Class Jurisprudes: Free Labor Ideology and For-Profit Penal Labor in Gilded Age Courts

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For-profit penal servitude flourished in Gilded Age America. Prisoners produced consumer goods inside factory-penitentiaries for private enterprise. Regulations protecting free labor encountered litigation by businesses invested in carceral capitalism. Judges who defended “liberty of contract,” maintained “state neutrality,” and condemned “class legislation” exhibited a different approach when evaluating labeling laws. Such statutes were seemingly consonant with the free labor ideology that dominated appellate benches—they remediated markets distorted by state-created privileges. Yet courts routinely struck them down. This article argues that judges were motivated by a class-infused framework structuring interpretation of facts and aliening lower-class Americans. Judges perceived workingmen who sought remedial assistance as seeking class legislation; they saw prison inmates and products as ordinary workers and goods, not as captive manpower and state-subsidized wares. Jurisprudence bent and bowed from judges’ values and associations. This article thus reintroduces the explanatory power of class to the Lochner era through judicial subjectivity.

Original languageEnglish (US)
Pages (from-to)678-705
Number of pages28
JournalLaw and Social Inquiry
Issue number3
StatePublished - Jun 1 2018
Externally publishedYes


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