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

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.