that because blacks could never become citizens of the United States Scott did not have standing to sue. Also, Taney’s dicta was much more about interfering with the property rights of the slave owner than anything having to do with the freedom of contract. It’s also one of the most poorly reasoned and disingenuous decisions I’ve ever read.
Of course, even if I accept your premise your conclusion still doesn’t follow. The freedom of contract between the buyer and seller wasn’t the problem. The problem was that people could buy and sell other people. The problem was that slaves had virtually no rights. Had the rights of slaves been recognized the freedom of contract between the buyer and seller would have been irrelevant because neither one would have been able to possess the “commodity” to begin with. You don’t end slavery by prohibiting the slave trade. You end slavery by giving blacks all the privleges and immunities that people in a free republic deserve.
Of course my two short sentances failed to do Spooner justice. But they were still better than your parenthetical. Spooner believed that slavery was unconstitutional because it was unjust, not unjust because it was unconstitutional. I’m not sure what is controversial about that statement.
Shag from Brookline - September 29, 2012 at 8:14 pm
jh’s:
” Had the rights of slaves been recognized the freedom of contract between the buyer and seller would have been irrelevant because neither one would have been able to possess the “commodity” to begin with. You don’t end slavery by prohibiting the slave trade. You end slavery by giving blacks all the privleges and immunities that people in a free republic deserve.”
seems to recognize that the rights of slaves was not then ]pre-Civil War Amendments] recognized so that the freedom of contract between the buyer and seller regarding property in the form of chattel slavery WERE relevant.
While ending/prohibiting the slave trade would not end slavery, it seems to have taken the Civil War with its 700,000 deaths PLUS the 13th, 14th and 15th Amendments which de jure gave blacks rights (but not quite de facto).
As to Spooner, he is claimed as a libertarian by present day libertarians. But is natural law a foundational part of libertarianism? Spooner’s views changed after Dred Scott and then John Brown’s Raid. It is clear from the two extensive papers by Lysander that he made the case on slavery as unconstitutional based upon the text of the Constitution. He also consider slavery unjust, but he was not an abolitionist.
Yes, Dred Scott was a dreadful decision. But there are originalists who believe that the decision satisfied originalism even though they believe slavery was immoral. Some try to read natural law into the Constitution, but that view has not been very successful as a theory of constitutional interpretation/construction.
jh - September 29, 2012 at 9:21 pm
No, there was no problem with the freedom of contract. The problem was with the unnatural treatment of property rights. The property right of black slaves in themselves was not recognized. The non-existant property right of the slave owner in the slave was. When the background is that messed up nothing is going to work right. But it wasn’t the freedom of contract that failed. The problem was precisely that the rights of slaves weren’t recognized.
There are several branches of libertariansism but natural rights is certainly one of them. Dred Scott was in 1857, Haper’s Ferry in 1859. The Unconstitutionality of Slavery was originally written in 1845 and a Defense of Fugative Slaves in 1850. His positions in the 1860s don’t seem much different. And I really don’t understand what you mean by saying that Spooner considered slavery unconstitutional but wasn’t an abolitionist. He even managed to convince Frederick Douglas to take his side.
Where are the originalists who believe Dred Scott was decided correctly? If there are any they must have stopped reading after Taney’s decision because the dissents completely expose the weakness of Taney’s arguments (and are originalist themselves).
I really don’t understand what point you are trying to make. If a society doesn’t have the decency to prohibit the practice of slavery why would they be expected to prohibit the slave trade? That’s not a failure of the freedom of contract. That’s a failure of the society.
Shag from Brookline - September 30, 2012 at 8:41 am
Freedom of contract had – and still has – much to do with recognizing property rights. Pre-Civil War and its Amendments, property rights in slaves, i.e., chattel slavery, were well recognized in the slave states, especially with the Dred Scott and other Taney Court decisions. The dissents in Dred Scott were well written but what carried the day was Taney’s opinion supported by six (6) additional Justices (with personal connections to slavery). While you and I can agree here in 2012 that slavery was the unnatural treatment of property rights, that was not the law of the land pre-Civil War and its Amendments when the property right of the slave owner was existent, not non-existent. Because rights of slaves were not then recognized, they were chattels, subject to purchase and sale between sellers and buyers, who were free to contract for their sale, barter, exchange, rental, etc. Freedom of contract succeeded for buyers, sellers, etc, of chattel slaves in the slaves states (and in non-slave states pursuant to the Constitution’s fugitive “person” provision).
I seriously question the existence of a natural rights branch of libertarianism; perhaps it is a twig at most.
While Spooner may have convinced Frederick Douglass that slavery was unconstitutional, he failed to convince William Lloyd Garrison, a prime leader of abolitionism, nor Wendell Phillips who in detail challenged Spooner’s position. And Spooner’s views changed to the point that he came up with a plan to spring John Brown from jail that would have involved kidnapping Gov. Wise of VA. The fact that Douglass, an avowed abolitionist and former slave, was convinced by Spooner that slavery was unconstitutional does not in any way prove that Spooner was an abolitionist; in any event, he was not active as an abolitionist.
As to Dred Scott and originalism, I’ll check through my pile to locate a link to a recent program on Dred Scott that includes some current day scholars who take the position that the decision in Dred Scott was in accord with the Constitution at the time. While dissents are interesting, such as in Plessy v. Ferguson, it is the decision that is the supreme law of the land until reversed (by constitutional amendment or a later Supreme Court interpretation/construction of the Constitution).
As to the dissenters in Dred Scott being originalists themselves, that’s a subject for another time, keeping in mind that the term originalism is of more recent vintage as a legal theory.
If you don’t understand the point I was trying to make (@ #5), I suggest you go back in the thread to perhaps understand. I have never suggested that chattel or any other type of slavery was decent. It was the revered Founders, Framers, Ratifiers who provided for slavery in the Constitution without employing the words slave, slaves and slavery (Spooner to the contrary). Slavery was unjust. The society that supported slavery did fail, with the heavy, dreadful results of the Civil War.
Those really interested in the evils of slavery under the Constitution should read just about anything written by Paul Finkelman on the subject.
jh - September 30, 2012 at 9:31 am
“Because rights of slaves were not then recognized, they were chattels, subject to purchase and sale between sellers and buyers, who were free to contract for their sale, barter, exchange, rental, etc. Freedom of contract succeeded for buyers, sellers, etc, of chattel slaves in the slaves states (and in non-slave states pursuant to the Constitution’s fugitive “person” provision).”
This is mostly correct (fugitive slave laws were based on the property rights of the owner, not contract rights). But this just shows that the underlying problem wasn’t with the freedom of contract. It was the lack of rights for the slaves.
What does whether or not Spooner convinced Garrison have to do with whether or not Spooner was an abolitionist? And how does hatching a plot to kidnap a govenor to ransom for John Brown, even if unsuccessful, show that Spooner was not an active abolitionist? Seems pretty involved to me.
I’m curious to hear what you consider the foundational parts of libertarianism.
Shag from Brookline - September 30, 2012 at 1:13 pm
jh apparently refuses to accept that property rights have a strong connection to contractual rights, including freedom of contract. Perhaps without freedom of contract, slavery might not long have endured, as commerce in slaves was most important in maintaining the economics of slavery.
jh provides nothing to demonstrate that Spooner was an abolitionist, as least an active one, other than convincing Douglass of Spooner’s view that slavery was unconstitutional, i.e., that the text of the Constitution did not provide for support of slavery. Perhaps jh is not aware of the role of Garrison and Phillips as strong, active abolitionists; evidence of Spooner in this regard, at least prior to Dred Scott and John Brown’s Raid, is slim at best.
At least for current day libertarianism, in my view its foundational parts are selfishness and greed, along the lines of Ayn Rand’s philosophy.
Shag from Brookline - September 30, 2012 at 2:44 pm
Here’s a link to a 150th Anniversary Symposium on Dred Scott:
http://cklawreview.com/issues/past/vol-82-no-1/
When my reading ability clears up from an eye blood blister, I’ll search for Dred Scott originalists in the various articles. By the way, the editors are Paul Finkelman, Jack Balkin and Sandy Levinson.
Shag from Brookline - October 1, 2012 at 2:40 pm
On the subject of libertarianism, at the VC Blog today Ilya Somin provides a link to a paper “”Understanding Libertarian Morality: The psychological root of an individualist ideology” by Ravi Iyer et al. I have downloaded and printed this paper to read after my eyesight improves. It has 30 pages of text (double spaced) and 29 pages of references (with 7 of Ayn Rand’s writings), charts, exhibits, etc. The word “Morality” in the title is intriguing.
Joe - October 1, 2012 at 6:02 pm
“In what way is chattel slavery a freedom of contract issue? I’m not aware of anyone who argued that slaves consented to be treated as such.”
I don’t quite follow. Yes, they didn’t consent. They had no freedom of contract. Many people thought labor should be a matter of free contract. Slavery is thus a “freedom of contract issue” among other things.
Followed is a lot of verbiage back/forth, but I’m not quite seeing the problem.
Joe - October 1, 2012 at 6:03 pm
Only a near 1:1 ratio of text to references? Slacker!
jh - October 1, 2012 at 10:50 pm
jh is well aware that Garrison and Phillips were active abolitionists. jh is also aware that this fact has absolutely nothing to do with whether or not Spooner was also an abolutionist. jh is also unclear on how Spooner was not an active abolitionist until after Dred Scott and Harper’s Ferry when three of his major anti-slavery works were published by 1850. Heck, Phillips even published a critique of Spooner’s work in 1847. That certainly suggests that he was active enough for the Garrisonians to take notice. jh is really unclear why Shag is so invested in proving that Spooner wasn’t an abolitionist.
jh is not unaware of the connection between property rights and contract rights. jh is just able to understand where the real failure was. Correcting the failure in property rights would have immediately ended slavery, including any freedom of contract issues (and the bigger problem was the lack of the slaves’ freedom of contract). Ending the freedom of whites to contract for the sale of slaves would not have immediately ended slavery anymore than ending the overseas slave trade did. I’m sure it would have had an impact eventually but why wait that long when there is a sure-fire method right in front of you?
Shag from Brookline - October 2, 2012 at 1:14 am
jh asks [in the present tense]s:
” … but why wait that long when there is a sure-fire method right in front of you?”
Is his answer a civil war, constitutional amendments, or both, or something else that is a “sure-fire method” of ending slavery? Surely Spooner’s papers on the unconstitutionality of slavery were not a “sure-fire method,” at least according to the Supreme Court.
I’m not trying to prove that Spooner wasn’t an abolitionist. He hated slavery. But he went in a different direction from that of Garrison and Phillips, who clearly were much more active in the abolitionist movement not only with their extensive writings but with their many speeches, making them subject to death threats from slave interests. Garrison and Phillips pushed for disunion as they were convinced that slavery was supported by the Constitution, despite Spooner’s views.
jh - October 2, 2012 at 10:47 am
Shag says:
“He also consider slavery unjust, but he was not an abolitionist.
The fact that Douglass, an avowed abolitionist and former slave, was convinced by Spooner that slavery was unconstitutional does not in any way prove that Spooner was an abolitionist; in any event, he was not active as an abolitionist.
jh provides nothing to demonstrate that Spooner was an abolitionist”
Then Shag says:
“I’m not trying to prove that Spooner wasn’t an abolitionist.”
Perhaps Shag should figure out what point he is trying to make before starting in a discussion. And jh should remember that it is pointless to discuss things with people who don’t have a point. Don’t strain your eye on my account – I won’t be back.
Shag from Brookline - October 2, 2012 at 11:55 am
So jh, unlike Arnold, “won’t be back,” to let us know about that “sure-fire method” to end slavery. Yes, jh will be back, to continue referring to himself in the third person, for how can jh leave us hanging on that “sure-fire method” to end slavery, like perhaps 700,000 dead resulting from the Civil War? The point was and has been and still is that “freedom of contract” enabled slavery pre-Civil War and its Amendments.
Wonks Anonymous - October 8, 2012 at 3:57 pm
David Bernstein responds here:
http://www.volokh.com/2012/10/07/what-does-lochner-have-to-do-with-here-comes-honey-boo-boo/
Seth Edenbaum - October 14, 2012 at 12:25 pm
I’m not sure what’s more offensive, the moralizing paternalism, liberal authoritarianism, of earnest bookmen or the barbarism of libertarian fundamentalists: the cult of puritanism or of the frontier.
The socio-economic relations in any country are largely the result of policies which are the products of and which affect culture. But changing policies and changing the results of policy by fiat are two very different things. The author of this post understands I hope that representative government and the rule of law are procedural, not ideational. Democracy is due process not one man’s opinion of due result.
But we do not live in the anarchist non-states of America. If the people and their representatives choose to tax capital gains at 50% and offer free public education through graduate school, those decisions do not in any way question the second law of thermodynamics. Society is an artificial construction. It’s art not science.
In this case laws against child abuse are enough. The decision concerns whether or not they apply. It does not foster maturity among the populace to treat the populace like children. We can allow dwarf tossing, prostitution and public humiliation for cash as we allow the existence of the Nazi party, the KKK, murder ballads, narcocorridos and gangta rap, not because actions are like words or because of some spurious Platonic model of the state, but because at some point regulation becomes counterproductive. We need a public, educated and engaged. We do not need more scholars playing preacher and more lawyers playing John Wayne.
Grow the f*ck up.
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