B. Peonage--The Work Contracts that Broke the Debtor's Bank

      Subsequent statutes, stemming from the Thirteenth Amendment, made peonage unconstitutional. Prior to the enactment of the Thirteenth Amendment and these statutes, peonage was the subject of a seminal New Mexico case, Jaremillo v. Romero. The case concerned, Mariana Jaremillo, a servant whose father took her away from the service of her master while she still owed $51.75 that her master previously advanced. Mariana did not appear at trial, and was rendered a judgment for twenty-six months of work, or for the amount she owed, interest, and all costs. The district court held that Mariana owed her employer, Romero, the securities on her appeal bond, the sum of $56.21, and the costs of the suit to be taxed. Furthermore, in default of the payment that she owed, she had to serve her master as a peon until debt was paid.

      Ultimately the Supreme Court of the Territory of New Mexico reversed the judgment of the lower court with costs to Romero for a lack of evidence of debt owed. The court defined “peon” and “peonage” as people indebted to their masters.

       This was the cord by which they seemed bound to their masters' service . . . . Upon entering the new service, or while continuing therein, the peon was held rigorously to fulfill his pledge and render his labor so long as his debts remained, or an additional one was incurred.

      The characteristic that separated peonage from slavery was that “[c]onsent of the parties was invariably the foundation upon which a servant became bound to service.” Peons could leave their service by paying back the debt to the master, or by working it off. A person in the condition of peonage lost:

       [n]one of his rights as a citizen by contracting with a master to serve him. He [was] under no political disqualifications; he [voted] at all elections if otherwise legally qualified; his servitude [did] not render him under our laws ineligible to the offices of the precinct, the country, the legislature or delegate in congress.

      In 1911, the U.S. Supreme Court opined on the unconstitutionality of peonage under the strictures of the Thirteenth Amendment in Bailey v. Alabama. There, Bailey was convicted under an Alabama statute for obtaining fifteen dollars under a written contract with intent to injure or defraud his employer. Bailey borrowed fifteen dollars and agreed to spend a year working off the debt. The Court found that although in the system of peonage the debtor contracted to perform the labor, this did not legalize the state's attempt to enforce the contract. In fact, the Court held the contract to be unconstitutional under the Thirteenth Amendment and it did not matter whether the debtor voluntarily or involuntarily entered into a peonage loan. The Bailey Court found that, whether entered into voluntarily or involuntarily, the classification of the loan:

       implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage, however created is compulsory service, involuntary servitude.

      It was not the employment contract that was found unconstitutional, rather the type of contract that prevented a person from enjoying the fruits of their labor --a coercive contract. The contract was tied to the debtor's labor; this was unconstitutional. The employer-employee relationship was not at issue.

      Justice Field's dissent in the Slaughter House Cases further synthesized the right to control one's labor with the Thirteenth Amendment. Justice Field wrote that the Thirteenth Amendment should prevent peonage and any other form of “compulsory service for the mere benefit or pleasure of others.” He concluded that involuntary servitude manifested itself into the effects of the type of one's labor, stating:

       [the Thirteenth Amendment] was intended to make every one born in this country a freeman, and as such to give to him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor. A prohibition to him to pursue certain callings, open to others of the same age, condition, and sex, or to reside in places where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a condition of servitude.

      Furthermore, Justice Field pronounced that any compulsion that would force one into labor, even for his own benefit “only in one direction or in one place” would be nearly as oppressive as the “compulsion that would force him to labor for the benefit or pleasure of another, and would equally constitute an element of servitude.” Following Justice Field's line of reasoning, it matters not why someone enters into the oppressive contract, but only that one is forced by their social conditions into involuntary servitude.

      The Supreme Court also wrote about the cyclical debt that is inherent in peonage. In United States v. Reynolds, G.W. Broughton acted as surety for two convicts by paying their court fines and contracting them to work in order to pay off the debt. One of the convicts was charged with violating a labor contract to work off debt to another creditor. The Court found that the labor contracts created by surety were harsher than the labor requirements of the state to repay the fines. While the convicts were technically being punished for their crime as allowed by the express terms of the Thirteenth Amendment, the terms of their labor contract were not fixed by the state. The convicts were working under constant coercion and threat of arrest, thus the system was found to be in violation of the Thirteenth Amendment. The Court wrote, “The convict is thus kept chained to an ever-turning wheel of servitude to discharge the obligation which he [h]as incurred to his surety, who has entered into an undertaking with the state, or paid money in his behalf.”

      The U.S. Court of Appeals for the Ninth Circuit in United States v. Mussry suggested that due to modern economic realities, the slaves that were the original concern of the Thirteenth Amendment are today's migrant workers and domestic servants, and that the methods of coercion have become more subtle yet equally effective. Accordingly, the court held that psychological coercion of workers is a form of threat addressable under the Thirteenth Amendment. More specifically, in Mussry, the defendants led their Indonesian servants to believe they had to work in order to repay the defendants for money spent on their travel to the United States. The defendants took advantage of the fact that their Indonesian servants were “in a strange country where they had no friends, and had nowhere to go, did not speak English, had no work permit, social security card, or identification, no passport or return airline ticket . . .” and therefore, “no means by which to seek other employment, and with insufficient funds to break their contracts . . . .” There the court held:

       [c]onduct other than the use, or threatened use, of law or physical force may, under some circumstances, have the same effect as the more traditional forms of coercion--or may even be more coercive; such conduct, therefore, may violate the 13th amendment and its enforcing statutes. The crucial factor is whether a person intends to and does coerce an individual into his service by subjugating the will of the other person. A holding in involuntary servitude occurs when an individual coerces another into his service by improper or wrongful conduct that is intended to cause, and does cause, the other person to believe that he or she has no alternative but to perform the labor.

      The Mussry test therefore finds a sufficient showing of psychological coercion to prove involuntary servitude, even in the absence of physical or threatening force.

      The early cases addressing peonage, whether voluntary or involuntary, all have a common denominator: labor contracts restricting an individual's free exercise of labor and economic independence. Professor Baher Azmy wrote of the peonage cases discussed above, contending “[t]hat the cases nevertheless advanced a central concern of the Thirteenth Amendment framers: protecting the mobility of labor and meaningful opportunities for economic independence.” In Professor Azmy's analysis of Bailey v. Alabama he wrote:

       [T]he Court was advancing a central Republican insistence that men be able to enjoy the ‘fruits of their own labor.’ This distinctive libertarian vision required that labor be mobile, and untethered to absolute control of another private person and that men must have the right to control basic life choices, including when and for whom they work. In such a free system, Republicans believed that men could partake in the continuing, natural process of progressing toward economic independence and social improvement.

      Modern day Thirteenth Amendment scholarship calls for protection of all people from arbitrary restraints of freedom. Freedom of labor aside, Thirteenth Amendment expert Professor Alexander Tsesis argues that the Amendment should protect free people's “conceptions of, and quests for, qualitatively good lives.” Under this standard, peonage suppresses “life aspirations [by] prohibiting [debtors] from entering into marital contracts, from choosing professions, and from making a host of other important life decisions.” In his call for modern Thirteenth Amendment litigation and legislation, Professor Tsesis writes “[p]rotecting essential freedoms means ending coercive practices and enabling people to make reasonable choices . . . . Using the Thirteenth Amendment for that end would be a legitimate use of governmental power to provide for the common good.”