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65 Notre Dame L. Rev. 165 (1989-1990)
Debtor as Modern Day Peon: A Problem of Unconstitutional Conditions

handle is hein.journals/tndl65 and id is 173 raw text is: The Debtor as Modern Day Peon: A Problem of Unconstitutional Conditions Karen Gross* Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. 1 [Afll acts [and] laws... by virtue of which an attempt shall be hereafter made to establish, maintain or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void. 2 I. Introduction The concept of slavery plays a potent role in our thought and his- tory.3 We set the concept of slavery against the opposing notions of au- tonomy, freedom and equality.4 Slavery separates individuals from the benefits of their own labor.5 It represents the ultimate subordination to the other-an obliteration of the reciprocal relations of mutual recognition.6 Debtor/creditor relations present a similar break-down in reciproc- ity when individual debtors find themselves entangled in obligations * Professor of Law, New York Law School. B.A., 1974, Smith College;J.D., 1977, Temple Uni- versity School of Law. There are a number of people I would like to thank, many of whom read, commented on and criticized more versions of this piece than one can rightfully ask of colleagues and friends. Special thanks to: Douglas Boshkoff, David Carlson, David Chang, Aleta Estreicher, ArthurJacobson, Michel Rosenfeld, Edward B. Samuels, Paul Shupack and Stewart Sterk. Several New York Law School students also provided invaluable assistance, particularly Thomas J. Hierl ('89) and Cynthia Lynch ('89). Finally, I am indebted to Stephen and Zachary Cooper, both ofwhom understood what this Article meant to me and exhibited the fundamental fairness the piece is all about. 1 U.S. CONST. amend. XIII, § 1. 2 42 U.S.C. § 1994 (1988). 3 See M. FINLEY, ANCIENT SLAVERY AND MODERN IDEOLOGY (1980); M. FINLEY, ECONOMY AND SOCIETY IN ANCIENT GREECE (1953); E. FONER, NOTHING BUT FREEDOM (1983); G. HEGEL, PHENOME- NOLOGY OF SPIRIT (A. Miller trans. 1979); J. LOCKE, Two TREATISES OF GOVERNMENT (G. Laslett trans. 1960); E. MORGAN, AMERICAN SLAVERY-AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIR- GINIA (1975); 0. PATTERSON, SLAVERY AND SOCIAL DEATH: A COMPARATIVE STUDY (1982); M. TUSHNET, THE AMERICAN LAW OF SLAVERY 1810-1860 (1981); T, WIEDEMANN, GREEK AND ROMAN SLAVERY (1981). 4 For an understanding of the dichotomy between these concepts in recent jurisprudence, see Binder, Aaster) Slavey, and Emancipation, 10 CARDOZO L. REV. 1435 (1989); Cornell, Dialogic Reciproc- ity and the Critique of Employment at Will, 10 CARDOZO L. REV. 1575 (1989); Westphal, Hegel on Slavery, Independence and Liberalism, 10 CARDOZO L. REV. 1565 (1989). Slavery and freedom have not always been viewed as polar opposites. For an historical perspective, see Bush, Hegelian Slaves and the Ante- bellum South, 10 CARDOZO L. REV. 1517 (1989). 5 SeeJ. HURD, THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES (1858); Stanley, Conju- gal Bonds and Wage Labor: Rights of Contract in an Age of Emancipation, 75 J. AM. HIsT. 471 (1988). 6 Rosenfeld, Hegel and the Dialectics of Contract, 10 CARDOZO L. REV. 1199 (1989). 165